3 ^^^^J^^^ ^ Digitized by the Internet Archive in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/englishconstitutionOOcrearich THE RISE AND PROGRESS OF THE ENGLISH CONSTITUTION, THE RISE AND PROGRESS THE ENGLISH CONSTITUTION E. S. CREASY, M.A., BA KRISTER- AT-L AW ; PROFESSOR OF HISTORY IN UNIVERSITr COLLEGE, LONDON ; LATE FELLOW OF KINGS COLLEGE, CAMBRIDGE. LONDON: ^' RICHARD BENTLEY, NEW BURLINGTON STREET, PUBLISHER IN ORDINARY TO HER MAJESTY. M.DCCC.LIII. i LONDON : PRINTED BY WOODFALL AND KINDER, ANGEL COURT, 6KINNBR STREET. PREFACE. In 1848 I prepared and published a small pamphlet, called " The Text-Book of the Constitution," in which "were arranged the texts of Magna Carta, the Petition of Right, and the Bill of Rights, with historical comments, and with remarks on the People's Charter and other poh- tical topics of that yeai*. Independently of its politics, that pamphlet has been found useful as an historical compilation; but the extent to which its latter pages were occupied witli poUtical discussions, made me un- wilhng either to employ it myself or to see it employed by others in education. I do not wish to disavow any of the opinions which I expressed in it, but a teacher of History has no right to avail liimself of the position in wliich he stands towards his pupils, for the pui-pose of training up broods of young Tories, Whigs, or Radicals, according to his own party predilections. I therefore intended to prepare an edition of that little treatise, which should deal only with the Past, and in which the spirit of party pamphlet should be entirely got rid of. But VI PREFACE. the work has grown under the pen ; and I have been led to make additions, omissions, and re- arrangements, which have rendered it a distinct book, and one to which the name it now bears is much more applicable than the title of its predecessor would have been. Except in the earher part of the volume, I have en- tirely avoided ecclesiastical topics. I have found it im- possible to deal with them, without minghng in some of the hottest controversies of the present day. My obligations to Guizot, Palgrave, Kemble, Latham, Worsaae, Bowyer, Warren, Macculloch, Forsyth, Pashley, and, above all, to Hallam, are self-apparent in these pages. Wherever I have found truths well stated by others, I have preferred useful compilation to worthless novelty. E. S. CEEASY. University College, London. October 13, 1853. CONTENTS, CHAPTER I. Page Meaning of the term '•' English Constitution." — Is there an English Constitution ? — Primary Principles of the Consti- tution. — Magna Carta, the Petition of Right, and the Bill of Rights forms its Code.-i— -General Ignorance of these Sta- tutes. — Scope of the present Work. — Constitutional Law of Progress. — How to learn the Constitution. — Classification of Constitutional Functions. — Importance of studying lead- ing Scenes in History. — History of the Elements of our Nation, why material. — Exclusion of Party Politics 1 CHAPTER II. Our Constitution coeval with our Nationality. — Thirteenth Century the date when each commences. — The Four Ele- ments of our Nation. — The Saxon, i. e. the Germanic, the chief Element. — Parts of the Continent whence our Ger- manic Ancestors came. — Their Institutions, Political, So- cial, and Domestic. — Date of the Saxon Immigrations into this Island. — What Population did they find here ? — The British Element of our Nation, Romanized Celtic. — Primary Character and Institutions of the British Celts. — Efiect of Roman Conquests. — How far did the Saxons exterminate or blend with the Britons ? — Evidence of Language . . 12 Vm CONTENTS. CHAPTER III. rage Conversion of the Anglo-Saxons. — Its civilizing Effects. — Thej occupy the Roman Towns. — England attacked by the Danes. — The third, i. e. the Danish, Element of our Nation. Danish Institutions and Customs. — Ferocity of their Attack on England. — E.xtent of their chief Settlements here. — Evidence of Danish Names of Places and Persons. — Alfred rescues Saxon England from them. — The Danish blends with the Saxon Element. — Fusion of the first three Ele- ments of our Nation 33 CHAPTER IV. Anglo-Saxon Institutions. — Classes of the Population. — Thralls, Ceorls, Thanes. — Townships. — Hundreds. — Tyth- ings. — Frankpledge. — Lords — The Were. — The Socmen. — The Towns. — TheWitenagemote. — The King. — The Bishops. — The Clergy — The Poor. — Deterioration of the Saxon Po- lity before the Conquest 42 CHAPTER V. The Norman Element. — Different from the Danish. — Rolf the Ganger's Conquest of Neustria. — State of Civilization in France. — Characteristics of the Normans. — Their brilliant Qualities. — Their Oppression of the Peasantry . . . r)G CHAPTER VI. The Norman Conquest. — Extent of the Changes which it caused. — Numerical Account of the Norman and Anglo- Saxon Populations. — Amount of Loss of Life caused by the Conquest. — Probable Number of the Normans and other New-comers from Continental Europe. — Did the Popula- tion increase in the Century and a-half preceding the sign- ing of Magna Carta ?— The Miseries of Stephen's Reign. — Period of Tranquillity under Henry II.— Probable Amount of Population in 1215 CONTENTS. IX CHAPTER VII. Page General View of the Feudal System. — Meaning of the terms "Feudal" and «Allodial."—General Sketch of the Progress of a Germanic Settlement in a Roman Province. — Causes of Feudalism. — Progress of " Subinfeudation." — Aristocratic Character of Feudalism. — Its Oppressiveness to the Com- monalty. — Its brighter Features 73 CHAPTER VIII. Distinction between Feudalism as developed in England, and Feudalism as generally developed on the Continent. — How far did it exist among the Saxons before the Conquest ; how far among the Normans? — Character of William the Conqueror. — Feudalism which he introduced. — His Checks on the Baronial Power. — Great authority of the First An- glo-Norman Kings 84 CHAPTER IX. State of the Mass of the English Nation at the Commence- ment of the Thirteenth Century. — The Peasantry. — Villein- age : its Incidents : its probable Origin and Extent ; and the Modes of becoming emancipated from it. — State of the Lower Classes in Towns. — State of the Middle and Upper Classes. — The various Tenures of Land. — State of the Bo- roughs after the Conquest. — Their partial Recovery of their Liberties 92 CHAPTER X. Evil Character of King .John. — Its Importance to our His- tory. — Fortunate Loss of Normandy. — John's Quarrels with his Clergy and with the Pope. — The Interdict. — The Ex- communication. — John's abject Submission to the Pope. — Return of Archbishop Langton to England. — His patriotic Character. — He checks the King. — King's Oath to redress Wrongs. — His repeated Acts of Tyranny. — Council of the X CONTENTS. Page Barons. — Archbishop Langton produces the Charter of Henry I. — Nature of this Charter, and its Value. — Demands of the Barons on the King. — Vain Intervention of the Pope. — Firmness of Archbishop Langton. — Strength of the Na- tional Party. — Runnymede. — Articuli Cartas. — The Grant of the Great Charter 106 CHAPTER XL Magna Carta. — General Distribution of its Clauses. — Text of the Great Charter, and Commenis 128 CHAPTER XII. Renewals of the Great Charter in Henry the Third's Reign. The Charter as confirmed by Edward I., and subsequent Kings. — The Statute Confirmatio Cartarum. — All Taxation without consent of Parliament made illegal . . . 165 CHAPTER XIII. The Principles of the Constitution traced in the Charter. — Kingship in England. — Its Powers and Limitations. — Par- liament. — Origin of the House of Commons. — Of the two Branches of the House of Commons. — Trial by Jury. — Writ of Habeas Corpus. — Origin and Value of these Constitu- tional Rights 178 CHAPTER XIV. Progress of the Constitution during the Reigns of the ten last Plantagenet Kings. — Growing Importance of the House of Commons. — Qualifications of Members and Electors. — Pre- rogatives of the Crown. — State of the Population. — Jurors. —Boroughs. — Number of Electors 230 CHAPTER XV. State of the Constitution under the Tudors. — Revival of spirit in the House of Commons. — Weak but arbitrary Character of the first two Stuart Kings. — Charles I. sincere, but an Aggressor on the Constitution.—The Petition of Right . 265 •^ CONTENTS. XI CHAPTER XVI. Page The Restoration. — Affection of the English Nation for their old Institutions. — Effects of the Period of Revolution. — Military Tenures abolished. — Habeas Corpus Act. — Custom of Fining Jurors for their Verdicts pronounced Illegal.— Revolution of 1688.— The Bill of Rights.— The Act of Settlement. — Kingship in England since the Revo- lution. — Its Limitations. — Its enduring Value. — House of Lords. — Attempt to check Creation of Peers. — Benefits of the House of Peers to the Country. — House of Commons. — Borough Members. — Rotten Boroughs. — Reform Bill . 280 CHAPTER XVII. Present Population of England, and number of Parliamen- tary Electors. — Property and Education considered as ele- ments of Representative System. — Qualification of Jurors. — Magistrates and Oflicers of various kinds, how appointed. — Local Self-government. — Municipal Reform. — Influence of Public Opinion. — Rights of Free Discussion, and Liberty of Press 321 THE EISE AND PEOGEESS OP THE ENGLISH CONSTITUTION. CHAPTER I. Meaning of the term "English Constitution." — Is there an English Constitution ? — Primary Principles of the Constitution. — Magna Carta, the Petition of Right, and the Bill of Rights form its Code. — General Ignorance of these Statutes. — Scope of the present Work. — Constitutional Law of Progress. — How to learn the Con- stitution. — Classification of Constitutional Functions. — Importance of studying leading Scenes in History. — History of the Elements of our Nation, why material. — Exclusion of Party Politics. Whatever may be thought of the execution of this work, I have little fear of being censured, so far as regards the design. An attempt to arrange in a simple form, and to place before the pubUc, in a few easily accessible pages, the great principles of our Constitution, — to prove their antiquity, to illustrate their development, and to point out their enduring value, will surely, in times like the pre- sent, not be discouraged as blamable ; and, in the strange dearth of really useful treatises on this important topic, it will hardly be slighted as superfluous. It is, in the first place, necessary to have a clear under- B 2 RISE A>?D PROGRESS Standing of what we mean when we talk about "the English Constitution." Few terms in our language have been more laxly employed : and so uncertain is the know- ledge, so very vague are the ideas which many have of the constitution of their country, that when the opponent of a particular measure or a particular system of policy cries out that it is unconstitutional, the complaint gene- rally means little more than that the matter so denounced is something which the speaker dislikes. Still the term, " the English Constitution," is suscep- tible of full and accurate explanation ; though it may not be easy to set it lucidly forth, without first investigating the archaeology of our history, rather more deeply than may suit hasty talkers and superficial tliinkers, but with no larger expenditure of time and labour than every member of a great and free State ought gladly to bestow, in order that he may rightly comprehend and appreciate the polity and the laws, in which, and hy which he lives, and acts, and has his civic being. Some furious Jacobins, at the close of the last century, used to clamour that there was no such thing as the Eng- lish Constitution, because it could not be produced in full written form, like that of the United States, or like those with which Sieyes crammed the pigeon-holes of his bureau, to suit the varying phases of the first years of the French Kevolution. And, as the trade of constitution-monger- ing has again been thriving on the Continent, perhaps some, who have seen other nations providing themselves with elaborate formulas of social and poHtical rights and processes, in all the paraphernalia of article, section, supplement, and proviso, while England is content with her old statute-book, and old traditional government and laws,— may think that the term "English Constitution" OF THE CONSTITUTION. 3 means nothing beyond the no-meaning of so designating the actual state of things in the country at the particular time when the phrase is used, and which, of course, is liable to vary with the varying hour. In order to meet these cavils, there is no occasion to resort to the strange dogma of Burke, that our ancestors, at the Kevolution of 1688, bound, and had a right to bind, both themselves and their posterity to perpetual ad- herence to the exact order of things then established : nor need we rely solely on the eulogies, which foreign as well as native writers, a hundred years ago, used to heap upon our system of government. Those panegyrics, whether exaggerated or not, were to a great extent supported by reasonings and comparisons, which are now wholly inap- pHcable. But, without propping his poHtical creed on them, an impartial and earnest investigator may still remain convinced that England has a constitution, and that there is ample cause why she should cherish it. And by this it is meant, that he will recognise and admire, in the history, the laws, and the institutions of England, certain great leading principles, and fundamental political rules, which have existed from the earliest periods of our nationality down to the present time ; expanding and adapting themselves to the progress of society and civili- zation ; advancing and varying in development, but still essentially the same in substance and in spirit. These great primeval and enduring principles are the principles of the EngUsh Constitution. And we are not obliged to learn them from imperfect evidences or pre- carious speculations ; for they are imperishably recorded in the Great Charter, and in the Charters and Statutes con- nected with and confinnatory of Magna Carta. In Magna Carta itself, that is to say, in a solemn instrument deh- B 2 4 RISE AND PROGRESS berately agreed on by tlie king, the prelates, the great barons, the gentry, the burghers, the yeomanry, and all the freemen of the realm, at an epoch which we have a right to consider the commencement of our nationality, and in the statute entitled Confirmatio Cartarum^ which is to be read as a supplement to Magna Carta, we can trace these great principles, some in the germ, some more fully revealed. And thus, at the very dawn of the history of the present English nation, we behold the foundations of our great political institutions imperish- ably laid. These great primeval and enduring principles of our Constitution are as follows : — The government of the country by an hereditary sove- reign, ruling with limited powers, and bound to summon and consult a parliament, comprising hereditary peers and elective representatives of the commons. That the subject's money shall not be taken by the sovereign, unless with the subject's consent, expressed by his representatives in parliament. That no man be arbitrarily fined or imprisoned, or in any way punished except after a lawful trial. Trial by jury. That justice shall not be sold or delayed. These great constitutional principles can all be proved, either by express terms, or by fair implication, from Magna Carta, and its above-mentioned supplement. Their vigorous development was aided and attested in many subsequent statutes, especially in the Petition of Right and the Bill of Rights ; in each of which the EngHsh nation, at a solemn crisis, solemnly declared its rights, and solemnly acknowledged its obhgations : — two enactments which deserve to be cited, not as ordinary laws, but as d OF THE CONSTITUTION. 5 constitutional compacts, and to be classed as such with the Great Charter, of which they are the confirmers and the exponents. Lord Chatham called these three " The Bible of the Enghsh Constitution," to which appeal is to be made on every grave poUtical question. The great statesman's advice is still sound. It deserves to be considered by subjects as well as by princes; by popular leaders without the walls of parliament, as well as by ministers within them. And, indeed, it is not only to those who are prominently engaged in pohtical struggles, but to all who would qualify themselves for doing their duty to their countiy, — to all who are conscious of what Arnold has called '* the highest earthly desire of the ripened mind, the desire of taking an active share in the great work of government," — that these texts of our Constitution ought to be the objects of peculiar study, in order that, first, we may learn from them what our Constitution really is, and whether it deserves to be earnestly upheld by us as a national bless- ing, or ought t9/be looked on as an effete incumbrance, whose euthanasia we should strive to accelerate; and, secondly, that when we have convinced ourselves of its merit, we may be able to test proposed measures by their conformity with or hostility to its principles. It is painfully strtuige to observe how few even of well- educated Englishmen possess, or have so much as ever read these three Great Statutes. Magna Carta, in par- ticulai', is on everybody's lips but in nobody's hands ; and though perpetually talked of, is generally talked of in utter ignorance of its contents, beyond a vague impression that it prohibits arbitrary taxation and arbitrary imprison- 6 RISE AND PROGRESS ment, and that it is in favour of Trial by Jury. The original charter of King John is not even printed in the common editions of the statutes. With respect to the two other great laws which Lord Chatham ranks with Magna Carta, namely, the Petition of Eight, and the Bill of Rights, it may safely he asserted that hundreds have never read a hne of them, who would be justly indignant if we were to doubt their familiarity with the Attic legis- lation of Cleisthenes, or with the Eoman reform bills of TerentiJlus and Licinius Stole. The texts of Magna Carta, the Petition of Right, and the Bill of Rights will here be laid before the reader ; and I have endeavoured to make the perusal of them more interesting and more useful, by not only giving explana- tions of the legal and archseological terms which they contain, but by also adding historical introductions and comments. Unless this is done, the spirit of the Consti- tution cannot be perceived; and, if the letter of the Constitution deserves admiration, still more does its spirit. It is only thus that some of its essential charac- teristics can be discerned; and, by studying it thus, the more we convince ourselves of its reaUty and its antiquity, the more confident shall we become of its future durability. For, the same earnest and long-con- tinued studies which teach the historical inquirer to believe in and to venerate the great principles of the English Constitution, also display to him the workings of its normal law of progress, its plastic power of self- amelioration and expansion, through which we may hope to see all growing exigencies of modern times suppUed, not only without danger, but with vigorous corroboration to the fundamental institutions of ages past. I OF THE CONSTITUTION. 7 The student of the English Constitution ought not only to he familiar with the chief portions of Magna Carta, the Petition of Right, and the Bill of Eights ; hut he ought also to have a clear knowledge and an appre- ciative feeling of the circumstances under which each of the three primary laws came into existence ; of the imme- diate purposes for which each was framed ; and of the enduring general benefit to the nation which each was also designed to secure. He ought to trace and examine the development of the great principles which these statutes embody; and his especial attention should be directed to such other statutes as confirm, extend, or ex- plain the leading enactments. He ought also to watch how far the constitutional rights, which these laws sanc- tion and provide, have been extended to all members of the community. This is to be carefully noted, not only in respect of the protections from positive wrong, which the Constitution affords, but also in respect of the other benefits which it offers. We must observe what classes and what numbers of the population have from time to time taken part in the active functions of the government of the State. And it is always to be remem- bered that the active functions of political government include not merely such rights as the right of sitting in parhament, the right of voting for members of parlia- ment, and the like, but they include such rights as the right of eligibiUty to any magistracy or executive office, and the right of electing others thereto ; they include, also, the right of taking any part in criminal or civil trials, as, for example, the right of acting as jurymen. I follow here the greatest of all wiiters on the subject of human political institutions. Aristotle classifies the con- stitutional functions of a member of a State under these 8 RISE AND PROGRESS three heads: Ist, the Deliberative; gnclly, the Magis- terial ; Srdly, the Judicial.* I have endeavoured to compile and arrange in these pages information respecting the origin, the character, and the progress of our Constitution, with regard to all the points of view, the importance of which I have been indicating. I am far from venturing, on this account, to call this httle volume a complete liistory of the English Constitution, but it may aid the student as an introduction to other more learned and elaborate treatises ; and, perhaps, even the well-informed politician may some- times find it useful as a manual for immediate reference. I believe, indeed, that with regard to Constitutional history, as well as with regard to general history, much has been done to secure a present knowledge and a permanent recollection, when the intellect has once thoroughly comprehended and the imagination has once vividly reproduced a small but well- chosen number of leading scenes in the long and complicated drama. Such scenes abide clearly in the memory when the general mass of the story becomes dim : and, when they so abide in the memory, they are valuable, not only by reason of the intrinsic importance of their own immediate topics, but because they serve us as landmarks for an improved survey of the whole subject. They are also most bene- * Etrrt bfj Tpia fjiopia Ta>v iroki- rovrav iv fiev ti to ^ovXevofievov Tficou Traq-cov, irepi cov del Beaypelu Trepl rav Kotv5>v. Acvrepov 8e TOP (TTTovdalov vop.o6eTr)v eKacrTf} to ircpX tcls dpxas' tovto Se eaTiv t6 a-vfi(f)epov. av ixovTojv KoXcoSy as del koI tIvcov elvai Kvpias' Kol avayKt] Tf)u noXiTeiau ex^i-v KoXo)?, Troiav tlvo. Set yiyveo-dai Trjv al- Acai Tcis TToXiTcias dWrjXav 8ia- peaiv avTav. TpiTOV de ti to (f)ep€iv, iv TOt 8iaP Tpioiv C. 14. OF THE CONSTITUTION. 9 ficial in enabling us to realize the utility of the incidental information as to particular passages of history, which our other studies, and even our desultory reading for mere amusement's sake, continually throw in our way. He who has the knowledge of certain great leading historical events firmly implanted in his mind, has in his mind a set of bases, between and round which he naturally fixes and groups all the historical facts that he reads or hears of. His memory is thus continually refreshed. Each piece of new information awakens in him intelligible and connected ideas : and he addresses himself to the acquisition of fresh facts, or to the consideration of rival theories, with far higher powers and advantages, than can be possessed by the man, who may, indeed, have read much more, but who has read without selection and system ; and whose mind, as to history, must (to boiTow a phrase of Dryden) be only full of " a confused mass of thoughts, tumbling over one another in the dark." Attention is; therefore, here drawn to the acquisi- tion of the Great Charter, the passing of the Petition of Eight, and that of the Bill of Rights, as leading scenes in our Constitutional history. The first of these has been treated at far greater length than either of the other two, both because there is not the same opportunity of re- ferring my readers to other writers on the subject, and because, as it occurs at the very opening of our national history, a right comprehension of it forms the very foun- dation of our Constitutional knowledge. This is premised, lest it should be thought that the investigations of the Constitutional history of each element of our nation, which are introduced before discussing the Great Charter itself, have been foisted in here merely for the sake of inopportunely parading ethnological theories, or B 3 10 RISE AND PROGRESS of swelling the size of this volume. The tenets there brought forward are essential for the fixing of the corner- stone of my position respecting the Enghsh Constitution. I maintain that the principles of our Constitution have been in existence ever since v/e, this English nation, have been in existence. This is to be proved not merely by quoting the Great Charter, but by making good the asser- tion that the epoch when the Great Charter was granted is the epoch when our nationality commenced. For this pur- pose it is absolutely necessary to analyze our nation, to trace the separate current of each of its primary sources, and to watch the processes of their intermingling. Per- haps I may venture to hope that one effect of studying our history in this manner, may be to give it an additional in- terest, from its evident connection with our classical stu- dies. The main stream of our nation is Germanic : and he, who devotes himself to the histories of Greece and Kome, will find Greek history blending in Roman, and Roman blending in Germanic. The institutions of our Germanic ancestors commanded the anxious interest of the master- minds of ancient Rome. Those same institutions are the first subjects to which the inquirer into our laws and our political organization must bend his thoughts. They have, indeed, been greatly modified by the other elements with which they have been mingled here, but they have exer- cised more influence than any others. The Germania of Tacitus is equally a hand-book for the student of modem and for the student of ancient history. It thus demon- strates the unity of all history. I I hope that my work, in its present form, may be use- ful to young readers, in aiding to educate them for the future discharge of poUtical duties ; but I have earnestly sought to keep these pages free from party politics. I I OF THE CONSTITUTION. 11 know from my experience as a lecturer for tliirteen years, how difficult it is to discuss EngHsh history without the line of instruction being affected by the instructor's own political bias. But I hope that the same experience has enabled me to surmount that difficulty. I have throughout this work kept its main object steadily in view, and have rigidly rejected every topic and every sentence that seemed calculated to serve other purposes. I advocate here neither Conservatism nor Liberahsm, in the sense in which those slogans of modern party- warfare are commonly understood ; but I strive to point out those great principles of the Constitution, which both Conser- vatives and Liberals ought to know, and must acknow- ledge, however they may differ as to the relative import- ance which they would fain see each principle acquire. CHAPTER II. Our Constitution coeval with our Nationality. — Thirteenth cen- tury the Date when each commences. — The Four Elements of our Nation. — The Saxon, i.e. the Germanic, the chief Element. — Parts of the Continent whence our Germanic Ancestors came. — Their Institutions, Political, Social, and Domestic. — Date of the Saxon Immigrations into this Island. — What Population did they find here 1 — The British Element of our Nation, Romanized Celtic. — Primary Character and Institutions of the British Celts. — Effect of Roman Conquests. — How far did the Saxons extermi- nate or blend with the Britons ? — Evidence of Language. It has been stated in the last chapter that Magna Carta is coeval with the commencement of our nationahty ; in other words, that we have had our present Constitution, as represented in Magna Carta, throughout the whole time of our true natural history, except some brief periods of revolutionary interruption. The proof of this depends on the date at which we fix the commencement of the liistory of the Enghsh nation, as a complete nation. This date is the 13th century.* The accuracy as well as the importance of this date I ♦ I am glad to be able to caulay, in the 17th page of cite the high authority of Mr. the first volume of his His- Macaulay in support of the tory, after speaking of the Great position that the history of the Charter as the first pledge of English nation commences in the reconciliation of the Nor- the 13th century. Mr. Ma- man and Saxon races, says— J RISE AND PROGRESS OF THE CONSTITUTION. 13 will be more readily discerned, if we remember the diJffer- ence that there is between the history of the English and the history oi England ; — between the history of our nation, and the history of the island on which we now dwell. Our English nation is the combined product of several populations. The Saxon element is the most important, and may be treated as the chief one ; but, besides this, there is the British (that is to say the Romanized Celtic), there is the Danish, and there is the Norman element. Each of these four elements of our nation has largely modified the rest; and each has exercised an important influence in determining our national character and our "Here commences the history of the English nation. The history of the preceding events is the history of wrongs in- flicted and sustained by various tribes, which, indeed, dwelt on EDglish ground, but which re- garded each other with aver- sion, such as has scarcely ever existed between communities separated by natural barriers." Two eloquent pages are devoted to the illustration of this fact. I may be permitted in justice to myself to remark, that I had frequently in my lectures main- tained the position that the his- tory of the English nation does not commence before the 13th century; and it will be found also in my " Text-book of the Con- titution," which was published before the appearance of Mr. Macaulay's History. See also, in connection with this subject, the first of Arnold's Lectures on Modern History. I do not agree with that great and good man in thinking that the Britons, who lived here before the coming over of the Saxons, are in no respect connected with us as our ancestors, and that, " na- tionally speaking, the history of Caesar's invasion has no more to do with us than the natural history of the animals which then inhabited our forests." But it was from his pages that I was first led to appreciate the paramount importance of the Germanic source of our nation, and also to realize the full meaning of the terms "na- tional " and " nationality." 14 RISE AND PROGRESS national institutions. It is not until we reach the period •when these elements were thoroughly fused and blended together, that the history of the English can properly be said to begin. This period is the 13th century after the birth of our Saviour. It was then, and not until then, that our nationality was complete. By nationality is meant the joint result of unity as to race, language, and institutions. In the 13th century these unities were created. Let us prove this separately. First, with respect to race. Though the coming over of the Normans in the 11 th century made up the last great element of our population, a long time passed away before it coalesced with the others. For at least a century and a half after the Con- quest, there were two distinct peoples, the Anglo-Norman and the Anglo-Saxon, dwelhng in this island. They were locally intermingled with each other, but they were not fellow-countrymen. They kept aloof from each other in social life, the one in haughty scorn, the other in sullen abhorrence. But when we study the period of the reigns of John, and his son and grandson, we find Saxon and Norman blended together under the common name, and with the common rights, of EngHshmen. From that time forth, no part of the population of England looks on another part as foreigners ; all feel that they are one people, and that they jointly compose one of the States of Christendom. Secondly, with respect to language. In the 13th century, our English language, such substantially as it still is, became the mother tongue of every Englishman, whether of Norman or of Saxon origin.* So, finally, with respect to our institutions ; it * The earliest extant speci- as contra-distinguished from the men of the English language, Saxon and Semi-Saxon, is the OF THE CONSTITUTION. 15 was during this century that the Great Charter was ohtainecl, and the statutes connected with and confirma- tory of it were passed, in which we can trace the great primary principles of our Constitution. It was in this century that Parliaments, comprising an Upper House of Temporal and Spiritual Peers, and Lower House of Kepresentatives of Counties and Boroughs, were first summoned. It was in this century that our legal system assumed its distinctive features, and was steadily enforced throughout the realm. It is clear, therefore, that it is at this period, that our true nationality commences ; for our history, from tliis time forth, is the history of a national life, then complete and still in heing. All before that period is a mere his- tory of elements, and of the processes of their fusion. But it is a preliminary history that must he studied in order to comprehend aright the history that follows. In order to understand the Great Charter, we must catch the spirit of the age in which it was granted. To do this, we must form to ourselves a vivid and a true idea of the people that obtained it ; and we must, for that purpose, trace the early career, we must mark the characteristics, and watch the permanent influence of each of the four elementary races by which the English people has been formed. Of these four elements the Anglo-Saxon is unquestionably the principal one. Our language alone decisively proves this ; for it is still substantially the same language which our ancestors spoke in Germany before proclamation of Henry III. to minded that, for the first ccn- the people of Huntingdonshire, tury and-a-half after the Con- A.D. 1258. See Latham on the quest, the Normans in England " English Language," p. 77. spoke French. The reader need hardly be re- 16 RISE AND PROGRESS they left the banks of the Eyder and the Elbe for the coasts of Britain.* We may, therefore, advantageously first see who and what the Anglo-Saxons were in their original homes ; and then examine who and what the inhabitants of tliis island were whom the Anglo-Saxons found here. The subsequent immigration of the Danes, and the final influx of the Normans, will next be sepa- rately considered : and, then (after watching also the pro- cesses and the results of the partial fusion of these races, both that which took place with respect to the first three before the arrival of the Normans, and that which after- wards took place with respect to the Norman conquerors themselves, and those whom they subdued), we may pro- ceed to the consideration of the first part of our immediate subject, to ascertain the condition of the various classes of the community at the time when the great national movement took place, by which King John was compelled to sign Magna Carta (a.d. 1215). The chief element of our nation is Germanic, and we have good cause to be proud of our ancestry. Freedom has been its hereditary characteristic from the earliest- times at which we can trace the existence of the German race. The Germans, alone, of all the European nations of antiquity that Rome assailed, successfully withstood her ambition and her arms. They never endured either a foreign conqueror, or a domestic tyrant. Similarly proud and unblemished by servitude are the pedigrees of two more of the elements of our nation. The Danes and the Normans, who came among us, were and ever had been * There are extant two An- evidence to have been composed glo-Saxon poems, " Beowulf " before our Saxon ancestors came and the " Lay of the Traveller," to Britain, which are proved by internal OF THE CONSTITUTION. 17 freemen. It was only the British portion of our elements that had endured foreign conquest and arbitrary rule; and even this source of our nation had become so largely tinged by the fusion of the Roman conquerors with the conquered Celts, that we can regard it, if not with pride, at least without humiliation. The Germans who settled in this island during the fifth and sixth centuries are usually spoken of as Saxons, Angles, and Jutes. The collective name of Anglo-Saxons has been given to them by historians, for the sake of dis- tinguishing them from the Saxons of modern Germany ; and it is a name which it is convenient to employ. There has been, and there continues to be much learned controversy as to the exact locahties on the Continent, whence the Germanic conquerors of Britain came, and as to their precise degrees of affinity one with tlie other.* Without entering into these deep (though very valuable and interesting) discussions, we may be safe in adopting the general statement that the Anglo-Saxons were Ger- mans of the sea-coast between the Eyder and the Yssel, of the islands that lie off that coast, and of the water systems of the lower Eyder, the lower Elbe, and tlie Weser. It is important to observe that these are all parts of Germany, which were less affected by contact with the Komans, and with which the Komans were less acquainted, than was the case with the parts of Germany * I think that Kemble and "English Language," third Latham have proved that no edition. See also, for the original Jutes from the country now homes of the Anglo-Saxons, called Jutland took part in the Latham's " Ethnology of the Anglo-Saxon Conquest of this British Islands," and his edition island. See Kemble's " Saxons of the " Germania" of Tacitus, in England," and Latham's 18 RISE AND PROGRESS that lie near the Rhine and the Danuhe, the two houndaiy rivers of the Roman continental empire in Europe. And yet it is almost exclusively from Roman writers that we gain our information ahout the institutions and usages of our Saxon ancestors in their primeval fatherland. Caution must he used in admitting and applying to them the details which we read in Caesar and Tacitus respecting the man- ners and institutions of the Germans. But we may gain thence some general knowledge which may he safely relied on, especially when taken in connection with what we know of the Anglo-Saxons at a later period. Our Ger- man ancestors were freemen, having kings with limited authority, who were selected from certain families. Reges ex nohilitate, duces ex virtute sumunt. Nee regibus infinita nee libera potestas. (Tac. Mor. Germ., vii.) Besides these kings, they had chieftains whom they freely chose among themselves for each warhke enterprise or emergency. All important State affairs were discussed at general assemhlies of the people ; matters of minor consequence heing dealt with hy the chief magistrates alone. De minoribus rebus j)rincipes consultant^ de majoribus omnes : ita tamen ut ea quoque quorum penes plebem arbitrium est, apud principes fertrac- tantur. (Tac. Mor. Germ., xi.) Any person might be impeached and tried for his life at the cliief popular as- sembly. Licet apud concilium accusare quoque, et discrimen capitis intendere. (lb., xii.) The head men, or magistrates, who were to preside in the local courts were also elected at popular assembhes ; and the organi- zation of the men of each district into Hundreds, for the purposes of local self-government and for being joinM securities for the good behaviour of each other, appears also to have existed among them. Eliguntur in iisdem i OF THE CONSTITUTION. 19 consiliis et principes qui jura per pagoft vicosque red- dant. Centeni singulis ex plehe comites consilium simul et auctoritas adsunt* They had no cities or walled towns, but they had villages, where each man dwelt in his own homestead.f It is very important to mark this ; and to observe that the ancient Germans were equally distinguished from the classic Greeks and Komans, who were essentially dwellers in cities, and from the wandering tribes of Central Asia, who have ever been dwellers in tents, without settled home or habitation. The love of individual liberty, the spirit of personal independence, which characterized the German warrior, as contrasted with the classic citizen, to whom the State was all and the individual nothing, were perfectly compatible with a respect for order, and a capacity for becoming the member of a permanent and civilized com- munity, such as never existed in the Scythian of antiquity or the Tartar of modem times. Slavery existed among the ancient Germans, but it was generally of a very mitigated kind. They had few domestic slaves, like those of the classical nations, or the negroes in America; and the term "serf" would more accurately describe the German " Servus "% whom Tacitus speaks of. The serf had his own home and liis land, part of the produce of which he was bound to render to his * I do not mean that Tacitus " Germania," and the chapter had precisely the idea of the in Kemble's "Anglo-Saxons "on German "Centeni" which I "The Tithing and the Hun- have stated ; but such was, most dred." likely, the institution of which t Tac. Mor. Germ., xvi. he was partly informed. See :|: Ibid., xxv. Latham's note at p. CO of his 20 RISE AND PROGRESS master ; that was the extent of his servitude ; hut he was destitute of all political rights. Military valour was the common virtue of the nations of the North. The Germans possessed this, hut they had also pecuUar merits. The domestic virtues flourished no- where more than in a German home.* Polygamy was almost entirely unknown among them ; and infanticide was looked on with the utmost horror. The great ethnologist, Pritchard, in his survey of the different races of mankind, truly observes that '^ In two remarkable traits the Germans differed from the Sarmatic as well as from the Sclavic nations, and, indeed, from all those other races to whom the Greeks and Komans gave the designation of barba- rians. I allude to their personal freedom and regard to the rights of men ; secondly, to the respect paid by them to the female sex, and the chastity for which the latter were celebrated among the people of the North. These were the foundations of that probity of character, self- respect, and purity of manners, which may be traced among the Germans and Goths even during Pagan times, and which, when their sentiments were enlightened by Christianity, brought out those splendid traits of charac- ter which distinguish the age of chivalry and romance." f Much indeed of the spirit of chivalry, and even the germs of some of its peculiar institutions, may be found in the customs of our Germanic ancestors as they are described by Tacitus. The young warrior was solemnly invested with the dignity of arms by some chief of emi- nence ; and the most aspiring and adventurous youths ■were wont to attach themselves as retainers to some re- < * Tac. Mor, Germ., xviii., xix. into the Natural History of t Pritchard's " Researches Mankind," vol. iii. p. 423. i OF THE CONSTITUTION. 21 nowned leader, whose person they protected in war, and whose state they upheld in peace. (In pace decus^ in lello prmidium.) These were the "Gesithas" of the Anglo-Saxons ; they fed at the chief's table, they looked to him for gifts of war-horses or weapons as rewards for deeds of distinguished valour. Their relation to him was that of Fealty ; and we may see here a species of Feudal- ism, with the all-important exception that the relation between retainer and chief had no necessary connection with the tenure of any land.* Such were our Anglo-Saxon forefathers, who in the fifth century of the Christian era came across the German ocean and changed the Roman province of Britain into England, i. e. the land of the English ; the new collec- tive name of the whole island being taken from the Ang- lian portion of the conquerors, though the names of some of its new subdivisions, such as Sussex, Essex, Wessex, &c., have immediate reference to the Saxons. Whether the current story of the landing of Hengist and Horsa in Kent, of Vortigem and Rowena, &c., &c., is to be dis- missed to the now populous region of myths, or whether it is to be regarded as substantially true,t is not a subject to be discussed here ; but the main facts may be taken as certain, that a great Germanic immigration into Britiiin took place during the fifth century,! and that it was * See the excellent chapter " History of the English Lan- in Kemble, on " The Noble by guage." Service." !t I disbelieve the new theory t See Kemble's " Saxons in of a large settlement of Saxons England," and some sensible here in the fourth century, observations on the other side The fact of there having been of the question in Craik's then a "Comes ?i«om/Siat^oma" 22 RISE AND PROGRESS effected not by one great movement, but by a number of unconnected expeditions of successive squadrons under independent chiefs. We now come to the consideration of the second ele- ment of our nation. We have to examine what the popu- lation was which the Anglo-Saxons found here, and to ascertain to what extent they displaced or blended with it. The Saxons found Celts * here, but they were not un- mitigated Celts. They were Eomanized Celts. In order fully to understand that term, we must investigate the normal state of the British Celts, and consider also how and to what extent they were influenced by Roman con- quest before the arrival of the Saxons. The description which Caesar gives of the inhabi- tants of Britain is the earliest that we possess. Some valuable information is also to be obtained from Strabo and Diodorus Siculus.f The south-west part of the OQ the east coast of Britain population having been spread proves no more than the fact of over Britain. The extreme north the subsequent existence of was probably occupied by a English lords of the Welsh and Norse race at a very early time ; Scottish marches. No one sup- but that does not affect English poses the districts which these history. With respect to the officers ruled to have been in- Belgic inhabitants of Britain, I habited by the Welsh or the agree with those who hold that Scotch. Such a name merely they were Celts, and that the shows that the district was difference of their language peculiarly exposed to the ra- from that of the other Celts was vages of the nation by which it merely a difference of dialect. is designated. See Latham's " Ethnology of * The evidence of language, British Islands," p. 61. as shown by the names of our t See Latham's " Ethnology rivers and mountains and the of Britain," chap. 1 and 2. See other great natural objects of also the chapter on Towns, in the island being Celtic, is con- Kemble's " Anglo-Saxons." elusive of the fact of a Celtic J OF THE CONSTITUTION. 23 island had been known by the civilized nations of the ancient world at a much more remote period. The Scilly Islands and Cornish coasts were frequented in very early times by the Phoenician and Carthaginian traders, who obtained from our mines the tin which they imported to their own countries and to the other States round the Mediterranean, and which must have been required for the purpose of making the bronze, which we know to have been so largely used for purposes of utiHty, warfare, and ornament. From the Phoenician merchants and miners the native Britons acquired the art of working metals, and of forming the bronze weapons and other implements which are found in some of the ancient tombs in this island. But the Phoenicians here, like the Portuguese in the East Indies, seem merely to have established factories, and not to have influenced mate- rially the condition or the usages of the great mass of the native inhabitants. At a period nearer to the time of Caesar's landing, merchant-vessels from Gaul carried on some intercourse with our south-eastern shores. Hence, as Cffisar relates, the tribes of the maritime districts were less barbarous than those of the interior, and agriculture was more practised in the south than was the case further north. The population of the island is said by him to have been large,* a statement which Diodorus confirms, but which is not to be taken according to our modern ideas of density of population. The buildings of the ancient Britons were numerous; but they had no fortified towns, and used, for the purposes of defence, spots among their woods which were naturally difficult of access, and which they strengthened by a ditch and stockade. They • " Hominum est infinita multitudo." Bell. Gall. v. 12. 24 RISE AND PROGRESS were subdivided into numerous independent tribes, with many kings and petty rulers, and their wars with each other were not so frequent as was generally the case among the nations of antiquity.* We have no means of knowing their poHtical institutions, beyond the fact of their having kings and other rulers. If their polity resembled (as is probable) that of their kindred Celts in Gaul, they had a noblesse, and the mass of the people was destitute of all rights and franchises.f Their reli- gion was Druidism ; and Britain is said to have been the parent- seat of that creed. The Druids were not only priests, but they were, also, almost the sole civil magis- trates and administrators of the law. J Perhaps th© point in which the British Celts contrast most unfavour- ably with the ancient Germans, is in respect to the sanctity and purity of the marriage tie. We have seen how this was respected among our Germanic ancestors ; but the Celts, whom Csesar found here, had a custom, which, I believe, is only paralleled among the savages of some of the South Sea Islands. They formed sociahst communities of ten or twelve in number, who had their wives in common. § Against these Celts, possessing, together with many of the vices of the savage state, its usual merit of irregular valour, Caesar led the Koman legions about half a cen tury before the Christian era. But his invasion, thoug attended with victory, and successfully renewed in the following spring, was rather a transient inroad than an i * Diod. Sicul., V. 21. nullo adhibetur consilio." t Caesar, BeU. Gall., vi. 13. X De Bell. Gall., vi. 13, " Plebes psene servorum habetur § Ibid., v. 14. loco, qu8c per se nihil audet et OF THE CONSTITUTION. 25 attempt at permanent conquest. After the withdrawal of his troops, Britain was left to her rough independence for nearly a century ; when the Komans again attacked her, and, after a forty years' war, brought almost all that part of the island which lies south of the Friths of Forth and Clyde completely under the dominion of the emperors of Rome. " Wheresoever the Roman conquers, he inhabits." The observation is Seneca's ; it was made while Britain was being subdued, and it is true of this as of the other conquests, which were effected by that remarkable people. Unlike most nations of antiquity, the Romans neither sought to exterminate nor to make a slave population of those whom they invaded. By planting colonies, and by taking the towns into the pale of the Roman citizenship as *' municipia," a nation of Romans was gradually formed in each conquered province. Britain (which, with the exception of Dacia, was the last acquired, and which was one of the earUest lost of the Roman pro- vinces) was not Romanized so completely as was generally the case; but Roman civilization flourished here for three centuries, and some of its fruits still survive. Thirty-three townships were established under the Ro- mans in this island, each possessing powers of self- government and taxation, and the inhabitants of each electing their own decurions or senators, from among whom the magistrates were appointed. We may be partly indebted to this, the Roman influence on the British element of our population, for the system of municipal freedom and local self-rule, to which so much of our glory and our power has justly been attributed.* * See, with respect to the man Municipia, Guizot's " Lec- order of Decurions in the Eo- tures on European Civilization;" C 26 RISE AND PROGRESS It is to be borne in mind, that it was not exclusively an Italian stream that blended with the Celtic source of our nation, while Kome ruled the land. From the reci- procal intercourse between the various portions of the Eoman Empire, the British population must have been sensibly tinged with the blood of the various races that acknowledged the Imperators of Rome. And a similar result must have been effected by the presence of the Roman legions, especially in consequence of the policy which the emperors adopted of pensioning off the veteran legionaries with grants of land in the countries where they had been stationed. Now, we must remem- ber that the Roman legions under the empire were raised and supplied by recruits drawn from all parts of the Roman dominions, and that during the later times of Ro- man history they were levied promiscuously from the dif- ferent provincials and from the barbarians of the frontiers. So that, under the Roman eagles, men of every race and clime must have been assembled, with no common tie save that of discipline, and that of a partially- acquired knowledge of the Latin tongue. And even in the best times of the empire every legion was accompanied by a corps of barbaric auxiliaries, whose scene of operation was carefully appointed at a distance from the country which supphed them.* ■ These are important points, when we are considering the British element of our nation ; but it is certain that, however varied the population of the south of the island Savigny's " History of the Ro- sentative Government," lecture man Law" (vol. i. translated 22. by Calcraft) ; Kemble's " Anglo- * See Latham's "Ethnology Saxons," vol. ii. chap. 7 ; and of the British Islands," p. 98. Guizot's " History of Repre- OF THE CONSTITUTION. 27 thus became under Eoman rule, a community of Eoman civilization was generally diffused, and the language, the literature, and, above all, the laws of Eome, became naturalized in Britain.* As the power of imperial Eome decayed, her British province began to suffer more and more from the inroads of the savage tribes from the north of the island, and from the attacks of the sea-rovers from the Saxon shores. Eome gradually withdrew her troops ; and, at last, about five centuries after the first landing of Caesar, she reluc- * Mr. Macaulay, in the open- ing of his History, underrates the extent to which Britain was Romanized. There is an ex- cellent article on the subject in the "Edinburgh Review," No. cxci. Sir F. Palgrave's words, in his History of the English Commonwealth, on this point, deserve citation. " The country was replete with the monu- ments of Roman magnificence. Malmesbury appeals to those stately ruins as testimonies of the favour which Britain had enjoyed ; the towers, the tem- ples, the theatres, and the baths, which yet remained un- destroyed, excited the wonder and admiration of the chro- nicler and the traveller ; and even in the 14th century, the edifices raised by the Romans w^ere so numerous and costly, as almost to excel any others on this side the Alps. Nor were these structures among the least influential means of establish- ing the Roman power. Archi- tecture, as cultivated by the ancients, was not merely pre- sented to the eye; the art spake also to the mind. The walls covered with the decrees of the legislature, engraved on bronze, or sculptured on marble ; the triumphal arches, crowned by the statues of the princes who governed the province from the distant Quirinal ; the tes- selated floor, pictured with the mythology of the State, whose sovereign was its pontiff" — all contributed to act upon the feelings of the people, and to impress them with respect and submission. The conquered shared in the fame, and were exalted by the splendour of the victors." — See also his " History of Normandy and England," chap. 1. c 2 28 RISE AND PROGRESS tantly abandoned her reluctant province to nominal inde- pendence, but to real anarchy and devastation. The arrival of the Saxons checked the progress of the Cale- donian marauders. These were driven back to their northern fastnesses, but the German new comers soon claimed supremacy over the British inhabitants. A long chaotic period of savage warfare ensued ; and nearly two hundred years of slaughter and suffering passed away before our Saxon ancestors established their Octar- chy in the island ; and, even then, a considerable portion of the western districts remained in the possession of the British, or, as the Saxons termed them, the Welsh. How far in the parts of the island, wliich the Saxons subdued, they exterminated the British, or to what ex- tent the two populations were blended together, deserves next our earnest inquiry ; and it is a matter on which the correctness of our classification of the elements of our nation must depend. The Germanic origin of our language, and the pecu- liarly savage nature of the warfare by which the Anglo- Saxons conquered this island, have led some writers to assert that the provincials of Britain were almost entirely exterminated, and that the land was repeopled by the rapid influx and continued increase of German colonies. This hypothesis would exclude the Celtic element from our nation. Arnold goes so far as to say that " The Britons and Eomans had lived in our country, but they are not our fathers ; we are connected with them as men indeed, but, nationally speaking, the history of Caesar's invasion has no more to do with us, than the natural his- tory of the animals which then inhabited our forests. We,— ^ this great English nation, whose race and language aro now overrunning the earth from one end to the other, — we d OF THE CONSTITUTION. 29 were bom when the white horse of the Saxons had estabhshed his dominion from the Tweed to the Tamar." On the other hand. Sir F. Palgrave and other autho- rities consider that a very large portion of the population of England, during the Anglo-Saxon period, was of British descent. I believe that this is a subject on which the recent labours of comparative philologists have supphed the historian with new and valuable light. I incline so far to the opinion of Arnold, as to regard the Germanic as the main stream of our race, but I cannot wholly ex- clude the Celtic ; nor can I dismiss Caractacus as an alien in blood, though we can proudly claim a still closer relationship with Arminius. In opposition to the Pal- gravian hypothesis, the reader may be usefully reminded that the Saxon invasion of Britain differed from the usual course of the barbarian conquests on the Continent over the severed fragments of Eoman Empire. There the miHtary superiority of the assailants was generally self-evident and uncontested. Moreover, the Germanic invaders of Gaul, of Spain, and Italy were generally warriors from tribes that had been influenced to some extent by intercourse with the Romans, both in peace and in war. Their chiefs were not wholly unfamiliar with Roman discipline and Roman art, and were ready to appreciate Roman civiHzation. Many, also, of the Ger- manic conquerors on the Continent had been converted to Christianity before their inroads had been com- menced, nearly all were converted before their settle- ments were concluded. But the Saxons had never been refined by peaceful approximation to the Roman frontier. No missionary had set his foot among their forests or on their coasts. They were pagan pirates. They invaded Britain by detachments, and under different 30 RISE AND PROGRESS independent chiefs. They never landed in such impo- sing force as to awe the invaded into bloodless submission, but merely in sufficient numbers to fight their way — to conquer indeed — but only to conquer inch by inch. Their savage paganism inflamed them with peculiar frenzy against all that the Christianized Britons held most sacred ; each side upbraided the other with perfidy and fraud ; no possible bond of fair union existed between them ; and, probably, in no conquest were the victors more ruthless to the vanquished than in the desperate and chequered struggle by which the Saxons won their slow way over this island. Led by this historical circumstantial evidence, and by the great fact of our language being essentially Ger- manic, I believe that the Saxons almost entirely exter- minated or expelled the men of British race whom they found in the parts of this country which they conquered. But the same evidence (both the historical and the philological), when carefully scrutinized, leads also to the belief that it was only the male part of the British fl population which was thus swept away, and that, by 1 reason of the unions of the British females with the Saxon warriors, the British element was largely preserved in our nation. I remind my readers that the British, whom the Saxons found here, were mainly Celts. Besides those Celtic words in the EngHsh language which can be proved to be of late introduction, and those •which are common to both the Celtic and Germanic tongues, there are certain words which have been re- tained from the original Celtic of the island. These genuine Celtic words of our language (besides proper names) are rather more than thirty in number. The late Mr. Garnett formed a list of them ; and in his opinion A OF THE CONSTITUTION. 31 the nature of these words showed that the part of the British population, which the Saxons did not slay, was reduced into a state of complete bondage, inasmuch as all these words have relation to some inferior employ- ment. Now, if the reader will carefully examine the list, he will see that not only do these Celtic words all apply to inferior employments, but that by far the larger num- ber of them apply to articles of feminine use or to domestic feminine occupations. They are as follows : — Basket, harrow, button, Iran, clout, crock, crook, gusset, kiln, cock {in cock-boat), dainty, darn, tenter {in tenter -hook), Jieam, flaw, funnel, gyve, griddel {gridiron), gruel, welt, wicket, gown, wire, mesh, mat- tock, mop, rail, rasher, rug, solder, size {glue), tackle. This remarkable list of words is precisely what we should expect to find, on the supposition that the con- quering Saxons put their male prisoners to the edge of the sword, except a few whom they kept as slaves, but that they took wives to themselves from among the cap- tive daughters of the land. The Saxon master of each household would make his wife and his dependents learn and adopt his language ; but in matters of housewifery and menial drudgery, their proud lord would scorn to interfere, and they would be permitted to employ their old own famihar terms. All the circumstances of the Saxon conquests favour this hypothesis. The Saxons came by sea, and in small squadrons at a time. They came also to fight their way, and were Httle likely to cumber their keels with women from their own shores. A few Ro- wenas may have accompanied the invading warriors, but in general they must have found the mothers of their children among the population of the country which they conquered. 32 RISE AND PROGRESS OF THE CONSTITUTION. This hypothesis also accounts for the difference which undoubtedly exists between ourselves and the modem Germans, both in physical and in mental characteristics. The Englishman preserves the independence of mind, the probity, the steadiness, the domestic virtues, and the love of order which marked his German forefathers ; while, from the Celtic element of our nation, we derive a greater degree of energy and enterprise, of versatility, and practical readiness, than are to be found in the modern populations of purely Teutonic origin. II CHAPTER III. Conversion of the Anglo-Saxons. — Its civilizing Effects. — They occupy the Roman Towns. — England attacked by the Danes. — The third, i. e. the Danish, Element of our Nation. — Danish Institu- tions and Customs. — Ferocity of their Attack on England. — Ex- tent of their chief Settlements here. — Evidence of Danish Names of Places and Persons. — Alfred rescues Saxon-England from them. — The Danish blends with the Saxon Element. — Fusion of the first three Elements of our Nation. The conversion of the Anglo-Saxons to Christianity (which was principally effected during the seventh cen- tury) did much to mitigate the wild fierceness of the con- querors, and also to modify their political and social in- stitutions. The ecclesiastics from continental Christen- dom, who were the first missionaries to Saxon England, and who continued to migrate hither in no inconsider- able numbers, came from lands where the old Roman civilization had survived in a much greater degree than was the case in Britain. They were famihar with muni- cipal self-government practised in populous and im- portant cities ; they were familiar, also, with the idea of imperial power, as it once had been wielded by Roman emperors in the West, and still lingered in the ostenta- tious, though feeble grasp of the emperors of Constanti- nople. The Church, moreover (withio the pale of which St. Augustine and his coadjutors brought the English nation), had her councils, her synods, and the full organi- zation of a highly complex, but energetic and popular c 3 34 RISE AND PROGRESS ecclesiastical polity. She recruited her ranks from men of every race, and every class of society. She taught the unity of all mankind ; and practically broke down the harriers of caste and pedigree, by offering^ to all her tem- poral advantages as well as her spiritual blessings. She sheltered the remnants of literature and science; and ever strove to make the power of the Intellect predomi- nant over brute force and mere animal courage. All these civilizing influences must have largely affected the converted Anglo-Saxons, and have given increased efficacy to the subdued, but not exterminated element of our race, the Komanized British element, with which the Saxons had partially coalesced. Moreover, the very wars which the Saxons waged against the Britons and each other, must have made the Germanic conquerors appreciate the mihtary advantages of occupying the walled towns and cities which the Komans had left in our island.f They who thus became dwellers in cities would naturally adopt the system of civic self-government, which Rome had once introduced, and which was so congenial to the free spirit of the new settlers. The remnant of the British popula- tion in the cities may have taught much of this, but it is * See, as to the influence of generally suffered the Roman the Church of Rome as an in- cities to perish, and that their 8tniment of modern European own towns had a totally inde- civilization, the admirable ob- pendent origin. The fact that servations of the Protestant the Saxons were almost always Guizot, "Histoire de la Civili- at war not only with the Britons, Ration en Europe," Le9ons 5 et 6. but with each other, is conclu- t I cannot adopt the opinion sive against supposing that they of Mr. Kemble (chapter on the could have neglected the mili- Towns, book ii., of the " Saxons tary advantages which the Ro- in England") that tho Saxons man fortifications offered. OF THE CONSTITUTION. 35 probable that the clergy of the Koman See taught more. Thus many germs of order appeared in Saxon England when Christianized ; but, before they could be fully deve- loped, a new indraft of rough barbaric blood was poured into the population. Scandinavia sent hither her swarms of warriors, fresh from her rugged coast, unsoftened by any recollection of Imperial or any contact of Papal Rome, to struggle long and fiercely for the mastery of the island, and to make the third great element of the Enghsh nation. The consideration of this element soon occupies the historical student, who has been tracing the progress of the Saxons in this island; for the Danes commenced their ravages and partial conquests of England before the Anglo-Saxon Octarchy could be fused into the English kingdom ; before, indeed, any of the Saxon States had acquired a permanent predominance over the rest. * In the year 787, thirteen years before the accession of Egbert to the throne of Wessex, some men of a strange race landed from three vessels at an eastern port in England. They slew on the beach the Saxon magistrate who came down to question them, plundered the neigh- bouring habitations, and hastily re-embarked with their spoil. Such was the first recorded appearance of the Danes in England ; but they almost monopolize the pages of the Anglo-Saxon Clironicles, from that time forth to the year 1066, when our last Harold destroyed the last host of Scandinavian invaders at Stamford Bridge, only a few days before his own defeat and death at Hastings. * Kemble has completely Britain) are fabulous. See also proved that the supposed Saxon " Hallam's Middle Ages," vol. ii. BretwaJdas (or rulers of all p. 349, 10th edition. 36 RISE AND PROGRESS These northern sea-rovers, from whose ravages scarcely any European coast during the ninth and tenth centuries escaped, who everywhere appear as conquerors, and up to whom so many nohle and royal pedigrees are traced, had much original affinity of race, language, and institutions, wdth the Anglo-Saxons whom they assailed so savagely in their settlements in this island. The Scandinavian and the Germanic tongues are classed together hy comparative philologists under the common title of the Gothic stock. Odin, Thor, Freia, and the other principal deities of the Scandinavian Valhalla, had been also the gods of the Anglo-Saxons, while the Anglo- Saxons were in their primitive state of heathendom.* Both Anglo-Saxons and Scandinavians believed that the princely families out of which they chose their kings were descended from Odin. The Scandinavians seem in their political institutions to have been more turbulently free than even their Germanic kinsmen. The three Scandi- navian countries, that ultimately became the monarchies of Denmark, Sweden, and Norway, were originally sub- divided into numerous petty kingdoms. In each of these, whenever the king died, his successor was elected out of the descendants of the sacred stock by the choice of the assembled freemen of the State. Part of the popula- tion was in a state of slavery or thraldrom (troeldom), the inevitable result of the perpetual wars and piracies in which the Scandinavians indulged. These unhappy beings were of course destitute of all political rights ; but * See Kemble's chapter on Grimm's " Deutsche Mytholo- Saxon Heathendom, and gie." OF THE CONSTITUTION. 87 every freeman capable of bearing arms might attend at the " Ting," as the popular assemblies, both for legislative and judicial purposes, were called, and every freeman had an equal voice. Each Scandinavian State was subdivided into hserads or hundreds, which formed communities for local self-government, identical, probably, in nature with the hundreds of the primitive Germans, which have been already spoken of. They followed chiefs of their own choice in warlike expeditions : though the king was re- garded as the natural leader of the national force on great occasions. But unless the assembled freemen in the Ting willed it, the king could neither make peace nor war, nor impose a tax, nor levy an army. He was little more than a mihtary chieftain, and was sure of being speedily deposed, if he did not exhibit sufficient spirit and energy in warlike enterprises to satisfy his subjects. War, espe- cially war by sea, was the occupation in wliich a Danish freeman sought to live, and in which he prayed to die. Some gleams, however, of more civihzed and civihzing feehng may be traced amid the martial gloom of the Scandinavian character. Women were regarded always with honour, and often with chivalrous devotion. The respect, also, of these wai-riors for their laws, as adminis- tered by freemen towards freemen, was general and pro- found. They delighted in poetry and minstrelsy. They held the arts of the miner and the worker of metals in estimation. Nor were their maritime skill and enterprise displayed only for purposes of destruction. They looked on commerce with respect; laws were established and strictly observed for the protection of merchant vessels ; and an extensive traffic was carried on by Scandinavian adventurers with the far East, through Kussia and along 38 RISE AND PROGRESS the great rivers of central Asia.* But the fierce excite ment of battle was generally the prevailing attraction for which a Danish fleet was launched. Every free Scandi- navian was a seaman ; and the art of ship-building was brought early by them to considerable perfection ; though they generally used in their predatory expeditions small vessels of little draught, so as to enable them to ascend the rivers of the countries which they attacked. It was chiefly by squadrons from the Danish part of Scan- dinavia that England was assailed, though the Norwegians co-operated : t and our chroniclers speak of them gene- rally as Danes. In France, and other countries of the Continent, they were known by their own favourite de- signation of Northmen. The original affinity that had existed between the Danes and the Anglo-Saxons by no means mitigated the ferocity of the Scandinavian invaders towards the Ger- manic occupants of the island : it rather was a cause of exasperation. A change had taken place in the Anglo- Saxons since their settlement here, which had broken off every tie between them and their Scandinavian kinsmen. * For the Danish institutions chiefly attacked England ; Scan- and customs see Worsaae's book dinavians from Norway chiefly on " The Danes and Northmen attacked Scotland. Of the three in England, Scotland, and Ire- Scandinavian countries Sweden land;" " Crighton's Scandina- sent the fewest assailants of this via," vol. i. chap, iv., and an island. " Not that the Swedes article by Sir Francis Palgrave were less piratical, but that they on our Ancient Law-Courts, in robbed elsewhere ; in Russia, the 75th Number of the " Edin- for instance, and in Finland." burgh Review." — Latham'' s English Language^ t According to Worsaae, p. 99. Scandinavians from Denmark OF THE CONSTITUTION. 89 The Anglo-SaxoD had been converted to Christianity, while the man of the North still gloried in the title of Son of Odin ; and hated, as a renegade, him, who, once proud of the same descent from the Asas, had left his warrior faith for the new creed of the mass and the monk. Led by their Vikingr, younger sons of royal houses, whose only heritage was the sea and such lands beyond its waves as their own swords could win them, these " Slayers from the North," as the old legends termed them, re- appeared in England again and again, settling ere long on the shores which at first they merely ravaged, breaking down Saxon bravery by their ferocious and fanatic valour, overwhelming the three minor kingdoms of Mercia, East Anglia, and Northumbria, and nearly crushing that of Wessex, which had become the chief Saxon State of the south and centre of the island. The genius and heroic patriotism of Alfred rescued Saxon England from utter destruction. A son and grandson worthy of him succeeded him on the throne of Wessex. The Danish population, which had spread over the north-east of England, was brought to acknowledge their authority, partly by victories in the field, partly by the influence of superior civilization, and still more by conversion to Christianity. Anglo-Saxon and Anglo- Dane became more and more assimilated; the Anglo- Saxon tongue, institutions, and habits generally ac- quiring the ascendancy. But there can be no doubt of the influence of the Danish having been strong and permanent. The evidence of language, both in difier- ence of dialect, and in the names of places and persons still points out the parts of England where the Danish occupancy was strongest. In every shire where we find the compound names of places ending in ly, (as in 40 RISE AND PROGRESS Derby, Grimsly, Onnshy, &c.,) we trace the Dane. The German (or Saxon) ending would he ton.^ The termi- nation son to proper names of persons (as in Adatnson, Nelson, i.e. Nielson, &c.) marks a Danish pedigree. Other proofs of a similar kind are collected hy the modem Dane, who shows a pride, which we may well share, in these marks of affinity hetween the combatants of Copen- hagen.f The troubles which shook Saxon England after the reign of Edgar (875) caused fresh attacks from Den- mark. But Denmark was now consolidated into one kingdom, and had been brought within the civilizing pale of Christendom. The wars which Sveyn and Canute waged here during the end of the 10th and commence- ment of the 11th centuries were of a very different cha- racter to the savage devastations with which the old Northmen had swept the land. They were steady wars of conquest : and for a time were successful. Canute (or Knut, as the name is more properly written and pro- nounced) was undisputed sovereign of England from 1017 to 1035. He united also the crowns of the three Scandinavian kingdoms, and was one of the greatest princes that ever ruled in this island, whether we regard the extent of his power or his personal character. But his dynasty was not destined to take root here, and after the death of his son Hardicanute (1052), the Anglo-Saxon element showed its predominance over the Anglo-Danish ; and the nation restored a prince of the old royal stock of Cerdic to the throne. Erom the accession of Edward the * See Worsaae's " Danes in ■ Islands," chap. 13. England," sect, viii., and La- t See Worsaae, p. 177, and tham's " Ethnology of British pp. 186, 187. I I OF THE CONSTITUTION. 41 Confessor to the battle of Hastings, England may be again correctly termed an Anglo-Saxon kingdom. We have thus brought together three of the four elements of our race; and watched their fusion. We have seen the general prevalence of the Anglo-Saxon over the British and the Danish : and henceforth we shall speak of the product of the combined three as Anglo- Saxon, in contradistinction to the fourth, the Norman element, that is yet to come. But before we turn our attention to Normandy, it is well to pause, and examine (so far as is practicable) the general nature of the Anglo- Saxon institutions before the Norman Conquest. CHAPTER IV. Anglo-Saxon Institutions. — Classes of the Population. — Thralls, Ceorls, Thanes. — Townships. — Hundreds. — Tythings. — Frank- pledge, — Lords. — The Were. — The Socmen. — The Towns. — The Witenagemote. — The King. — The Bishops. — The Clergy. — The Poor. — Deterioration of the Saxon Polity before the Conc[uest. Notwithstanding the effects of the Norman Conquest, and the consequent introduction of the fourth element of our present nation, the foundations of so many of the most important of our institutions are Saxon, that aright under- standing of the Anglo-Saxon system of government, and the condition of the various classes of the community under it, is indispensable in order to discern and appre- ciate the changes and modifications introduced hy the Normans, and also those which " the great innovator. Time," has subsequently effected. And even at the pre- sent day we must look back to the Anglo-Saxon period, if we would properly comprehend the principles of many of the most important and the most practical parts of our laws and usages. There is no branch of constitutional knowledge, in which so much has been done during the last fifty years as in Anglo-Saxon history. It used to be studied merely with a view to modern politics, and it was misunderstood and distorted accordingly. It is now investigated with the desire of learning the truth, and the lessons which we RISE AND PROGRESS OF THE CONSTITUTION. 43 derive from it are therefore trustworthy and sound. Ex- treme party-writers can no longer pretend to find or fancy that they find their favourite tenets in the Anglo-Saxon system ; hut we may all find much, the spirit of which is worthy of admiration and pei-petuation, though the forms through which it acted are obsolete and incapable of revival. It should be premised that the word " system," as ap- plied to the Anglo-Saxon times, must be taken in a very modified sense, or it is calculated to mislead by giving an idea of uniformity, such as never existed. The Anglo- Saxon institutions were not arbitrarily created by any one lawgiver, or during any one age. They grew by degrees ; and they grew also in a country which was an almost perpetual scene of war and tumult, and which was inha- bited by races of difierent origin; so that the local deve- lopment of these institutions varied, besides their tempo- rary fluctuations. It is unsafe to attempt to give more than a general idea of their leading features, which must be variously worked out in detail, according to the par- ticular reign, and the particular part of England, to which it is meant to be applied. One class of the community in Anglo-Saxon times (though probably no very large portion) was in a state of absolute slavery. They were known in Saxon by the names of Theow, Esne, and Thrall. They probably originally consisted of conquered Britons; but as cri- minals, who could not pay the fine imposed by law, were reducible to this state, many unfortunate beings of Ger- man ancestry must in process of time have been com- prised in this degraded and sufiering class. The freemen of the land were classified by a broad division into the Ceorls who formed the bulk of the population, and into 44 RISE AND PROGRESS the Thanes who formed the nohility and the gentry. Sometimes the classification is made into Ceorls and Eorls ; the title of Eorl having reference to birth, whereas the title of Thane had reference to the possession of landed property. It was this, the ownership of landed property, that mainly determined the status and political rights of a Saxon freeman, and therefore the classification into Ceorls and Thanes is the most convenient to follow.* There is an additional reason for doing so, because the Danes used the title Eorl (Jarl, Earl) to designate au- thority and command ; and when the Danish influence extended in Saxon-England, the title of Earl was em- ployed not to mark a man of good birth, but the ruler m of a shire or other district. Many other names of bodies of people among the Saxons, and among subdivisions of classes, might be cited and explained, but to do so would require a dispro- portionate amount of this treatise; and, for the broad general view of Anglo-Saxon institutions, which alone is aimed at here, the classification of freemen into Ceorls and Thanes is sufficient. Both the democratic and the aristocratic principles en- tered largely into the Anglo-Saxon polity ; the latter finally obtaining the ascendancy, chiefly by reason of the strict- ness of the regulations, which it was found necessary to introduce, in order to maintain some degree of public peace, and to give some security for property and person, amid the tumult and confusion which prevailed so often and so * See on this subject, and on Hallam's "Middle Ages," vol. ii. the position of an Earl, who had p. 256. See also Kemble's not the property requisite to "Saxons in England," vol. i. make him a Thane, an excellent p. 131. note in the new edition of Mr. OF THE CONSTITUTION. 45 generally in England during the troubled ages of the Anglo-Saxon rule. To adopt the technical language of a modern writer on political pliilosophy,* Security being the primary object of government, it was found necessary to trench largely on both Liberty and Equality, in order to preserve it. One great fact, however, never must be forgotten while we examine the Anglo-Saxon institutions, and mark the privileges which the Thanes {i. c. the landed proprietors) possessed over the mass of the free commonalty, the Ceorls. The superior body was not composed of an hereditary caste, or noblesse. It was an aristocracy, but it was open to receive recruits from the ranks below it. Any Ceorl, who could acquire a defined amount of landed property, could become a Thane. It is convenient to examine the Anglo-Saxon social body, by commencing with its component parts. This method is recommended by Palgrave, and (subject to some slight additions and quahfications) we may safely follow him in taking the Anglo-Saxon townships as the integral molecules, out of which the Anglo-Saxon State was formed. He says,t " Ascending in the analysis of the Anglo-Saxon State, the first and primai7 element ap- pears to be the community, which in England, during the Saxon period, was denominated the Town, or Township. In times comparatively modern, this term became less frequently used, and it has been often superseded by the word "Manor." The latter is of Norman origin, and merely denotes a residence, and is frequently applied in ancient records to any dwelling or mansion, without any * Bentham. English Commonwealth," p. 65. t " Rise and Progress of the 46 RISE AND PROGESS reference to situation, territory, or appendant jurisdiction. An explanation of the Saxon term may be required. De- noting in its primary sense the inclosure which sur- rounded the mere homestead or dwelling of the lord, it seems to have been gradually extended to the whole of the land which constituted the domain." There was a lord of every township, usually one of the more opulent Thanes, though some townships belonged to the Sove- reign as their superior. We will, however, limit our at- tention to the ordinary and normal case, where a resident Thane was lord of the township. He dwelt there on his own demesne lands. Eound him there were grouped a number of Ceorls, some occupying allotments of land, some tilling the lands of others.* Each township had its Gerefa, or Keeve, an elective chief officer; and also in each township four good and lawful men were elected, who, with the reeve, represented the township in the judicial courts of the hundred and the shire. All these appear to have been fi'eely elected by the commonalty of each township from among their own body. The inha- bitants of each township regulated their own police. They were bound to keep watch and ward ; and if any crime was committed in their district, they were to raisej the hue and cry, and to pursue and apprehend the! offender. Such were the townsliips ; having, generally, each its! own local court, with varying amounts of jurisdiction;] * I am only endeavouring Infangthief, or Outfangthief, here to give a general sketch of &c. Copious information on a township, and therefore avoid these points may be found in i entering into questions about Palgrave and Kemble. Socmen, or Landboc, or Lon, or OF THE CONSTITUTION. 47 and being subordinate to the hundred court, which was again subordinate to the shire moot or county court. This leads us to consider the Enghsh hundreds, which subsist to this day, though the townships have become almost obsolete, having been superseded partly by the Norman manors, and partly in consequence of the eccle- siastical division into parishes having been adopted for the pui'poses of petty local self-government. Whether our hundreds had originally any reference to numher or not, it is certain that they ultimately became mere territorial divisions. And, both in order to facihtate the organization of the inhabitants for mihtary purposes, and to afford better security against crime, the hundreds were subdivided into ty things. In one respect, the sys- tem of tything was more comprehensive than the system of townships, as there may have been land not included in any township, and which would yet be within a hun- dred, and consequently would, when hundreds were sub- divided, be brought within a tything. Every hundred had its court, which was attended by the Thanes whose demesnes were within its boundaries, and by the four men and the reeve of each to^vnship. The hundred court was held monthly, and was subordi- nate to the court of the shire. The shire or county courts were held at least twice a year. They were presided over by the bishop, and the eorlderman, or earl. Each shire had also its reeve, who, in the absence of the eorlderman, was the president of its court, in conjunction with the bishop. All the thanes in the county, the four men, and the reeve of each township, and the twelve men chosen to represent each hundred, attended the county court, but it is justly doubted whether any but the thanes had a voice in it. Though an appeal from it seems to have lain to 48 RISE AND PROGRESS the Witenagemote, the supreme court of the kingdom, and though the Witan in some cases sometimes exercised an original jurisdiction, the shire moots were in practice the! most important tribunals in the country, and both theyl and the minor ones, which we have referred to, were cer- tainly of a very free and popular character. So far the Anglo-Saxon system seems democratic enough ; but even before we proceed to the consideration of the Witenagemote, there are two features to be attended to which are of a very different character. Every member of the Anglo-Saxon commonalty was bound to place himself in dependence upon some man of rank and wealth, as his lord. The " lordless " man was liable to be slain as an outlaw by any one who met him. And, in addition to this, every man was bound to be en- rolled in some ty thing; the members of each ty thing being mutually responsible for each other's good conduct, to this extent at least, that if any one of them committed a crime, the rest were bound either to render him to jus- tice to take his trial, or to make good the fine to which, in his absence, he might be sentenced. The efiect of these regulations was almost to limit every man to the place and neighbourhood of his nativity ; for it was dif- ficult and almost impossible to get enrolled in a tything or to find a lord in a place where a man was not known. At the same time, it is to be borne in mind that this spe- cies of compulsory settlement inflicted far less hardship in Anglo-Saxon times, when there was Httle traffic or communication between one district and another, and little inducement for a poor man to try to change his home, than has been in modern times caused by our lawsj of settlement and removal. The recollection of this will keep us from exaggerating! OF THE CONSTITUTION. 49 the importance of one point in the position of the Ceorls, which has caused some writers to speak of it as a state of servitude. Many of the Saxon Ceorls were legally annexed to the lands of their lords, and could not quit the estate on which they had to render their services. But the Ceorl was in other respects personally free. He was law-worthy, to use the old expressive phraseology. Among the Anglo-Saxons (as among all the other northern nations) a composition, or were-gild, was fixed by law for the slaying of any member of the State, according to the class to which he belonged. The were-gild for the death of a Ceorl was 200 shiUings, and was payable to liis family, and not to the lord of the estate on which he lived. But the fine for killing a slave was pdd to the slave's owner. The Ceorl had the right of bearing arms. He was a legal witness. As already pointed out, he had political rights with regard to the magistracies of his township, his tything, and his hundred, both as an elector and as himself eligible to office. He could ac- quire and hold property in absolute ownership; and he needed no act of emancipation to pass into the class of thanes, if he acquired the requisite property qualification of five hides of land. Many of the Ceorls were land- owners to a smaller extent. Hallam considers the soc- men, who are frequently spoken of in Domesday Book, to have been Ceorls of this description. He says, " They are the root of a noble plant, the free socage tenants, or EngUsh yeomanry, whose independence has stamped with pecuUar features both our constitution and our national character." * By far the larger part of the population in the Anglo- * " Middle Ages," vol. ii. p. 274. 60 EISE AND PROGRESS Saxon times was agricultural, but the towns were of considerable importance. The free spirit of local self- government which marks the Anglo-Saxon polity as displayed in its rural and village communities, was no less strongly developed in their cities and towns. The burg (as the town was usually called, meaning, literally, a fortified place) was organized like a hundred, having sub-divisions analogous to those of the hundred, accord- ing to its size and population. The Burhwara, or men of the borough, elected from among themselves their local ofi&cers for keeping the peace, and other purposes of municipal government. They thus also freely chose their own borough-reeve, or port-reeve, as their head of the civic community was termed. This officer presided at their local courts (the burhwaremot, or hustings), and in time of war led the armed burgesses into the field. Sometimes the king, or a bishop, or a neighbouring lord claimed and exercised seignorial rights within the borough; nor can any description of the Saxon municipal system be drawn that could be uniformly accurate. But, in general, we may safely assert that the Saxon boroughs were thriving and were free ; that they were strongholds, where the germs of England's commercial prosperity, and of the capacity of the Anglo-Saxon race for local self-government, were matured, amid the turbulence of ^j rude age, and the attempted encroachments of royal an( aristocratic power.* I shall have hereafter occasion to revert to the subjecl * For further information as berg's " England under the to the Anglo-Saxon boroughs, Anglo-Saxon Kings." See, also,] their guilds, &c., see the Ap- the chapter in Kemble oi pendix on Municipal Institu- " The Towns," vol. ii. p. 262. tions, at the end of Lappen- OF THE CONSTITUTION. 61 of the Anglo-Saxon judicial system, particularly with reference to trial hy jury; at present I will proceed to a brief account of the supreme assembly, the Witenagemote, which many political writers of the last century used to describe as a genuine EngHsh parhament annually elected by universal suffrage. Palgrave, Hallam, and Kemble, however they may differ among themselves on points of detail, have effectually dispelled these monstrous and often mischievous delu- sions. The Witan was essentially an aristocratic body. It was summoned and presided over by the king. It was attended by the bishops, by the earls or eorldermen ; the thanes generally had a right to attend; and probably those who resided in the neighbourhood of the place where a Witan was held did attend in considerable numbers. For the purpose of appeaUng against the decisions of inferior tribunals, and of procuring justice against powerful individuals, whom the minor courts could not reach, the magistrates of boroughs, and the four men and reeves of townships and other similar officers must have occasionally been present. This is what Sir Francis Palgrave terms " Remedial Representation." But there certainly were no representatives of the Ceorls at the Witan with any power to take part in or vote in its proceedings. The Witan made laws and voted taxes ; but this last was a rare necessity. The king was bound to take their advice as to making war or peace, and on all important measures of government. The Witan had the power of electing the king from among the members of the blood royal. They on some occasions exercised the power of deposing him for misconduct: and they formed the D 2 62 EISE AND PROGRESS supreme court of justice both in civil and criminal causes. The nature and extent of the authority which the Anglo-Saxon kings possessed are partly shown by the description of the powers of the Witan. But, in addition to many minor rights, the royal prerogatives of appoint- ing many of the principal officers of government, of commanding and disposing of the military force of the kingdom, were of considerable importance ; and the per- sonal character of the sovereign influenced materially the prosperity or adversity of the country, during the troubled centuries that passed between the accession of Egbert and the fall of the last Harold. It has been stated that the bishops were members of the Witan. The influence of the clergy in the Anglo- Saxon times was very great ; the humblest priest ranking with the landed gentry as a mass thane. The ecclesiasti- cal distribution of the country into parishes (i. e. preost scyres, each being the district of a single priest) is Anglo-Saxon; a division since generally adopted for purposes of local self-government. It is to Saxon laws « that modern disputants respecting tithes and church-ratesB refer for the original legal obligation on the English laity to provide these ecclesiastical revenues. Besides their right to these, the church was largely endowed with glebe for her parochial churches, and broad lands for her cathe- drals and monasteries. The existence of one of these great ecclesiastical foundations in or near a city favoured the progress of municipal civilization ; and many of our towns grew up round our ancient cathedrals. The high officers of the church, her bishops and archbishops, were recognised as the highest officers of the State also. Kem- \ OF THE CONSTITUTION. 63 ble has well remarked on the effect of this alliance between Church and State in the Saxon times, that, '^ guilty of extravagances the clergy were here, no doubt, as elsewhere; but on the whole their position was not unfavourable to the harmonious working of the State ; and the history of the Anglo-Saxons is perhaps as little deformed as any by the ambition, and power, and selfish class-interests of the clergy. On the other hand, it cannot be denied that in England, as in other countries, the laity are under the greatest obhgations to them, partly for rescuing some branches of learning from total neglect, and partly for the counterpoise which their authority pre- sented to the rude and forcible government of a military aristocracy. Kidiculous as it would be to affirm that their influence was never exerted for mischievous pur- poses, or that this institution was always free from the imperfections and evils which belong to all human insti- tutions, it would be still more unworthy of the dignity of liistory to affect to undervalue the services which they rendered to society. If in the pursuit of private and corporate advantages they occasionally seemed likely to prefer the separate to the general good, they did no more than all bodies of men have done, — no more than is necessary to ensure the active co-operation of all bodies of men in any one Hne of conduct. But, whatever their class-interests may from time to time have led them to do, let it be remembered that they existed as a permanent mediating authority between the rich and the poor, the strong and the weak, and that, to their eternal honour, they fully comprehended and performed the duties of this most noble position. To none but themselves would it have been permitted to stay the strong hand of power, to mitigate the just severity of the law, to hold out a ghm- lu 54 RISE AND PROGRESS mering of hope to the serf, to find a place in this world and a provision for the destitute, whose existence the State did not even recognise." This last observation of Kemble's refers to the wretched position of those outcasts of the Saxon civil community who could find no place in one of the mutual associations, the tithings, and find no lord who would permit them to become his retainers. These friendless helpless beings could not have been very numerous (we are not speaking of the wilful outlaws who lived by brigandage, but of the involuntary outlaws), but some of them must have existed. Such a being had no existence in the eye of the law, the civil State regarded him not, but abandoned him to arbitrary violence or starvation. But (to adopt again the eloquent words of Kemble), Christianity "taught that tliere was something even above the State, which the State itself was bound to recognise." The Church im- pressed the heavenly law by which the poor and needy, whom the earthly law condemned to misery, were to be relieved ; and the clergy presented their organization as an efficient machinery for the distribution of alms. There were other sources of relief for the poor. The tithes and other ecclesiastical revenues contributed their portion, and thus at every cathedral and every parish church there was a fund for the helpless pauper, and officers ready for its administration. I leave unnoticed many points in the Anglo-Saxon system, of interest in themselves, but not indispensable for the general purpose of this treatise. But, in ap- proaching the period of the Norman Conquest, it may be usefully observed, with Guizot, that in the last period of, the Anglo-Saxon system the power of the great nobles was becoming more and more predominant, so as to I OF THE CONSTITUTION. 66 menace both the independence of the crown and the free- dom of the commonalty. The earls, or eorldermen, the rulers of large provinces, like Earl Siward, Earl Leofric, Earl Godwin and his sons, and others, were forming a separate order in the State, through the aggressive in- fluence of which the political rights and Uberties of the others would probably have decayed and perished. The catastrophe of the Norman Conquest prevented this; a catastrophe terrible in itself; but, in all human proba- bility, the averter of greater evils even to the Saxons themselves than those which it inflicted. CHAPTER V. The Norman Element. — Different from the Danish. — Rolf the Ganger's Conquest of Neustria. — State of Civilization in France. — Characteristics of the JSTormans. — Their brilliant Qualities. — Their Oppression of the Peasantry. Last, but not least in importance, of the four elements of our nation came the Norman. In some respects it may seem to be identical with the Danish : as Scandi- navia was the parent country of both Norman and Dane. But there is this essential distinction. The Danes came to England direct from their Scandinavian homes. The Norman nation had dwelt in France for more than a cen- tury and a half between the time of its leaving Scandi- navia and the time of its conquering England. During that interval the Normans had acquired the arts, the lan- guage, and the civilization of the Romanized Gauls and the Romanized Franks. They had done more than ac- quire the characteristics of others : they had created and developed a new national character of their own, differing both from that of their rude Danish and Norse kinsmen on the shores of the Baltic and the North Sea, and from that of the Romanesque provincials, whom they found on the banks of the Seine and the southern coast of the Channel. i Osker, Eegner Lodbrok, Eric the Bed, Biorn Ironside, Sidroc, and many more kings and jarls of the Norse or Dansker-men, had sailed up the Seine and spread the terror of their plunderings and slaughters through France, before a young Norwegian chief, named Kolf, and surnamed " Ganger " from his length of limb, left Nor- way with a fleet of warriors, and in 876 a.d., after some passing forays in England and Belgium, entered the estuary of the Seine, and made the famihar voyage of his countrymen up to Rouen. To say that he was enter- prising, energetic, and fearless, is only to say that he was a Norse Viking. But tall striding Rolf was much more. He was a founder of empire. His brains were as good as his sinews. He was a man of thought as well as a man of action, and was worthy to be the lineal ancestor of Eng- land's sovereigns. He " formed the plan of substituting permanent colonization for periodical plunder. His host, his men, his * baronage,' ultimately took possession of the city of Rouen, and the neighbouring countr)% mea- suring and dividing the land according to the Danish custom, by the rope."* But their settlement there was not efiected at once. A long series of wars with the Frankish kings followed, varied by truces which were always bought of the Northmen wdth French gold. At last, in the year 912, King Charles Le Chauve formally ceded to Rolf the province which the jarl already firmly held, and which, from its new lord and his warriors, has thenceforth borne the name of Normandy. Even in the crushed and miserable state of France * Palgrave's " Normandy and England," p. 518. D 3 58 RISE AND PROGRESS under her last Carlovingian kings, Eolf, and his fellow- adventurers from Scandinavia, could perceive and appre- ciate the yet living fragments of a civilization superior to their own. This, in truth, the instinctive faculty of dis- cerning and adopting the creations of the genius of others, peculiarly characterized the Normans, not only at the period of their first settlement in France, hut through- out the ages of the rule of their dukes in Normandy. Eolf and his warriors embraced the creed, the language, the laws, and the arts, which France, in those troubled and evil times, during which the Carlovingian dynasty ended and that of the Capets commenced, still inherited from Imperial Kome and Imperial Charlemagne. Duke Eollo (such were the title and name which Jarl Eolf as- sumed) was succeeded in his duchy by a race of princes resembling him in mental capacity, as well as in martial bravery. The descendants also of the original Norman barons, taken as a body, were conspicuous for the same merits that had marked their sires. The century and a half which passed between Duke Eollo's settlement in Normandy and Duke William the Bastard's invasion of this island was an important period in mediaeval history. France, throughout this time, was little more than a fede- ration of feudal princes; and, during this period, the power, and pride, and predominance of the nobility, as a distinct order from the mass of the nation, grew rapidly, and assumed a peculiar social organization. Amid the general disorder of France the noblesse for- tified their castles where they dwelt ; each baron in his stronghold, with his family and his band of favourite re- tainers round him. The management of horses and arms began to be regarded as the sole occupation worthy those OF THE CONSTITUTION. 59 of '' gentle " blood. During this century and a-half, chivalry, with all its romantic usages and institutions, grew into existence ; and the germs of modem literature, of the poetry of the Trouveur aad the Trouhadoicr, ap- peared. Eehgious zeal, also, as manifested in distant pil- grimages, and in the lavishing of wealth and architectural skill upon abbeys, cathedrals, and shrines, was carried to a height previously unknown. In all these things, and in a generous respect for intellectual excellence, by whom- soever and however manifested, the Normans were pre- eminent. Their national originality of character was at the same time shown in the free, but orderly and intel- ligent spirit, which made them establish and preserve in their province a regularity of government, system, and law, which contrasted strongly with the anarchy of the rest of France. The Norman had a steady fixity of pur- pose, he had a discernment of the necessity of social union and mutual self-sacrifice of free-will among the individual members of a State for the sake of the common weal. Such qualities are the indispensable materials for national greatness ; they were peculiar in those days to the Nor- mans, especially as distinguished from the versatile and impatient noblesse of the rest of continental Christendom. We have no trustworthy details of the institutions and laws of the Normans before the conquest of England. We only know generally that there was a council of the Norman barons, which the Norman duke was bound to convene and consult on all important matters of state ; and that William the Conqueror's counts and chevaliers had not degenerated from the independent frankness of their Scandinavian sires. Such were the brighter qualities of the Normans, who gave kings to our throne, ancestors to our aristocracy, 60 RISE AND PROGRESS clergy to our church, judges to our tribunals, rule and discipline to our monasteries, instructors to our archi- tects, and teachers to our schools. We must proceed in our enumeration of the Norman gifts, and add, " who, beside the misery which their conquest caused to the generation then in being, gave, for many ages, tyrants to our peasantry, and brutal oppressors to our burghers and artizans." For there is a dark side of the Norman cha- racter, which the historian of Enghsh liberty must not omit ; and even the aristocrats of ancient republican Eome were surpassed by the Norman nobility in pride, in state craft, in merciless cruelty, and in coarse contempt for the industry, the rights, and feelings of all whom they considered the lower classes of mankind. Hitherto in speaking of the Normans in Normandy, we have been considering their usages and their charac- teristics, so far only as they themselves were concerned. It remains to view and judge them relatively to others. The warriors of Kolf, and their descendants, were not the whole population of Normandy; they formed only a small minority of the human beings who lived in that province. The peasantry, whom the Norse conquerors found there, were not extirpated or evicted, but became ■ part of the property of the new lords of the soil. They were taken with the land, like the other animals that were found on it. The mere fact of the foreign conquerors making slaves of the conquered natives, would present in itself nothing remarkable. Such was the established practice of ancient and mediaeval times, nor can we say that modern ages have been pure from it. But the domi- nation of the Normans over their villeins (as the Neus- trian peasants were termed) was marked by its peculiar oppressiveness ; and especially by the tyranny of the d OF THE CONSTITUTION. 61 forest-laws which the Normans established. Sir Francis Palgrave says of this, that though the Normans did not destroy the old inhabitants of Neustria, '' the conquerors gave the widest construction to the law of property ; air, water, and earth were all to be theirs — fowl, fish, and beasts of chase, where the arrow could fly, the dog could draw, or the net could fall — sportsmen and huntsmen, the Danish lords appropriate to themselves all woodland and water, copse and grove, river, marsh, and mere. Their usurpation of the rights previously enjoyed in common occasioned in the days of Rollo's great grandson a fearful rebellion ; and the spirit of the forest laws, the pregnant source of misery to old England, has perhaps acquired additional bitterness in our present age; we retain the evil, whilst our pariahs have lost the compensation which mitigated mediaeval tyranny." It is worth while to read in the old Norman chronicler, William of Jumiege, his narrative of the insurrection, which Palgi'ave refers to ; not only for the information which it gives respecting its immediate subject, but, still more, for the insight which it affords into the prevailing sentiments among the Normans with respect to the labour- ing classes. Count Ranulph's cruelty to the insurgent peasants might be attributed to provocation or to indi- vidual ferocity of character. But De Jumiege wrote coolly and deliberately ; and the tone in which he speaks of the sufferings and the duties of the peasantry, may be taken as accurately representing the general opinion of the Norman lords. After eulogizing the virtues of the then reigning duke Richard, De Jumiege says, " While he abounded in such goodness, it happened that in his youth a certain seminary of pestiferous dissensions arose within his dukedom of Normandy. For the peasants. 62 RISE AND PROGRESS OF THE CONSTITUTION. one and all, throughout the various counties of Nor- mandy, holding many assemhlies, resolved to hve at their own free-will; so that they should enjoy their own rights as to forest and to fishery, without the harrier of the law previously ordained. And for the purpose of estahlish- ing these schemes, two delegates were elected hy each as- sembly of the mad rabble, who were to meet in a central convention for the purpose of confirming these resolu- tions. And when the duke knew it, he forthwith ap- pointed Count Ranulph with a multitude of soldiers to repress the fierceness of the peasants, and disperse their rustic convention. And he, not delaying to do the duke's bidding, captured forthwith all the delegates, with some other peasants : and having cut ofi" their hands and feet, he sent them back in that helpless state to their com- rades; to check them from such practices, and to be warning to them not to expose themselves to something still worse. And when the peasants received this lesson, they forthwith abandoned their assemblies and their de- bates, and returned to their proper places at their ploughs."* * William of Jumiege, book v. chap. 2. I CHAPTER VI. The Norman Conquest. — Extent of the Changes which it caused. — Numerical Amount of the Norman and Anglo-Saxon Popula- tions. — Amount of Loss of Life caused by the Conquest. — Pro- bable Number of the Normans and other New-comers from Conti- nental Europe. — Did the Population increase in the Century and a-half preceding the signing of Magna Carta ? — The Miseries of Stephen's Reign. — Period of Tranquillity under Henry IL — Pro- bable Amount of Population in 1215. The morning of the 29th day of September, 1066, saw a host of the Norman chivali^ land upon the coast of the South Saxons (Sussex), and the setting sun of the follow- ing 14th day of October saw them the conquerors and lords of England.* The last of the Saxon kings, with his brethren, and most of the bravest Thanes of the south and centre of the island, lay dead on the field of Senlac. The two great Northern Earls, Edwin and Morcar, were timid and irresolute. There was no vigorous native chief to renew the war. The fortification of the strong places throughout England had been neglected : and as there was no post whither the shattered remains of Harold's army could retreat, and where they could halt in safety until reinforcements arrived, and until * See the Battle of Hastings, cisive Battles of the World." chap. 8 of " The Fifteen De- 64 EISE AND PROGRESS further measures of defence could be organized, a single defeat placed the whole country in the power of the in- vader. Duke William had, indeed, some slight pretexts of right to the English crown, besides the cogent title of the sword. His relationship to Edward the Confessor, and the alleged bequest of the sovereignty of England to him by that king, gave a colourable excuse, both to his own conduct in undertaking his great enterprise, and to the conduct of the Saxons who submitted to him, instead of prolonging a hopeless war after the battle of Hast- ings. He was crowned King of England by the Saxon arch- bishop with the ancient Saxon forms, and after taking the coronation oath of the Saxon kings, on Christmas Day, 1066. At first his rule was comparatively mild. By confiscating the large estates of King Harold and Harold's family, and principal adherents, WiUiam obtained the means of appeasing (if he could not satisfy) the rapacity of his followers, while he left for a time the greaterj| number of the English landowners in the enjoyment of their property. But, under any disguise, conquest is to a brave people a bitter draught. The sense of fofeign domination, and the insolence of William's Norman barons and prelates weighed heavily on the spirits of Saxon Thane and Saxon Ceorl. Then came fierce local risings, with delusive partial successes over the foreigners ; soon crushed by the disciplined troops and the high mili- tary genius of the Conqueror. Then followed more sweeping confiscations, and darker cruelties : the results not so much of hasty anger, as of a stern, remorseless policy. William resolved that his English subjects should fear him, if they bated him ; and no feeling of mercy d OF THE CONSTITUTION. 65 ever made him pause in any measure that seemed adapted to increase and consolidate his power. There are some yet standard works on our histor^ and our laws, in which the Norman Conquest of England is spoken of in terms, which would lead the reader to ima- gine that it amounted to little more than the substitution of one royal family for another on the throne of this country, and to the garbling and changing of some of our laws through the '* cunning of the Norman lawyers." But it is certain that the social and political changes which that Conquest introduced into England, excelled in import- ance the effect of any similar event which had occurred in mediaeval Christendom, and that they have not been equalled by the results of any subsequent conquest which one Christian nation has effected over another. In con- sequence of the triumph of the Normans here, new tribu- nals and tenures predominated over the old ones, new divisions of race and class were introduced, whole dis- tricts were devastated to gratify the vengeance or the caprice of the new tyrants, the greater part of the lands of the English were confiscated and divided among aliens, " the very name of Englishman was turned into a re- proach, the English language rejected as servile and bar- barous, and all the high places in Church and State for upwards of a century filled exclusively by men of foreign race." The words of Thierry* on this subject are no less true than eloquent. He tells his reader that " if he would form a just idea of England conquered by William of Normandy, he must figure to himself, not a mere change of poHtical rule, nor the triumph of one candidate over * Thierry's " Norman Con- " Middle Ages," vol. ii. p. 304. quest." See, too, Hallam's 66 EISE AND PROGRESS another candidate, of the man of one party over the man of another party, hut the intrusion of one people into the bosom of another people, the violent placing of one society over another society, which it came to destroy, and the scattered fragments of which it retained only as personal property, or (to use the words of an old act) as * the clothing of the soil.' He must not picture to him- self — on the one hand, William, a king and a despot — on the other, subjects of William's, high and low, rich and poor, all inhabiting England, and consequently all Enghsh : he must imagine two nations, of one of which William is a member and the chief — two nations which (if the term must be used) were both subject to William ; but as applied to which the word has quite different senses, meaning in the one case suhordinate, in the other subjugated. He must consider that there are two coun- tries — two soils — included in the same geographical cir- cumference ; that of the Normans rich and free, — that of the Saxons poor and serving, vexed by rent and taillage ; — the former full of spacious mansions, and walled and moated castles, — the latter scattered over with huts of straw and ruined hovels ; — that peopled with the happy and the idle — with men of the army and of the court — with knights and nobles, — this, with men of pain and labour — with farmers and artizans ; — on the one, luxury and insolence, — on the other, misery and envy — not the envy of the poor at the sight of opulence which they cannot reach, but the envy of the despoiled when in presence of the despoiler." We have now traced the four great elements of our nation from their respective origins, until they were all brought together in this country. The period whicl elapsed between the introduction of the last of these inj OF THE CONSTITUTION. 67 point of date (that is to say, the Norman), and the national rising against King John in the early part of the 13th century, is a period of fusion; very interesting, as to many of its events, and as to the personal characters of many who figured during it. In particular, the Con- queror himself, the brave Saxon chieftain Hereward, the Archbishops Lancfranc and Anselm, King Henry the Second, Archbishop A'Beckett, and William Longbeard, the Saxon burgess, who strove in vain to defend the oppressed commonalty of the capital against their Norman tyrants, all deseiTC the careful attention of the student of EngHsh history, and of the student of human nature. But to avoid prolixity, I pass over the details of this period ; and proceed to examine the number and condition of the various classes of the population of England in the reign of John, the epoch of the true dawn of our complete nationality. In making that examination, we shall be led to consider several of the most important events which had then happened in the interval since the Conquest. One primai7 point, before we notice the subdivisions of the population, is to ascertain, as well as we ai'e able, the numerical amount of the whole. And this is closely connected with a topic, which ought not to be omitted when we speculate on the comparative importance of each of the four elements of our race ; I mean the proportion which the Normans and other new-comers from Conti- nental Europe bore to the Anglo-Saxons and Anglo- Danes, among whom they settled as conquerors. The population of England at the time of the Nonnan Conquest is variously estimated at from a million and a- half to two millions. It is necessary to bear this in mind, when we read of the losses sustained by defeats in the 68 RISE AND PROGRESS field, and other calamities of this period ; because we are too apt to think of the England of bygone centuries, as of the England of our own times in point of population. Unless we correct this anachronism in our ideas, we shall not attach suflBcient importance to the destruction of two or three hundred thousand human beings in that age, as being a catastrophe, not only shocking in itself with regard to the immediate sufierers, but calculated. seriously to thin the land of its old inhabitants. I propose to determine as far as possible, 1st, The extent to which the Saxon population was diminished by its afflictions under the Normans ; and, 2ndly, the pro- bable number of the Normans and other Continental Europeans who settled here. We shall find that these calculations will supply us with our primary data for esti- mating the number of the population at the epoch of the Great Charter. The Saxon army which perished with Harold, at Hast- ings, is said not to have been a very large one. But the slaughters of the Saxons, which followed, in consequence of their subsequent insurrections against the Conqueror, were numerous and severe : nor can we estimate the total number that perished by the edge of the sword, during William's invasion and reign, at less than a hundred thou- - sand. The number of exiles also was considerable ; as very many of the Saxons sought refuge in Scotland ; and many fled beyond seas from the tyranny of their Norman lords. But the massacres perpetrated in cold-blood by William's command destroyed more than fell fighting, or fled into exile : and the famines and pestilences caused by his merciless devastations of wide tracts of populous and fertile territory, were more destructive still. One of his most atrocious acts of this kind was his laying waste the I i d OF THE CONSTITUTION. 69 country between the Humber and the Tyne, partly out of anger for a rising of some of the inhabitants against him, and partly as a measure of precaution, because he ex- pected an invasion from Denmark, and thought that the Danes would most likely land in the North of England, where the population was most nearly akin to them. The Norman Monkish Chronicler, Ordericus Vitalis, who is generally William's unscrupulous panegyrist, thus speaks of his devastation of Northumbria. "He extended Ins posts over a space of one hundred miles. He smote most of the inhabitants with the edge of the avenging sword : he destroyed the hiding-places of others : he laid waste their lands : he burned their houses, with all that was therein. Nowhere else did William act with such cruelty : and in tliis instance he shamefully gave way to evil pas- sion ; while he scorned to rule his own wrath, and cut off the guilty and innocent with equal severity. For, excited by anger, he bade the crops, and the herds, and the household stuff, and every description of food to be gathered in heaps, and to be set light to and utterly de^ stroyed altogether : and so that all sustenance for man or beast should be at once wasted throughout all the region beyond the Humber. Whence there raged grievous want far and wide throughout England; such a misery of famine involved the helpless people that there perished of Christian human beings, of either sex and every age, upwards of a hundred thousand."* A large part of Hampshire was similarly made a wilder- ness by his orders, so as to supply him with a ** New Forest," wherein he might pursue his favourite sport of * Ordericus Vitalis, lib. iv. 70 RISE AND PROGRESS the chase. Many other acts of his might be mentioned, all tending to waste the people who were his victims from off the face of the land : and an infinitely larger number of cruel and destructive acts were perpetrated by him and his Norman followers, no special record of which has sur- vived, but to which the lamentations of the old Saxon Chroniclers bear emphatic, though confused testimony. For instance : one of these old writers * tells us that he forbears narrating, in detail, the conduct of the Normans to the mass of the population, " because it was hard to express in words, and because it would appear incredible by reason of its excessive barbarity." Many more such phrases of the Saxon monks who saw and mourned over the miseries of their countrymen might be cited. And there is also the explicit proof which the figures in Domesday Book f supply of the decay of the populations of the great cities and towns, and it was during the first 20 years of the Norman rule in this country. Altogether, I believe that the old population of the island was dimi- nished by, at least, a third, during the invasion and the reign of William the Conqueror. It remains to be considered how far this gap was filled up by the Normans and their companions. William's army at Hastings is said to have numbered 60,000 fighting men. Of these, a fourth fell in the fight ; but we must add largely for the non-combatanl who accompanied the troops. We have an account alsc of another even larger host, which he summoned ovei here from the Continent, in the 19th year of liis reign^ * Hist. Eliens. t See Hallam's " Middle Ages," chap. 8, p. 2. OF THE CONSTITUTION. 71 when he expected an invasion from Scandinavia ; and a constant stream of new population from the Continent, was poured into England during the times of all her first Anglo-Norman monarchs. Few of these adventurers returned to their homes. So that it is probahle that, during the reigns of the Con- queror and his sons, from two hundred thousand to three hundred thousand Normans and other immigrants from the Continent became inhabitants of this country. The accession of population to England from the Con- tinent, continued during the reigns of Stephen and Henry II., especially the latter ; when the Plantagenet heritage in the south of France, contributed to the influx. The introduction also of a large colony of Flemings, who were principally settled in the neighbourhood of Wales, is not to be omitted. I do not, however, think that the aggregate population of the various races in England was larger at the death of Eichard I. than at the epoch of the Conquest. The misery which the country suffered during the reign of Stephen must fearfully have reduced the number of human beings in the land. No description of that misery can be more emphatic than that which the old chroniclers give. They tell us that, "The nobles and bishops built castles, and filled them with devilish and evil men, and oppressed the people, cruelly torturing them for their money. They made many thousands die of hunger. They imposed taxes upon towns, and when they had exhausted them of everything, set them on fire. You might travel a day, and not find one man living in a town, or in the country one cultivated field. The poor died of hunger; and they who were once men of sub- stance now begged their bread from door to door. Never did the country suffer greater evils. The very Pagans 72 RISE AND PROGRESS OF THE CONSTITUTION. did not more evil than those men did. If two or three men were seen riding up to a town, all its inhabitants left it, taking them for plunderers. To till the ground was as vain as to till the sand on the sea-shore. And this lasted, growing worse and worse, throughout Stephen's reign. Men said openly that Christ and his saints were asleep." During the long and prosperous reign of Henry II., the country recovered from " that shipwreck of the Com- monwealth," as one of Henry's Acts of State emphatically calls the condition of the land in the time of Stephen. But looking generally to the character of the other reigns, I do not think there is any reason to suppose that the total population of the realm, in the time of John, ex- ceeded the largest census which is assigned to Anglo- Saxon England, namely, about two millions. CHAPTEK VII. General View of the Feudal System. — Meaning of the terms " Feudal " and " Allodial."— General Sketch of the Progress of a Germanic Settlement in a Roman Province. — Causes of Feudalism. — Progress of " Subinfeudation." — Aristocratic Character of Feu- dalism. — Its Oppressiveness to the Commonalty. — Its brighter Features. In order to understand the classes, into which the two millions of human beings, who dwelt here at the time of the grant of the Great Charter, were divided, and the system of government which then existed, a right compre- hension of the principles of the Feudal System is indis- pensable. Even the state of the enslaved peasantry of England at the commencement of the 13th century, cannot be thoroughly discerned, unless we view the peasants in relation to their feudal lords. And, when we proceed to the great events of the century, it would be utterly impossible to give any intelligible account of the greatest of all, the acquisition of Magna Carta, without continually pausing to explain feudal terms and usages, if we should not have taken a preliminary survey of that strange body of social and pohtical institutions, so long and so generally prevalent over Europe, to which historians and jurists have given the title of Feudal. The inquiry is, indeed, far from being one of mere E 74 RISE AND PROGRESS antiquarian interest. The forms of our Constitution cannot be understood without it ; and the student of our law, especially of the law of real property, must still re- sort to the feudal system for the principles, and even for the practice, of his art.* I am not, however, going to discuss here, either the etymology, or the date of the birth, or the exact pedigree of Feuds. Suffice it, for the present occasion, to say generally, that the feudal system was gradually matured during the six or seven centuries of confusion, which followed the irruption of the Germanic nations into the Western Eoman empire : and that, at the epoch which we treat as the dawn of complete English history (about A.D. 1215), the feudal system was established, though with different modifications, in every European country that had been a Koman province and had been overrun by German conquerors. The feudal system was also then established in Germany itself. There are many things, which are the more easily under- stood by first obtaining an understanding of their oppo- sites. This is the case with the word "Feudal." The term used in contradistinction to it, by European jurists, is " Allodial." Allodial land was land in which a man had the full and entire property; which he held (as the saying is) out and out. But feudal land (and the land itself soi held was called a Feud, or Fief) was land which a man held of some other man, from whom or whose ancestors^ the holder (or his ancestor) had received permission to possess and enjoy the fruits of the land ; but the property and ultimate dominion of it remained in the giver, or, as * See " Hayes on Convey- edition. See, also, Stephc ancing," vol. i. p. 6. Fifth " Blackstone," vol. i. I OF THE CONSTITUTION. 75 he was teclinicalJy called, the lord. The idea of the sovereign owner of land allowing individuals to have the possession of portions of it, and even to transmit such possessory interest to their heirs, on condition of render- ing certain services, usually military, may he found in the institutions of almost every ancient European nation, and in those of many Asiatic States at the present time. But it was only in mediaeval Europe that this simple idea and natural custom were elaborated into a complete system of government and of social organization, to which every- thing else was made subordinate, and by reference to which every public office and every private right were determined. In order the more clearly to picture to ourselves the chief causes of the establishment of Feudahsm, we may sketch in our minds the progress, and watch the position, of some one of those numerous bands of Teutonic con- querors, that had won their way into a Koman province at the fall of the ancient Western Empire. The sketch I am about to give, is applicable to Romanized Europe generally, not specially to England. My object at present is to give the leading ideas of feudalism. When we come to apply them to the state of things in this island, some important modifications must be introduced : but still the general theory must be first learned. Here, again, in order to illustrate and explain feudalism, I shall first illustrate its negation, allodiaHsm. When, by degrees, the bands of Germanic warriors, who had broken in upon Gaul and the other Roman pro- vinces, began to lose their spirit of fierce restlessness, and to wish for some permanent settlement in the territories, which they had conquered from the provincials, and had long fought for with each other, the ownership of £ 2 76 RISE AND PROGRESS land acquired a value in their eyes, not merely of a higher degree, but of a wholly different nature, to that which it had in the eyes of their ancestors, who dwelt amid their primitive forests and wildernesses ; and also to that which it had had in their own, so long as they were a mere troop of adventurers, roving in quest of plunder, or seeking fresh enterprises for the sheer sake of the excite- ment. Let us imagine an army of Germanic conquerors in this mood for becoming inhabitants of the land which they had conquered, and let us mark what would be the natural results. Some part of the territory might probably be left in the hands of the conquered population; but the conquerors would share the rest. The points to attend to, are to see, first, how they would share it ; and secondly, what other system of parcelling out domains would soon ensue. It is to be remembered that each barbaric king was not the sovereign of an army of subjects in the sense in which we employ the term " sovereign" and " subject;" but of free and independent warriors, each of whom would claim his share of the spoil as a right, as something toM hold at his own free will, not as a boon revocable at a' despot's caprice. The portion of land, which the German soldier thus took, he took as his property; and his estate in it was termed, by the Franks, Allodial. As the con- querors dwelt among a numerically superior population, their safety must have required them to keep up theirj military organization ; and the subordination, which is the essence of all military discipline, must have greatly facilitated the change of tenure which, as we shall next see, generally occurred.* I have described the distribution of land that took * See Note 8, to Robertson's " View of the State of Europe. 2 OF THE CONSTITUTION. 77 place among the free warriors who composed a Germanic army, and the terms on which that land was usually assigned ; but all the confiscated territories was not thus portioned out. Large demesnes were reserved for the King, called fiscal lands. Out of the royal demesnes, the sovereigns granted lands to their most favoured or distin- guished personal followers under the title of fiefs or bene- fices. Whether any definite services were at first affixed to a beneficiary grant is uncertain ; but, in the nature of things, some return would be expected from the favoured follower ; an expectation which would soon ripen into a demand : and military service against foreign or domestic foes would, in such a state of society, be the return most desirable to the grantor, and most easily and willingly accorded by the receiver. But the ownersliip of the fief did not pass out of the grantor. The favoured individual (the Feudatory, in the technical phrase) received, not a right of property, but a mere licence of possession and enjoyment, an usu-fructuary right, which some authors suppose to have been at first precarious and arbitrarily revocable; though the feudatory's interest soon became more certain and permanent, enduring for his life, unless forfeited by some act of misconduct towards the giver, or, as we will term him, assuming the feudal phraseology, the lord. And gradually fiefs became hereditary; though, throughout the development of the system, the ultimate property was and is held to be in the lord, as evidenced both by legal forms and symbols, and by the liabilities of the fief to revert to the hand that gave it — liabilities which long afforded sharp and practical symptoms of its original character. As the privileges of the feudatory thus became certain, so were his duties systematized, and the consequences of 78 RISE AND PROGRESS j his breach of them defined. Mihtary service, fidelity in counsel, respect for the person and honour of his lord, attendance at his lord's tribunal, pecuniary contribution in certain cases, formed the essence of these duties, varying, however, in detail, at different times and in different coun- tries. Corresponding duties of protection from the lord to the feudatory existed; and the general character of the re- lation between the lord and vassal may be defined in Mr. Hallam's words as a mutual contract of support and fidelity. I have been describing a case of feudaUsm in its simplest form, where the feudatory, to whom the sovereign lord of the land granted it, continued to hold the land himself. But the process of " Sub-infeudation" was common, and then a far more complex state of things arose. The feudatory, who received large grants of land from his sovereign, frequently had dependants of his own, to whom he carved out portions of his fief, to be held of himself on terms similar to those by which he held it of his lord. His sub -gran tees thus became vassals under him, and he was a feudal lord to them. They again might sub-divide their sub-fiefs, and grant them to others. And the process might be indefinitely renewed as often as each subdivided piece of feudal land was capable of still further sub-division. So that many hnks in the feudal chain might intervene between the original grantor, or Lord Paramount, and the actual occupant of the soil, who was termed the Tenant Paravail. Thus, there arose a seignioral hierarchy, specious in appearance, and which Blackstone has eulogized, but in reality productive of very great confusion. For, as it was in respect of the land that the feudal relation arose, and not in respect of; J OF THE CONSTITUTION. 79 any personal status of the individual, the same two men might be and often were lords and vassals of each other in respect of different lands, and an endless conflict of ohhgations and rights was created. Still, some protection was gained from the system; and, as times grew more and more troubled after the dissolution of the empire of Charlemagne, the oppressed and isolated allodialist was glad to seek even temporary shelter, by becoming one of the liegemen of some powerful baxon in his neighbourhood. Frequently, also, the feudal barons possessed themselves with the strong hand of the little properties of their feebler neighbours. " During the 10th and 11th centuries," says Mr. Hallam, "it appears that allodial lands in France had chiefly become feudal ; that is, they had been surrendered by their proprietors, and received back again upon the feudal conditions ; or, more frequently, perhaps, the owner had been compelled to acknowledge himself the man or vassal of a suzerain, and thus to confess an original grant which had never existed. Changes of the same nature, though not, per- haps, so extensive or so distinctly to be traced, took place in Italy and Germany. Yet it would be inaccurate to assert that tlie prevalence of the feudal system has been unlimited ; in a great part of France allodial tenures always subsisted, and many estates in the empire were of the same description." The influence of the feudal system was not limited to the lay part of the population, or to the rural districts of the state. " The prelates and abbots were completely * feudal nobles ; ' they swore fealty for their lands to the king or other superior; received the homage of their vassals, enjoyed the same immunities, exercised the same 80 EISE AND PROGRESS '^■11 jurisdiction, maintained the same authority as the '^^ lords among whom they dwelt."* Very frequently the bishops and abbots gave fiefs to knights on condition of defending the cathedral or the abbey; and of supplying and leading the contingent of troops, which the Lord Paramount demanded. The towns and cities also had their feudal lords. Sometimes the rights of war and con- quest gave to the sovereign or some powerful noble the feudal seigniory over a civic community: sometimes the burghers voluntarily placed their city under the feudal seigniory of some celebrated chieftain, or neighbouring baron, for the sake of military protection. The extent of the jurisdiction of the feudal lord over a borough varied according to the terms of the original compact, where it had been voluntarily created ; and according to the terms which the burgesses were able to purchase, where the lords' right over them was the sweeping right of conquest. The modes by which the boroughs obtained their charters of liberties, their municipal organizations, and their ow™ leagues with one another for self-protection, form one of the most interesting portions of mediaeval liistory, but can only be glanced at here. The spirit of the feudal system was essentially aristo- cratic. It required, indeed, the existence of a single Lord Paramount, whether termed Emperor, or King, who was theoretically the supreme fountain of honour and justice, and the motive centre of authority both in peace and war. But, in practice, the feudal aristocracy was an aggressive power, that ever sought to aggrandize itself at the expense of monarchy. The process of sub-infeuda- * Hall, i. 194. I OF THE CONSTITUTION. 81 tion was the great cause of this. Each haron, who girt himself with martial vassals sworn to serve him, and who made the revenues of provinces and cities his own, be- came the founder of an '^ imperium in imperio." He did not, indeed, often throw off the semblance of alle- giance to his sovereign, but he claimed and exercised the right of resisting his sovereign by open force, if the sove- reign carried his feudal prerogatives too far, and of making formal war on him as on a stranger, if his sovereign did him wrong on any matter unconnected with their feudal relationship. He claimed and freely exercised the right of similarly making war on any of his fellow- subjects, on the neighbouring barons or others who offended him. This right of private warfare was the greatest affliction to feudal Europe. Another point on which the feudal lords strove to assert their independence of the crown, was the right of administering justice in their own territories. Each feudal lord had his baronial court, at which his military tenants attended, and where the judicial combat was the favourite mode of determining controversies between the litigants, whether of a civil or a criminal nature. While the feudal aristocracy was thus encroaching upon the natural powers of the monarchy, it was no less aggressive upon the commonalty of the land. The feudal barons and their retainers gradually formed an aristocracy of birth as well as of tenure. It has been pointed out, in describing our Norman ancestors before the Conquest, how each baronial castle became a mihtary school, wherein the exercises indispensable for the train- ing and duties of the armed cavalry of those ages, were taught to the barons' sons, and to the youths of similar birth who were nurtured with them. It is to be ob- £ 3 82 RISE AND PROGRESS m iure,Hl served, that every holder of a fief by military tenure, however small his strip of land, was a noble, as dis- tinguished from the tiller of the soil, the burgess, and the artizan, and even from him who held land by aflj less martial title. The superiority of the feudal war- rior who was thus trained up, and who fought on horse- back, protected by his coat-of-mail armour, over the common people who fought on foot and without armour of defence, was effective in war, and tended more and more to encourage the pride of superiority of class. Men who belonged to this equestrian rank (as the class of feudal aristocracy in its early stage may be correctly called) retained the same feelings of elevation, even though they had parted with their land. Their children did the same. The institutions of chivalry, and the adop- tion of distinctive armorial bearings by members of parti- cular families, aided powerfully in creating this mixed feudal aristocracy based partly on tenure of land, and partly on birth. The nobility, and the knights and members of knightly families, made up a warrior caste, who termed themselves gentle by birth ; and who looked down on the great mass of the lay community as beings of almost inferior nature. According to the favourite theory of the admirers of the feudal system, men were divided under it into three classes — warriors, teachers, and producers. The feudal nobles and knights with their vas- sals and military followers were the first class : the clergy were the teacher class ; and the rest of the people were the third, the productive class.* Unhappily the general tendency of feudaUsm was to depress the producers. The peasantry and the little allodiahsts were ground down * Weber, « Universal History," 109. I OF THE CONSTITUTION. 83 with servitude, and forced to till the soil as abject de- pendants of the harons ; while the stores of the merchant and the earnings of the artizan were too often treated as the legitimate objects of knightly rapacity and violence. If we investigate feudahsm in its social aspects, we shall find ample cause for the inextinguishable hati-ed with which, as Guizot truly states, it has ever been regarded by the common people. * But this ought not to make us blind to its brighter features. There was much in feudalism, especially as developed in the institutions of chivalry, that was pure and graceful and generous. It ever acknowledged the high social position of woman, it zealously protected her honour. It favoured the growth of domestic attachments, and the influence of family associations. It fostered literature and science. It kept up a feeling of independence, and a spirit of adventurous energy. Above all, it paid homage to the virtues of Courage and Truth in man, and of Affection and Con- stancy in woman. * " Civilization en Europe. CHAPTER VIII. Distinction between Feudalism as developed in England, anc Feudalism as generally developed on the Continent. — How far did it exist among the Saxons before the Conquest ; how far among the Normans ? — Character of William the Conqueror. — Feudalism which he introduced. — His Checks on the Baronial Power. — Great Authority of the First Anglo-Norman Kings. In applying to English History the description of the prin- a ciples of feudalism, which was given in the last chapter, we must remember several important points of distinction between this island and the Continent, respecting the adoption and the development of the feudal system. The Roman province of Britain underwent two, if not three, successive conquests by nations of Germanic race. First there was the Saxon conquest, the peculiarities of which, as contradistinguished from the Germanic conquests of Roman provinces on the Continent, have been adverted to in a previous chapter. There was afterwards the great conquest of Saxon England by the Normans, who came from semi- Germanised and semi-civilised France, and who brought with them a system of feudalism already moulded in its essential parts. Perhaps the extensive immigration of victorious Danes, which occurred in the interval between the Saxon and Norman conquests, ought RISE AND PROGRESS OF THE CONSTITUTION. 85 to be reckoned as a conquest itself. In no continental province of the old Koman empire did similar events occur. But the distinction between feudalism in Eng- land, and feudalism in France, Germany, Italy, or Spain, is even more due to the sagacious mind and reso- lute will of one great man, of William the Conqueror himself. Before we examine this, there are two topics which have been already adverted to, but which must be again glanced at. These are, first, the question how far feudal- ism existed among the Saxons in England before the Conquest ; and secondly, how far did it exist among the Normans in Normandy before the Conquest ? On the first of these questions volumes have been written, and many more will probably appear. I am not going to discuss the conflicting theories that have been put forward; and will only observe, that, so far as the forms of feudalism are concerned, there are few, if any, of which we cannot trace occasional precedents or analogues among the Anglo-Saxons; but that no general elaborate system of feudal form and ceremonies existed in Saxon England, like that which we find here afterwards. So far as regards the spirit of feudalism, there was certainly little here before the Conquest. The Saxon ceorl and his thane were in a far different position relatively to each other, from that in which the Anglo-Norman villein stood relatively to his lord. On the whole, I would affirm that there were many institutions among the Anglo-Saxons of a partially feudal nature, which much facilitated the sub- sequent introduction of feudalism; but that the feudal system, as a system, cannot be said to have existed here before the overthrow of Saxon independence at Hastings. With regard to the other topic — how far feudalism pre- 86 EISE AND PROGRESS vailed among the Normans themselves in Normandy be- fore they conquered this country, Sir Francis Palgrave, in his recent history of Normandy, disputes the commonly- received opinion of Sismondi and others, that Duke KoUo and his Northmen, when they became permanent denizens of Normandy, introduced a complete system of feudahty.* Palgrave's contradiction of Sismondi appears to be ver- bally right, and substantially wrong. There seems to be no evidence, direct or inferential, of either Duke Rollo, or any other Norman duke, having suddenly composed and introduced among his subjects an elaborate system of feudalism, with all the laws and incidents of tenure de- signed and provided for. But a perusal of Dudon de St. Quentin, of William of Jumieges, and Wace, abundantly proves that feudalism, in all its essential principles, either had been established, or had grown up in Normandy, be- fore William the Bastard became duke ; and one great point, namely, that the Norman peasantry were tyrannized over as villeins, in the fullest intensity of feudalism, is shown by the narrative of the insurrection of those un- happy men against Duke Bichard the Second, which T have quoted in a preceding chapter. The clear evidence also, which we possess, of how William dealt with land- holders in England, is cogent proof that he was familiar with the feudal tenure in his own duchy. I believe, on the whole, that it is substantially correct to say, that Wil- liam introduced the feudal system into this country, though some portions of it were not fully developed till after his time, and though Henry the Second and his Jus- ticiars, when they re- organized the kingdom, after the * P. C73. a OF THE CONSTITUTION. 87 " shipwreck " which it underwent in Stephen's time, pro bably made several innovations. Hallam correctly describes William the Conqueror as a cold and far-sighted statesman, of great talents, with little passion or insolence, but utterly indifferent to human suffering. These qualities were all eminently displayed in the way in which he organized feudalism in this country, adopting it so far as it tended to confirm his conquest and consolidate his power, but modifying it from the form in which it existed on the Continent, so as to guard his throne from being overshadowed by a haughty and turbulent nobihty, in the manner in which he him- self and the other great peers of France overawed the French Crown. Nor ought we, in justice to WilHam, to doubt but that the instinctive appreciation of Order, which is a characteristic of great men, must have strongly in- fluenced him in the precautions which he took against the development here of the baronial insubordination, which filled the Continent with petty violences and local miseries. Guizot truly says that " there are men whom the spectacle of anarchy or of social stagnation strikes and distresses, who are intellectually shocked thereat as with a fact which should not be, and who become possessed with an uncon- trollable desire to change it and to plant some rule, some uniformity, regularity, and permanency, in the world be- fore them." And such a man, notwithstanding his selfish- ness, his pride, and his hardness of heart, was William, Duke of Normandy, and, by conquest. King of England. He established as an universal rule throughout the country, that he himself was the supreme lord of all the land. Such continues to be the theory of our law to the present hour. " All the lands and tenements in England in the hands of subjects," says Coke, " are holden medi- II 88 RISE AND PROGRESS ately or immediately of the king ; for in the law of Eng land we have not properly allodium." * This feudal supremacy of the Crown was solemnly ac knowledged at the great assembly which William con- vened at SaUshury, in 1086. Every man of the least note who held land in England attended there : f and they all took the oath of fealty to William as their liege lord ; and each of the vast multitude performed the ceremony of homage to him. Each landowner, whatever his rank or wealth, knelt openly and humbly before William as he sat on his throne. Each placed his clasped hands within the king's hands, and pronounced the formal words, " I become your man, from this day forth, of life, of limb, ^ncU of earthly worship, and unto you will be true and faith- ful, and bear you faith for the land I hold of you, so help me God." ■ But while William thus made feudalism universal in ' England, he at the same time made an important altera- tion in its system, by which he strengthened the authority of the Crown, and provided against his great vassals acquiring the insubordinate powers which the feudal nobi- lity on the Continent enjoyed. He did not, indeed, pro- hibit sub-infeudation. That was not done till two centu- ries later. But William at the Salisbury convention made all the sub-tenants of his Tenants in capite (i. e. of those who held land immediately from himself,) take the oath of fealty to him, the king, as the lord paramount of all. Whereas on the Continent, the vassal who held lands, took an oath of fealty to his own immediate lord ; — to the sovereign, if he held directly from him, but to the * Coke "Littleton," cap. i. sect. 1. t "Saxon Chron." 290. d OF THE CONSTITUTION. 89 mesne lord, if (as in the great majority of cases) some peer or baron, or perchance several of them, intervened between the Crown and the occupant of the soil. Besides thus " breaking in upon the feudal compact in its most essential attributes, the exclusive dependence of a vassal upon his immediate lord," * William took other effective measures to keep down the influence of the aristocracy, and exalt that of the Crown. While lavishly generous in his grants of land to those who had served him, he took care to reward each leading Norman noble by estates scattered over different parts of the kingdom, and not by compact little principalities, which might serve as bases of rebelhon, and form independent States. He maintained also in effective force the supreme autho- rity of his own royal tribunal; and kept within as narrow limits as possible the territorial jurisdiction which each lord of a manor exercised in his court baron. He had the wisdom also to retain the Saxon popular tri- bunals of the county court and the court of the hun- dred, although he diminished the dignity of the county court by withdrawing ecclesiastical matters from its cogni- zance. For all purposes of temporal jurisdiction it was preserved. It may, indeed, be said to have acquired vigour, and to have become more democratic in character under the Anglo-Norman kings, than it had been before the Conquest. Under the Anglo-Saxon system only the Thanes, that is, the gentry, could act and vote as members of the county court. Under the Anglo-Norman rule all persons who held any land by a free tenure, had a right to attend the county court and to take part both as suitors and voters in its proceedings. While these demo- * Hallam, vol. ii. 312. 90 RISE AND PROGRESS cratic courts of the shire and the hundred flourished, and while also the power of the king's courts was gradually extended (as was done by the Conqueror's wisest succes- sors), it was impossible for any feudal lord in England to raise his baronial court into the judicial importance, which was arrogated by each count and seignior on the Continent. Such licensed anarchy, as is implied by a recognized right of private warfare, was little likely to be permitted under the iron rule of William. Every man, small ofl great, was bound to keep the king's peace, and was amenable to the criminal law for the breach of it. Instances of violence and strife between rival nobles, that seem to amount to private warfare, may certainly be found in the Anglo-Norman times, but these, even when unpunished, were looked on as breaches of the law, and not as things done in the exercise of legal privileges.* Thus, Norman feudaHsm in England secured more order and regularity, and embodied a stronger central governing power, than could be maintained in the feudal States of Continental Christendom. There were other causes for the predominant importance and authority of Anglo-Norman royalty. One of these was the immense wealth of the Crown, independently of any contributions from its subjects. William kept nearly 1600 manors, and almost all the cities and towns of any note, as his own share of the spoils of the Conquest. Another cause was the readiness with which the oppressed Saxon part of the population ever served the king against any of their * See Hallam, vol. ii. p. 345. seem to confirm Hallam's re- The instances cited by Allen (on marks, the Royal Prerogative, p. 120) I OF THE CONSTITUTION. 91 Norman barons who rebelled. A third, and not the least important cause, was the remarkable intellectual capacity and energy, which characterized not only the Conqueror himself, but all his successors on our throne, until John became king of England.* We shall have occasion hereafter to observe the happy peculiarity of our Constitution, by which England secured the blessing of a Nobility, but escaped the curse of a numerous Noblesse, such as overspread the other feudal States of Europe. At present our attention has been limited to the distinctive points of English feudality, prior to the reign of Jolm. We may now direct our attention to the condition of the population of the land, at the time when this dege- nerate inheritor of the Conqueror's sceptre roused all classes of freemen into a joint struggle against the abused predominance of royal power. See Palgrave's " Normandy and England," pp. 704, 707. y^ CHAPTER IX. State of the Mass of the English Nation at the Commencement of the Thirteenth Century. — The Peasantry. — Villeinage : its Inci- dents : its probable Origin and Extent ; and the Modes of be- coming emancipated from it. — State of the Lower Classes in Towns.— State of the Middle and Upper Classes. — The various Tenures of Land. — State of the Boroughs after the Conquest. — Their partial Recovery of their Liberties. Of the two millions of human beings, who inhabited England in the reign of John, a very large number, pro- bably nearly half, were in a state of slavery. Those who are disposed to listen to tales about " Merrie EnglandJ and '' the good old times," should remember this fact. At the commencement of true English history, we start with the labourers in abject wretchedness. The narrative of the changes in their social and political positions thenceforward to modern times, is certainly a history of progressive amelioration, though lamentably slow and im- perfect. The technical name for the kind of slavery which pre- vailed in Anglo-Norman England, is Villeinage. Some slaves were annexed to certain lands, and passed into the dominion of the heirs or purchasers of those lands, when- ever the ground, which was considered the more important property, changed owners. These were called " Villeins regardant." Others were bought and sold, and passe( RISE AND PROGRESS OF THE CONSTITUTION. 93 from master to master, without respect to any land. These were termed " Villeins in gross : " the ancient law applying to them the same uncouth but expressive phrase- ology, by which it spoke of rights of common and other inanimate legal entities. It is probable that the number of villeins in gross was never very considerable : but there are good grounds for believing that, at the commencement of the thirteenth cen- tury, the greater part of the labouring agricultural popula- tion of England (including not only actual farm-labourers, but the followers of those handicrafts which are closely connected with husbandry, and were practised on the land) were villeins regardant, and were looked on merely as so much of the live-stock of the land to which they belonged. The best description of the ancient state of villeinage is contained in Mr. Hargreaves' celebrated argument in the case of the Negro Somerset, in 1772; where he suc- cessfully maintained the noble position, that a slave who touched British ground became free. He proved this by showing that the law of England had never [that is to say, never since the formation of the Common Law] re- cognized any species of slavery, except the ancient one of villeinage, then long extinct; and that our law had effectu- ally guarded against the introduction of any new sort of slavery into England. In doing this, Mr. Hargreaves was led to make the most full and accurate investigation of the nature of villeinage, which has ever been effected ; and the law-tract to which I refer, is consequently of the highest value to the student of early English history. " Slavery," says Mr. Hargreaves, " always imports an obligation of pei-petual service; an obligation which only the consent of the master can dissolve. It generally 94 RISE AND PROGRESS gives to the master an arbitrary power of administering every sort of correction, however inhuman, not immedi- ately affecting the life or limb of the slave ; and some- times even these are left exposed to the arbitrary will of the master, or they are protected by fines, and other sHght punishments, too inconsiderable to restrain the master's inhumanity. It creates an incapacity of acquiring, ex- cept for the master's benefit. It allows the master to alienate the person of the slave, in the same manner as other property. Lastly, it descends from parent to child, with all its severe appendages." The condition of a villein involved most of these miserable incidents. The villein's service was uncertain and indeterminate, being entirely dependent in nature and amount on the caprice of his lord. In the emphatic terms of some of our old law-writers, " The villein knew not in the evening what he was to do in the morning, hut he was hound to do whatever he was commanded" He was liable to beating, imprisonment, and every other chastisement that his lord thought fit to inflict ; except that the lord was criminally punishable if he actually killed or maimed his villeins, or if he violated the person of his neif, as a female villein was termed. The villein was incapable of acquiring property for himself ; the rule being that all which the villein got became the lord's. He usually passed to each successive owner of the land, as if he had been a chattel attached to it. But the lord, if he pleased, could sever him from the land, and separate him from his family and children, by selling him as a villein in gross by a separate deed. This wretched condition of slavery descended to the children of villein parents ; and even if the father only was a villein, the children in- herited the same sad lot from him. Indeed, at one time, d OF THE CONSTITUTION. 95 the severity of the law was such, that if a villein who he- longed to one lord married a nief who belonged to an- other lord, the children of such a marriage were equally divided between the two slave-owners."* Such was the wretched state in which we find the hulk of the English peasantry at the time when the full history of our nation commences. We cannot track the precise steps by which the law of villeinage had become so esta- blished ; but we have every reason to suppose, that this took place in the interval between the Conquest and the reign of Henry II., when we find villeinage completely settled, t as appears by the book of Chief Justice Glan- ville. The Norman lords had then brought the peasantry of England into much the same state as that to which their ancestors had formerly reduced the peasantry of Nor- mandy. " By a degradation of the Saxon Ceorls, and an improvement in the state of the Saxon Thralls, the classes were brought gradually near together, till at last the military oppression of the Normans, thrusting down all degrees of tenants and servants into a common slavery, or at least into strict dependence, one name was adapted for both of them as a generic term — that of villeins re- gardant." This last remark is taken from Sir Henry Ellis's Introduction to Domesday Book ; and it is from the valuable statistics which he has compiled of the number of " Villani " and " Servi " therein recorded, relatively to the numbers of other classes which are there mentioned, and by bearing in mind the probable character of the parts of the population not registered in Domesday Book, that the best data are to be obtained for calculating the * See Hargreaves' " Juris- p. 19. consult Exercitations," vol. i. t Glanville, lib. v. c. 6. 96 RISE AND PROGRESS number of villeins in the reign of John : having regard, also, to the probable deterioration in the lot of the lower orders, which had been going on in the interim, or at least until the time of Henry II. It remains to mention the facilities which the law, as established in the thirteenth century, gave for the eman- cipation of villeins, and the difficulties which it placed in the way of any accession to their number. The lord might, at any time, enfranchise his villein ; and there were also many acts of the lord, from which the law inferred an enfranchisement, though none could be proved to have actually taken place. If the lord treated the villein as a freeman, by vesting the ownership of lands in him, or by accepting from him the feudal so- lemnity of homage, or by entering into an obligation under seal with him, or by pleading with him in an ordi- nary action, the law held that the lord should never after- wards be permitted to contradict his own act, by treating him as a villein. There were many other modes of con- structive enfranchisement. One of the most important was, that if a villein remained unclaimed by his lord for a year and a day, in any privileged town (that is to say, in any town possessed of franchises by prescription or charter), he was thereby freed from his villeinage. More- over, in all disputes on the subject of villeinage the pre- sumption of law was in favour of liberty. The burden of proof always lay upon the lord. And there were only two ways in which villeinage could be proved. One was, by showing that the alleged villein and his ancestors be- fore him had been the property of the claimant and of those through whom he deduced title for time whereof the memory of man ran not to the contrary ; the other was, by showing that the alleged villein had solemnly coi y cona J OF THE CONSTITUTION. 97 fessed his villeinage in a court of justice. The first of these modes of proof was always hable to be defeated by showing that the alleged villein, or some one of his an- cestors, through whom villeinage was said to be traced, had been bom out of wedlock. For, as the law held that an illegitimate child was nullius JUius, it also held that an illegitimate child could not possibly inherit the condition of villeinage. Thus, while, at the period when we first can assert the common-law of the complete English nation to com- mence, we find this species of slavery so widely esta- bhshed in the country, we also find the law providing means for its gradual, and ultimately certain, extinction. We know little of the Justiciars of Henry II., in whose time this branch of our law can first be traced distinctly. But if, as is probable. Chief Justice Glanvile and Abbot Samson of St. Edmunds,* and others, their fellows on the judicial bench, while they found the power of the lords over their villeins too firmly estabhshed to be called in question without shaking the rights of property, devised and encouraged these numerous methods, by which vil- leinage could gradually be extinguished, they ought to be reckoned among the truest benefactors of their country, that England has ever produced. Our means of knowledge respecting the condition of the artizans and lower orders in our cities and towns at this period are very scanty. No large portion of them, if any, can have been in a * See the account of Abbot and Present." Henry II. em- Samson in the " Chronicle of ployed Abbot Samson as a Jocelin de Brakelonde," partly judge, translated in Carlyle's " Past RISE AND PROGRESS state of slavery. It has been seen that in Henry II.'s time the villein from the country, who resided, unclaimed by his lord, for a year and a day in a town with franchises, became thereby free ; and it is difficult to suppose that any one born within the town would be in a worse con- dition. The absolute slaves, the theows and thralls of the Saxon times, cease to be mentioned soon after the Norman Conquest. The villeins in gross (who alone could be in an analogous position to that of those Saxon thralls who lived in the towns) were few in number throughout Anglo-Norman England; nor am I aware that any positive mention of them in the towns can be traced.* Generally speaking, we may consider that villeinage in John's time existed only among the rural population ; but it is to be remembered that the relative proportion of the number of the dwellers in the country to the number of the dwellers in the towns was much greater then than it has become in modern times. - * In the Inquisition made in the Borough of Ipswich in the second year of John's reign, mention is made of various pri- vileges enjoyed by the Bishop and Prior of Norwich, and their villeiTis, by the Bishop and Prior of Ely and all their villeins, by the Lord Roger de Bigod and his villeins, and by other noble- men and knights and their villeins. But these seem to have been cases of non-residents in the borough. There is a re- markable stipulation respecting the villeins of some of the pri- vileged persons whom this In- quisition mentions. It is de- clared that if the villeins are merchants, they are to pay their custom towards the king for their merchandise. This seems to prove that in John's time some villeins were permitted by their lords to traffic on their own account ; as was often the case with slaves in ancient Rome. The gains of the mer- chant-villein would be strictly " Peculiumy See the Ipswich Inquisition in Merewether anc Stephens' " History of Be roughs," vol. i. p. 396. OF THE CONSTITUTION. 99 The free labouring population, therefore, in John's time, included the lower classes in the towns, and those portions of the peasantry who had either escaped being reduced to villeinage, or had been emancipated from it. This class was gradually increasing in number ; but the whole amount of free labourers in England in the early part of the thirteenth century cannot have been con- siderable. This is proved by the absence of any com- plaint in the legislation, and of any in the law chronicles of those times about vagrant beggars and paupers — subjects which we find so repeatedly noticed in the statutes and histories of the next and subsequent centuries.* The villeins on each estate were maintained by the lord of it, like his other cattle ; and such freemen as became desti- tute found rehef from the Church ; the ample endowments of which continued, after the Conquest, as before it, to provide means for the maintenance of the aflBicted and distressed, aided by the alms of the laity, which the clergy received and administered : the clergy being in those days the overseers and guardians of the poor. As has been already stated. County Courts and the Hundred Courts were preserved by the Anglo-Norman kings ; and the subdivision of the freemen of each hundred into decennas, and the old Saxon regulations * " It is highly probable that a West India sugar plantation from the time of the Conquest in more recent times has main- till the reign of Edward III., tained his slaves. It is not till England was little troubled with after Edward III.'s wars in either vagrant beggars or pau- France, and after the industry pers. The "patrimony of the and wealth of towns came into poor " was found in the posses- existence, that we first notice eions of the church, and each traces of any considerable class lord maintained his serfs or vil- of free labourers." — Pashley^ leins, much as each proprietor of p. 161. F 2 < 100 RISE AND PROGRESS respecting frankpledge were also in full vigour in tlie reign of John. The poorest free peasant was so far vested with political functions, as to have the capacity and to be under the obligation of being enrolled in a decenna ; and he co-operated with his brother decennaries in preserving the peace and being bail for each other. He also attended as a member of the court of the Hun- dred (the court-leet as it was now termed), and participated in the numerous active duties of local self-government that were there performed. The presidents of the Hun- dred Courts had now, with very few exceptions, ceased to be elective. Frequently the right of presiding in the Hundred Court had become annexed to the lordship of one of the principal manors of the district. In other cases, the lordship of the Hundred (or the lordship of the leet, as it is more often called) had been granted by the Crown to some favourite baron, the office being lucrative by reason of the fines and forfeitures that accrued to its holder. But every freeman was eligible to serve the minor offices of local self-government, so far as the tithing and the hundred were concerned; and, as a " free and lawful man," he also acted on the inquests or juries, on which (as we shall see hereafter) the king's judges frequently summoned the hundredors. When we direct our attention to the state of the upper and middle classes at this period (exclusively of the inhabitants of the towns), we shall find the various inci- dents of the several Anglo-Norman feudal tenures of, land so frequently requiring allusions and explanations, that it is best to direct our attention to them in the first instance. It is to be remembered that the king was and if supreme feudal lord of all the land in the kinp:dom M OF THE c(^NSTi:i;uTiC4N;. , ; ,; : 1,01 • There were three principal tenures by which the sub- jects of John held their land, either immediately of him, or immediately of some other subject, and so mediately of the king. These were, 1st, tenure in chivalry, some- times called military tenure, or tenure by knight's ser- vice ; 2nd, tenure in free socage, the original of our modem freehold tenure; 3rd, tenure in villeinage, the original of our modern copyhold tenure.* Tenure in chivalry was the most honourable ; it was that by which the barons and other chief landowners held their lands of the Crown, and by which they frequently made sub-grants of land to their own military followers. But the burdens of this tenure were numerous and severe. They require particular attention, in order that we may comprehend the oppressions at the hand of the sovereign to which the barons, who gained the Great Charter, were exposed, and which caused them to become the chiefs of a great national movement on behalf of the liberty of England. Not that we would deny or dis- parage the renown justly due to them for the magna- nimous and far-sighted spirit, in which they obtained protection for the rights of others besides their own ; but we must observe that a community in suffering led to their community in action with the other freemen of the realm, when those primary constitutional guarantees against arbitrai-y oppression were obtained, which are frequently designated in English history by the title of the Baronial reforms. * Tenure by chivalry in- Reeve's "History of the Eng- cluded tenure by grand and lish Law," vol. i. p. 38. Ste- petit serjeanty. For more full phens' " Blackstone," vol. i. information on these points, see p. 174. 1^2 -5^IS;3;AND PROGRESS The king, as feudal lord of his barons, and other military tenants, had a right to exact from them mihtary service, or a pecuniary payment in lieu thereof: and it seems to have become optional with the king to claim the money, whether the vassal wished to serve in person or not ; and even to exact both money and per- sonal service. This war-tax was called "escuage," or " scutage ; " and the constant wars and troubles of the times always furnished a ready pretext for demanding it. Other exactions of money-payments, under the title of aids, were continually practised. Besides these, the heir, on succeeding to his estate, was required to pay a sum of money to the lord, under the title of a " relief" If the heir was a minor, the lord took possession of the land as guardian, and used or abused it as he pleased, till the heir attained his majority. And even then the heir was obliged to pay a fine on suing out his livery, that is, on obtaining the delivery of the land from his guardian to him. The lord also had the right of nominating and tendering a wife to his male ward, or a husband to his female ward. And if the ward declined to marry the person so selected, the ward forfeited to the lord such a sum of money as the alliance was considered worth. The lord was entitled to a fine upon alienation ; that is, if the tenant disposed of the land or any portion of it to any third party. If the tenant died without heirs, the land reverted to the lord. This was termed Escheat ; and, as the right of devising real property did not exist in England after the Conquest till Henry the Vlllih's time, Escheats must have been numerous. The lord also claimed to take back the land whenever the tenant committed any of a numerous list of crimes or acts of feudal misconduct. Such criminality or misconduct on the tenant's part wae d, OF THE CONSTITUTION. 103 held to work a forfeiture ; a doctrine which was made peculiarly severe in England where, *' hy attainder of treason or felony, the tenant not only forfeited his land, but his blood was held to be corrupted or stained; whereby every inheritable quality was entirely blotted out and abolished, so that no land could thereafter be trans- mitted from him or through him in a course of descent." * The king's military tenants in capite were also subject to the peculiar burden of primer seisin, which did not apply to those who held of inferior or mesne lords. Primer seisin was a kind of extra relief; and under it the king on the death of any of his military tenants in chief took of the heir (if of full age) a whole year's profits of the lands. The landholders of inferior rank, who held their lands not by mihtary, but by socage tenure, and whom we might correctly speak of by a modern term as the yeomanry of England, were not liable to so many ex- actions from their feudal lord as were the military tenants. The tenant in free socage was subject to the payment of aids for knighting the lord's son, and providing a portion for the marrying his eldest daughter. Relief was due on this tenure ; but its amount was fixed and limited to one year's rent of the land. Escheat and forfeiture were incident to socage tenure, and fines were due upon ahena- tion. The lord had no right of wardship or marriage over his socage tenants. The holders of land by villein tenure were originally villeins on the domains of feudal lords of manors, whom the indulgence of the lords permitted to remain in the occupation of their little strips of ground so long as they Stephens' " Blackstone," vol. i. p. 181. 104 RISE AND PROGRESS duly rendered the customary services. Wlien villeins were emancipated, they often continued to reside on the lord's estate and on the same holdings, and they still ren- dered the old services to the lord, which were no longer variable at his will. Sometimes, also, men who were freehorn took lands which had been previously held by villeins, and became bound to continue the services which the lord had usually received from the servile occu- pants of such lands. By degrees the customary expecta- tion which such holders of manorial lands naturally felt that they and their heirs would not be removed so long as they paid the customary rent and performed their custo- mary duties, ripened into the legal title of our modem copyholders ; but it is not probable that any considerable number of freemen occupied land by villein tenure so early as the reign of John. ^ William the Conqueror had kept among his own share of the spoil nearly all the considerable cities and towns in England. Some few had been granted by him to favourite Norman lords. By no class was the effect of the Conquest felt more severely than by that of the citizens and burgesses. Their Norman lord required of them an annual rent, and various dues and customs. He commonly farmed these out to the highest bidder ; who under the title of Bailiff, became the chief local ruler of the oppressed citizens, instead of their own old electeda port-reeve or borough- reeve. By degrees they bought back some of their old liberties. Their Norman lords found that they could not extort so much by force, as * For further explanation of p. 175 ; Reeve's " Hist. Law,'* tenure in villeinage, see Ste- vol. i. p. 269 ; and Scriven oi phens' " Blackstone," vol. i. "Copyholds." OF THE CONSTITUTION. 105 the burgesses would voluntarily pay, for the sake of getting rid of the obnoxious petty tyranny of the bailiff, and recovering their own local self-government. This led the king and other lords of towns to farm them to the burgesses themselves, who paid a fixed rent, and were thenceforth said to hold their town in fee-farm, or by bur- gage tenure. They also obtained charters entitling them to elect their own chief officer, who generally took the Norman title of Mayor. Other privileges were simi- larly purchased ; for, a fine of money was almost inva- riably the consideration on which a charter was granted ; and the cupidity of the lords made them seek pretexts for declaring that a borough had forfeited its charter, in which case another fine for a re-grant was exacted. Besides these liabilities to the king, or other lord of the city or land, the burgesses were liable to be tallaged ; that is, to have special contributions of money levied on them for the lord's behalf, in the same way that aids were exacted by him of his tenants of land. The political rights, (in judicial and other matters) of the middle and upper classes, the powers of the sove- reign, and the general legal system of the age, will be most conveniently considered, when we discuss the terms of the Great Charter and its supplements. We may at present best proceed to a view of the circumstances under which Magna Carta was gained from John ; how it was renewed under Henry III. ; and how its powers were ex- tended and confirmed by the final charter of Edward I. F 3 CHAPTEE X. Evil Character of King John. — Its Importance to our History. — Fortunate Loss of Normandy. — John's Quarrels with his Clergy and with the Pope. — The Interdict. — The Excommunication. — John's abject Submission to the Pope. — Return of Archbishop Langton to England. — His patriotic Character. — He checks the King. — King's Oath to redress Wrongs. — His repeated Acts of Tyranny. — Council of the Barons. — Archbishop Langton produces the Charter of Henry I. — Nature of this Charter, and its Value. — Demands of the Barons on the King. — Vain Intervention of the Pope. — Firmness of Archbishop Langton. — Strength of the Na- tional Party. — Runnymede. — Articuli Cartse. — The Grant of the Great Charter. The Father of History sums up the evil qualities of a Despot in these words : " He subverts the laws and usages of the country, he violates women, and he puts people to death without trial." * The character and conduct of King John exemplify every word of this emphatic definition. The feudal law of England (as it has been described in the preceding * tiofiaia T€ KLvei Trarpia, /cat aggravata3 fuerant ; nam quos- jSiarai yvvoLKas, Kreivei re aicpi- dam absque judicio parium suo- Tovs. — Herodotus, Thalia, Ixxx. rum exhajredebat, nonnuUos The old chronicler, the Wa- morte durissima condemnabat. verley annalist, says of John, Uxores filiasque eorum violabat ; that the old laws and free cus- et ita pro lege ei erat tyrannica toms of the realm " Maximo voluntas." — P. 181. suo tempore corruptee nimis et KISE AND PROGRESS OF THE CONSTITUTION. 107 chapters) gave him oppressively strong powers over his barons and other subjects ; but the savage tyranny of John was exercised over every class, high and low, often without the semblance, and in open defiance of the law. Several of his predecessors had solemnly promulgated charters, which tended to restrain the abuses of feudal rule. These charters usually contained also general promises to respect ancient rights, to cease to follow evil practices, and to maintain the old hberties of the people. The kings who gave them, often violated them ; but they were recognitions (though vague and imperfect ones) of rights that ought to limit the royal will : and none even of the most arbitrary of the six first Anglo-Norman kings professed to govern without regard to legal rules and restrictions.* The seventh set at nought every restraint of law, either human or divine ; and what was afterwards said of Henry VIII. might, with more truth, have been affirmed of John, that he spared neither woman in his lust, nor man in his revenge. But John was utterly destitute of such high abilities and resolute will as signalized the haughty Tudor. John mingled all the qualities that inspire contempt with those that provoke hatred. His portrait has been thus truly as well as powerfully drawn by Lingard : — " He stands before us polluted with meanness, cruelty, perjury, and murder; uniting with an ambition, which rushed through every crime to the attainment of its object, a pusillanimity wliich often, at the sole appearance of oppo- sition, sank into despondency. Arrogajit in prosperity, abject in adversity, he neither conciUated affection in the * See Guizot's " History of ters of William the Conqueror, Representative Government," Henry I., Stephen, and Henry part 2, lecture vi., on the Char- II. 108 RISE AND PROGRESS one nor esteem in the other. His dissimulation was so well known, that it seldom deceived ; his suspicion served only to multiply his enemies, and the knowledge of his vindictive temper contributed to keep open the breach be- twixt him and those who had incurred his displeasure." A few only of the specific instances of the tyranny of this bad, but not bold man, may be cited here ; besides referring to his murder of his nephew Arthur, which he was believed by his contemporaries to have perpetrated with his own hand * Wilham de Braosse, one of his nobles, had ofiended him and escaped to Ireland. John, in 1211, got into his power De Braosse's wife, Matilda, their son William, and their son's wife. The king then gratified his fiendish malignity by sending these three prisoners to Windsor Castle, where he had them shut up in a dungeon and starved to death, f In the next year, one of his clergy, Geoffry of Norwich, whom the old chronicler terms a loyal, learned, and accomplished man, came under the capricious displeasure of the king. John had him seized and carried off* to Nottingham Castle, where he put him to death with refined and subtle tortures. J Under his tyranny there was no more safeguard for property than for person. His exactions were often made with open and undisguised violence, § though they were * See for the various narra- tern torqueri : " according to an- tives as to the manner in which other chronicler, John had him John committed this murder, wrapped in a cope of lead and the " Pictorial History of Eng- left to die of starvation, land," vol. i. p. 519. § For instance, in 1203, he t Matthew Paris, 230. Roger forced from his subjects, clerical de Wendover, " Chron.," vol. iii. as well as lay, a seventh part of p. 235. their moveables. See Roger de X Matthew Paris, 232. "Fecit Wendover, vol. iii. p. 173, who poen^ excogitate usque ad mor- names the '^ hujus rapinsc exe- OF THE CONSTITUTION. 109 also often practised in the form of judicial fines, whicli John levied upon men and women on the most trivial and insulting pretexts.* The grossness and the frequency of his outrages on the honour of private families almost sur- pass belief; and Eustace de Vesci was but one of many, who, when they rose against John as the public enemy of the country, were animated also by the fiercest indigna- tion for the wrongs that had been offered them as hus- bands or as fathers, by the brutal licentiousness of the king, t I have dwelt on the subject of the character of John, because that character had a most important effect on our constitutional history. Had he been less vicious and cruel, it is probable that the barons would not have leagued with the inferior freemen of England against their Norman king. Had he been less imbecile, it is probable that the national league would have been crushed by him. Even the foreign events of John's reign (I mean those which more immediately affected the continental provinces of the Plantagenet princes) were of infinite moment in determining the future destinies of England. cutores." In 1205 he extorted lam's Middle Ages, \o\.n. 1^.317. from them a sum which the Citing from " Madox's History chronicler terms " infinite." — of the Exchequer." lb. 182. t See Walter de Hemingburg, * " The Bishop of Winchester 249. According to tradition paid a tun of good wine for not John had caused the daughter reminding the king (John) to of another great baronial chief give a girdle to the Countess of to be poisoned, in revenge for Albemarle ; and Robert de Vaux her having resisted his dis- five best palfreys that the same honourable solicitations. See king might hold his peace about the legends respecting Marian Henry Pinel's wife. Another Fitzwalter,in Thomson's "Magna paid four marks for leave to eat Carta," p. 505. (prolicentia, comedendi)." — Hal- 110 RISE AND PROGRESS 41 The shames of the sovereign proved the sources of country's glory and freedom. Foremost amongst these we may place the fortunate loss of Noi-mandy. Philip Augustus, the ahle sovereign of France, took advantage of John's murder of his nephew Arthur, to cite him as Duke of Normandy, and a feudal vassal of the crown of France, to take his trial before the high peers of France on the charge of having murdered an arriere vassal and homager of the French king. John scoffed at the summons, but the French Court passed sentence on him of forfeiture of all the lands which he held in France by homage, and Philip Augustus carried that sentence into speedy execution. All the provinces north of the Loire which John's ancestors had bequeathed to him, were wrested from him, but he succeeded in retaining Guienne, Poitou, and a small portion of Touraine. Both the amount of what he lost, and the amount of what he retained, were important to the constitutional history of England. After the annexation of the duchy of Normandy to the actual dominions of the French king, our barons' only homes were in England. Henceforth we find them proud of the name of Englishman, the ap- plication of which, to a man of Norman race, had once been the deadliest of insults. The Saxon now no more appears in civil war against the Norman, the Norman no longer scorns the language of the Saxon, or refuses to share with him in the common love for a common country. No part of the community think themselves foreign to another part. They feel that they are all one people, and they have learned to unite their efforts for the common purpose of protecting the rights and promoting the wel- fare of all. And, while the loss of Normandy thus happily tended OF THE CONSTITUTION. Ill to promote the union of all the inhabitants of this land, John's partial success in preserving Guienne and Poitou from the conquering arms of Phihp Augustus, aided ma- terially in completing the same result. From these pro- vinces he drew large hands of mercenary soldiers, whose support emboldened him to defy the remonstrances and discontent of his English barons ; and trusting to whom, he took no pains to form or preserve any party for him- self among the nobihty of his kingdom. The rapacity and the violence which these hireling cut-throats and brigands from beyond the seas were licensed by their sovereign to practise throughout England, came home to the middle and lower orders of the English, and made them eagerly co-operate with the barons against the Crown. In the rural districts also the oppressive cruelties of the forest- laws, which John carried to a worse pitch than had been the case even under the most arbitrary of his predecessors, tended still further to exasperate the people against the Government; and filled the forests with bands of adventurers, who were ready to join in any enterprise against the tyranny which had driven them be- yond the pale of the law. John had made himself the enemy of the powerful body of the EngUsh clergy, as fully as he had drawn on himself the liostiHty of his lay subjects. He levied pecu- niary contributions on his ecclesiastics as arbitrarily and as rapaciously as he pillaged the rest of the nation. A dis- pute which broke out in 1205, respecting the election to the see of Canterbury,* involved John in dissension with * The conflicting claims and pope in this election, are very rights of the Augustine monks fairly stated by Lingard, vol. iii. at Canterbury, of the suffragan p. 19, et seq. bishops, of the king, and of the 112 RISE AND PROGRESS Innocent III., who refused to consecrate the nominee of John. The Pope caused Cardinal Langton to he elected by some of the Canterbury monks, who had been deal puted to Kome, and, after a vain attempt to obtain the English king's consent, he consecrated Langton at Viterbo in Italy, as Primate of England. Stephen de Langton, to whom we are more deeply in- debted than to any other individual for the obtaining of the Great Charter, was an Englishman by birth, but had been chiefly educated in the University of Paris, where he acquired the highest reputation for learning and piety. Pope Innocent III. had invited him to Kome, and con- ferred on him the dignity of cardinal ; and he now sought to place him at the head of the Church of England. John fiercely refused to permit Langton to set foot in England ; and wreaked his vengeance on the Canterbury monks, by seizing their lands and possessions, and driv- ing them all out of England. The Pope in return placed England under an interdict, on which John confiscated all the ecclesiastical property in the kingdom. When the interdict had lasted a year, the Pope pronounced sentence of excommunication against John: and finally, in 1213, Pope Innocent assumed and exercised the right of de- posing John, and solemnly exhorted all Christian princes and barons to unite in dethroning him as an impious anfl unworthy king. * These spiritual thunders of papal Rome were (like the Amphictyonic decrees in ancient Greece, and the edicts of the modem German diets), of little efiect when those * See " Lingard," vol. iii. nerally on the subject, Hallam's Notes at pp. 16 and 35 for the chapter on "The Ecclesiastical grounds of these temporal pre- Power during the Middle Ages." tensions of the popes. See ge- ■ OF THE CONSTITUTION. 113 against whom they were levelled, maintained vigorous union at home, and were threatened by the arms of no formidable foe from abroad ; but they were truly terrible when there was disunion in the State which was to be the scene of their operation ; and when a powerful and am- bitious prince, like Philip of Macedon in the classic age, or Phihp Augustus in John's time, was ready to under- take the execution of the sentence for the secret purposes of his own aggrandizement. King John found himself menaced with invasion from France; and though he assembled an army of 60,000 men ("sufficient," says the old historian, '*to have defied all the powers of Europe had they been animated with love for their sovereign"), John knew that all his subjects hated him with a hate which he had richly earned, and there was in the vast host around him scarcely a man on whose fidehty he could depend. The ruffian in his disposition now sud- denly was changed into the craven. He had an interview at Dover with the Pope's confidential Nuntio, Pandulph, and signed a deed (May 13, 1213) whereby he consented to admit Langton as Archbishop of Canterbury, to re- store the refugees both of his clergy and laity to their possessions and offices, to liberate those whom he had imprisoned, and to make full restitution for the injuries which he had wantonly inflicted. On condition of the king's doing this, the sentences of interdict and excom- munication were to be revoked. Had John's submission ended here, there would have been nothing in the terms to censure, whatever we might think of the motives which caused him to make it. But, rushing from arrogant defiance of the Koman pontiff into abject servility, on Ascension Eve, Wednesday, May 15, 1213, the king, by a formal deed, gave up his kingdom 114 RISE AND PROGRESS to the Pope, to take it back as the Pope's vassal, and under the obHgation of paying a yearly tribute of 1000 marks. By this mean betrayal of his duty towards the State, of which he was the kingly head, John won for himself the partizanship of the Pope, but he increased the alienation and disgust of his subjects, ecclesiastics as well as laymen. Hallam * has truly observed that we are deeply indebted to the English clergy for their zeal in behalf of liberty during the reign of John's successor; and the same remark may be made with reference to the exertions of our churchmen in the nation's cause in the time of John himself. Cardinal Langton is the most illustrious example of patriotism and wisdom that the history of the Charter suppHes. On this prelate's return to England, and installation in his archbishopric, in 1214, he showed immediately that, though he was one of the Pope's cardinals, he was no mere emissary of an Itahan priest, but a true-hearted Englishman, to whom his country's honour and his country's freedom were most dear, and one whom no threats of either temporal or ecclesiastical superiors could deter from the path of duty. Before he would grant absolution to the king at their first meeting, he compelled him to swear that he would abohsh all illegal customs ; that he would restore the good laws of his predecessors, especially King Edward's; that he would give just and true judgments to all men, and that he would restore to all their rights.f A council was * " Middle Ages," vol. ii. satisfied with the royal adminis- p. 327. tration, fell into these English + " It became the favourite cry sentiments. But what these to demand the laws of Edward laws were, or more properly, per- the Confessor ; and the Normans haps, these customs subsisting themselves, as they grew dis- in the Confessor's age, was not OF THE CONSTITUTION. 115 also convened at St. Albans, at wliich Fitz-Peter, the chief justiciary, presided on behalf of the king. Pro- clamations were then issued in the king's name, ordering the observance of the laws granted by Henry I., and denouncing the punishment of death against all sheriffs, officers of the royal forests, and other ministers of the crown, who should exceed the strict limits of their au- thority. The mention here of the laws of Henry I., instead of those of Edward the Confessor, is somewhat remarkable. Possibly it was made out of deference to the prejudices of some of the Anglo-Norman barons, who may have preferred the name of a Norman lawgiver to that of a Saxon one, and who may not yet have learnt the necessity of merging all differences of race between themselves and their fellow inhabitants of this island. The laws referred to were possibly those which we now read in the collection entitled the laws of Henry I.,* which, though not compiled or issued by that monarch, is an unquestionably ancient collection, and is believed to have been formed by some judge or lawyer during the reign of the sovereign whose name it bears. It consists principally of extracts from the laws of various Saxon kings. One of its provisions deserves special notice ; it is that which ordains that " every man is to be tried by his peers."t very distinctly understood. So which tradition told them had far, however, was clear, that the not always existed," — Hallam's rigorous feudal servitude, the Middle Affes, vol. ii. p. 321. weighty tribute upon the poorer * See this collection in the freemen had never prevailed first volume of "The Ancient before the Conquest. In claim- Laws and Institutes of Eng- ing the laws of Edward the land," p. 504, et seq. Confessor, our ancestors meant t Ibid. 534. but the redress of grievances, 116 RISE AND PROGRESS While this council was being held, John had sailed on an expedition against France. Incensed at the refusal of his barons to follow him, he returned to England, and began to avenge himself upon them according to his custom by leading the armed force of foreign mercenaries, which he had brought back with him, through the parts of his own kingdom where his barons' estates lay, as if it had been an enemy's country, and pillaging and burning without mercy. He had marched up from the south coast as far as Northampton, when the archbishop met him and rebuked him to his face. " This barbarous violence," said the prelate, "is a direct breach of your oath. Your barons must be judged and tried by their peers, and not subjected to military execution." John fiercely answered, " Kule you the Church, and leave me to govern the State." He proceeded on his vindictive career as far as Notting-J ham, where Langton again braved his wrath and com- manded him to desist. The archbishop accompanied his rebuke by threatening to excommunicate every follower of John who should dare to draw his sword again in such impious warfare. John now gave way, and for the sake of appearance summoned those whom he accused to appear before him, or his justices, in his Court. Langton and the barons knew John's character too well to believe that this submission to legal restraint on the king's part would be permanent; and on the 25th of August, 1213, at a great council of the prelates and the barons, which was held at St. Paul's, in London, the archbishop took measures for forming an efiective con- federacy for curbing the power of the oppressor. The ostensible purpose of the council was to settle the amount of compensation which the king was to pay tofl those who had been exiled during the late troubles, and OF THE CONSTITUTION. 117 "whose possessions the king had despoiled ; but Langton addressed them on the subject which they all had most at heart — the obtaining of some security against the tyranny of John for the future. The archbishop told them that he had discovered a charter of King Henry I. which they might force the king to re-establish, and thereby regain their liberties. They answered with joyous ac- clamations, and the archbishop administered an oath to them by which each bound himself to strive for their liberties, if need were, even to the death. This charter of Henry I. had been granted by that sovereign when he first seized the crown to the exclusion of his elder brother Kobert, and when he was desirous to win the favour of the Saxon as well as of the Norman inhabitants of England. It contains specific provisions against the abuse of the right of wardship, against the abuse of the right of claiming aids, and against other of the chief feudal oppressions to which the miUtary tenants of the crown were liable at the hands of the king. It gives also a general promise to observe the good laws of Edward the Confessor.* Copies of this charter were deposited in the principal monasteries; and Blackstonef has doubted the possibility of its having become so gene- rally unknown in John's time that its discovery by the archbishop should have been such a matter of triumph and novelty as the old chroniclers relate. If, however, we call to mind the devastations that took place through- out England during Stephen's reign, and the neghgence often shown by ecclesiastical bodies with regard to the * See this charter in the first Charters," p. 8 of the Introduc- volume of the " Statutes of the tion. Realm," and in the note to t Ibid, p. 8, et seq. Blackstone's " History of the 118 RISE AND PROGRESS preservation of even their own muniments, we may readily understand that copies of the charter of Henry I. may have become scarce, and almost inaccessible, in the lapse of a century. If we recollect also how few laymen had even enough education to read, we shall not be sur- prised at the general ignorance which prevailed in 1213 as to the contents of the ancient charter which Arch- bishop Langton spoke of. By admitting the truth of the old narrative respecting this charter of Henry I., we by no means detract from the original value of the Great Charter of John. The older instrument bears no comparison with the latter, with regard either to explicitness, to fulness, or to compre- hensiveness, in providing for the rights of all classes of freemen. But still the charter of Henry I. applied speci- fically to many of the feudal grievances under which John's barons smarted ; it furnished them with a legal authority to appeal to against the king ; and it gave to the archbishop, and the other chiefs of the great movement in behalf of the national liberties, an invaluable moral basis for their operation. There is in the minds of most civilized men a natural, a laudable reluctance to advance their interests, or even to defend themselves, by the intro- duction of mere political novelties: but the same men will act cheerfully and zealously when they have the sanc- tion of ancient ordinance on their side. The Kestorer has a lighter task and a lighter conscience than the Innovator : at least it is so at the commencement of his task ; though, in order to restore with effect, it frequently becomes ne- cessary to add, to alter, and to reorganize. Langton, and other leading spirits of the baronial party, may have early foreseen the necessity of doing much more than revive the decayed legal safeguards of a former century ; but, for OF THE CONSTITUTION. 119 the mass of their party, the demand for the restoration of the laws and hberties of Henry I. was an effective rallying cry, till it was changed, at Kunnymede for a fuller and a nobler strain. During the greater part of the next year John was engaged in unsuccessful warfare on the Continent; and in the autumn he returned to England, soured with dis- appointment, and bent on wreaking on his domestic enemies the vindictiveness and the malice which had been baffled and humiliated abroad. He had brought back some bands of soldiers of fortune from France ; and with these " ahen knights, cross-bow-men, and hired followers, who came with anns and horses to molest England" (as the Great Charter afterwards expressively described them), John recommenced his old course of spoliation and out- rage. His chief justiciary, Fitz-Peter, one of the very few ministers who exercised any control over John, had died during the last year. John, who had stood in some awe of this man, exclaimed with joy when he heard of his death, " It is well, Fitz-Peter will now shake hands again with our late Archbishop Hubert in hell, for as- suredly he will find him there. By God's teeth I am now for the first time true lord and king of England." 1 Le showed, on his return to England in the autumn of 1214, what he meant by true lordship and kingship. Plunging, without restraint or shame, into the Bac- chanalia of despotism, the king continued to pillage, to banish, and to slay, and to perpetrate, with every aggra- vation of ribald insolence, those violations of domestic honour, by which far tamer spirits than those of our Anglo-Norman barons have oft been goaded into insur- rection. On the 20th of November, St. Edmund's Day, 1214, 120 RISE AND PROGRESS the earls and barons of England met again at St. Edmund's Bury ; Archbishop Langton, who was the guiding spirit of the assembly, came among them. The Primate of England stood at the high altar ; and thither advanced each peer according to seniority, and, laying his hand on the altar, swore solemnly that if the king would not consent to acknowledge the rights which they claimed, they would withdraw their fealty and make war upon him till, by a charter under his own seal, he should confirm their just demands.. "And at length," says the old chronicler,^ "it was agreed that, after the nativity of our Lord, they should come to the king in a body, to desire a confirmation of the liberties before-mentioned; and that in the meantime they were to provide themselves with horses and arms in the like manner, that if the king should perchance break through that which he had spe- cially sworn (which they well believed), and recoil by reason of his duplicity, they would instantly, by cap- turing his castles, compel him to give them satisfaction." Accordingly in the beginning of the following year the barons appeared before the king, fully prepared both to state and to enforce the national will. The same old historian thus narrates the scene : — " The Demand for the Liberties " of England made by the Barons." " In the year of grace one thousand two hundred and fifteen, which is the seventeenth year of King John, the same king held his court, for the space of one day, at Wor- cester, where he had been at the feast of the Birth of our Lord. Thence he came with all haste to London, and was received at New Temple Inn. Here, then, came to the * Matthew Paris, p. 176. OF THE CONSTITUTION. 121 king tbe aforesaid great barons, in a very resolute guise, with their military garb and weapons, insisting on the liberties and laws of King Edward, with others for them- selves, the kingdom, and the Church of England, to be granted and confirmed according to the Charter of King Henry the First. They asserted, moreover, that at the time of the king's absolution at Winchester, those ancient laws and liberties were promised, and that he was bound to observe them by especial oath. But the king finding the barons so resolute in their demands, was much con- cerned at their impetuosity. When he saw that they were furnished for battle, he replied, that it was a great and difficult thing which they asked, from which he re- quired a respite until after Easter, that he might have space for consideration ; and if it were in the power of himself or the dignity of his crown, they should receive satisfaction. But at length, after many proposals, the king unwillingly consented that the Archbishop of Can- terbury, the Bishop of Ely, and Wilham Marshal should be made sureties, and that by reason of their intercession, on the day fixed he would satisfy all." * During the interval which he had thus gained, John sought to strengthen himself by detaching the clergy from the barons. He granted (Jan. 15, 1215) a charter to the Church of England, by which he secured to her the free election of the bishops, and ordained that when a bishop had been thus elected and presented to the king, the king's consent should not be refused unless lawful reasons could be assigned for the refusal. He took another measure, which shows how much the influ- * Matthew Paris, p. 176. Charta," p. 24, and notes. Thomson's "Essay on Magna O 122 RISE AND PROGRESS '^^Hl ence of tlie yeomanry and the other freemen of England^ "below the rank of the harons had increased, and how _, conscious John was that they also were ready to actH' against him. He ordered the sheriffs to summon the freemen of each shire and tender to them a new oath of allegiance. He confessed at the same time how little he had a right to rely on the loyalty of his subjects, hy seek- ing the special protection which the church gave in those ages to the person and the property of Crusaders. John took the cross on the 2nd February, 1215, and vowed to lead an army into Palestine for the recovery of the Holy™ Sepulchre from the Infidels. % >t^^ None of these manoeuvres were successful. The na- tional union against him was firm, and Ms pretence of preparing for the Crusades only revived the contemptuous hatred of those who remembered his lion-hearted brother Eichard, and John's treasonable practices against that true Crusader. Nor did he gain any advantage in this time of need from his ignominious subjection to the Pope. John applied to Innocent for help against his barons, and the pontiff openly sided with his vassal king. A peremptory and vehement letter came from Kome to Archbishop Langton, wherein the Pope directed his cardinal to support John in upholding the rights of the crown, and to reconcile the barons to their sovereign. In another letter the Pope censured the violence of the barons, and ordered them to act towards their sovereign with humility. But neither the English primate nor the English barons succumbed to this intervention of Borne. Langton continued to advise the barons ; they con- tinued their preparations ; and when Easter approached, the confederates fixed their muster-place at Stamford, in Lincolnshire. The time within which the king was to as lo K ■ OF THE CONSTITUTION. 123 answer their demands was now on the point of expiring ; and in Easter week the barons assembled at Stamford with a force of 2000 armed knights to receive or to en- force the king's ratification of the hberties whicl) they claimed. John was at Oxford. He did not summon the barons thither, nor did he venture to go to them, but he sent William Marshal, Earl of Pembroke, the Earl Warenne, and Archbishop Langton to Brackley, in Northamptonshire (whither the barons had marched), to demand a more specific account of those laws and liber- ties which were so earnestly desired. The confederates delivered a schedule containing the ai-ticles of their claims. The deputies returned with this to Oxford, and, when Langton was explaining to the king what was demanded of him, John broke out into one of his fits of impotent phrenzy — ** And why do they not demand my crown also ? " exclaimed he, with his customary blasphemous oath — " By God's teeth I will not grant them liberties that will make me a slave." He sent back his deputies to the barons' camp with orders to offer an appeal to the Pope, as feudal lord of England. The barons refused it. Pandulph, the papal legate, was in England at the king's court, and he now called on Archbishop Langton to ex- communicate the barons as mutineers against the Holy See. Langton calmly replied that he was better ac- quainted than Pandulph was with the pontiff's real pur- poses, and added, that unless John instantly dismissed his foreign mercenaries, he, the archbishop, would excom- municate them. John now threw himself into the Tower of London, and endeavoured to secure the possession of the capital. The barons acted as if open war had com- menced. They proclaimed themselves the army of God and Holy Church, and elected Robert Fitzwalter, Earl of G 8 i 124 RISE AND PROGRESS Dunmore, as their general. Their numbers increased rapidly; and the middle classes of England, both the yeomanry in the country and the burghers in the towns,!] now actively aided them, and rendered their success certain. It was no longer a rising of one order of the^ community, but a movement of all the freemen of th( land. John seems to have felt the formidable import*! ance which it thus assumed, and he endeavoured to' detach the barons from the national cause, by offering special terms in favour of themselves and their immediate retainers.* But the baronial chiefs felt their true posi- tion as champions of a nation's rights, and disregarded the insidious offers of the king. The army of God and the Holy Church moved first against Northampton Castle, which was garrisoned by some of John's foreign mercenaries. The garrison refused to capitulate; and the national army, unprovided with engines for a regular siege, moved upon Bedford, where they were gladly received. Thence they marched to the Metropolis, where they arrived on the 24th of May — the gates were open to them — the citizens eagerly welcomed them as national deliverers, and the Mayor of London took his position in the army as one of the principal leaders. John had fled from the Tower, and was now at Odiham, in Hampshire, whither only seven knights had followed him. He now in despair sent the Earl of Pembroke to London to inform the confederates that he was ready to comply with their petitions, and to desire that a place and time might * See his letters patent, dated stone in the note at p. xxxi. of the 10th of May, which are ex- the introduction to Blackstone's tant in the rolls in the Tower, tract on the Charter, and which are cited by Black- i OF THE CONSTITUTION. 125 be named for a conference. The barons answered, " Let the day be the 9th of June, — the place, Runnymede." This Holy Land of English liberty is about halfway from Odiham to London, and it is a grassy plain, of about 160 acres, on the south bank of the Thames, be- tween Staines and Windsor. Various derivations are given for the name : that of the antiquary Leland affirms it to have been so called from the Saxon word Runey or council, and to mean the council meadow, having been used, in the old Saxon times, as a place of assembly. No column or memorial marks the spot where the primary triumph of the English constitution was achieved ; but the noble lines of Akenside should be present to the mind of all who tread the plain of Runnymede. INSCRIPTION roa A COLUMN AT RUNNYMEDE. " Thou, who the verdant plain dost traverse here While Thames among his willows from thy view Retires ; stranger, stay thee, and the scene Around contemplate well. This is the place Where England's ancient barons, clad in arms And stern with conquest, from their tyrant king (Then render'd tame) did challenge and secure The Charter of thy freedom. Pass not on Till thou hast bless'd their memory, and paid Those thanks which God appointed the reward Of public virtue. And if chance thy house Salute thee with a father's honoured name. Go, call thy Sons ; instruct them what a debt They owe their ancestors ; and make them swear To pay it, by transmitting down entire Those sacred rights to which themselves were bom," On the 8th of June, the day before that named for the conference at Runnymede, the king came to Merton, in Surrey. But the conference was adjourned to the 15th, 126 . RISE AND PROGRESS the Monday following, and the king in the meantime proceeded to Windsor ; thence, on the last appointed day, heing Trinity Monday, a.d. 1215, the king, with his scanty train of personal followers, came to Kunnymede, where the barons and their host were now encamped. On the part of John stood only eight bishops, fifteen noblemen and knights, and Pandulph, the papal legate : even of these many were only seemingly his adherents, or, as the old chronicler expressively phrases it, they stood ** Quasi ex parte Regis."* The opposite side of the plain, that nearest to where the town of Egham now stands, was white with the tents of an army, which the old chronicler terms a host above all price.f " It is needr less," says another old writer, " to enumerate the barons who composed the army of God and the Holy Church ; they were the whole nobihty of England." Negotiations were formally opened and continued for several days, during which it is probable that the chief managers of the conference on either side may have retired to the little island a short distance higher up the river, which still bears the name of Magna Carta Island, and which tradition points to as the scene of these memorable deliberations. The conference was not concluded till Friday, the 19th of June. Articles or heads of agreement were first drawn up, which were afterwards regularly embodied in the form of a Charter. These " Articuli Magnse Cart® " are still preserved, and deserve attentive comparison with the Charter for which they served as the rough dmft, but which does not always strictly accord with them. When * W. de Heminburg. confecere. Matthew Paris, p.! t Exercitum ineestimabilem -Jt^ * * OF THE CONSTITUTION. 127 the Charter itself was prepared, the royal seal was solemnly aflfixed to it before the Congress at Euunymede, and it bears date as of the first day of that conference, the 15th June, in the year of our Lord 1215, being 149 years after the Norman Conquest, and seven centuries and a half after the reputed era of the landing of the first of our Saxon ancestors in this island. CHAPTER XI. Magna Carta. — General Distribution of its Clauses. — Text of the Great Charter, and Comments. Before settiog out the text of the Great Charter, it may be useful to premise some general summary of its contents. A veiy little attention is necessary to show how unjust it is to speak of it as a mere piece of class- legislation, obtained by the barons for their own special interests. Guizot* well asks, "How is it possible that at least a third of the provisions of the Charter should have related to promises and guarantees made on behalf of the people, if the aristocracy had only aimed at ob- taining that which would benefit themselves? We have only to read the Great Charter in order to be convinced that the rights of all three orders of the nation are equally respected and promoted." By the three orders which Guizot here speaks of are meant the clergy, the nobility, and the general common- alty of the freemen of the realm. It will be seen, also. History of Representative Government," pt. ii. lect. 7. RISE AND PROGRESS OF THE CONSTITUTION. 129 that the serfs are not wholly neglected in it. And inas- much as the serfs were always capable of being raised into freemen, and the process of their emancipation was continually, though gradually, going forward, the Great Charter, by providing for the rights of all freemen, pro- vided in effect for the rights of all the inhabitants of the land. Part of the Great Charter consists of clauses relating to the clergy. These are not numerous, as the charter granted by John in the preceding February had provided for ecclesiastical interests. The Great Charter confirms these provisions. With respect to the rights of the laity, the Great Char- ter determines with careful precision the amount of feudal obligation to which the barons and other immediate tenants of the crown should be thenceforth subject. Involved in those provisions is the all-important article about convening the great council of the realm. It will be seen also that the Charter binds the barons to allow their sub-vassals the same mitigations of the feudal burdens which the barons acquired for themselves from the king. In behalf of members of the rest of the free community, special clauses will be found by which the ancient customs and liberties of cities and boroughs are secured, and by which protection for the purposes of commerce is given to foreign merchants. Thus far the Charter legislates specially for the interests of separate classes, though several of the clauses of this kind, besides redressing an immediate and partial wrong, con- tain also the germ of a permanent and national right. But the Great Charter is also rich with clauses which have for their object the interests of the nation as a G 3 130 RISE AND PROGRESS whole. It provides for the pure, the speedy, the fixed, and uniform administration of justice. It prohihits arbitrary imprisonment and arbitrary punishment of any kind. It places the person and the property of every free- man under the solemn and sacred protection of free and equal law. Lastly, it contains clauses of a temporary character for the redress of the immediate evils of the time, as by directing the removal of the king's foreign mercenaries from England, and it provides guarantees for King John adhering to its obligations, by appointing a baronial council who were to be the guardians of the Charter, and who were to be armed with the most ample powers for redressing any infraction of it which the king or his ministers might attempt. The translation of the Great Charter, which will now be laid before the reader, is accompanied by explanatory notes ; but full comment on its most important passages is reserved until we shall have seen the form which the Charter assumed, as adopted and ratified by Henry III. and subsequent monarchs, and until we shall have also examined the confirmation which it received from Edward the First. iTOagna (2rarta. John, by the grace of God King of England, Lord of Ireland, Duke of Normandy, Aquitaine, and Count of Anjou, to his Archbishops, Bishops, Abbots, Earls, Barons, Justiciaries, Foresters, Sherifis, Go- vernors, Officers, and to all Bailiffs, and his lieges, greeting. Know ye, that we, in the presence of God, and for the salvation of our soul, and the i OF THE CONSTITUTION. 131 souls of all our ancestors and heirs, and unto the honour of God and the advancement of Holy Church, and amendment of our Realm, hy advice of our venerable Fathers, Stephen, Archbishop of Canterbury, Primate of all England and Cardinal of the Holy Roman Church, Henry, Archbishop of Dublin, William of London, Peter of Winchester, JocELiN of Bath and Glastonbury, Hugh of Lin- coln, Walter of Worcester, William of Coventry, Benedict of Rochester, Bishops ; of Master Pan- dulph, Sub-Deacon and Familiar of our Lord the Pope, Brother Aymeric, Master of the Knights- Templars in England; and of the Noble Persons, William Marescall, Earl of Pembroke, William, Earl of Salisbury, William, Earl of Warren, Wil- liam, Earl of Arundel, Alan de Galloway Con- stable of Scotland, Warin Fitz Gerald, Peter FiTz Herbert, and Hubert de Burgh Seneschal of Poitou, Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip or Albiney, Robert de Roppell, John Mares- chall, John Fitz Hugh, and others our liegemen, have, in the first place, granted to God, and by this our present Charter confirmed, for us and our heirs for ever : 1. That the Church of England shall be free, and have her whole rights, and her hberties inviolable ; and we will have them so observed, that it may appear thence that the freedom of elections, w^hich is reckoned chief and indispensable to the Enghsh Church, and which we granted and confirmed by our Charter, and obtained the confirmation of the same from our Lord the Pope Inno- cent III., before the discord between us and our barons. 132 RISE AND PROGRESS was granted of mere free will ; which Charter we shall ohserve, and we do will it to be faithfully observed by our heirs for ever. 2. We also have granted to all the free- men of our kingdom, for us and for our heirs for ever, all the underwritten liberties, to be had and holden by them and their heirs, of us and our heirs for ever: If any of our earls, or barons, or others, who hold of us in chief by military service, shall die, and at the time of his death his heir shall be of full age, and owes a rehef,* he shall have his inheritance by the ancient relief; that is to say, the heir or heirs of an earl, for a whole earl- dom, by a hundred pounds ; the heir or heirs of a baron, for a whole barony, by a hundred pounds; the heir or heirs of a knight, for a whole knight's fee, by a hundred shillings at most; and whoever oweth less shall give less, according to the ancient custom of fees. 3. But if the heir of any such shall be under age, and shall be in ward when he comes of age, he shall have his inheritance without relief and without fine. 4. The keeper of the land of such an heir being under age, shall not take of the land of the heir but reasonable issues, reasonable customs, and reasonable services, and that without de- struction and waste of his men and his goods ; and if we commit the custody of any such lands to the sheriff, or any other who is answerable to us for the issues of the land, and he shall make destruction and waste of the lands which he hath in custody, we will take of him amends, and the land shall be committed to two lawful and discreet men of that fee, who shall answer for the issues to us, or to him to whom we shall assign them : * Explanations of the feudal clauses will be found at pp. 77- terms in this and the six next 81, supra. OF THE CONSTITUTION. 133 and if we sell or give to any one the custody of any sncli lands, and he therein make destruction or waste, he shall lose the same custody, which shall be committed to two lawful and discreet men of that fee, who shall in like manner answer to us as aforesaid. 5. But the keeper, so long as he shall have the custody of the land, shall keep up the houses, parks, warrens, ponds, mills, and other things pertaining to the land, out of the issues of the same land ; and shall deliver to the heir, when he comes of full age, his whole land, stocked with ploughs and carriages, according as the time of wainage shall require, and the issues of the land can reasonably bear. 6. Heirs shall be married without disparagement, and so that before matrimony shall be contracted, those who are near in blood to the heir shall have notice. 7. A widow, after the death of her husband, shall forthwith and with- out difficulty have her marriage and inheritance; nor shall she give anything for her dower, or her marriage, or her inheritance, which her husband and she held at the day of his death ; and she may remain in the mansion house of her husband forty days after his death, within which term her dower shall be assigned. 8. No widow shall be distrained to marry herself; so long as she has a mind to live without a husband ; but yet she shall give security that ste will not marry without our assent, if she hold of us ; or without the consent of the lord of whom she holds, if she hold of another.* 9. Neither * 13y the old law, grounded tract herself, and so convey part on the feudal exactions, a woman of the feu J to the lord's enemy, could not be endowed without a This licence the lords took care fine paid to the lord, neither to be well paid for, and, as it could she marry again without seems, would sometimes force his licence, lest she should con- the dowager to a second mar- 134 RISE AND PROGRESS we nor our bailiffs shall seize any land or rent for any debt so long as the chattels of the debtor are sufficient to pay the debt ; nor shall the sureties of the debtor be distrained so long as the principal debtor is sufficient for the payment of the debt; and if the principal debtor shall fail in the payment of the debt, not having where- withal to pay it, then the sureties shall answer the debt ; and if they will they shall have the lands and rents of the debtor, until they shall be satisfied for the debt which they paid for him, unless the principal debtor can show himself acquitted thereof against the said sureties. 10. If any one have borrowed anything of the Jews,* more or less, and die before the debt be satisfied, there shall be no interest paid for that debt, so long as the heir is under age, of whomsoever he may hold ; and if the debt falls into our hands, we will only take the chattel men- tioned in the deed. 11. And if any one shall die in- debted to the Jews, his wife shall have her dower and pay nothing of that debt; and if the deceased left children under age, they shall have necessaries provided for them, according to the tenement of the deceased; and out of the residue the debt shall be paid, saving however the service due to the lords ; and in like manner shall it be done touching debts due to others than the Jews. 12. No scutage or aid shall he ynposed in our kingdom, unless by the general council of our kingdom; except for ransoming our person, making our eldest son a knight, and once for marrying our eldest daughter ; and for these there shall he paid a reason- riage in order to gain the fine. — Jews in England at this and 2 Bl. Com. 135. other early periods will be found * Some curious information in Tovey's " Anglia Judaica." respecting the position of the Oxford, 1738. OF THE CONSTITUTION. 185 able aid. In like maiifier it shall he concerning the aids of the City of London. 13. And the City of Lon- don shall have all its ancient liherties and free customs, as well by land as by water : furthermore we will and grant, that all other cities and boroughs, and toivns and ports, shall have all their liberties and free cus- toms. 14. And for holding the general council of the kingdom concerning the assessment of aids, except in the three cases aforesaid, and for the assessing of scu- tages, we shall cause to be summoned the archbishops, bishops, abbots, earls, and greater barons of the realm^ singly by our letters. And furthermore we shall cause to be summoned generally by our sheriffs and bailiffs, all others ivho hold of us in chief, for a certain day, that is to say, forty days before their meeting at least, and to a certain place ; and in all letters of such sum- mons we will declare the cause of such summons. And summo?is being thus made, the business of the day shall proceed an the day appointed, according to the advice of such as shall he present, although all that were summoned come not.^ 15. We "will not for the future grant to any one, that he may take aid of his own free tenants ; unless to ransom his body, and to make his eldest son a knight, and once to marry his eldest daughter; and for this there shall be only paid a rea- sonable aid. IG. No man shall be distrained to perform more service for a knight's fee, or other free tenement, than is due from thence. 17. Common pleas shall not follow our court, but shall be holden in some place * Full comments on these gin of our Parliament is dis- important clauses will be found cussed, in chapter 13, where the ori- 136 RISE AND PROGRESS certain.* 18. Assizes of novel disseisin, and of mort d'ancestor, and of darrein presentment, shall not be taken * Bj the ancient Saxon con- stitution there was only one superior court of justice in the kingdom, and that court had cognizance both of civil and spiritual causes, viz, the witten- agemote or general council, which assembled annually, or oftener, wherever the king kept hisChrist- mas, Easter, or Whitsuntide, as well to do private justice as to consult upon public business. At the Conquest the ecclesias- tical jurisdiction was diverted into another channel, and the Conqueror established a constant courc in his own hall, thence called by Bracton and other an- cient authors aula regia or aula regis. This court was composed of the king's great officers of state resident in his palace, and usually attendant on his person ; such as the lord high constable and lord mareschal, who chiefly presided in matters of honour and of arms, determining ac- cording to the law military and the law of nations. Besides these, there were the lord high steward and lord great cham- berlain, the steward of the household, the lord chancellor, whose peculiar business it was to keep the king's seal, and ex- amine all such writs, grants, and letters as were to pass under that authority, and the lord high treasurer, who was the principal adviser in all matters relating to the revenue. These high officers were assisted by certain persons learned in the laws, who were called the king's justiciars or justices, and by the greater barons of Parliament, all of whom had a seat in the aula regia, and formed a kind of court of appeal, or rather of advice, in matters of great mo- ment and difficulty ; all these in their several departments transacted all secular business both criminal and civil, and likewise the matters of the re- venue ; and over all presided one special magistrate, called the chief justiciar, or capitalis justiciarius totius Anglice, who was also the principal minister of state, the second man in the kingdom, and, by virtue of his office, guardian of the realm in the king's absence ; and this officer it was who principally determined all the vast variety of causes that arose in this ex- tensive jurisdiction ; and from the plenitude of his power grew at length both obnoxious to the people and dangerous to the go- vernment which employed him. This great universal court being bound to follow the king's OF THE CONSTITUTION. 137 but in their proper counties, and after this manner : We, or, if we should be out of the realm, our chief justiciary, shall send two justiciaries through every county four times a year, who, with four knights, chosen out of every shire by the people, shall hold the said assizes, in the county, on the day, and at the place appointed. 19. And if any matters cannot be determined on the day appointed for holding the assizes in each county, so many of the knights and freeholders as have been at the assizes aforesaid, shall stay to decide them, as is neces- sary, according as there is more or less business. * • 20. household in all his progresses and expeditions, the trial of common causes therein was found very burthensome to the subject ; wherefore King John, who dreaded also the power of the justiciar, very readily con- sented to that article which now forms the above chapter of Magna Charta.— 3 Bl. Com. 38. See also Lord Campbell's " Lives of the Chief Justices of Eng- land/' vol. i. c. i. * The legal term, "assize," means strictly the jury of twelve knights, whom Henry II. ap- pointed as " assessors " to the judges on certain trials of ques- tions of fact respecting real property. Thence the word came to mean the trial itself; and the term " assizes " has long been popularly used for the trials, both civil and cri- minal, which are held before the judges on their circuits. The three actions (or assizes) which are spoken of in the text, had long been obsolete before they were formally abolished about 20 years ago. The two first related to the trial of title and possessory rights to real property ; the last related to disputes as to the rights to ad- vowson. Actions of this nature were obliged to be commenced in the king's court. " But be- cause few, comparatively speak- ing, could have recourse to so distant a tribunal as that of the king's court, and perhaps also on account of the attachment which the English felt to their ancient trial by the neighbour- ing freeholders, Henry IL esta- blished itinerant justices to de- cide civil and criminal pleas in each county. Justices in Eyre (or, as we now call them, of assize) were sometimes commis- sioned in the reign of Henry L, 138 RISE AND PROGRESS A freeman shall not be amerced for a small fault, but after the manner of the fault ; and for a great crime ac- ■ cording to the heinousness of it, saving to him his con- ll tenement ; and after the same manner a merchant, saving to him his merchandise. And a villein * shall be amerced after the same manner, saving to him his wainage, if he falls under our mercy ; and none of the aforesaid amercia- ments shall be assessed but by the oath of honest men in the neighbourhood. 21. Earls and barons shall not be but do not appear to have gone their circuits regularly before 22 Hen. II. (1176). We have owed to this excellent institu- tion the uniformity of our com- mon law, which would other- wise have been split, like that in France, into a multitude of local customs ; and we still owe to it the assura7ice, which is felt hy the 'poorest and most remote inhabitant of England, that his right is weighed hy the same in- corrupt and acute understanding iipon which the decision of the highest questions is reposed. The justices of assize seem originally to have gone their circuits an- nually ; and as part of their duty was to set tallages upon all royal towns, and superintend the collection of the revenue, we may be certain that there could be no long interval. This annual visitation was expressly confirmed by the twelfth section of Magna Charta, which pro- vides also, that no assize of novel disseisin, or mort d'an- cestor, should be taken except in the shire where the lands in controversy lay. Hence this clause stood opposed on the one hand to the encroachments of the king's court, which might otherwise, by drawing pleas of land to itself, have defeated the suitor's right to a jury from the vicinage ; and, on the other, to those of the feudal aristocracy, who hated any interference of the Crown to chastise their violation of law, or control their own jurisdiction." {Mid- dle Ages, vol. ii. p. 334.) I have drawn these remarks of Hal- lam's partly from his text, and partly from a note. It may be doubtful how far the passage, which I have italicised, is still applicable, since the introduc- tion and extension of the new county courts. * See an explanation of vil- leinage, p. 92, supra. I OF THE CONSTITUTION. 139 amerced, but by their peers, and after the degree of the offence. 22. No ecclesiastical person shall be amerced for his lay tenement, but according to the proportion of the others aforesaid, and not according to the value of his ecclesiastical benefice.* 23. Neither a town nor any tenant shall be distrained to make bridges or banks, un- less that anciently and of right they are bound to do it. 24. No sheriff, constable, coroner, or other our bailiffs, shall hold pleas of the Crown.f 25. All counties, hun- * Blackstone describes the meaning of these clauses to be, that no man should have a larger amercement imposed upon him than his circum- stances or personal estate would bear ; saving to the landholder his contenement or land, to the trader his merchandise, and to the countryman his wainage or team, and instruments of hus- bandry. t The object of this enact- ment was, that all criminal charges, which exposed the party accused to the peril of heavy punishment, should be tried before judges of learning and experience in the laws of the realm, and not before in- ferior, and probably incompe- tent officers. (See Coke, 2 Inst. 30.) " Pleas of the Crown'' mean those judicial processes, which are carried on in the Sovereign's name against criminal offenders, because (as Blackstone observes) " in him centres the majesty of the whole community, and he is supposed by the law to be the person injured by every in- fraction of the public rights be- longing to that community, and is therefore in all cases the proper prosecutor for every public of- ence." At the time of the grant of the Great Charter, the crimes of theft (see Reeves, " Hist. Law," vol. i. p. 281), forgery, coining false money, and other acts coming within the definition of the crimen falsi, were held to be pleas of the Crown, as well as treason, murder, manslaughter, robbery, and other graver atro- cities (see Reeves, vol i. p. 200). So that the effect of this clause of the Charter was to put an end entirely to the most im- portant functions of the cri- minal branch of the county court, and of the other inferior and local tribunals of the coun- try. This prohibition was, how- ever, held only to apply to hear- 140 RISE AND PROGRESS dreds, wapentakes, and tytliings, shall stand at the old ing and determining pleas of the Crown : and sheriffs conti- nued to take (but not to trj) indictments of felonies and mis- demeanors, and coroners con- tinued to take (but not to try) appeals, till forbidden by a statute of Edward IV. Coroners still take inquisitions, whereby parties are charged of murder or manslaughter, and on which they are tried by the judges, who have commissions of oyer and terminer and gaol delivery. (For the duties and powers which the courts of the tourn and the leet still retained as to frank-pledge and other matters, see post, the note on the provision respecting it, which was intro- duced into the Great Charter as issued by Henry III.) The present clause of the Great Charter mentions speci- fically sheriffs, constables, coro- ners, and bailiffs ; but it has been held to prohibit all per- sons from trying and deter- mining criminal cases, unless they have a special commission from the Crown for that pur- pose, such as the commissions of oyer and terminer and of gaol delivery, which are given to the judges on each circuit, or such as part of the com- mission given to the justices of the peace in their respec- tive counties. " Some explana- tion may be useful of the four degrees of the royal officers who are specified in the text of the Charter, and forbidden thenceforth to try pleas of the Crown as by their general authority. Sheriffs were the chief officers under the king in every county, deriving their title from the two Saxon words 'shire' and 'reeve,' the bailiff or steward of the division. They are called in the Latin text of the Great Charter, vicecomes, which literally signifies 'in place of the earl of the county,' who anciently governed it under the king, as Lord Coke ob- serves in his Commentary on the first statute of Westmin- ster, chap. 10, enacted in 1274, the third of Edward I. The next officer mentioned in this chapter of Magna Charta is constabulariitSfOY constable, which is sometimes derived from the Saxon, but other authorities have conceived it more truly to come from the Latin comes stabuli, a superintendent of the imperial stables, or master of the horse. This title, however, began in the course of time to signify a commander, in which sense it was introduced into England. In the present in- stance, the word is put for the I OF THE CONSTITUTION. ]41 rents, without any increase, except in our demesne constable, or keeper of a castle, frequently called a Castellan. They were possessed of such con- siderable power within their own precincts, that previously to the present Act they held trials of crimes, properly the cognizance of the Crown, as the sheriffs did within their respective baili- wicks; and sealed with their own effigies on horseback. The Eng- lish fortresses to which these officers belonged, in the time of King Henry II. amounted in number to 1115 ; and it was held that there should be one in every manor, bearing the name of that manor, wherein the constable had equal rule. As prisons were considered to be an important part of all ancient castles, these officers are some- times called constables of fees, which signifies whose who were paid for keeping prisons. In this part of their duty, they appear often to have been guilty of great cruelty ; since in the fifth year of Henry IV., 1403, chap. 10, it is enacted, the justices of peaces shall imprison in the common gaol, 'because,' says the passage, ' that divers con- stables of castles within the realm of England be assigned to be justices of peace by com- mission from our Lord the King, and by colour of the said commissions they take people to whom they bear ill-will, and imprison them within the said castles, till they have made fine and ransom with the said con- stables for their deliverance.' This statute, observe Jacob and Toulins, seems to have put an end to them. The title of Co- roner implies that he was an officer to the Crown, to whom, in certain cases, pleas of the Crown in which the king is more immediately concerned, are properly belonging ; and in this sense the Lord Chief Jus- tice of the King's Bench is the principal coroner of the king- dom. Previously to this chapter of Magna Chart a, a coroner might not only receive accusa- tions against offenders, but might try them ; but his authority was afterwards in general reduced to the inquiry into violent and untimely death, on sight of the body; although by custom in some places he might make in- quisition of other felonies. By the first statute of Westminster, chap. 10, his power was some- what more positively explained, since it was there ordained that the coroner should attach pleas of the Crown, and present them to the justices, but he can pro- 142 mSE AND PROGRESS manors.* 26. If any one holding of us a lay-fee die, and the sheriff, or our bailiffs, show our letters patent of summons for debt which the dead man did owe to us, it shall be lawful for the sheriff or our bailiff to attach and inroll the chattels of the dead, found upon his lay-fee, to the value of the debt, by the view of lawful men, so as nothing be removed until our whole clear debt be paid ; and the rest shall be left to the executors to fulfil the testament of the dead, and if there be nothing due from him to us, all the chattels shall go to the use of the dead, saving to his wife and children their reasonable shares. 27. If any freeman shall die intestate, his chattels shall — be distributed by the hands of his nearest relations andS friends, by view of the church ; saving to every one his debts which the deceased owed to him.f 28. No ceed no further. The last rank of great officers mentioned in this chapter, is that of bailiffs, whose name is derived from the old French word Bayliff, the keeper of a province ; but in the present instance in this term, says Coke, ' are compre- hended all judges or justices of any court of justice ;' by all which specifications it is evident, according to a rule cited by the same author, that * the pleas of our Lord the King shall be espe- cially reserved, that by none now in the kingdom, can pleas be had or held, after the con- firmation of the aforesaid char- ter is made, without a special commission.' " — Thomson'' s Mag- na Charta, p. 204. * The Anglo-Norman kings used to make a regular profit out of the appointment of she- riffs to counties, and of the officers to other districts. Some- times they were farmed out to the highest bidder. The effect of this, of course, was to produce great oppression of the people, as the officials who paid thus largely for their places, strove to indemnify themselves by ex- acting immoderate fees, by un- just confiscations, by imposing excessive fines, and every other species of extortion. This clause of John's Charter is not repeated in the Charter as confirmed by Henry III. t For an account of the an- cient law as to a man's right to i OF THE CONSTITUTION. 143 constable or bailiff of ours shall take com or other chattels of any man, unless he presently give him money for it, or hath respite of payment by the good-will of the seller.* 29. No constable shall distrain any knight to bequeath his personal property by will, the functions of execu- tors, the mode in which per- sonal property was distributed when a man died intestate, the claims of the church, the duties of administrators, and the right of creditors, see Williams on Executors, or Stephens' "Black- stone," vol. ii. See also, as to the precise meaning of these clauses of the Great Charter, 1 Reeve, 244, and Thomson's " Magna Charta," p. 208. * " The profitable prerogative of purveyance and pre-emption was a right enjoyed by the Crown of buying up provisions and other necessaries, by the intervention of the king's pur- veyors, for the use of his royal household, at an appraised va- luation, in preference to all others, and even without the consent of the owner ; and also of forcibly impressing the car- riages and horses of the subject to do the king's business on the public roads in the conveyance of timber, baggage, and the like, however inconvenient to the proprietor, upon paying him a settled price ; a prerogative which prevailed pretty gene- rally throughout Europe during the scarcity of gold and silver, and the high valuation of mo- ney consequential thereupon. In those early times the king's household (as well as those of inferior lords) were supported by specific renders of corn and other victuals from the tenants of the respective demesnes ; and there was also a continual market kept at the palace gate to furnish viands for the royal use ; and this answered all pur- poses in those ages of simpli- city, so long as the king's court continued in any certain place. But when it removed from one part of the kingdom to another (as was formerly very frequently done), it was found necessary to send purveyors beforehand to get together a sufficient quan- tity of provisions and other ne- cessaries for the household ; and, lest the unusual demand should raise them to an exorbitant price, the powers before-men- tioned were vested in these purveyors, who, in process of time, very greatly abused their authority, and became a great 144 RISE AND PROGRESS give money for castle guard, if he himself will do it in his person, or by another able man in case he cannot do it through any reasonable cause. And if we lead him, or send him in an army, he shall be free from such guard for the time he shall be in the army by our command.* 80. No sheriff or bailiff of ours, or any other, shall take horses or carts of any freeman for carriage, but by the good-will of the said freeman.f 31. Neither shall we nor our bailiffs take any man's timber for our castles or other uses, unless by the consent of the owner of the timber.f 32. We will retain the lands of those convicted of felony only one year and a day, and then they shall be delivered to the lord of the fee.J 33. All wears for the time to oppression to the subject, though of little advantage to the Crown ; ready money in open market (when the royal residence was more permanent and specie be- gan to be plenty) being found upon experience to be the best proveditor of any ; wherefore by degrees the power of purveyance having fallen into disuse during the suspension of monarchy, King Charles at his restoration consented to resign entirely these branches of his revenue and powers."—! Bl. Com., 287 ; Oreening^a Magrm Charta, p. 17. * According to Lord Coke, the common law was that he who held by castle-guard, that is, by the service of keeping a tower, or a gate, or the like of a castle in time of war, might do it either by himself, or by any sufficient deputy ; and that if such tenant were by the king led or sent to his hosts in time of war, he was excused and quit of his service for keeping of the castle either by himself or by another during the time he so served the king. — 2 Coke's hist, 34 ; Greening'* s Magna Charta, p. 18. t See note to c. 28. X The word convict here means attainted (2 CoJce's Inst., 37), al- though it generally has a very different signification. The dif- ference between a man attainted and convicted is, that a man is said to be convicted before he hath judgment, as if a man be convicted by verdict or confes- sion ; and when he hath his judgment upon the verdict let 0^ j J OF THE CONSTITUTION. 145 come shall be put down in the rivers of Thames and Medway, and throughout all England, except upon the confession, then he is said to be attainted (1 hist. 390 h), that is to say, his blood is become {at- tinctus) tainted, stained, or cor- rupted ; insomuch that, by the common law, in cases of treason or capital felony, his children or other kindred could not in- herit his estate, nor his wife claim her dower ; the same could not be restored or saved but by Act of Parliament, and therefore, in divers instances before the 54 Geo. 3, there was a special provision by Act of Parliament that such or such an attainder should not work corruption of blood, loss of dower, or disherison of heirs. — 1 Lut. 391 h. And by the com- mon law, all lands of inheritance whereof the offender was seised in his own right, and also all rights of entry to lands in the hands of a wrong-doer, were forfeited to the king by an at- tainder of high treason ; and to the lord of whom they were im- mediately holden by an attain- der of petit treason or felony. — 2 Haw. P. C. c. 49, s. 1. But the lord could not enter into the lands holden of him upon an escheat for petit treason or felony without a special grant, till it appeared by due process that the king had had his pre- rogative of the year, day, and waste. — 2 Eaw. P. C. c. 49, 8.3. But by the statute 64 Geo. 3, 145, intituled, " An Act to take away corruption of blood, save in certain cases," it is enacted, "That no attainder for felony which shall take place from and after the passing of that Act, save and except in cases of the crime of high treason, or of the crimes of petit treason or mur- der, or of abetting, procuring, or counselling the same, shall extend to the disinheriting of any heir, nor to the prejudice of the right or title of any person or persons other than the right or title of the offender or offen- ders, during his, her, or their natural lives only ; and that it shall be lawful to every person or persons to whom the right or interest of any lands, tenements, or hereditaments, after the death of any such offender or offenders, should or might have apper- tained, if no such attainder had been, to enter into the same." And by the 3 & 4 Will. 4, c. 106, s. 10, it is further enacted that "when the persons from whom the descent of any land is to be traced shall have had any relation who, having been attainted, shall have died before 146 EISE AND PROGRESS sea-coast.* 34. The writ which is called prcecijpe, for the future, shall not be made out to any one, of any tenement, whereby a freeman may lose his court.f 35. There shall be one measure of wine and one of ale through our whole realm ; and one measure of corn, that is to say, the Lon- don quarter ; and one breadth of dyed cloth, and russets, and haberjeets, that is to say, two ells within the lists; and it shall be of weights as it is of measures. 36. No- such descent shall have taken place, then such attainder shall not prevent any person from inheriting such land who would have been capable of inheriting the same, by tracing his descent through such relation, if he had not been attainted, unless such land shall have escheated, in consequence of such attainder, before the 1st day of January, ISMr— Greening, p. 18. The personal property of a convicted felon is still forfeited to the Crown. * The intent of this was to prevent any person from appro- priating to himself a fishery of any part of a public river. Every pubUc river or stream, says Lord Coke, is the king's high- way, which cannot be privately occupied. It was accordingly held to be illegal to erect any ob- struction, such as a weir, across a public river. The peculiar kind of weirs mentioned in the text, and called Kidelli, were dams having a loop or narrow cut in them, and furnished with wheels and engines for catching fish. — Thomson's Notes on the Great Charter, p. 214. For further information as to the king's right to the soil, &c., of the sea-shore, and of navigable rivers, and so to the rights of highway and fishery which the public have in them, see Jer- wood on Rights to the Sea- shore, &c. t This clause was designed to protect, to some extent, the local jurisdiction of the courts baron. When the tenant of lands, who was not a tenant in capite of the Crown, was dis- possessed, he was required first to sue for their recovery in the court baron of the inferior lord, of whom he held them. It was only when the inferior lord resigned his privilege of juris- diction, that the tenant was en- titled to sue out in the king's court the writ of right for the recovery of the lands, which, was called a praecipe in capite. I OF THE CONSTITUTION. 147 thing from henceforth shall be given or taken for a writ of inquisition of life or limb, but it shall be granted freely, and not denied.* 37. If any do hold of us by fee-farm, or by socage, or by burgage, and he hold also lands of any other by knight's service, we will not have the custody of the heir or land, which is holden of an- other man's fee by reason of that fee-farm, socage, or burgage ; neither will we have the custody of such fee- farm, socage, or burgage, except knight's service was due to us out of the same fee-farm. We will not have the custody of an heir, nor of any land which he holds of another by knight's service, by reason of any petty ser- jeanty that holds of us, by the service of paying a knife, * The object of this clause was, to prevent the long impri- sonment of a person charged with a crime without inquiring into his guilt or innocence. For the proper purpose of imprison- ing such is, as Lord Coke says, only for securing that they may be duly tried. The writ of in- quisition mentioned in the text was called a writ de odio et atid, and was one of the great secu- rities of personal liberty in those days. It was a rule that a per- son committed to custody on a charge of homicide should not be bailed by any other autho- rity than that of the king's writ ; but to relieve such a per- son from the hardship of lying in prison till the coming of the justices in eyre, this writ used to be directed to the sheriff, commanding him to make iw- quisitionj by the oaths of lawful men, whether the party in pri- son was charged through ma- lice, utntm rettatus sit odio et atid; and if it was found that he was accused odio et atid, and that he was not guilty, or that he did the fact se defendendo or per imfortunium, yet the sheriff had no authority by this writ to bail him, but the party was then to sue a writ of tradas in halliu7ii, directed to the sheriff, and commanding him that if the prisoner found twelve good and lawful men of the county who would be mainprize for him, then he should deliver him in bail to those twelve. — See Reeve's Hist. Com. Law, 258 ; Thomson^ s Magna Charta. 148 RISE AND PROGRESS an arrow, or the like.* 38. No bailiff from henceforth shall put any man to his law upon his own hare saying, without credible witnesses to prove it.f 39. NULLUS LIBER HOMO CAPIATUR, VEL TMPRISONETUR, AUT UTLAGETUR, AUT EXULETUR, AUT ALIQUO MODO DEI- STRUATDR; NEC SUPER EUM IBIMUS, NEC SUPER EUM MITTEMUS, NISI PER LEGALE JUDICIUM PARIUM SUORUM, VEL PER LEGEM TERR^E. 40. NULLI VENDEMUS, NULLI NEGABIMUS, AUT DIFFEREMUS RECTUM AUT JUSTITIAM. 39. No FREEMAN SHALL BE TAKEN OR IMPRISONED, OR DISSEISED, OR OUTLAWED, OR BANISHED, OR ANY WAYS DESTROYED, NOR WILL WE PASS UPON HIM, NOR WILL WE SEND HIM, UNLESS BY THE LAWFUL JUDGMENT OF HIS PEERS, OR BY THE LAW OF THE LAND. 40. We WILL SELL TO NO MAN, WE WILL NOT DENY TO ANY MAN, EITHER JUSTICE OR RIGHT.J * For explanation of socage oath, and bringing others to tenure, knight's service, fee- swear with him to that effect, farm, and burgage tenure, see This mode of defence was called Chapter IX., supra. " Petit ser- in criminal cases a trial by com- jeanty," as defined by Littleton, purgators (and will be hereafter "consists in holding lands of referred to when the origin of the king by the service of ren- trial by jury is discussed) ; in dering to him annually some civil cases it was called Wager small implement of war, as a of law, and has only been en- bow, a sword, a lance, or an ar- tirely abolished in the last row, or the like."— 2 Bl Com. reign (see 3 & 4 Will. 4, c. 42, t See 1 Reeves, p. 248, as to s. 13). the meaning of this disputed X These clauses are the crown- clause. It is generally under- ing glories of the Great Charter, stood as referring to the modes Mr. Hallam {Midd. Ag. ii. 324) of trial in which a party charged calls them its " essential clauses/' was allowed to prove that a cri- being those which " protect the minal charge or a civil claim personal liberty and property of made against him was un- all freemen, by giving security founded, by pledging his own from arbitrary imprisonment J OF THE CONSTITUTION. 149 41. All merchants shall have safe and secure conduct, to go out of, and to come into England, and to stay there. and arbitrary spoliation." The same high authority observes that these words of the Great Charter, "interpreted by any honest court of law, convey an ample security for the two main rights of civil society. From the era, therefore, of King John's Charter, it must have been a clear principle of our constitution that no man can be detained in prison without trial. Whether courts of jus- tice framed the writ of habeas corpus in conformity to the spirit of this clause, or found it already in their register, it be- came from that era the right of every subject to demand it. That writ, rendered more ac- tively remedial by the statute of Charles II., but founded upon the broad basis of Magna Charta, is the principal bulwark of Eng- lish liberty; and if ever tem- porary circumstances, or the doubtful plea of political neces- sity, shall lead men to look on its denial with apathy, the most distinguishing characteristic of our constitution will be ef- faced." Before commenting further on these clauses of the Great Charter of John, it may be con- venient to observe that they are formed into one chapter in the Charter as issued by Henry III., and confirmed by subsequent kings, and that some words are added to one of the provisions, for the purpose apparently of making the meaning more ex- plicit. The chapter of Henry II.'s Charter is as follows : "Nul- lus liber homo capiatur, vel im- prisonetur, aut disseisietur de aliquo lihero tenemento suo vel lihertatibus vel liheris coiisuetu- dinihus suis, aut utlagetur, aut exulet, aut aliquo alio mode destruatur, nee super eum ibi- mus, nee super eum mittemus nisi per legale judicium parium suorum vel per legem terrse. Nullivendemus,nullinegabimus, aut diflferemus rectum aut jus- titiam." This chapter is trans- lated in our common edition of the Statutes as follows : " No freeman shall be taken or im- prisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed or ex- iled, or any otherwise destroyed, nor will we pass upon him, nor condemn 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 defer to any man, either justice or right." These are all words which should be carefully read over 150 RISE AND PROGRESS and to pass as well by land as by water, for buying and selling by the ancient and allowed customs, without any and over and again, for, as Lord Coke quaintly observes, in his comments on them, "As the gold-finer will not out of the dust, shreds, or shreds of gold, let passe the least crum, in re- spect of the excellency of the metal ; so ought not the learned reader to passe any syllable of this law, in respect of the excel- lency of the matter." The first words of this chap- ter of the Charter (for it is con- venient to follow the arrange- ment and the wording of Henry III.'s version) express the ex- tent of its applicability. It is not a piece of class legislation, but its benefits apply to all the freemen of the land; and all freemen are equal in the eye of this great law. " JVidlus liber homo capiatur'^ — no freeman shall be taken, &c. Lord Chat- ham's eulogium on the public spirit shown in this respect by the barons who signed the Great Charter is no less just than elo- quent. "My lords," said that great statesman to the House of Peers, in his speech on the 9th of January, 1770, "it is to 7/our ancestors, my lords, — it is to the English barons, that we are indebted for the laws and constitution we possess. Their virtues were rude and unculti- vated, but they were great and sincere. Their understandings were as little polished as their manners, but they had hearts to distinguish right from wrong ; they had heads to distinguish truth from falsehood ; they un- derstood the rights of humanity, and they had spirit to maintain them. " My lords, I think that his- tory has not done justice to their conduct, when they ob- tained from their sovereign that great acknowledgment of national rights contained in Magna Carta ; they did not confine it to themselves alone, but delivered it as a common blessing to the whole people. They did not say, These are the rights of the great barons, or these are the rights of the great prelates. No, my lords ; they said, in the simple Latin of the times, nvllus liber hoTno, and provided as carefully for the meanest subject as for the greatest. These are uncouth words, and sound but poorly in the ears of scholars ; neither are they addressed to the criti- cism of scholars, but the hearts of free men. These three words, nvllus liber homo, have a mean- OF THE CONSTITUTION. 151 evil tolls ; except in time of war, or when they are of any nation at war with us. And if there be found any such ing which interests us all ; they deserve to be remembered — they deserve to be inculcated in our minds — they are worth all the classics." The force of this noble panegyric will be doubly felt if we call to mind the in- sidious attempt made by John, about a month before the con- gress at Runny mede, to detach the barons from the general national interest, by offering to them and their immediate re- tainers, as privileges, those rights which the barons claimed and secured for every freeman of the land (see p. 124, supra). It is true that at the time of the grant of the Charter a large part of the population was not free ; but it is to be remembered that the villeins were always capable of being raised, and were constantly rising into free- men, so that the ultimate effect of this chapter was to give and to guarantee full protection for property and person to every human being who breathes Eng- lish air. In Lord Coke's detailed com- mentary on this chapter of Magna Carta, he points out that the evils from which the laws of the land are to protect each person are recited in the order in which they most affect him ; as, first, loss of liberty — '"iVo freeman shall he taken or impri- soned,'' because the freedom of a man's person is more precious to him than all the succeed- ing particulars ; and the word ^' taken,''' which occurs in this clause, signifies also being re- strained of liberty by petition or suggestion to the king or his council. Secondly, the chapter declares that none "shall he dis- seised of his free tenement, his liberties, or his free customs;'''' meaning that neither the king nor others shall seize upon any of his possessions, and that a man shall not be put from his livelihood without answer. The word " liherties'''' has several sig- nifications, as the laws of the realm, privileges bestowed by the king, and the natural free- dom possessed by the subjects of England ; for which cause mo- nopolies in general are against the enactments of the Great Charter. The present chapter ordains, thirdly, that none shall be out- lawed, exiled, or in any way de- stroyed. By outlawry, is signi- fied the ejecting of a person, by three public proclamations, from the benefit of the law, which, from the time of Alfred until long after the reign of William 152 RISE AND PROGRESS in our land, in the beginning of the war, they shall be attached, without damage to their bodies or goods, until I., could be done for felony only, for which the penalty was death; and therefore an out- law, being considered as a wolf, might be slain by any man. In the beginning of the days of King Edward III., however, it was enacted that none but the sheriff should put an outlaw to death ; or else that they should be considered guilty of felony, unless he was slain in an at- tempt to take him. The ex- pression, being exiled, signi- fies to be banished, or forced to abjure the realm against an individual's consent. For this cause, Sir Edward Coke observes that the king cannot send any subject of England into foreign parts on pretence of service, as an ambassador, deputy of Ireland, ftas no contest in 1852 ; so that vol. ii. p. 105. the number of actual voters does OF THE CONSTITUTION. 323 account when the distribution of the electoral franchise is considered. Intelligence and property must have their weight. The extension of education and the extension of the sufirage are topics inseparably united for consideration in a statesman's mind ; and with respect to the claims of property there may be great difference of opinion as to the authority that should be given to it; but few deny that it should have some degree of influence in the electoral system. With respect to education there are no complete statis- tics at present available to show the extent to which it is diffused or deficient among the various classes that make up the great bulk of the population. But there can be no doubt as to there being a fearful amount of ignorance and consequent debasement among very large numbers of our popidation. Much information on this subject is collected in Mr. Pashley's valuable work on Pauperism. That careful and accurate inquirer and sound and fair thinker describes the three millions of our population who (accord- ing to his calculations) require and actually receive parish relief in the course of every year, as " ignorant, degraded, and miserable ;" and he truly states that they " indicate the existence of a still larger class to which they belong, which is but little, if at all, less ignorant, degraded, and miserable than themselves." Some of the instances which he cites of the depth of the ignorance that prevails among them, show it to be, as he terms it, "appalling."* * No one can read without population, belonging to an ig- decp interest and sympathy the norant, degraded, and miserable following passages, which con- pauper class, actually receive eludes Mr. Pashley's first chap- parish relief in the course of ter : — every year, and indicate the ex- " Now that 3,000,000 of our istence of a still larger class to 524 RISE AND PROGRESS The melanclioly extent of pauperism that still exists in the country is also a subject to be deeply considered by all who in any degree recognise property as part of the basis of a sound electoral system. The number has been already cited from Mr. Pashley of the recipients of parish relief at some time or another during the year. The figures are fearfully emphatic — 3_,000^000! The number constantly which they belong, and which is but little, if at all, less igno- rant, degraded, and miserable than themselves, it becomes high time not merely for Chris- tian philanthropists, but for practical statesmen, to turn their attention to effecting some elevation and improvement in the condition and instruction of the great masses of the people. The ignorance in which those masses are left may be seen in some of Mr. Clay's valuable re- ports on the Preston House of Correction. The appalling ig- norance of criminals is a proof, if proof be needed, of the total want of education of the whole class from which the bulk of criminals is supplied. In 1850, Mr. Clay says, ' With reference to 1636 male prisoners, it is a fact that 674 were unable to read in the slightest degree ; 046 were ignorant of the Sa- viour's name, and unable to repeat a word of intelligible prayer; and 1111 were unable to name the months of the year in their proper order ; while 713 were well acquainted with the exciting adventures and vil- lanies of Turpin and Jack Sheppard, and admired them as friends and favourers of the poor, inasmuch as, if they did rob, they robbed the rich for the poor.^ " Sadly does the State neglect its duty when such is the intel- lectual, moral, and religious condition of a numerous class of its children. The Pagans of the ancient world admitted the existence of this duty; and it has been justly observed that 'the philosophers of antiquity well knew what an important part of man's work it was to educate the young to become worthy active members of their civil commonwealths. Hence education was ever a main ele- ment in their scheme of polity, whether practical or ideal.' But this duty we, who call ourselves Christians, and profess to follow the divine precept, ' Love one another,' entirely neglect to fulfil." or THE CONSTITUTION. 325 chargeable and entirely supported out of the poor rates is reckoned to be not less than a million. I abstain here from entering into a discussion as to the practical inferences to be di*awn from these facts. But they are facts which must modify the strong conclusions to which the mind might be hurried by a bare comparison of the number of voters with the number of the popula- tion. Nor, on the other hand, will I do more than advert to the fact that very many of the most intelligent mem- bers of the middle class are at present without votes. There is also the important fact of the change that has taken place in the lower classes of our town population as to their desire for and their capacity for poUtical power. It is to be remembered that the aggregate town population is now one-half of the entire population of England ; formerly the proportion was much smaller. But the artizans and mechanics of the present day are not only different in number, but are wholly different in spirit from their apathetic predecessors. The packing of the population in large manufacturing towns, the progress of education (lamentably imperfect as it has been, espe- cially for the best objects of education), the springing up of a cheap press and a cheap literature, the ferment caused in men's minds by the American War of Independence and by the French Revolutions, the growing habit of combining and acting in organized bodies, — these, and other causes, have worked the great alteration.* There * There is in the second vo- the important contrasts which lume of Mr. Bancroft's "Ameri- it shows between that England can War," a graphic account of and the England of the present England as it was in 1763, which day. deserves an attentive perusal for 326 RISE AND PROGRESS may be much vice^ mucli violence, much ignorance among these masses ; but no one who has watched them will deny- that they contain hundreds alid thousands of honest hard- working men, who read, study, and discuss the political events of the day with growing interest and intelligence, who support materially, though indirectly, the weight of taxation, and whose manual toil heaps up our national wealth. There yet remains a point of view in which the present state of the franchise is to be regarded, in order to judge it correctly ; that is, not merely to see in how many hands the franchise is, but to examine also within whose reach it is. And we shall find that though the borough franchise is not to be obtained unless a man takes a 10/. house and resides in it, the county franchise of 405. freehold is easily attainable by any man who possesses or can save a very moderate sum. Since the Reform Bill, societies have been formed for the purchase of estates and multiplication of small freeholds in the counties, for the express purpose of giving votes. An attempt was made to stop this system, and to treat such acquisitions of freeholds as void, under certain statutes of the reigns of William and Anne. But the Court of Common Pleas, before which the decisions of the revising barrister were brought by appeal, confirmed the votes; and established the important principle that the sale of land, when the property is really intended to pass to , the purchaser, is legal, notwithstanding it is made with the view of multiplying votes, and that the votes so created are good.* The great constitutional function of acting as jurors has always been restricted to those who possess some property * See the cases collected in Mr, Warren's book, p. 367. or THE CONSTITUTION. 327 qualification, which in early times was required to be free- hold. Now (with certain personal and professional excep- tions) the following persons are qualified to serve on juries for the trial of all issues, civil and criminal, in her Ma- jesty^s courts at Westminster, and at the assizes, and on grand and petty juries in the courts and sessions of the peace in the county, riding, or division where they respec- tively reside. 1. Every man between the age of twenty-one and sixty years residing in England, having, in his own name or in trust 10/. per annum, of clear yearly income, arising from lands and tenements, whether freehold, copyhold, cus- tomary tenure, or ancient demesne, or rents issuing there- out in fee-simple, fee-tail, for his own or other person's life, or such income or rents jointly issuing, amounting together to the clear yearly value of 10/. 2. Eveiy man having 20/. a year clear from lands or tenements held by lease for twenty-one years or upwards, or for any term determinable on any life or lives. 3. Householders assessed to the poor-rate, or to the inhabited house duty, in the county of Middlesex, on a value of 30/.; in any other county, 20/. When we examine by whom the right of appointment of magistrates and officers now is exercised, we shall find that, in the great majority of cases, the nomination pro- ceeds either directly or indirectly from the Crown. This is the case not only with regard to the ministers of State, to the officers of the anuy and navy, the judges of the various courts of law and equity, the numerous commis- sions of various boards, and the like; but, through the medium of the justices of the peace, it is the case with regard to many local officers, as, for instance, the overseers 328 RISE AND PROGRESS of the poor,* and even tlie parisli constables. Almost the only old county common law officer, who is elected accord- ing to the old system, is the coroner. But the greater number of local officials are required by statute to be chosen out of the inhabitants of each parish ; and all in practice are so selected. Several local officers, also, as the surveyors of highways, are elected by the parishioners in their vestries : where also the churchwardens are ap- pointed, sometimes by the parishioners, sometimes by the ministers, and sometimes by both, according to custom. As a general rule, each district is governed by local au- thorities, though the superintending control of central powers, such as the Poor Law Board, and the General Board of Health, has been of late years extensively intro- duced. In our town populations local self-government is much more complete than it is among the rural classes. The state of the municipal coi-porations throughout Eng- land and Wales was thoroughly reformed by a statute passed in 1835 ; and a very full system of local self- government created, in which all ratepaying inhabitant householders form the local constituencies who choose the governing bodies of the councillors and aldermen. A higher property qualification is required for these function- aries, and also for the mayors. Many towns and popu- lous parishes, which are not incoi-porated, have their own * I had intended to include complete their knowledge of the in this work a sketch of the history of the nation, and gain progress of legislation on the much instruction on many so- subject of the poor laws and cial and political topics of the on many other topics, which I deepest interest, to study care- omit, lest I should far exceed fully Mr. Pashley's work on my pre-appointed limits. I "Pauperism and Poor Laws." .strongly urge all who would OF THE CONSTITUTION. 329 systems of self-government under special acts of parlia- ment. Besides the great power now vested in the CrowTi by reason of the large number of magistracies and offices of every kind in the internal administration of the kingdom, which are filled by royal appointment, the great increase of our transmarine empire, of our colonies, and our Indian possessions, has placed an almost infinite mass of militaiy, and naval, and also of judicial and other civil appointments in the gift of the Crown; and thereby created an amount of influence, which an active sovereign of ambitious views and arbitrary temperament, if unwatched even for a short time by parliamentary control, might employ in a manner fatal to the national liberties. But the constant dependence of the Crown upon parliament vests this ample amount of patronage in reahty in the hands of responsible ministers, who are always subject to parliamentary inquiry and animadversion as to their use or abuse of it, and who can only retain their position as ministers by a parliamentary majority. Public opinion is now the great lever of political action in England ; but with many very valuable checks and regulators. It might at first sight seem that the Upper House of Parliament was inaccessible to its agency, or only accessible to it, by the extreme and perilous mode of the popular minister of the day causing the royal prerogative of creating peers to be put suddenly and largely in force. But our House of Lords has, with dignified wisdom, at all recent great political crises, rendered such dangerous measures unne- cessary. The House of Lords, at present, though theore- tically co-equal with the House of Commons, is notoriously and avowedly the weakest of the two, and gives way when any serious and deliberate difierence of opinion takes place. 830 RISE AND PROGRESS All that it now does, and all that it claims to do, is to check hasty legislation, and to give an opportunity for an appeal to the people by a dissolution of parliament. If parties are equally, or nearly equally balanced in the country, the House of Lords can peremptorily determine the fate of any measure. They are not a mere second chamber to register the edicts of the Commons ; and ac- cording to the nature of each case they may well and wisely either at once forego or repeat their refusal to ac- quiesce in the measures sent up to him. But on great national questions, the Lords themselves own that they are bound ultimately to give way to the clear and deliberate expression of the national feeling. The debates in the House of Peers on the recent free-trade measures have been of great constitutional interest in this point of view. The champions in the Upper House of the landed aristo- cracy, though they asserted with truth that they had a majority of the peers, who in their hearts were in favour of the Corn Laws, never held out the idea or the hope that the House of Lords could permanently stop the free-trade movement, supposing the nation to be steadily resolved on forwarding it. All that they claimed, was an opportunity of taking the sense of the people on the subject by reject- ing the proposal once, and compelling the ministers to try a general election of the House of Commons. Lord Derby's words on this subject are so explicit that I will quote a short passage from the speech of that eminent Conservative statesman in opposition to the second reading of the Corn Importation Bill, May 25th, 1846. " My Lords, if I know anything of the constitutional value of this House, it is to intei-pose a salutary obstacle to rash and inconsiderate legislation ; it is to protect the people from the consequences of their own imprudence J OF THE CONSTITUTION. 331 never has been the course of this House to resist a con- tinued and dehberately- expressed pubhc opinion. Your Lordships always have bo\Yed_, and always will bow, to the expression of such an opinion ; but it is yours to check hasty legislation leading to irreparable evils."* Looking, then, to the paramount influence which the House of Commons now influences on the government of England, and on the unparalleled extent to w^hich Eng- land's policy influences the fortunes of the world, we may safely assert that the position of a member of the English House of Commons, if honourably acquired, and well and wisely used, is the noblest that ever was opened to civilized man. Even that of a senator of Old Rome, in the proudest days of her Commonwealth, appears poor in comparison. And surely the privilege of a voice in the selection of the members of that house is one to be earnestly sought, and conscientiously and firmly used. Yet, even though a man be without either seat in our legislature or vote in its selection, he may, under om* free constitution, largely influence public opinion, and as a speaker, or as a writer, acquire a degree of moral and political power that may be felt far beyond his own island, and long after his own lifetime. Freedom of discussion and the freedom of the press, are constantly claimed as pe- culiar glories of our constitution ; and a treatise such as the present would be palpably deficient were it to end without some notice of the laws on these subjects. Attempts to overawe the legislature by riotous mobs, under the pre- tence of coming as petitioners, caused a statute against tumultuous petitions to be passed in Charles IL's time, which has been already referred to.f And when, under * Hansard, vol. Ixxxvi. p. 1175. t P. 283, swpra. 332 RISE AND PROGRESS the guise of meeting together to discuss public matters, attempts have been made to assemble immense masses of people (sometimes armed with offensive weapons, and sometimes with partial military organization), and by vio- lent language to excite them to acts of treason and breaches of the peace ; whenever this, or anything similar, has been done or attempted, the common law has justly held all implicated in such proceedings to be liable to pu- nishment for the obvious peril that they cause to society, and the iniquitous intimidation which such proceedings, if un- checked, must exercise on the freedom of opinion in others. But the right of men to meet peaceably and discuss public matters openly and fearlessly, is ''^as undoubted as it is invaluable/^,* It is for a jury to determine, if necessary, whether this right has been fairly exercised, " making full allowance for the zeal of speakers, though they may sometimes exceed the just bounds of moderation," f or whether, in the opinion of rational and firm men, it has been abused so as to endanger the public peace, and make the commission of crime and outrage a natural and pro- bable consequence. The freedom of the press in this country cannot be said to have commenced before the reign of William III. It was then that the last licensing Act expired. And even after the withdrawal of that restriction, and when men were able to print and publish their thoughts without obtaining the ^' imprimatur" of a Government official, the * See the excellent chapter address to the grand jury at on the subject in Mr. Wise's the Stafford special commission little book on " Riots and Un- in 1842, cited in Mr. Wise's lawful Assemblies." book. t See Chief Justice Tindal's I OF THE CONSTITUTION. 333 law of libel pressed heavily on writers, and still more on newspaper proprietors. The growing importance of the press as an organ both for expressing and for exciting public opinion was felt and used by all parties ; but men in power, who were most exposed to the wounds of news- paper warfare, often sought eagerly to crush their assail- ants by putting in force the criminal law against libels. The judges felt naturally little predilection for a press that generally seemed presumptuous to men in authority, and which often was most licentious and calumnious. They established the doctrine, that to possess the people mth an ill opinion of the Government was a libel; and they further established, that in a criminal proceeding for libel the truth of the matters stated was no defence. Jurors were naturally, under such circumstances, unwilling to convict j and a controversy grew up as to the province of a jury in a trial for libel. The courts sought to establish the rule that the province of the juiy was simply to determine whether the defendant published the libel, and whether the libel had the meaning assigned to it in the indictment. But it was contended by many that the juiy were also at liberty to consider whether that meaning was criminal or innocent, and whether the thing which was said to be a libel was a libel or not. This controversy was deter- mined in favour of the more extended power of the jury by Mr. Fox's Act, in the 32nd year of George III. A great protection was thereby given to writers and pub- lishers, against arbitrary and harsh prosecutions; and the benefit of it to the public has been amply proved by the increased respectability and high intellectual merit of the English press. But still the monstrous restriction re- mained by which a man who was indicted for a libel was forbidden to show that what he had published was true. 334 RISE AND PROGRESS even though no unfair malice had made him pubhsh a cruel truth, as sometimes might be the case. The maxim of " the greater the truth the greater the libel" continued long to be the stigma of the English law. This has been finally removed in the present reign by an Act which was framed and introduced by Lord Campbell, now chief justice of England. By that statute (6 & 7 Vic. c. 96)_, on the trial of any indictment or information for a de- famatory libel, the accused party, having notified by his plea the defence that he is about to set up, may defend himself by showing the truth of the matters charged, and also that it was for the public benefit that the said matters charged should be published. If he can satisfy a jury of these points, he is to be acquitted; if not, he is justly punishable. It would be impossible to provide better for the objects which are stated in the commencement of the Act : — " For more effectually securing the liberty of the press, and for better preventing abuses in exercising the said liberty." Lord CampbelPs Act, though last in date, deserves to be classed as not least in merit among the con- stitutional treasures of the statute-book. We have now traced the origin of the English Consti- tution, and the first development of its principles, at a time when the newly-formed English nation consisted of not more than two millions of human beings; one- half at least of whom were in an abject state of serfdom, while the other half, the freemen of the land, the " liberi homines" of Magna Carta, were divided into proud and powerful barons, each girt with his band of armed re- tainers and personal dependants ; into smaller landowners, equal in birth but inferior in possession to the gi-eat peers ; into a class of still smaller owners of land, our free yeomanry, and into citizens and biirgesses, who were be- I OF THE CONSTITUTION. 335 ginning to revive tlie old Roman system of municipal self-government, and to reawaken the spii'it of commercial energy and enterprise. First framed in those troubled times, and for that scanty and ill-assorted population, our Constitution has expanded with the expanse of civilization, numbers, and power; and while it has preserved all its integral parts and all its primary attributes, it has become the government of and for us, the eighteen millions of this mighty English nation, whose language, laws, arts, arms, and institutions are overspreading every region of the world. On the blessings of that government, on the security and order which it guarantees, and on the inde- pendent energy and freedom which it sanctions and in- spires, it is surely needless to dwell further in addi-essing the men of 1848, who have witnessed the misery and de- gradation which anarchical violence and despotic coercion have caused in other lands. Our Constitution must from time to time require remedial changes ; and at present the anomalies of the distribution of the suffrage, and the shameful coiTuption with which its exercise is too often accompanied, are pressing on our statesmen's anxious attention. He who has studied our Constitution the most deeply will venerate it the most ; and, while he vigorously extirpates abuses, and steadily works out its vital law of growth and development, he will religiously guard its primary institutions from the experiments of the con- ceited theorist and the assaults of the disloyal de- stroyer. INDEX. Act of Settlement, 300. Aids, 102. 134. Anglo-Saxon, chief element of Eng- lish, 15; meaning of word, 17; original homes of Anglo-Saxons, ih. ; their primitive institutions and character, 18 ; land in Bri- tain, 21 ; how far were their con- quests wars of extermination, 28-31 ; their conversion, its civi- lizing effects, 33 ; Anglo-Saxon in- stitutions as matured in England, 42-62. Appeal of felony, what, 158. Aristotle's classification of political functions, 7. Arms, right of the subject to, 293, and note. Army, standing, in time of peace, without consent of parliament, illegal, 292. Attainder, 144, note; bills of, 244; writ of, 286, note. Bail, 147, note ; excessive not to be required, 292. Barons of England — force King John to grant the Great Charter, 120 ; headed a national movement and sought national objects, 124 ; Lord Chatham's eulogium on, 150 ; meaning of term " Baron," 185. Bill of Rights— its constitutional im- portance, 4 ; text of, and notes, 289-298. Boroughs, Saxon, 50 ; oppressions of after Norman conquest, 105. 193 ; first represented in Henry III.'s reign, 194; electors, who, 261. 262 ; early borough system, 262 ; changes and abuses, 263; rotten boroughs, 313; present state of municipal self-government, 328. Britons, ancient. See " Celts." Campbell's (Lord) Libel Act, its con- stitutional value, 334. Celts — British Celts, their character, &c., 24 ; how far Romanized, 25 ; how far did the Saxons extirpate or blend with them, 28-31. Ceorls, their social and political posi- tion in Saxon England, 43. 46. 49. Charles I., disputes between, and his three first parliaments, 269 ; sincere in unconstitutional opi- nions respecting his prerogative, 270 ; grants the Petition of Right, 275. CharlesH. — ImportantConstitutional statutes during his reign, 283-287. Charters of early Anglo - Norman kings, 107; of Henry L, 117. See " Magna Carta," Chatham, Lord, his Bible of the English Constitution, 5 ; his eu- logium on the barons who gained the Great Charter, 160. Church, civilizing influence of, in early times, 33, 34. 53. Commons, House of, origin, 187; knights of the shire, 187-192; how elected, 192. 267. 248; qualification for, 248, 249. 251 ; Q 338 TNDKX. boroug}i membere, whpn first intro- duced, 194 ; coalesce with knights of the shire in one House, 197; gradual increase of power of House of Commons in fourteenth and fifteenth centuries, 230-244. 2o4 ; House of Commons the preponde- rant branch of the legislature after Charles II.'s restoration, 281 ; effect of Reform Bill, 318. Confirraatio Cartarum, its constitu-. tional value, 176. Constitution, English, meaning of the term, 3 ; its leading princi- ples, 4 ; its law of progress, 6 ; coeval with < ur nationality, 10. 12 ; its princl|>les traced in Magna Carta, and the Confirmatio Carta- mm, 178-220; its progress dur- ing the fourteenth and fifteenth centuries, 230-264; its state under the Tudors, 265-268 ; res- cued by the Petition of Right, 273 ; further secured by Bill of Rights, 289 ; its adaptation to our present state, 335. Copyholds, 103. 260, note. Coroner, 140, note. 328. Council, the King's, 195. 256. 302 ; Privy Council, their present power, 303, note. County Court, in Saxon times, 47 ; after the Conquest, 139, note. 171. 192. 217. Crown, see " King." Danish element of our nation, 35 ; Danes first attack England, ib. ; Danish priraitiv.e institutions and character, 36-38 ; extent of their conquests and influence here, 39- 41. Dispensing power, 255. 289. 291. Discussion, free, right of, 331. Elections, provisions for freedom of, 215. 292; attempts of Crown in early times to influence, 215, 216 ; of James II., 291 ; how often held, 315, Elfectors of knights of the shire, 192. 248. 269 ; under Reform Bill, 321. Electors of boroughs, 251 ; under Reform Bill, 319. probable numbers in four- teenth century, 259. 263, 264 ; at present, 321. Electoral Franchise, property and in- telligence to be regarded in its distribution, 325; how far now accessible, 326. English nation, its four elements, 13; population at time of Conquest, 67 ; in John's reign, 72 ; at pre- sent, 321. Escuage, 102. 134. Feudal system, its general character, 73. 83; peculiarities of, in Eng- land, 84. 91 ; feudal tenures, 100- 104. 282. Freedom of the press, 332 ; of pub- lic discussion, 331. Freehold tenure, 283. Frankpledge, 48. 99. 171. 206. Grerman, mainstream of the English nations, 17 ; German character, 19, 20 ; their habits and institu- tions as described by Caisar and Tacitus, 18-21. See also " Anglo- Saxons." "Gemiania" of Tacitus, its value for both ancient and modern history, 10; quoted, 18, 19. Habeas Corpus, 149, note, 200-203. 272. 277; Habeas Corpus Acts, 284-286, note. Hundreds, a primitive institution of ancient Germans, 19 ; of ancient Danes, 37. Hundred Court, 46. 100.171. Impeachment, 234. John — King John, his evil character, its importance to our history, 106-110 ; his losses and quarrels, 110-113; the national rising against him, 120; grants the Great Charter, 126; his death, 165. Judges of assize, 137, note. Judges, how appointed and removed INDEX. 339 before the Act of Will. III., 286; made irremovable quamdiu se bene gesserint, by Act of Settle- ment, 302. 305. Jury, trial by, a principle of the Constitution, 4; recognised in the Great Charter, 204-220; defini- tion of, 205 ; jurors at first wit- nesses^ 206 ; gradual change in this respect, 207. 216; probable origin of trial by jury, 213. 216; its value at the present time, 221. 225; earl)'' property qualification req\iired for jurors, 260 ; the present, 329 ; trial by jury, how viewed in fourteenth century, 261 ; practice of fining jurors for their verdicts, 285; declared illegal, 287 ; present jury qualification, 329. Justice not to be sold, denied, or delayed, 148. 153, note. Justices, who ought to be made, 155 and note. Kings, early German ones, 18; Danish, 36 ; Anglo-Saxon, 52 ; Anglo-Norman, 90 ; kingly power recognised in the Great Charter, 179 ; hereditary kingships, 179, 180; kingly power in England a limited power, 181, 182; kingly prerogatives in the times of the later Plantagenets, 255 ; uncon- stitutional pretensions of the Stuarts, 270-272 ; general joy of the nation when the king was re- stored in 1660, 280; limitation of kingly power at revolution of 1688, 291 ; end of struggle between and people, 307 ; constitutional position of our kings since then, ib. Labouring classes, their former state in England, 92 ; their present, 258 ; change in the character of in towns, 327. Liberty of the press, 332. Magna Carta. — Primary record of the Constitution, 3 ; how gained, 120- 126 ; text of John's Charter, with explanatory notes, 130-164 ; re- newed in Henrj' III.'s reijjn, 165 ; text of, as confirmed by subsequent kings, 166-175; principles of the Constitution traced in, 178-220; reverence paid to, 225 ; Mackin- tosh's eulogium on, 228. Nationality, English, dates from thir- teenth century, 12-14 ; meaning of the w^ord, 14. Nobility, English, difference betweefi and continental noblesse, 198. Norman element of our nation, 56 ; the Northmen, i. e. Normans, con- quer Neustria, 57 ; characteristics of the Normans, 58, 59 ; Norman institutions before the conquest of England, 59. 86 ; wretched state of the peasantry of Normandy, 61 ; Norman conquest of England, 62 ; extent of changes caused here by it, 65 ; beneficial to England, 55. Parliament, 4. 182. 192 ; division into two Houses, 197 ; growing power of after thirteenth century, 230, ei seq. ; convened and dis- solved by king, 265; time for holding, 313. See "Commons," " Electors," " Peers." Pauperism, amount of in England, 324. Peers, 182 ; origin of House of, 185- 187; how summoned to parlia- ment, 187 ; peerage in England hereditary, 186 ; peers, how cre- ated by king, 187 ; attempt to limit this, 310 ; advantages of House of Peers, 311 ; present con- stitutional position, 330. Petition of Right, its constitutional importance, 4 ; when and how ob- tained, 273-275 ; its text, 275- 279. Pleas of the Crown, 139. Press, liberty of, 332. Proclamations, royal, 303. Protestantism, its ascendancy in England, 282. 288. Public opinion, present political power of, 329. 340 INDEX. Purveyance, 143, note. Reform Bill, 318. Representative government, 183. 188; in England, 188, 189. 197. See *' Commons." Revolution of 1688, 289-299, note; not exclusively aristocratic, 298, note. Romans, characteristics of their con- quests, 25 ; Roman civilization in Britain, ih. ; municipal self-go- vernment, ib. Runnymede described, 125. Scandinavian. See " Danish." Sheriff's office described, 140, note. 245. Slavery among ancient Germans, 19; Danes, 36 ; Anglo-Saxons, 43 ; its extent in England in Anglo- Norman times. See " Villeinage." Star Chamber, 266. 285 ; abolished, 282. Sub-infeudation, 78. Taxation without consent unconsti- tutional, 4. 134. 175. 177. 239. practised by Charles I,, 269 ; pro- hibited by Petition of Right, 275. 293 Tallages, 105. 175. 193. Thanes, Anglo-Saxon, 44. Tenant in capite, 88. Tenure in chivalry, 101 ; its hard- ships, 102 ; abolished, 281. Tenure in free socage, 101. 281. Tenure in villeinage, 103. 260, note. Toum, 171. Towns, Roman, in Britain ; occu- pied by the Saxons, 34 ; oppressed by early Norman kings, 104. 175. 193. Town population formerly much smaller than rural ; now equal, 325. Townships, Anglo-Saxon, 45. Villeinage, its extent in England in early times, 92 ; its incidents, 94; modes of becoming emanci- pated from, 96 ; dies out in Eng- land, 258. William the Conqueror, 63, 64 ; his severities, 69 ; his high abilities, 85 ; extent to which he modified feudalism in England, and per- manently influenced our history, 86-91. William III. See " Revolution of 1688." Witenagemote, how constituted, 61 ; its powers, ib. Woodfall and Kinder, Printers, Angel Court, Skinner Street, London. '^. /bA UNIVERSITY OP CALIFORNIA LIBRARY THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW OCT 28 1916 JANS4 m 08586 *aiHKas?r^;:.- ;:- ■" ■ '-:■■ p^s^K UNIVERSITY OF CALIFORNIA LIBRARY