THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES
 
 THE ORIGIN AND GROWTH 
 
 ENGLISH CONSTITUTION 
 
 IN WHICH IS DRAWN OUT, BY THE LIGHT OF THE MOST RECENT 
 
 RESEARCHES, THE GRADUAL DEVELOPMENT OF THE ENGLISH 
 
 CONSTITUTIONAL SYSTEM, AND THE GROWTH OUT OF 
 
 THAT SYSTEM OF THE FEDERAL REPUBLIC 
 
 OF THE UNITED STATES 
 
 BY HANNIS TAYLOR, LL. D. 
 
 LATE MINISTER PLENIPOTENTIARY OF THE UNITED STATES TO SPAIN 
 IN TWO PARIS 
 
 PART I. 
 THE MAKING OF THE CONSTITUTION 
 
 "Turn L.tlius, nunc fit illud Catonis certius, nee temporis unius, nee hominis esse 
 constitutionem Reipublicae. " CICERO. 
 
 " The new building has been raised upon the old groundwork ; the institutions of 
 one age have always been modelled and formed from those of the preceding, and their 
 lineal descent has never been interrupted or disturbed." PA LGR A VB. 
 
 " And thus it comes to pass that Magna Carta, the Acts of the Long Parliament, 
 the Declaration of Right, the Declaration of Independence, and the Constitution of 
 1787 constitute the record of an evolution." BRANTLY. 
 
 " The Government of the United States is not the result of special creation, but of 
 evolution. " FISKB, 
 
 BOSTON AND NEW YORK 
 HOUGHTON, MIFFLIN AND COMPANY 
 
 LONDON: SAMPSON LOW, MARSTON & COMPANY (LIMITED) 
 
 Iic iiiiuTsiDr press, Cambridge 
 1904
 
 Copyright, 1889, * 
 BY HANNIS TAYLOR. 
 
 All rights reserved. 
 
 The Riverside Press, Cambridge, Mass., U. S. A. 
 Electrotyped and Printed by H. O. Houghton & Company.
 
 Library 
 
 113 
 
 T. 
 v. 
 
 TO THE 
 
 MEMORY OF HIS MOTHER, 
 
 (L&e Slut&or 
 
 DEDICATES THIS BOOK. 
 
 1005911
 
 PREFACE. 
 
 THE task essayed in this work involves an attempt to draw out, 
 within the limits of two octavo volumes, the entire historic develop- 
 ment of the English constitutional system, and the growth out of that 
 system of the federal republic of the United States. In the Intro- 
 duction an effort has been made to emphasize the fact that the consti- 
 tutional histories of England and of the United States constitute a 
 continuous and natural evolution which can only be fully mastered 
 when viewed as one unbroken story. That story the author has 
 attempted to unfold in the light of the latest researches, English, 
 German, French, and American, and in such a manner as to impart 
 to it something of a human interest. The double effort has been 
 made to satisfy the critical student of the " Science of Politics " as to 
 fulness and accuracy of detail, and at the same time to interest every 
 American citizen who desires to read within reasonable limits the en- 
 tire history of the wonderful constitution under which he lives. 
 
 The growth of English and American constitutions, considered as a 
 single progressive development, is a subject of paramount importance 
 and of almost universal interest. By the sixteenth century nearly every 
 effort that had been made to establish representative government upon 
 the continent of Europe had come to an end. In England only, among 
 the Teutonic nations, did the representative system survive ; in England 
 only has the representative principle which has been called " a Teu- 
 tonic invention " been able to maintain a continuous existence. In 
 that way the English nation has been able to hand down the representa- 
 tive principle from the barbarian epoch to modern times ; in that way 
 England has become the " mother of parliaments," the teacher of the 
 science of representative government to all the world. Since the begin- 
 ning of the French Revolution nearly all the states of continental Eu- 
 rope have organized national assemblies after the model of the English
 
 vi PREFACE. 
 
 parliament in a spirit of conscious imitation. But the typical English 
 national assembly, embodying what is generally known as the bicameral 
 system, was not copied into the continental European constitutions until 
 it had first been reproduced in a modified form and popularized by the 
 founders of the federal republic of the United States. In the several 
 colonial commonwealths founded by English settlers upon American 
 soil, the typical English national assembly reappeared in an embryonic 
 form as the predestined product of a natural process of reproduction ; 
 and the framers of the federal constitution of 1787, abandoning the 
 original idea of a federal assembly consisting of a single chamber, 
 adopted the English system of two chambers in the form in which that 
 system had reappeared in the several states. Thus rendered popular 
 by its successful reproduction in the American constitutions, state and 
 federal, the " British political mode was followed by France, by Spain and 
 Portugal, and by Holland and Belgium, combined in the kingdom of 
 the Netherlands ; and after a long interval by Germany, Italy, and Aus- 
 tria." 1 To the student of the " Science of Politics " the typical English 
 national assembly, therefore, appears not simply as the local legislature 
 of the United Kingdom, nor even as the imperial parliament of the 
 British Empire, but higher still, as the accepted model of popular 
 government throughout the world. 
 
 Until recently the attainment of a full and comprehensive knowledge 
 of this all-important subject was beset with serious difficulties, which can 
 be explained only through a brief exposition of the peculiar manner in 
 which the history of the English people has been written. The Eng- 
 lish language had grown old, and English literature had passed what 
 has been called its Augustan age, before any serious effort was ever 
 made to open up the vast domain of English history. With the richest 
 accumulation of historical records in all Europe "whether we con- 
 sider them in relation to antiquity, to continuity, to variety, to extent, 
 or to amplitude of facts and details" 2 mouldering beneath their 
 feet, English scholars, until very recent times, were content to shed 
 light upon every theme save that involved in the history of their 
 own country. Not until near the close of the last century was any 
 deliberate effort ever made to write the history of the English people. 
 
 1 Sir Henry Maine, Popular Government, records were, in i8?8, finally brought together 
 
 p. i^. under the roof of the present Record Repos- 
 
 a The words of Sir Francis Palgrave, under itory. 
 whose auspices as deputy keeper the public
 
 PREFACE. vii 
 
 And when the investigation was at last begun, it was prosecuted 
 according to the method which has prevailed in the exploration of 
 the Nile, whose course has been mapped out by explorers who have 
 slowly ascended from its mouths .to its source. Beginning with 
 modern times, the English historians have gradually worked back- 
 ward until at last the sources have been reached. This assertion 
 can easily be maintained by a few familiar illustrations. Hume began 
 his "History of England" with the accession of the house of Stuart, 
 the volumes which treat of the preceding period were pinned on 
 as an after-thought. How innocent Hume was of any real knowledge 
 of the early and mediaeval history of England he puts beyond all 
 question when he tells us in his autobiography that, prior to the 
 accession of the house of Stuart, "it is ridiculous to consider the 
 English constitution ... as a regular plan of liberty." Hallam be- 
 gan his " Constitutional History " with the accession of the house of 
 Tudor, three meagre chapters in the Middle Ages sufficed to con- 
 tain all he desired to say of the preceding period. The magnificent 
 ruin known as Macaulay's " History of England " really begins with the 
 accession of the house of Stuart, a single chapter sufficed to con- 
 tain all that the most brilliant and the most inquisitive of Englishmen 
 cared to say of the ten eventful centuries which precede that event. 
 Some deep and serious reason must certainly have impelled three 
 minds at once so acute and comprehensive to pass so lightly over the 
 early and mediaeval history of their country in order to begin their 
 narrations in comparatively modern times. That reason is not hard 
 to find. The truth is, until recently, the real history of early and 
 mediaeval England has remained a sealed book. Only within the last 
 fifty years have the charters, chronicles, and memorials in which was 
 entombed the early history of the English people been made acces- 
 sible ; and only within the last twenty years have they been subjected 
 to the final analysis which has at last extracted from them their full 
 and true significance. These facts become more comprehensible 
 when we remember that only within the period last named has the 
 study of history, as a distinct and substantive branch of knowledge, 
 been raised to an independent position at the two great English uni- 
 versities. Not until 1870 was the study of modern history put upon 
 an independent footing at Oxford ; and not until 1875 was a separate 
 tripos for universal history instituted at Cambridge. But when the
 
 Vlii PREFACE. 
 
 emancipation of history was thus finally brought about, the work was 
 done with genuine English thoroughness. Under the influence of 
 Professors Stubbs and Freeman at Oxford, and Professor Seeley at 
 Cambridge, the scientific study of history has at last been carried to 
 as high a point in England as it has ever reached upon the Con- 
 tinent. 1 
 
 Sharon Turner tells us, in the preface to his " History of the Anglo- 
 Saxons," published between 1799 and 1805, that when his first volume 
 appeared, " the subject of the Anglo-Saxon antiquities had been nearly 
 forgotten by the British public. . . . The Anglo-Saxon MSS. lay still 
 unexamined, and neither their contents nor the important facts which 
 the ancient writers and records of other nations had preserved of the 
 transactions and fortunes of our ancestors had been ever made a part 
 of our general history." The honest effort made by Turner to arouse 
 his countrymen to a sense of interest in the beginnings of their 
 national life was followed in 1800 by an inquiry in parliament into 
 the state of the public records, which resulted in an able report upon 
 the condition of the archives, and in the appointment of a commission 
 "to methodize, regulate, and digest the records." The conduct of the 
 work of preservation and publication proving unsatisfactory in the 
 hands of the Record Commission, its direction was finally intrusted 
 to the Master of the Rolls, who in January, 1857, "submitted to the 
 Treasury a proposal for the publication of materials for the history of 
 this country from the invasion of the Romans to the reign of Henry 
 VIII." Invaluable as are the official publications, which have been 
 prefaced and edited by the most competent critics and scholars that 
 the Master of the Rolls could draw to his aid, they can never over- 
 shadow or supersede the works of one who was the real path-breaker 
 into the jungle of early English history. To Kemble belongs the 
 imperishable honor of being the first to bring to light the most valu- 
 able of the early records, and to apply to their interpretation the rich 
 results of German research into the childhood of the whole Teutonic 
 race. No matter whether the Germans drove the English into his- 
 torical scholarship or not, the fact remains that Kemble, who studied 
 under the brothers Grimm at Gottingen, was the first to reject every 
 suggestion of Roman influence, and to clearly perceive the all-impor- 
 
 1 See " The Study of History in England at the University of Ghent, Johns Hopkins 
 and Scotland," by Paul Fre"de"ncq, professor Studies, fifth series, x. pp. 17, 32.
 
 PREFACE. IX 
 
 tant fact, now generally admitted, that the national life of the English 
 people, both natural and political, began with the coming of the Teu- 
 tonic invaders who, during the fifth and sixth centuries, transferred 
 from the Continent into Britain their entire scheme of barbaric life. 
 In 1839 Kemble began the publication of his "Codex Diplomaticus 
 M,\\ Saxonici," whereby "upwards of fourteen hundred documents, 
 containing the grants of kings and bishops, the settlements of private 
 persons, the conventions of landlords and tenants, the technical forms 
 of judicial proceedings, have been placed in our hands." In 1840 
 Thorpe published his " Ancient Laws and Institutes of England ; " 
 and in 1848 Kemble published his "Saxons in England," in which was 
 embodied the first effort ever made to state in a systematic form the 
 results of the new sources of knowledge which he had done so much 
 to bring to light. A co-worker with Kemble was Sir Francis Pal- 
 grave, who in 1832 published "The Rise and Progress of the English 
 Commonwealth," and in 1851-64 the "History of Normandy and 
 England." Kemble may have been guilty of exaggeration ; he may at 
 times have been misty in his conclusions. Sir Francis was no doubt 
 often fanciful ; at times he was certainly garrulous. And yet the fact 
 remains that these pioneer scholars were the path-breakers who opened 
 the way for the coming of the two English historians who have raised 
 the science of history to as high a pitch, perhaps, as it has ever reached 
 in ancient or modern times. Not until Mr. Freeman had completed 
 his " History of the Norman Conquest," not until Bishop Stubbs 
 had completed the " Constitutional History," the " Select Charters," 
 and " the wonderful prefaces," did the grand inquest into the early 
 and mediaeval history of England, which Kemble and Palgrave had 
 inaugurated, reach a definite and final result. Not until the head 
 waters of the mighty river had thus been reached, not until the 
 direction of the stream during its earlier course had been clearly 
 mapped out by competent hands, did it become possible either for 
 the general student of the history of the English people, or for the 
 special student of the English constitution, to begin with the sources, 
 and trace them without interruption to their ultimate conclusion. 
 Until the analysis had ended, it was impossible for the synthesis to 
 begin. 
 
 The advent of the new learning touching the early and mediaeval 
 history of England which has rendered obsolete and worthless
 
 X PREFACE. 
 
 nearly all of the older disquisitions made before the fresh sources of 
 knowledge had become available has rendered necessary a reconsid- 
 eration of nearly every branch of English history from a new point of 
 view. Not until the early periods, which contain the starting-points 
 of everything, had been fully mastered, was it possible to firmly estab- 
 lish the premises upon which every far-reaching argument touching 
 the social or political life of the English nation must necessarily pro- 
 ceed. One of the first to perceive the necessity for a recasting of 
 English history as a whole, from the new point of view, was the late 
 John Richard Green, the gentle scholar, whose master hand was the 
 first to trace the entire course of the history of the English people 
 from its long-hidden sources in the "village-moots of Friesland or 
 Sleswick," across the Northern Ocean into Britain, and across the 
 Atlantic into North America. Several years before the publication 
 of the " History of the English People," the author of this work 
 undertook the humbler and narrower task of drawing out, in the light 
 of the new learning, the entire historic development of the English 
 constitution, a task which, up to that time, no one had ever at- 
 tempted. Since then" has appeared the now famous " History of the 
 English Constitution," by Dr. Rudolph Gneist, Professor of Law at 
 the University of Berlin ; and also a work entitled " English Constitu- 
 tional History," by the late Thomas Pitt Taswell-Langmead, sometime 
 Professor of Constitutional Law and History at University College, 
 London. It is to the author rather a source of pleasure than of regret 
 that the publication of these meritorious works should have preceded 
 his own. All attempts so far made to write a complete history of the 
 English constitution are merely tentative, the historian who is to 
 cast the entire theme in its final form is yet to come. His coming 
 will finally be made possible through a series of imperfect efforts to 
 execute his task by a succession of historical students, each one of 
 whom will make some advance toward the common goal by utilizing 
 all that is strongest, and by discarding all that is weakest, in the works 
 of his predecessors. 
 
 The history of the growth of the English constitution, extending as 
 it does through the annals of fourteen centuries, is by far too vast a 
 theme for any one mind to assail in the way of original research. 
 The best of the modern historical schools recognize the fact that the 
 study of the history even of a single country can only proceed in a
 
 PREFACE. XI 
 
 truly scientific manner through a system of cooperation based upon 
 a division of labor. Each epoch must first be made the subject of 
 thorough investigation by specialists who work upon the sources (what 
 the Germans call Quellenstudien}, and extract from them, through a 
 kind of laboratory process, their full and true significance. Not until 
 the original documents and other sources have been taken from the 
 mine and purged of their dross by these special workers do the facts 
 which they contain become available to those who desire to build upon 
 them broad and comprehensive generalizations. In the collection of 
 the materials which have entered into the structure of this work the 
 author has striven to select out of the mass with which the subject is 
 encumbered only such as have passed through the crucible of the lat- 
 est and most enlightened criticism. In the attempt which has been 
 made to work the materials thus collected into such a combination as 
 will reveal a natural and unbroken sequence of constitutional growth, 
 the method of the historical school has been followed, a school 
 which dogmatizes but little, which has little or nothing to do with d 
 priori theories, and which teaches, with Sir James Macintosh, that 
 "constitutions are not made, they grow." Only by the aid of this 
 method, which recognizes the law of growth as the law of constitu- 
 tional life, is it possible to trace the mighty stream of Teutonic democ- 
 racy from its sources in the village-moots and state assembles of Fries- 
 land and Sleswick across the Northern Ocean into Britain, and across 
 the Atlantic into North America. Only by the aid of this method is 
 it possible to demonstrate the fact that the federal republic of the 
 United States is the lineal descendant of those ancient German tribal 
 federations of which we catch our first glimpses in the pages of Cae- 
 sar and Tacitus. When, in the light of this method, we contemplate 
 this vast and unbroken development, which has affected so profoundly 
 the destiny of mankind, we 
 
 " Doubt not through the ages one increasing purpose runs, 
 And the thoughts of men are widen'd with the process of the suns." 
 
 Although the historical method, which teaches the unity of all his- 
 tory, necessarily ignores such arbitrary divisions as sever the history 
 of ancient from that of modern times, it nevertheless recognizes the 
 fact that in the history of peoples, and of their institutions, there are 
 epochs of growth so marked that they may be made the subject of 
 separate and distinct treatment. The history of the growth of the
 
 Xll PREFACE. 
 
 English constitution may be broken into two broad and well-defined 
 periods. The first, which extends from the Teutonic conquest to the 
 end of the Middle Ages, may be termed the formative period, the 
 period of "the making of the constitution." Although it may be 
 true in a vague and general sense that the struggle of the constitution 
 for existence came to an end in the reign of Edward I., it can hardly 
 be maintained that its structure was complete in any full and perfect 
 sense until its vital organ, the parliament, had developed all of its 
 powers and privileges, a result which was not reached earlier than 
 the reigns of the Lancastrian kings. To this formative period 
 which has been made the subject of Bishop Stubbs's "Constitutional 
 History," in three volumes the author has devoted his first part or 
 volume. To the second period, entitled " the after-growth of the consti- 
 tution," - one part of which has been treated by Hallam, in three vol- 
 umes, and another, by Sir Thomas Erskine May, in three volumes, 
 the author has devoted his second part or volume. Each part of this 
 work may, therefore, be regarded as a complete treatise upon a distinct 
 period of constitutional growth usually considered separately. And yet 
 each part is so constructed that, when the two are taken together, they 
 embrace a consecutive and harmonious treatment of the entire theme 
 viewed as one unbroken development. 
 
 During the years which have passed by since the preparation of this 
 work began, the author has received so much of sympathy, encourage- 
 ment, and helpful criticism from historical scholars, not only in his 
 own but in foreign lands, that he might be justly deemed ungracious 
 should he now fail to make fitting acknowledgments to those from 
 whom he has received special consideration. Some years ago it was 
 his good fortune, during Mr. Freeman's last visit to the United States, 
 to form a cordial acquaintance with the Nestor historian, who has made 
 perhaps the largest and most invaluable contributions to the historical 
 science of modern times. While that lamented and illustrious -scholar 
 for a long time consciously contributed very much to this undertaking 
 in the form of encouragement, suggestion, and criticism, he uncon- 
 sciously revealed to the author the fact that he was a master of that 
 somewhat rare art of bestowing kindness without condescension. To 
 his brother-scholar, the Rt. Rev. William Stubbs, Bishop of Oxford, 
 the obligations of the author, although of a less personal, are not of 
 a less serious character. To the master of the constitutional his-
 
 PREFACE. xiii 
 
 tory of the Middle Ages, who sits alone at the head of his serene 
 science, all students of the English constitution must go for the key, 
 before they can hope to enter into its inner mysteries. While the 
 pages of the " Constitutional History " and the " Select Charters " 
 may not be inviting to the careless inquirer, to the earnest student 
 they are mines of fact and of thought which may be worked with- 
 out limit and without exhaustion. To Dr. Rudolph Gneist, Professor 
 of Law at the University of Berlin, and to M. Boutmy, member of 
 the Institute, and Director of the School of Political Sciences of 
 Paris, the author desires to make special acknowledgments. Amongst 
 those of his own countrymen who have generously aided him with 
 judicious criticism and friendly encouragement, it is no less a pleasure 
 than an honor to name Mr. John Fiske, of Cambridge ; Hon. J. Ran- 
 dolph Tucker, of Virginia ; Dr. H. B. Adams, Professor of History and 
 Politics at the Johns Hopkins University ; the late Mr. Alexander 
 Johnston, Professor of Jurisprudence and Political Economy at Prince- 
 ton ; Mr. S. M. Macvane, University Professor of History at Harvard ; 
 Dr. James C. Welling, President of Columbia College, Washington, 
 D. C. ; the late Judge John A. Campbell, of Baltimore, and his peer- 
 less daughter, Mrs. Henrietta Campbell Lay ; Mr. Richard M. Variable, 
 Professor of Law at the University of Maryland ; Mr. Wm. Preston 
 Johnston, President of the Tulane University of Louisiana ; Mr. Alfred 
 Goldthwaite, of New Orleans, La. ; the Hon. John T. Morgan, United 
 States Senator from Alabama; and the Hon. N. H. R. Dawson, 
 National Commissioner of Education. In his own home the author 
 desires to express his thanks to his friends, the Hon. John Little 
 Smith, the Hon. Fredrick G. Bromberg, and Peter J. Hamilton, Esq., 
 three scholars of whom any city might be proud. And, last and most 
 of all, may he not indicate, even in this public way, to his good wife, 
 whose loving hands have, during a period of many years, lessened 
 the pain incident to feeble eyesight by transcribing these pages, often 
 again and again, a sense of gratitude which he " can ne'er express, 
 yet cannot all conceal." 
 MOBILE, ALABAMA, September 12, 1889.
 
 ANALYTICAL TABLE OF CONTENTS. 
 
 INTRODUCTION. 
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC OF THE UNITED STATES. 
 
 1. The typical English state the political unit in our federal system . i 
 
 2. The state as the ancient city-commonwealth i 
 
 Comparative philology ; comparative politics ........ 2 
 
 Village community the unit of organization ; the Greek city-commonwealth . 3 
 Only conception of the state in the Hellenic world ; Aristotle the founder of polit- 
 ical science 4 
 
 " Man is born to be a citizen ; " the Italian city-commonwealth ; extension of the 
 
 Roman franchise 5 
 
 3. The state as the nation 6 
 
 L The Teutonic tribe 7 
 
 Parallel between the Greek, Latin, and Teutonic tribe ; Greek and Latin tribes unite 
 in city-commonwealths ; Teutonic tribes gather into nations .... 8 
 
 Tribal sovereignty ; territorial sovereignty the outcome of " the process of feudali- 
 
 zation "............... 9 
 
 4. Growth of the English Kingdom 10 
 
 " The Teutonic theory " 1 1 
 
 Teutonic settlements in Britain substantial reproductions of the older tribal life ; 
 the mark reappears as the township ; earliest form of the representative princi- 
 ple ; the hundred ; the early kingdoms 12 
 
 The heptarchic kingdoms ; the consolidated kingdom ; new society purely Teu- 
 tonic 13 
 
 Representative principle a Teutonic invention ; representative government dies out 
 
 everywhere but in England 14 
 
 & Growth of the English Colonies in America: physiography of North 
 
 America ..............15 
 
 Struggle for its possession between England, France, and Spain ; European na- 
 tions agreed that discovery gave title 16 
 
 England based her claims upon voyages of the Cabots ; the great title-deed, James 
 
 I.'s charter of 1606 17 
 
 The London Company and its work ; the Plymouth Company and its work . 18 
 The soil granted to the colonies by the crown and not by the parliament . . 19 
 
 Colonies mere corporations created by the crown ; the royal colonies Virginia 20 
 Ordaining power of the king in council ; first American representative assembly . 21 
 English law the basis of colonial rights ; the charter colonies Massachusetts . 22 
 Internal organization ; charter annulled in 1684 by a scire facias ; Connecticut and 
 Rhode Island live under their charters until long after the Revolution . . 23
 
 XVI CONTENTS. 
 
 The proprietary colonies Maryland ; modelled after the Palatinate of Durham ; 
 
 first state assembly an Old-English gemot 24 
 
 Carolina and Locke's Fundamental Constitutions. American theory of colonial rights 25 
 
 English theory 2 6 
 
 Out of the conflict grew the War of the Revolution. Internal organization of the 
 
 colonies ; English kingdom the product of aggregation 27 
 
 Federal republic of the United States product of the same principle ; counties and 
 
 townships everywhere the organs of local administration ..... 28 
 In the northern colonies the township, in the southern the county, the more active 
 
 local agent 20 
 
 Functions of both more evenly balanced in the middle colonies ; the township in 
 
 New England ; township as the manor ; as the parish 30 
 
 The New England town meeting ..31 
 
 Manors in Maryland ; proprietor founds the system 32 
 
 A court baron at St. Gabriel's manor ; a court leet at St. Clement's. Dutch manors 
 
 in New York 
 
 33 
 
 The patroon as lord of the manor; manorial courts in New York . . 34 
 
 The manor a self-governing community. The parish in Virginia . . . -35 
 Virginia towns grow into counties which are divided into parishes 36 
 
 Resemblance between the English and Virginia parish ; both hardened into close 
 
 corporations 37 
 
 The Southern county : its judicial functions ; administrative ; court-day . . 38 
 Difference in local organization between North and South ; incorporation of New 
 
 England towns 39 
 
 Municipal history of Boston ; incorporation of Southern towns .... 40 
 
 American corporations possess no inherent power of taxation 41 
 
 Growth of colonial assemblies 43 
 
 They assume a bicameral form 44 
 
 Colonies transformed into sovereign states which are substantial reproductions of 
 
 the English kingdom 45 
 
 Legislative power ; constitutional limitations an American invention ... 46 
 
 The executive power ; the judicial power 47 
 
 The assize or circuit court the special possession of the English race ; feudal prin- 
 ciples still linger at the base of American land law 48 
 
 6. Federalism as a System of Government 48 
 
 A perfect federal government ; the nearest approaches to such an ideal, the Achaian 
 League, Confederation of Swiss Cantons, Seven United Provinces of the Neth- 
 erlands, and the United States of America 49 
 
 Federal governments divided into two classes, confederated governments and 
 
 composite states ; Greek federalism 5 
 
 The Achaian League, whose national government acted directly upon the citizen ; 
 makers of the Constitution of the United States had no real knowledge of that 
 
 ancient League ; only acquainted with the Teutonic leagues 51 
 
 All of which rested on the requisition system. Effects of geography upon federa- 
 tion in America 5 2 
 
 Effects of the growth of population upon federation ; New England Confederation 
 
 of 1643 S3 
 
 New France and the struggle for expansion 54 
 
 Effects of the French and Indian war on the cause of union ; Stamp Act Congress 
 of 1765; first Continental Congress of 1774; second, of 1775 . . 55
 
 CONTENTS. xvn 
 
 Declaration of Independence, July 4, 1776; Congress the national government 
 down to March i, 1781. Articles of Confederation 56 
 
 The western territory; Maryland's influence upon the land cessions to the United 
 States 57 
 
 Character of the first federal constitution ; it represented no material advance in 
 the history of federalism; inter-state citizenship 58 
 
 Washington; his circular letter of June 8, 1783 59 
 
 7. The Federal Convention of May 14, 1787 59 
 
 Canonization of the second constitution ; the constitution not a " creation " . 60 
 
 Proceedings of the convention 61 
 
 Race-traits of the framers ; prior political training ; Blackstone and Montesquieu 62 
 Causes which compelled the making of the second constitution ; financial impotency 
 
 of the confederation 63 
 
 Root of the evil the requisition system ; four great motives for union ... 64 
 The new path-breaking idea (bahnbrechende Idee) ; Pelatiah Webster ; Noah 
 
 Webster 65^ 
 
 Tocqueville ; the new idea became the basis of the present constitution ; Davie ; 
 
 Hamilton 66 
 
 The new idea forces the construction of a composite state tfj/ 
 
 Division of the federal head into three departments ; Jefferson ; division made 
 
 according to the maxim as then understood in England . . . . .68 
 
 The executive department ; the President and George III 69 
 
 The legislative department ; the " Virginia plan," the greater against the lesser 
 
 states 70 
 
 Adoption of the English bicameral system ; the " New Jersey plan " . . . 71 
 The " Connecticut Compromise ; " the senate organized upon a federal, the house 
 
 upon a national basis. The judiciary department 72 
 
 The Supreme Court of the United States has no prototype in history ; the guardian 
 
 of the constitution 73 ***** 
 
 Inferior federal courts a reproduction of the English itinerant system . . 74 
 
 8. National Citizenship 74 
 
 v^ Inter-state citizenship; constitution failed to define national citizenship; the Dred 
 
 Scott case 75 T" 
 
 First section of the Fourteenth Amendment first defines national citizenship; 
 
 Slaughter-House Cases 76 
 
 Under Fourteenth Amendment, citizenship of the United States the primary citizen- 
 ship, a principle which completes the logical symmetry of the constitution; 
 judgment in the Slaughter-House Cases a bulwark against the centralizing ten- 
 dencies to which the civil war had imparted a fresh and menacing force . . 77 
 
 9. Summary 77
 
 XVill CONTENTS. 
 
 BOOK I. 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 CHAPTER I. 
 
 THE TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. 
 
 1. General Character of Teutonic Conquest on the Continent . . .81 
 
 Italy, Gaul, and Spain Latinized and Christianized by the end of the fourth centu- 
 ry ; Teutonic invaders settle down in the midst of the Continental nations ; con- 
 quest nowhere assumed the form of extermination 82 
 
 Conquerors adopt the language and creeds of the conquered ; the older society re- 
 mained Roman and Christian, it did not become heathen and Teutonic . . 83 
 
 2. General Character of Teutonic Conquest in Britain . Roman civilization 
 
 in Britain nothing but an exotic ... ...... 84 
 
 The invaders cross the sea in small companies ; invasion became in Britain the 
 equivalent of extermination within certain limits 85 
 
 3. Result of the Contrast :" A Germany outside of Germany" .... 86 
 
 4. English Nation Teutonic as to Race 86 
 
 All after-comers of the Low-Dutch stock ; the Normans originally of the same 
 stock 87 
 
 5. English Language the Result of the Fusion of all the Low-Dutch Dia- 
 
 lects into one composite whole 87 
 
 Max Miiller's view, " English is Teutonic and nothing but Teutonic " . . 88 
 
 6. Institutions : general character of the Teutonic political system ; the substruc- 
 
 ture of the English constitution j in the same sense in which the English lan- 
 guage is Teutonic, the English constitution is Teutonic 89 
 
 7. The Problem to be worked out involves an examination of the entire process 
 
 of development through which the primitive Teutonic constitution has passed in 
 Britain under the combined action of internal growth and external influence . 90 
 
 CHAPTER II. 
 
 THE FOUNDERS IN THE FATHERLAND. 
 
 1. Early History of the Teutonic Race Caesar and Tacitus . . .91 
 
 2. Caesar's Sketch: chastity of the Germans ; annual allotments of land ; aversion to 
 
 neighbors ............... 92 
 
 No common magistracy in times of peace ; fidelity to the war-leader ; hospitality j 
 
 the Gauls 93 
 
 3. Germania of Tacitus : the attempt to make Germany a Roman provunce . . 93 
 
 Germania an abstract of manners, customs, and institutions ; its rare historic value 94 
 
 4. Distinctive Race-traits 94 
 
 The word " German " probably of Celtic origin ; absence of cities 93 
 
 5. The State and its Subdivisions : the civitas of Caesar and Tacitus . . 95 
 
 The state as a personal organization occupying a definite area of territory ; the 
 largest division of the state, thefagus, gau, or hundred ; village-communities, 
 vici of Tacitus 96
 
 CONTENTS. xix 
 
 6. Distinctions of rank : nobles, freemen, freedmen, and slaves ; the simple free- 
 
 man ; shares in the annual allotment ; his right to bear arms 97 
 
 His wergild. The noble ; emancipation of youths ; freedmen ; the unfree . . 98 
 
 Agrarian dependents ; slaves 99 
 
 7. Ownership of Land : the village community 99 
 
 The patriarchal theory ; collective land-ownership yields to individual ownership . 100 
 Waste lands the last to be divided; the Russian mir; the village council. Teutonic 
 
 villages : the mark system 101 
 
 The vicus identical with the mark ; the mark in the time of Tacitus ; structure of 
 
 the mark 102 
 
 The village ; sacredness of the homestead ; the arable lands ; the common or waste 
 
 lands 103 
 
 The mark-moot ; theory of aggregation 104 
 
 As stated by Kemble ; as stated by Freeman 105 
 
 8. The Hundred and the Hundred Court : their names have varied in different 
 
 countries 106 
 
 Their influence as institutions ; the hundred court, like all other Teutonic courts, a 
 popular assembly ; president of the hundred court chosen in the state assembly 107 
 
 9. The State Assembly : its functions chiefly political 107 
 
 Its business prepared beforehand by a permanent council which settled all minor 
 questions ............... 108 
 
 10. Criminal Law : all offences except treason and effeminacy could be atoned for 
 
 by fines 108 
 
 11. Kingship : principle of election. Sovereignty in states non-monarchical . . 109 
 
 12. Military Organization : its likeness to political organization. The comitatus, its 
 
 divisions of rank; relative duties of princeps and comes no 
 
 Origin of feudalism. The host composed of three elements, the main body of the 
 people fighting in groups united by the family tie, the chosen infantry from the 
 hundreds, the bands of professional warriors each under its own princeps . .in 
 Divisions of the host give form to civil organization in conquered lands . . 112 
 
 13. Teutonic Heathenism: its influence on national character . . . .112 
 Geographical limits of Teutonic mythology ; in the song of Beowulf is revealed 
 
 the moral temper of the English people ; each Norse god impersonated some 
 physical or moral force ; the hope of a life beyond the grave . . . .113 
 The primitive religion as a source of principles and morals ; a century and a half of 
 English heathenism 114 
 
 14. Engles, Saxons, and Jutes : the Saxons ; our earliest knowledge derived 
 
 from Ptolemy 114 
 
 Account of Eutropius ; only a portion of the Saxons pass into Britain. The An- 
 gles or Engles : only one of the three tribes mentioned by Tacitus . . . 115 
 Whole tribe probably passed into Britain ; Engles gave their name to the new na- 
 tionality, the conquered land became Engla-land or England. The Jutes . 116 
 
 CHAPTER III. 
 
 THE TEUTONIC CONQUEST AND SETTLEMENT OF BRITAIN. 
 
 L Roman Britain: the Roman conquest ; Caesar 117 
 
 Plautius and Agricola ; Britain becomes a Roman province ; superficial character
 
 xx CONTENTS. 
 
 of Roman civilizatioh a mere military department. The defences of Britain ; 
 
 barriers against the Picts 1 18 
 
 Saxons appear as pirates in the Channel in A. D. 287 ; first attack Britain in 364; 
 " the Saxon Shore; " Britain left to her own defence 119 
 
 2. Importance of the Period of Teutonic Conquest and dimness of its 
 
 History : the Welsh driven to the west ; out of the fusion of the Teutonic set- 
 tlements grew the English nation ; period of historic darkness and legend . .120 
 
 Fragmentary history of the conquest ; Gildas ; English Chronicle ; Nennius ; Chris- 
 tianity and the early laws 121 
 
 Baeda; archaeological and geographical research 122 
 
 3. General Character of the Conquest and Nature of the Early Settle- 
 
 ments: character of the migration ; distribution of the land . . . .122 
 
 The host embodies all the elements of political organization ; structure of the primitive 
 
 rice or kingdom . . . . . . . . . . . .123 
 
 The heptarchic kingdom an aggregation of primitive kingdoms ; the primitive king- 
 dom a reproduction of the civitas of Caesar and Tacitus. The new society 
 purely Teutonic ............. 124 
 
 Fate of the Roman cities ; the new system of municipal life 125 
 
 4. Distinctions of Rank 125 
 
 The free and the unfree ; the free, the ceorl and eorl ; the unfree, lasts and slaves . 126 
 
 The slave the mere chattel of his lord 127 
 
 Practice kinder than theory ; the primitive village community in Britain a min- 
 iature democracy ; growth of the new kingship ; invading tribes non-monar- 
 chical 128 
 
 The heretoga or ealdorman ; the ealdorman advanced to the dignity of kingship ; 
 blending of the hereditary with the elective principle 129 
 
 The ealdorman remains the head of his district. Tribal sovereignty ; the king's 
 powers and duties ; the dignity of kingship grows as the process of aggregation 
 advances J 3 
 
 The comitatus ; the hlaford = the loaf-giver ; the gesith or companion ; the thegn- 
 hood = the new nobility by service 131 
 
 benefits derived by the thegn from his lord ; the thegnhood becomes a territorial 
 nobility *3 2 
 
 Its ranks ever open to the class beneath it ; the relation of lord and man, repre- 
 sents but one element of feudalism ; the trinoda necessitas, a threefold obliga- 
 tion from the citizen to the state ; feudalism in embryo 133 
 
 5. Ownership of Land and the growth of great Estates : family land ; com- 
 
 mon land ; folkland ; the ethel or alod ; the mark 134 
 
 The homestead the earliest form of individual ownership in land ; the principle next 
 
 extended to arable lands ; decay of the system of common cultivation . . . 135 
 Survivals of the system, Lammas lands ; the word " mark " in England ; the mark 
 
 as the township ; family land an estate of inheritance 136 
 
 Inalienability of family land j wills depend at first for validity upon family consent. 
 
 Common lands, their history coextensive with that of the law of real property 137 
 Folkland ; growth of great estates ; probabilities as to their origin . . .138 
 The dependent township ; title to its lands vested in the lord ; the free communi- 
 ties lose their independence ; the dependent township becomes the manor ; book- 
 land 139 
 
 The witness of the community ; the new method of conveyancing ; the estate con- 
 veyed by book usually a fee simple j the alod disappears in the book-land . .140
 
 CONTENTS. XXI 
 
 Rights of a grantee of book-land depend upon the terms of the grant. Laenland, 
 its origin and attributes 141 
 
 A laen generally an estate for life ; occupancy at the will of the lord ; an " unbooked 
 laen " 142 
 
 6. The Township and the Tun-moot: the tun-moot regulated the internal af- 
 
 fairs of the township, and elected its officers and representatives ; the township 
 
 as the parish 143 
 
 As the manor ; functions of the tun-moot divided between the parish vestry and 
 manorial courts 144 
 
 7. The Hundred and the Hundred-moot 144 
 
 Modern hundred originally a shire 145 
 
 8. The Early Kingdoms and the Folk-moot : for a long time the early kingdoms 
 
 preserve their folk-moots and their tribal kings 146 
 
 The heptarchic kingdoms and the witenagemot : the primitive national assemblies 
 purely democratic ; in the heptarchic kingdoms such assemblies shrink up into 
 bodies purely aristocratic, the folk-moots become witenagemots . . .147 
 Representative principle not yet extended to national assemblies . . . .148 
 
 CHAPTER IV 
 
 THE GROWTH OF NATIONAL UNITY. 
 
 1. The Limits of Teutonic Conquest : Britain as a country never ceased to exist 
 
 until after the battles of Deorham and Chester 149 
 
 Conquest then assumed a more humane form ; nature of the early settlements ; 
 distribution of the conquered territory ; settlements of the Jutes, of the Saxons, 
 of the Engles 150 
 
 2. Formation of the Heptarchic Kingdoms: the war-leader becomes king; 
 
 early kingdoms bound together in seven or eight larger aggregates . . -151 
 Survival of ancient boundaries and tribal kings 152 
 
 3. Relation of the Heptarchic Kingdoms to each other : the Bretwaldas ; 
 
 Palgrave's view ; Baeda 1 52 
 
 The Chronicle ; Kemble's brilliant criticism ; Freeman's view ; Green's view . 1 53 
 Supremacy of bretwaldas only a temporary and uncertain overlordship. National 
 unity the joint work of the church and the sword ; the kingdoms of Northern, 
 Central, and Southern Britain ; this threefold division only broken down after a 
 struggle of two centuries 1 54 
 
 4. The Conversion and the Growth of Unity in the National Church: 
 
 for a century and a half the Teutonic conquerors of Britain remained heathens. 
 Latin Christianity and its conquests ; Kent the first Christian kingdom . . 155 
 
 Gregory's plan of ecclesiastical organization ; London and York ; ^Ethelberht un- 
 dertakes to propagate the faith ; conversion of the East Saxons ; East Anglians 
 reject the new faith ; Eadwine of Northumbria ; his conversion followed by that 
 of the Deirans 156 
 
 Penda and the heathen reaction ; Celtic Christianity and its conquests ; tribal life 
 of Ireland ; St. Patrick ; elsewhere the church becomes national and episcopal ; 
 in Ireland it becomes tribal and monastic 1 57 
 
 Celtic monastery at Hii; Oswald; missionaries from Hii convert Northumbria; 
 conversion of the West Saxons ; conversion of the Mercians and East Saxons . 1 58 
 
 Battle of the Winwaed (655) breaks the power of English heathenism ; Synod of
 
 xxii CONTENTS. 
 
 Whitby (664) ; English church accepts Christianity in its Latin form ; organiza- 
 tion of the English church by Theodore 159 
 
 " He was the first of the archbishops whom the whole English church consented to 
 obey ; " annual councils at Clovesho ; Theodore breaks up the great dioceses 
 into smaller sees . 160 
 
 Primacy of Canterbury; York; Theodore's work completed under Eadward the 
 Elder. The unity of the church foreshadows the unity of the state r the church 
 councils the first national gatherings 161 
 
 5. The Struggle for Supremacy bet-ween Northumbria, Mercia, and 
 
 Wessex: supremacy of Northumbria; Eadwine the first Northumbrian bret- 
 walda ; overthrown at Hatfield in 633 ; Oswald reestablishes Northumbrian su- 
 premacy 162 
 
 Oswiu finally unites Bernicia and Deira ; Northumbria gives place to Mercia . 163 
 
 6. Supremacy of Mercia : ^Ethelbald ; Mercian supremacy broken by Wessex in 
 
 754 ; Offa rebuilds the Mercian power 163 
 
 Cenwulf . 164 
 
 7. Final Supremacy of Wessex : Cerdic and Cynric first kings of the West Sax- 
 
 ons ; battle of Deorham (577) secures the Severn Valley 164 
 
 Defeated by the Welsh in 584 ; internal dissensions weaken Wessex for two centu- 
 ries; Welsh in their rear remain unconquered until 815 ; Ecgberht, the eighth and 
 last bretwalda ; visits the court of Charles the Great; ascends the throne of 
 
 Wessex in 802 165 
 
 Final conquest of Cornwall (815) ; overthrow of Mereia and Northumbria; Ecg- 
 berht unites all the English kingdoms under the sway of Wessex . . . 166 
 
 8. From Ecgberht to Eadgar (829-958) 166 
 
 The Danish invasions ; at first mere plundering raids ; the period of conquest and 
 permanent settlement ; ^Elfred and the Danes ; Peace of Wedmore in 878 . 167 
 
 The Danelagh ; all England outside of the Danelagh grows into a compact king- 
 dom ; Eadward the Elder begins, and ^Ethelstan completes, the conquest of the 
 Danelagh 168 
 
 Eadgar the Peaceful finally unites Engle, Saxon, and Dane under his sway ; Britain 
 becomes Englaland, " Wessex has grown into England " 169 
 
 CHAPTER V. 
 
 CONSTITUTION OF THE CONSOLIDATED KINGDOM. 
 
 L The Shire System : its growth a vital element in the process of national develop- 
 ment ; the early shire formed by a union of townships ; the modern shire identi- 
 tical with the primitive state 170 
 
 With the triumph of Ecgberht the work of consolidations begins ; " The state of 
 the seventh century became the shire of the tenth, while the shire of the seventh 
 century became the hundred of the tenth " 171 
 
 Historical origin of certain of the modern shires 172 
 
 2. An Outline of the Constitution in the tenth Century : central powers of 
 
 the state vested in the king and witan; local administration, in the shires . .172 
 The folk-moot survives as the shire-moot, early shire-moot as the hundred-moot ; 
 classification of the central powers of the state in accordance with modern ideas 173 
 
 3. The Executive Power the King. Saxons, and all other tribes that en- 
 
 gaged in the Conquest, non-monarchical 174
 
 CONTENTS. xxin 
 
 Kingship in Britain an outgrowth of conquest ; right of election limited by the 
 
 hereditary principle ; growth of the new kingship 175 
 
 Peace and justice belong at first, not to the king, but to the folk In the growth of 
 
 kingship is involved all the elements of constitutional life. The comitatus . . 176 
 Relation of lord and man : the king becomes the lord of his people; so recognized 
 in the early laws ; the national peace becomes the king's peace ; the king becomes 
 
 the source or fountain of justice 177 
 
 The folk-land becomes terra regis. Growth of territorial lordships . . .178 
 The dependent village community becomes the manor after the Conquest . .179 
 All the elements of feudalism exist before the Conquest. The movement from the 
 personal to the territorial organization : the free community passes through " the 
 
 process of feudalization " 180 
 
 Nature and extent of the royal authority ; Eadgar; the king's wergild . . . 181 
 Royal revenue not contingent upon legislative grants ; dues in the form of rents ; 
 receipts from fines ; treasure-trove and the like 182 
 
 4. The Legislative Power : the king and the witan 182 
 
 The folk-moot ; the witenagemot ; likeness between Old-English and Achaian as- 
 semblies 183 
 
 The folk-moot shrinks up into the witenagemot ; composition of the witan ; every 
 freeman probably retained the abstract right to be present in the national assem- 
 bly 184 
 
 Witan composed of the king and the magnates ; Witan of Wessex becomes the 
 Great Council of the Empire; usually consisted of about a hundred members . 185 
 
 Powers of the witan ; king legislates with the counsel and consent of the witan ; 
 character of the early laws ; taxation 186 
 
 Danegeld ; ecclesiastical legislation ; treaties and alliances 187 
 
 Alienation of folkland ; bookland converted into folkland ; the folkland becomes 
 terra regis .............. 188 
 
 The witan could elect the king ; nearest relative of the last king usually chosen, 
 when fit ; the witan could depose the king 189 
 
 Deposition of Alchred, of Sigeberht, of Eadwig, of ^Ethelred . . . .190 
 
 5. The Judicial Power: the witan and the local courts; all primitive Teutonic 
 
 courts popular assemblies . . . . . . . . . . .190 
 
 In the home-land justice administered in the hundred court and state assembly. 
 The tun-moot possessed only quasi judicial functions . . . . " . . 191 
 
 The burg-gemot identical with the hundred court 192 
 
 The hundred court ; identity of modern hundred and early shire ; the word " hundred " 
 as applied to the territorial district, first occurs in Eadgar's law; constitution of 
 the hundred court . . . . . . . . . . . . -193 
 
 It met monthly ; head officers of the hundred. Police organization : the frithborh 
 
 or peace-pledge ; self-help ; right of feud 194 
 
 Agency of the family in the prevention of crime ; all fines divided between the state 
 
 and the injured person or his relatives 195 
 
 Wergild or life-price unit in the system of compensation ; the family or maegth as 
 
 a police organization ; decline of its influence 196 
 
 New police system embodied in tithings and hundreds as numerical divisions . 197 
 Numerical divisions merge their functions in townships and territorial hundreds ; 
 frithborh (peace-pledge) incorrectly translated by Norman lawyers into frank- 
 pledge. The shire-moot 198 
 
 Headship of the shire divided between the ealdorman and sheriff ; the term " ge- 
 refa" 199
 
 xxiv CONTENTS. 
 
 Sheriff the nominee and steward of the king ; the constitution of the shire-moot ; 
 
 the bishop sat in it to declare the ecclesiastical law ; ancient system of appeal . 200 
 Witan a supreme court of justice in both civil and criminal cases .... 201 
 
 6. Germs of Jury and Representative Systems imbedded in the local 
 
 Courts : local courts survive the Conquest ; embryonic forms of the representa- 
 tive principle 202 
 
 Shire and hundred courts both representative assemblies ; the "judices " . . 203 
 Probable origin of the jury of presentment ; origin of the trial jury ; archaic legal 
 
 procedure 204 
 
 Teutonic conception of proof ; three independent means of proof, oath, ordeal, 
 and documents ; transaction witnesses ......... 205 
 
 Community witnesses ; inquest of proof introduced by the Normans . . . 206 
 Documents and the ordeal ; absence of an equitable jurisdiction ; strictness of the 
 common law modified by compromises ; prominence of the representative prin- 
 ciple 207 
 
 7. Private Jurisdictions : sactt and sdcn 207 
 
 Private law courts certainly existed before the Conquest ; product of " the process 
 of feudalization ; " the profits of jurisdiction (s6cn) first granted . . . 208 
 
 Next, jurisdiction (sacu) itself; controversy as to the time of the origin of private 
 jurisdictions 209 
 
 A grant of sac and soc usually conferred the right to hold a private hundred court. 
 Origin of the manorial system 210 
 
 Court baron ; court leet ; customary court 211 
 
 8. From Eadgar to William (958-1066) : National unity and the feudal tendency 
 
 to destroy it ; royal authority prematurely developed ; weakened by the counter- 
 force of the feudal and provincial spirit . . . . . . . . .212 
 
 Influence of the personal character of the king ; struggle between the crown and the 
 local magnates, in which the defensive power of the nation was broken . -213 
 
 The last Danish invasion ; Swegen 214 
 
 Cnut ; his election as king of all England ; divides the kingdom into four earl- 
 doms 215 
 
 The cry for Eadgar's law ; Harold and Harthacnut ; last division of the realm be- 
 tween two acknowledged kings. Eadward the Confessor ; Godwine . . . 216 
 
 Harold elected king ; national consolidation completed through the Norman con- 
 quest 217 
 
 BOOK II. 
 
 THE NORMAN CONQUEST. 
 CHAPTER I. 
 
 THE NORMAN DUCHY AND ITS DUKES. 
 
 1. The Kingdom of the "West Franks : partition of the empire of Charles the 
 
 Great ; inroads of the Northmen 218 
 
 The bulwark of Gaul against the invader ; hundred years' struggle between Paris 
 and Laon 219
 
 CONTENTS. xxv 
 
 2. The Danish Settlement at Rouen: planted by Rolf in 911 . . . . 219 
 
 Origin of the Norman Duchy ; first collision between Normandy and England ; birth 
 of William the Bastard in 1027 or 1028 220 
 
 3. Origin and Character of Feudalism in Gaul : the Roman and Christian sub- 
 
 structure ; real character of the Frank conquests 221 
 
 Frank political organization ; the vill ; the hundred ; the province ; the king ; the 
 national assembly. Feudalism par excellence of Frank origin .... 222 
 
 Feudalism as a system of land tenure : lord and man ; commendation ; the bene- 
 ficium 223 
 
 Feudalism the product of the union of the beneficiary system with that of com- 
 mendation ; benefices become hereditary ; Capitulary of Kiersi. Feudalism as a 
 system of government: provincial magistracies become hereditary; growth of 
 immunities 224 
 
 Sovereignty of provincial lords ; the central authority reduced to a mere shadow 225 
 
 4. Internal Organization of the Norman Duchy : dukes probably ruled with the 
 
 advice of a council of magnates 225 
 
 Duchy becomes French, Christian, and feudal ; relations between the duke and his 
 baronage 226 
 
 5. Normandy and England 226 
 
 Marriage of ^Ethelred and Emma ; after ^Ethelred's death Emma married Cnut ; 
 Harthacnut the issue of the marriage ; election of Eadward the Confessor, Em- 
 ma's son by /Ethelred 227 
 
 Growth of Norman influence in England ; William's first visit to England ; Ead- 
 ward's alleged promise to William, its constitutional value .... 228 
 
 National reaction against Norman influence ; the election of Harold, which Wil- 
 liam refused to recognize ... ....... 229 
 
 6. William's Conquest of England 229 
 
 Harold retains the West Saxon earldom, Eadwine and Morkere, the earldoms of 
 Mercia and Northumberland ; Norwegian invasion ; the fight at Stamfordbridge ; 
 William lands at Pevensey ; treachery of Eadwine and Morkere disables Harold 230 
 
 Election of Eadgar after Harold's fall ; crown offered to William ; his election and 
 coronation ; the duke of the Normans becomes king of the English . . .231 
 
 CHAPTER II. 
 
 THE NORMAN KINGS OF ENGLAND. 
 
 3- The Double Origin of "William's Kingship : its national aspect ; its feudal 
 
 aspect 232 
 
 The national revenue ; the feudal revenue ; William's anti-feudal policy ; he 
 strengthens the royal authority and consolidates the kingdom .... 234 
 
 2. Gradual advance of the Conquest : submission of southeastern England ; 
 
 conquest of the west and north 234 
 
 Devastation of the north as recorded in Domesday ; the Conquest not complete 
 until 1070 235 
 
 3. The Work of Confiscation and Regrant: theory under which English lands 
 
 were forfeited ; main body of the people undisturbed in their possessions . . 235 
 Folkland becomes terra regis ; estates of great men generally forfeited ; no new 
 kind of tenure systematically introduced by William 236
 
 xxvi CONTENTS. 
 
 No immediate change in the nature of military service 237 
 
 4. Elements of Feudalism imbedded in the Old-English System : manorial 
 
 system originates in Old-English and not in Norman law 237 
 
 An embryonic feudalism prior to the Conquest ; Norman feudal ideas more fully 
 developed ; their influence upon the growth of the idea of tenure ; the king be- 
 comes the supreme landlord 238 
 
 Feudalism hardens into a methodical system under William Rufus . . . 239 
 
 5. Effects of the Conquest on Central Organization : the king and the witan ; 
 
 continuity of the national assembly unbroken by the Conquest .... 239 
 
 Testimony of a chronicler who had lived at William's court ; the witan as the great 
 council retains all of its old powers 240 
 
 Elective kingship finally yields to the doctrine of hereditary right ; taxative and ju- 
 dicial powers of the great council ; its power to regulate ecclesiastical business ; 
 a great practical transformation .......... 241 
 
 The national assembly becomes a feudal court subject to the king's pleasure. 
 Growth of the inner council, curia regis ; a standing committee of the greater 
 body 242 
 
 Early history of the council obscure ; ennobling effects of menial services rendered 
 to royalty ; ducal household of Normandy prototype of royal household of Eng- 
 land 243 
 
 New ministerial officers, the justiciar ; the chancellor 244 
 
 The treasurer. The curia regis the source of the entire judicial and administra- 
 tive machinery of the constitution ; the curia as a legal tribunal .... 245 
 
 The financial session of the curia, the exchequer ; the leading subjects of revenue; 
 exchequer records 246 
 
 Origin of the itinerant judicature ; justices from the Norman curia sit in the Old- 
 English shire-moots ; financial visitations followed by judicial .... 247 
 
 Fusion of Norman and Old-English judicature. The breaking up of the curia re- 
 gis ; beginnings of the king's bench as a distinct tribunal 248 
 
 Common pleas fixed at Westminster ; the final division into three distinct courts. 
 Judicial supremacy of the king in council ; classification of petitions . . . 249 
 
 The chancellor ; his common law jurisdiction ; his equitable jurisdiction ; his court 
 becomes a distinct tribunal ; equity one of the agencies by which strict law is 
 adapted to the expanding wants of society 250 
 
 Maine's view : " Legal Fictions, Equity, and Legislation." The privy council . 251 
 
 Its judicial functions, as developed in the star chamber ; its administrative, as devel- 
 oped in the cabinet 252 
 
 6. Effects of the Conquest on Local Organization: the township, hundred, 
 
 and shire 252 
 
 The township as the manor ; the word " manor " of Norman introduction, but the 
 manorial system of Old-English origin ; number of manors at the date of the 
 Survey 253 
 
 Manorial courts ; liberties or honors. Courts of the shire and hundred kept up by 
 William 254 
 
 Employed for fiscal purposes by William Rufus and Henry I. ; composition and 
 procedure of shire-moot unchanged, with the addition of trial by battle . . 255 
 
 Survival of the hundred court. Centralization of justice and the growth of immu- 
 nities undermine the ancient local courts ; how the king came to be regarded as 
 the source of justice 256 
 
 Instances of royal interference with local justice prior to the Conquest ; after the 
 Conquest such interference by special writs ripened into an established custom . 257
 
 CONTENTS. xxvn 
 
 Ancient presidents of the shire disappear ; their places filled by royal officers ; the 
 itinerant system firmly established in the reign of Henry II. .... 258 
 
 7. Effects of the Conquest on Ecclesiastical Organization : 258 
 
 Deposition of the native prelates ; English Church drawn into greater dependence 
 upon Rome ; William's restrictions upon the papal power 259 
 
 Severance of ecclesiastical from temporal business. Creation of a distinct system of 
 ecclesiastical courts 260 
 
 Systematic study of the canon law begins in the reign of Stephen. Distinct ecclesi- 
 astical councils 261 
 
 During the primacy of Lanfrancsuch councils met frequently ; William limits eccle- 
 siastical legislation. Diocesan and provincial councils 262 
 
 Diocesan organization ; the system completed under Eadward the Elder ; national 
 councils short-lived 263 
 
 Government of the church finally passed to convocations of Canterbury and York; 
 representation of the clergy hi parliament 264 
 
 8. The Domesday Survey 264 
 
 Causes which brought it about; chronicler's entry under the year 1085 . . . 265 
 Manner in which the Survey was taken ; William treated as the immediate successor 
 
 of Eadward ; unit of inquiry the manor 266 
 
 Manorial group divided into two classes ; fewness of free tenants ; tenants in vil- 
 lenage constitute the bulk of the population ; Norman lords fail to recognize in 
 practice the degrees of villenage 267 
 
 9. Gemot of Salisbury : weakness of the royal authority before the Conquest ; Wil- 
 
 liam remedies old evils and guards against new ones 268 
 
 Disruptive tendency of Frank feudalism ; William makes himself every man's im- 
 mediate lord 269 
 
 10. "William Rufus, the Growth of Feudal Tenures: revolt of the Norman 
 
 nobles crushed by the aid of the English 270 
 
 Flambard becomes justiciar and systematizes military tenures, which are applied 
 
 to estates of the church . . . . . . . . . . . .271 
 
 The body of the people oppressed through the local courts 272 
 
 11. Henry I., the Administrative System 272 
 
 Henry's charter the parent of the Great Charter ; Henry's marriage with Margaret 273 
 Creation of a new ministerial nobility ; Bishop Roger of Salisbury ; he organizes 
 
 the curia into a strong judicial and ministerial body 274 
 
 And also invigorates the local courts 275 
 
 12. Stephen, the Anarchy : the oath to Matilda ; the Angevin marriage . . 275 
 Election of Stephen, his charters ; civil war begins ; wail of the Peterborough 
 
 Chronicler ; barons exercise sovereign rights 276 
 
 Treaty of Wallingford ; death of Stephen and accession of Henry of Anjou . 277 
 
 CHAPTER III. 
 
 HENRY OF ANJOU THE PERIOD OF FUSION. 
 I 
 
 1. The growing together of Old-English Local Machinery and Norman 
 
 System of Central Administration ........ 278 
 
 The modern constitution the outcome of the fusion ; superstructure Norman, sub- 
 structure Old-English 279
 
 xxvin CONTENTS. 
 
 Norman central system the outgrowth of the new kingship ; central and local sys- 
 tems first drawn together through the visits of the itinerant justices . . . 280 
 Commixture of royal and customary law; origin of the trial jury; union of races 281 
 Fusion complete at the accession of Henry II 282 
 
 2. The Restoration of Order 282 
 
 3. The Institution of Scutage or Shield-money 283 
 
 Assize of arms 284 
 
 4. Henry's Effort to establish the Reign of Equal Law: conflict with the 
 
 clergy 284 
 
 Becket as primate ; first quarrel between Thomas and the king touching taxation ; 
 
 Thomas the forerunner of Hampden 285 
 
 The second quarrel touching clerical immunities ; council at Clarendon . . 286 
 Constitutions of Clarendon the concordat between church and state . . . 287 
 Permanent results of the constitutions ; Thomas's reluctant assent and exile . 288 
 4 Reorganization of the Central System : the national council a perfect federal 
 
 court ; its relation to the witenagetnot 289 
 
 Influence of the practice of summons ; the practice as defined in the i4th article of 
 
 the Great Charter ; form of the summons draws the line between lords and com- 
 mons 290 
 
 King legislates as of old with the advice and consent of his council, charters, 
 
 assizes .... ... 291 
 
 Provisions, statutes, and ordinances 292 
 
 6. Taxation under the Old-English, Norman, and Angevin Systems: the 
 
 Danegeld or land-tax 292 
 
 Old-English unit of assessment the hide ; extent of the normal hide ; talliage . 293 
 Hidage and carucage different forms of Danegeld. Taxation under the Norman 
 
 system ; gradual development of military tenures 294 
 
 The Great Survey based upon hides and carucates ; growth of the system of 
 
 knights' fees out of the older system of hides 295 
 
 The army composed of both feudal and national elements ; scutage. Excepting 
 
 the customs, all taxes fell upon land 296 
 
 While the hide remained the unit of assessment, Domesday the rate-book of the 
 
 kingdom ; new expedient for ascertaining the number of knights' fees . . . 297 
 Taxation of personal property; assize of arms (1.181); the Saladin tithe of 1188 
 
 assessed by local jurors ; lands assessed in the same way in 1198 . . . 298 
 Taxation and representation. Indirect taxation, the customs ; tax on imports ; 
 
 tax on exports .............. 299 
 
 Exclusive right of parliament to authorize taxation ; first formal discussion of a 
 
 grant in the Council of Oxford in 1197 300 
 
 7 Reorganization of the Curia Regis : its financial overshadowed by its judicial 
 
 aspect .... i 301 
 
 In 1176 the staff consisted of eighteen justices ; in 1178 reduced to five ; the king's 
 
 bench as a distinct tribunal ; Dialogus de Scaccario ; Tractatus de Legibus Anglia 302 
 8. Reorganization of the Provincial System, the Local Courts : shire and 
 
 hundred courts not only popular but representative assemblies ; delegation of 
 
 judicial authority 303 
 
 Attendance enforced by fines ; Schoffen, Scabani, or Echevins ; ordinance separat- 
 ing spiritual and temporal courts .......... 304 
 
 Attendants of shire and hundred courts 305
 
 CONTENTS. xxix 
 
 Composition for non-attendance ; reorganization of the local courts. Assize of 
 Clarendon, 1166; presentment of criminals prior to the assize .... 306 
 
 Scheme of presentment contained in the assize ; the accused required to go to the 
 ordeal 307 
 
 Assize of Northampton, 1176; primitive form of the grand jury ; its later develop- 
 ment. Use of the petty jury in criminal cases 308 
 
 Trial by ordeal forbidden by the Lateran Council ; compurgation superseded by 
 ordeal 309 
 
 The petty jury takes the place of both ; that result reached by the end of the thir- 
 teenth century 310 
 
 By the end of the fifteenth appears the trial jury of modern times. Trial by battle ; 
 usual mode of prosecuting murder down to the close of the fifteenth century ; 
 Ashford v. Thornton, 1818 ; "appeals " not abolished until reign of George III. 311 
 
 Assize of Arms, 1181 ; ancient military force of the shire reorganized and rearmed; 
 the militia of modern times. Assize of the Forest, 1184 312 
 
 Royal hunting-grounds in the days of Cnut; forest regulations of the Norman 
 kings; Assize of Woodstock, 1 184 ; a forest a special jurisdiction or franchise 
 outside of the common law 313 
 
 Organization of the forest courts ; courts of the Forest of Knaresborough . . ^14 
 9. Development of the Itinerant Judicature and the Origin of Juries . 314 
 
 Typical English law court the product of the union of the curia and shire-moot : 
 Old-English judicature ; influence of the local courts ; but little interference from 
 the central authority 315^ 
 
 Centralization of justice after the Conquest ; the writ process .... \~3i6 
 
 The king's courts sitting in the shires; judicial iter of 1096 317 
 
 Itinerant system became a permanent institution under Henry II. ; its complete or- 
 ganization generally dated from 1176; arrangement of circuits; meaning of the 
 term Nisi Prius 318 
 
 Decline of the judicial powers of the sheriffs ; 24th article of the Great Charter. 
 The courts of assize distinguished from the ancient county courts . . . 319 
 
 A full representation of the county convened to meet the itinerant justices ; the 
 county assembly now represented only by the grand and petty jurors; how the 
 change was brought about 320 
 
 Old-English legal procedure ; private summons; the issue; the burden of proof; 
 four means*bf proof known to the customary law 321 
 
 A new means of proof (trial by battle) added by the Normans ; how the form of 
 trial was determined. Origin and history of juries 322 
 
 The trial jury the product of the union of Old-English and Norman elements ; 
 jurors originally witnesses and nothing more ; history of the jury divided into two 
 epochs 323 
 
 The barbaric theory of proof; witnesses swore only to the assertion of their chief; 
 transaction witnesses ; community witnesses ; they spake the voice of the commu- 
 nity as to the fact in question 324 
 
 Community witnesses after the Conquest. The inquisitio per testes derived by the 
 Normans from the Franks, who probably took it from the Theodosian code . 325 
 
 An inquisition a royal inquiry executed in a local court through the oaths of wit- 
 nesses ; difference between customary witnesses and those of the inquest ; 
 Domesday the fruit of a vast royal inquest 326 
 
 Same system applied in William's day to the trial of private cases involving land ; 
 a simple inquisition of the Norman period 327
 
 XXX CONTENTS. 
 
 The community witnesses now appear in a new relation ; whether produced by a 
 party or convened by an officer, they were the same body of men. Recogni- 
 tions, how they differed from a simple inquisition 328 
 
 Introduced by Henry II. under the name of assizes ; nature of the Great Assize 329 
 A substitution for trial by battle in suits for freeholds ; recognitors mere witnesses 330 
 In England only was the jury of proof transformed into the jury of judgment; 
 
 trial by jury gradually superseded all other methods of trial 331 
 
 As the fittest it survived 332 
 
 CHAPTER IV. 
 
 THE WINNING OF THE CHARTERS. 
 
 1. Growth of the Royal Authority after the Conquest 334 
 
 Centralization of justice and finance . . 335 
 
 Origin and character of the struggle for the charters 336 
 
 2. Rise of the three Estates, the Clergy, the Baronage, and the Com- 
 
 mons : estate system defined ; clergy, baronage, and commons, and not king, 
 lords, and commons 337 
 
 King not an estate. Estate of the clergy; effects of the Conquest on the national 
 church 338 
 
 Gregory VII.'s effort to make the clergy a distinct order ; ecclesiastical policy of 
 William and Lanfranc ; growth of the canon law .... ... 339 
 
 Ecclesiastical divisions of the kingdom : the province ; the diocese and its subdi- 
 visions 340 
 
 The archdeacon's court ; the bishop's court ; the archbishop's court ; court of pe- 
 culiars ; court of delegates 341 
 
 System of appeal. Matrimonial and testamentary causes. The new system of ec- 
 clesiastical councils 342 
 
 National councils short-lived; provincial convocations of Canterbury and York ; 
 " convocation is the miniature of parliament " 343 
 
 Its power to legislate ; Mr. Gladstone's view. Election of bishops . . . 344 
 
 Origin of chapters ; election of English bishops in the early days .... 345 
 
 Their election after the Conquest; the question of investiture ; Concordat of 
 Worms, 1 1 22 346 
 
 Anselm and Henry I. Rome and the pallium 347 
 
 Appeals to the papal court in disputed elections ; John and Innocent III. Sum- 
 mary 348 
 
 Estate of the baronage identical with the house of lords 349 
 
 Distinction between English and continental nobility ; the witan survives as the 
 house of lords 350 
 
 Continuity of the witan ; a practical transformation wrought by the Conquest . 351 
 
 The ancient assembly becomes the king's court of feudal vassals ; practice of sum- 
 mons as defined by the Great Charter 352 
 
 Every peer supposed to hold a barony directly of the king ; nature of the baro- 
 nial tenure 353 
 
 Barony by summons ; feudal rule of primogeniture ; the right to be summoned be- 
 comes hereditary. The lords spiritual 354 
 
 Estate of a bishop or abbot regarded as a fief ; title of " barones " added to that of 
 "sapientes" Estate of the commons 355
 
 CONTENTS. xx\i 
 
 The term " commons " as understood upon the Continent ; as understood in Eng- 
 land ; representatives of English shires and towns unite in the house of com- 
 mons 356 
 
 Summary 357 
 
 3. Pressure of the Royal Authority upon every Class in the Reign of 
 
 Richard I. : taxation under Henry II. ; land taxes, hidage and scutage , tax- 
 ation of personal property 358 
 
 Taxation under Richard I. ; administrations of the justiciars .... 359 
 
 The effort to raise ,100,000 for Richard's ransom; Richard's second and last visit 
 to England 360 
 
 Visitation of the justices in 1 194 ; popular rising under Fitz-Osbert ; opposition of 
 the baronage to taxation in 1198 361 
 
 The patriot bishop of Lincoln ; clerical opposition to taxation ; assessment of real 
 property 362 
 
 Clergy practically outlawed 363 
 
 4. From the Accession of John to the Loss of Normandy in 1204 . 363 
 
 The right of succession; coronation speech of Archbishop Hubert ; Arthur's mur- 
 der in 1203 364 
 
 Loss of Normandy and its political results ; the new ministerial nobility . . 365 
 The baronage assume the leadership of the nation 366 
 
 5. From the Loss of Normandy to the signing of the Great Charter at 
 
 Runnymede : the character of John 366 
 
 Powerlessness of the crown when opposed by the three estates ; the great quarrel 
 
 over the appointment of primate 367 
 
 Decision of Innocent 368 
 
 He claimed the right of nomination. Theory of the mediaeval empire : Roman 
 Empire and Catholic Church two aspects of a single Christian monarchy; contin- 
 uous existence of the Roman Empire the key to mediaeval history . . . 369 
 Dante and St. Thomas as disputants ; mediaeval claim of papal supremacy as re- 
 stated by Cardinal Manning ; the papal supremacy naturally assumed a feudal 
 
 shape 370 
 
 John refused to receive the new primate; the interdict, March 23, 1208; John 
 
 breaks with the clergy ^71 
 
 The excommunication, 1209; the deposition, 1212; defection of the baronage . 272 
 John submits to Innocent, May, 1213; surrenders his kingdom and takes the oath 
 
 of fealty, and is delivered from his enemies 373 
 
 John's quarrel with the nobles ; taxation of the baronage and military service . 374 
 
 The barons refuse to serve abroad 375 
 
 Council at St. Albans, August 4, 1213; representatives from townships summoned. 
 Geoffry Fitz-Peter recurs to the laws of Henry I. ; in the council at St. Paul's 
 
 Langton reads the charter of Henry I. 376 
 
 First representative parliament. The years 1214 and 1215; John's expedition to 
 
 Poitou ; defeat at Bouvines, and truce with Philip 377 
 
 Meeting of the barons at St. Edmund's, November, 1214; reassemble in arms in 
 
 January, 1215, and make a truce with the king until after Easter .... 378 
 In Easter week they meet again at Stamford ; "Army of God and Holy Church" 
 
 marches on London ; John's surrender 379 
 
 Great Charter of Liberties signed at Runnymede, June 15, 1215 . . . . 380 
 
 6. Analysis of the Great Charter : a compact between the crown and the estates 
 
 a national act the consummation of the work of union .... 380
 
 xxxii CONTENTS. 
 
 A summing up of the traditional liberties of the English nation ; completion of 
 the estate system 381 
 
 Richard and John claimed that the will of the prince was the law of the land ; the 
 nation claimed that it was the laws of King Eadward as amended by King Wil- 
 liam ; the effort to fix the limits of innovation 382 
 
 Each estate covenants for its special rights, while the nation covenants for the com- 
 mon rights of all. The church granted free elections. The baronage relieved of 
 many feudal burdens by the crown ; the same burdens removed from their under- 
 tenants 383 
 
 Aid and scutage limited ; reliefs, wardship, and marriage regulated . . . 384 
 
 A restraint upon alienation, 1217. The commons : English middle class embraced 
 all freemen below baronial rank 385 
 
 Privileges of London and of all other cities and towns guaranteed ; rights of the 
 shire communities ; rights of merchants and of simple freemen. Provisions 
 which relate to the nation as a whole 386 
 
 The constitution of the national council defined ; no taxation without its consent 387 
 
 Reforms in the judicial system 388 
 
 General principles to govern the administration of justice ; amercements ; writ of 
 praecipe ; writ of inquisition ; criminal accusations 389 
 
 Intestates ; collection of the king's debts ; the forest code. Miscellaneous provi- 
 sions. Articles of a temporary nature 390 
 
 Guarantees for the enforcement of the charter. Signing of the charter marks the 
 beginning, not the end, of a conflict ... 391 
 
 The struggle continues for more than eighty years ; duplicity of John ; the barons 
 condemned at Rome 392 
 
 Innocent condemns and annuls the charter ; the king renews the struggle ; the 
 French invasion, May, 1216 393 
 
 John dies, October 19, 1216 394 
 
 7. Outline of the Constitutional Struggle during the Reign of Henry III : 
 
 First regency since the Conquest ; William Marshall appointed regent ; reissue of 
 the charter with certain serious omissions 394 
 
 Defeat of the French ; treaty of Lambeth, September, 1217 ; second reissue of the 
 charter; Charter of the Forest; administration of Hubert de Burgh, 1219-1232 395 
 
 Third reissue of the charter in 1225 ; Henry completes his emancipation in 1227 ; 
 a resident continual council can be traced from Henry's minority . . . 396 
 
 Ministerial responsibility, and the doctrine that the king can do no wrong, dates 
 from this time ; Langton dies in July, 1228 ; Peter des Roches. Henry's personal 
 rule 397 
 
 The justiciar ceases to be viceroy and becomes simply the head of a law court ; 
 foreign influences at work ; conflict between the crown and papacy on one side 
 and the English church and nation on the other 398 
 
 Earliest authorized report of a parliamentary debate, 1 242 ; the proposed reform of 
 1244; from 1244 to 1254; knights of the shire reappear in the parliament of 
 '254 399 
 
 Disclosure of the king's debts to the parliament of 1257. The Barons' War, 1258- 
 1272 ; Simon of Montfort 400 
 
 Provisions of Oxford, 1258; Provisions of Westminster, 1259 . . . .401 
 
 Knights of the shire in the parliament of 1261; award of St. Lewis; battle of 
 Lewes, May, 1264 402 
 
 Knights of the shire in the parliament of 1264 ; famous parliament of 1265, to 
 which representatives are for the first time summoned from the cities and towns . 403
 
 CONTENTS. xxxiii 
 
 Battle of Evesham, August, 1265. Dictum de Kenilworth, October, 1266; Statute 
 of Marlborough, November, 1267 404 
 
 8. From the accession of Edward I. to the enactment of "Quia Emp- 
 
 tores " 405 
 
 Statute of Westminster First, 1275; free elections; reform of legal procedure . 406 
 
 Statute of Gloucester, 1278 ; statute of mortmain, 1279 407 
 
 Remedy for evasions of statute ; conquest of Wales, 1 282-83 .... 408 
 Statute of Merchants, 1283; incorporation of Wales with England . . . 409 
 ""*** Statute of Winchester, 1285 ; Statute of Westminster Second, 1285 ; bill of excep- 
 tions ; restraints upon alienation 410 
 
 Restraints in favor of the family ; a grantee of bookland 411 
 
 Restraints in favor of the lord ; estates tail ; Taltarum's case ; Statute of Westmin- 
 ster the Third, 1290 412 
 
 Edward's fame as a legislator. Growth of the common law; Glanvill; Bracton 413 
 Influence of the imperial and pontifical jurisprudence ; Britton and Fleta ; Mirror of 
 
 Justices ; Fortescue ; Littleton ; Coke 414 
 
 Judicial decisions become a source of law ; records of adjudicated cases exist from 
 the time of Richard I.; the Year Books 415 
 
 9. Parliament as an Assembly of Estates 415 
 
 Election and representation ; the shire court ; representatives of the shire in the 
 national council 416 
 
 Representatives from cities and towns first appear in the parliament of 1 265 ; growth 
 of the estate system synchronizes with that of the representative system ; the 
 model parliament of 1295 417 
 
 10. Close of the Constitutional Straggle with the final Confirmation of 
 
 the Charters in the 25th of Edward 1 418 
 
 Conquest of Scotland ; the bull " Clericis laicos ; " attack upon the clergy, January, 
 1297 ; quarrel with the baronage 419 
 
 Edward's extreme measures ; resistance under the leadership of Bigod and Bohun ; 
 confirmation of the charters promised 420 
 
 The king makes peace with the archbishop ; the omitted provisions of the Great 
 Charter ; Edward's extreme measures produce the counter-movement led by the 
 earls 421 
 
 Who resist the collection of the unauthorized taxes ; close of the struggle ; char- 
 ters confirmed at Ghent, November 5, 1297, " Confirmatio Cartarum " . .'422 
 
 Provisions of the new articles as to taxation ; exclusive right of the nation to au- 
 thorize taxation finally admitted by the crown. Summary 423 
 
 BOOK III. 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. 
 CHAPTER I. 
 
 HISTORY OF PARLIAMENT FROM EDWARD I. TO HENRY IV. 
 
 1. Place of the English Parliament in the History of Institutions: repre- 
 sentative government a Teutonic invention 428 
 
 It survives in England only among the Teutonic nations ; English bicameral sys- 
 tem first reproduced in the English states in America . . . . . . 429
 
 xxxiv CONTENTS. 
 
 And then in most of the states of Continental Europe 430 
 
 2. Continuity of the History of the English Parliament : the primitive na- 
 
 tional assembly survives as the house of lords ; house of commons the product 
 of the representative principle imbedded in the organization of the shires and 
 towns 430 
 
 Two great stages of transition ; historical origin of the witenagemot ; it survived 
 the Conquest 431 
 
 And passed thereafter through a great practical transformation ; it became the 
 king's court of feudal vassals ; influence of the practice of summons . . . 432 
 
 The line thus drawn between lords and commons ; constitution of the feudal 
 council modified by the growth of the estate system 433 
 
 Primary assemblies die out everywhere but in England 434 
 
 3. Effects of the Process of Feudalization upon the National Council: 
 
 English peerage identical with the house of lords 434 
 
 The holding of an estate by barony the original qualification for personal summons, 
 although the special writ did not necessarily follow such tenure ; the hereditary 
 right to receive the writ the real basis of peerage ; feudal rule of primogeniture ; 
 peerage by writ descends by operation of law to the heirs of the person ennobled 435 
 
 Heiresses ; degrees of dignity in the peerage ; earls and barons only prior to Ed- 
 ward III. ; a duke created by patent ; a baron created by patent in 1387 . . 436 
 
 Peers created by the king in Parliament ; bannerets. Legislative and judicial pow- 
 ers of great councils of Norman and Angevin kings 437 
 
 Survival of " counsel and consent " 438 
 
 4. Judicial Powers of the House of Lords: relation of the continual to the 
 
 great council 438 
 
 All ordinary causes decided by the continual council, or by the courts born of it ; 
 only extraordinary causes remain for the judgment of the peers. House of lords 
 as a court of peers for the trial of its own members ; statute of 15 Edward III . 439 
 
 A peer may be tried like a commoner for a misdemeanor : the lord high steward 
 and his court 440 
 
 House of lords as a high court for the trial of all persons impeached by the com- 
 mons ; proceedings against the lords Latimer and Neville 441 
 
 Private accusations by " appeal " abolished by Stat. Hen. IV. c. 14, 2 ; impeachments 
 becoming obsolete ; the law of impeachment as finally settled .... 442 
 
 House of lords as a court of error in civil cases 443 
 
 5. House of Commons the Product of the Representative Principle im- 
 
 bedded in the Organizations of the Shires and Towns . . . 443 
 How the main body of the people as thus organized win the right to participate in 
 national affairs ; the commons refuse to participate in judicature, except in at- 
 tainders and impeachments 444 
 
 Representatives of the commons take their place in parliament as a part of the 
 estate system 445 
 
 6. Origin and Structure of the Shire and Town Communities . . 445 
 
 Modern shire an aggregation of hundreds ; the representative principle at work in 
 the shire ; shire system survives the Conquest 446 
 
 The shire under the Norman name of county ; Old-English shire-moot brought into 
 contact with the Norman curia regis ; a full assembly of the shire met the jus- 
 tices itinerant 447 
 
 Agenda of the iter of 1194. The sheriff becomes the executive head of the shire; de- 
 cline of the judicial powers of the sheriffs; coroners of the thirteenth century; 
 right to appoint the sheriffs 448
 
 CONTENTS. XXXV 
 
 Office for a time elective ; finally appointed by the exchequer ; the coroner ; the 
 office still elective ; venderers 449 
 
 The shire the training-school of the English people in self-government ; election 
 and representation employed in every branch of business ; presentment of crim- 
 inals ; the system of recognitions 450 
 
 Representation comes into contact with taxation when personal property is brought 
 under contribution ; Saladin tithe assessed by local jurors ; a method of assess- 
 ment soon extended to real property. The shire police system . . . .451 
 
 The " view of frank-pledge ; " the manorial court leet ; sheriff's tourn and leet ; busi- 
 ness of the courts leet as county police courts 452 
 
 Justices of the peace ; judicial functions conferred in 1344 453 
 
 Court of quarter sessions ; high and petty constables. Origin and structure of the 
 English town 454 
 
 Township system the basis of the municipal system ; Roman municipalities perish ; 
 the burgemot another form of the hundred court 455 
 
 All the elements of municipal life drawn from a Teutonic source; the township as 
 the parish ; as the manor 456 
 
 Relation of the town to the constitution of the hundred ; sac and soc ; the corporate 
 body of Birmingham the sheriff and court leet fifty years ago ; cities as " coun- 
 ties corporate " 457 
 
 London as a distinct shire ; as a standard for imitation. The gild . . . 458 
 
 Uncertain origin of the gild system ; oldest detailed account of gild organization 
 English ; tendency of gilds to consolidate 459 
 
 The " town gild " becomes the " merchant gild ; " its relation to the town ; gild law 
 becomes town law ; the gild hall becomes the town hall 460 
 
 The struggle for emancipation from sheriff and lord ; thejirma burgi . . . 461 
 
 The towns appeared hi full county court by representatives ; purchase of commer- 
 cial privileges ; the towns win the right to elect their own magistrates ; the leet 
 jury 462 
 
 The elective bailiff superseded by a " mayor ; " inherent power of the " communi- 
 tas ;" incorporation implied by the grant of gilda mercatoria ; condition of things 
 at the beginning of the thirteenth century 463 
 
 John's charter to London ; summary 464 
 
 7. Appearance of the Shire and Town Representatives in the National 
 Council, and their final Union in one House: earliest writ summoning 
 shire representatives to parliament, 1213 ; the writ of 1254; the assembly at St. 
 Alban'sin 1261 465 
 
 Earl Simon's famous parliament of 1265; Edward's model parliament of 1295; 
 knights of the shire elected by the whole body of freeholders in full county 
 court ; I4th article of the Great Charter, its probable purpose . . . 466 
 
 Elected knights appear instead of the whole body of minor tenants in chief; repre- 
 sentative character of the knights, as well as the qualification of the electors, 
 determined by the character of the county court 467 
 
 Practice of election and representation in the county court ; first limitation upon 
 the franchise, 1430. Representatives from towns on the royal demesne sum- 
 moned to the council at St. Alban's, 1213 468 
 
 Representatives from the cities and towns first summoned to parliament by Earl 
 Simon in 1 264 ; representatives from the towns first recognized as an integral 
 part of parliament in 1 295 469 
 
 Under the writ commanding the sheriff to return members from the towns, he could 
 extend or withhold the privilege, s he saw ft 470
 
 xxxvi CONTENTS. 
 
 Reluctance of the boroughs to send members ; who were the electors of the bor- 
 ough representatives ; mediaeval history of English towns not yet fully worked 
 out ; the sheriff's procedure under the election writ 471 
 
 The formal election of all representatives took place in the county court, while the 
 real election of borough members took place in the boroughs themselves ; sher- 
 iffs required by law to send precepts to the proper officers of cities and towns . 472 
 
 Returns to be made by indenture ; the formal election in the county court ; the elec- 
 tors in a city were the citizens, in a borough the burgesses ; who were citizens 
 and who were burgesses depended upon local usage, where not regulated by 
 charter 473 
 
 Generalization of Bishop Stubbs ; Municipal Corporations Act of 1835 . . 474 
 
 Eligibility of the elected members; representatives from shires not always knights; 
 residence made a qualification of both electors and elected, by statute of Henry 
 V., which became obsolete; formally repealed by 14 Geo. III. c. 58 . . 475 
 
 Representatives required to give security for their attendance ; the plena potestas ; 
 wages. The constitution of parliament established through the development of 
 the writ process 476 
 
 Parliamentary writs issued by the king with the advice of the council ; annual 
 parliaments ; meeting place of national councils ; Westminster in the days of the 
 Confessor ; in the days of the Norman kings ; Henry III. rebuilds the abbey and 
 enlarges the palace 477 
 
 Westminster becomes the seat of government in the reign of Edward I. ; the meet- 
 ' ing of parliament, opening speech ; triers of petitions appointed . . . 478 
 
 It is probable that the three estates deliberated apart from the beginning, save when 
 assembled for some special purpose ; lay and spiritual baronage perpetuate their 
 separate organization in the house of lords, while the representative members 
 unite in the house of commons ; parliament definitely and finally divided into 
 two houses in the reign of Edward III 479 
 
 In 1352 commons ordered to the Chapter House ; in 1377 Sir T. Hungerford chosen 
 speaker ; the chancellor presides in the house of lords 480 
 
 8. The Clergy as an Estate of Parliament: the pramunientes clause . . 480 
 
 The clergy opposed Edward's plan from the beginning ; clergy taxed themselves in 
 convocation until after the restoration of Charles II.; Sheldonian compact of 
 1664 ; wherein the clergy renounced the right of separate taxation . . .481 
 
 They gain the right to vote for members of the house of commons .... ooo 
 
 9. Early Participation of the Commons in Taxation : taxation during the 
 
 Norman period 482 
 
 Lay and spiritual baronage consulted in the great council, the clergy through the 
 archdeacons, and the commons through the county courts ; the exchequer officers, 
 when negotiating with the shires, sat in the county court 483 
 
 The representative system, long familiar in the county courts, applied to national 
 purposes ; the elected knights summoned to parliament as a matter of fiscal ex- 
 pediency 484 
 
 Representatives from the towns summoned for the same reason ; the struggle for 
 municipal independence ; thejirma burgi ; the "free aid" 485 
 
 Transition from special to general consent in taxation 486 
 
 10. Exclusive Right of Parliament to authorize Taxation: declaration of 
 
 this exclusive right contained in Great Charter premature 486 
 
 Guarantees contained in the Confirmatio Cartarum ; right of the crown to talliage 
 the towns on the royal demesnes 487
 
 CONTENTS. xxxvii 
 
 This right becomes extinct in the reign of Edward III. Parliamentary control over 
 indirect taxes ; toll originally imposed directly upon the ship ; prisage ; origin of 
 the duty on exports 488 
 
 Export tax on wool first fixed by the parliament of 1275 ; first legal foundation of the 
 customs revenue, " magna et antiqua custuma ; " the " nova " or * parv a custuma 489 
 
 Before the close of the reign of Edward III. the right of parliament to control 
 every form of taxation fully established. Feudal taxation resting upon individual 
 consent transformed into national taxation resting upon general consent ; scu- 
 tage, talliage, and the three regular feudal aids become obsolete .... 490 
 
 Tax on personal property originally actual tenths and fifteenths ; assessment of 
 8 Edward III. ; the subsidy ; older feudal taxes supplanted by subsidies and fif- 
 teenths ; a general land tax, a uniform income tax, and a general tariff . . . 491 
 
 "Tunnage" and "poundage" 492 
 
 11. Participation of the Commons in Legislation : the great functions of gov- 
 
 ernment monopolized for a time by the king and his feudal council . . . 492 
 Right of the commons to participate in taxation drew after it the right to participate 
 in legislation ; supply dependent upon the redress of grievances ; procedure by 
 
 petition 493 
 
 Such petitions as demanded redress by the making of an ordinance or statute ; the 
 statute coined out of the petition and answer ; nearly all legislation based on 
 petitions during the fourteenth century; right of the commons to assent to legis- 
 lation not clearly established until reign of Edward II 494 
 
 Abuses and uncertainties which grew out of the procedure by petition . . 495 
 Evils of the old system remedied by the introduction of bills in the form of stat- 
 utes ; transition from royal to national legislation. Difference between a statute 
 and an ordinance ; ordaining power of the king in council, and the enacting power 
 
 of the king in parliament 496 
 
 In drawing to itself the control of legislation parliament stopped short of complete 
 victory; difference between a statute and. an ordinance defined .... 497 
 
 12. Parliamentary Control over the Royal Administration : the minority of 
 
 Henry III. the first since the Conquest ; an inner royal council ; responsibility of 
 ministers to the nation in parliament ; Provisions of Oxford, 1258 . . . 498 
 
 Confirmatio Cartarum, 1 297 ; the Lords Ordainers, 1310 499 
 
 Right of the baronage to the exclusive control of the royal administration ; grow- 
 ing power and influence of the commons ; they win the full right of deliberation 
 in the reign of Edward III., assent to the treaty of peace with Scotland, and are 
 
 consulted as to the war with France 500 
 
 Hundred Years' War ; right to appropriate the supplies to special purposes . 501 
 Right to audit the public accounts 502 
 
 13. The Right of Impeachment : first clear case of a parliamentary impeachment, 
 
 1376; impeachment of Michael de la Pole ; doctrine of ministerial responsibility 
 
 placed upon a definite constitutional basis 503 
 
 Legal fiction that the king can do no wrong 504 
 
 14. The Right of Deposition : the right of the witan to depose the king ; a right 
 
 never asserted by the feudal councils of the Norman and Angevin kings . . 504 
 The right revived by the assembly of estates. Deposition of Edward II. ; the 
 
 Lords Ordainers ; Edward's fate settled by the parliament of 1327 . . .505 
 Six articles drawn up by Bishop Stratford ; Edward assents to his son's election. 
 
 Deposition of Richard II. ; his temper in youth 506 
 
 Causes of the peasant revolt ; condition of the laboring classes at the beginning of
 
 xxxvin CONTENTS. 
 
 the Black Death in 1348 ; population so reduced that hired labor became dear 
 and scarce ; the council attempts to regulate the rate of wages by ordinance ; 
 Statute of Laborers, 1349 507 
 
 Conflict between capital and labor intensified by the teachings of the Lollard 
 preachers; the poll-tax; rising of the commons begins on the 5th June, 1381; 
 the political grievance 508 
 
 The social grievance ; Wat Tyler and the Kentish men ; the men from Essex and 
 the eastern counties ; Richard's pledges to the Essex men ; revolt lasted but little 
 more than a fortnight 509 
 
 In spite of cruelty and repression the purpose of the revolt fully accomplished ; 
 within a century and a half after the rising, villeinage an obsolete institution ; yeo- 
 man class becomes the basis of the electoral system. The marked change in 
 Richard's temper dates from the French marriage in 1396 510 
 
 He rebukes the commons and demands the name of the offending member ; a fresh 
 definition of treason, 1397; parliament of Shrewsbury, January, 1398, made Rich- 
 ard practically absolute ; grant of a subsidy for life 511 
 
 Reaction which followed his usurpation cost him his crown and his life ; quarrel 
 between Norfolk and Hareford ; Henry of Lancaster exiled and his estates con- 
 fiscated ; Henry lands in Yorkshire July 4, 1399 512 
 
 Procedure upon the deposition of Richard II. ; the question of the succession ; 
 strict rule of hereditary descent not yet applied to the crown ; Henry's elevation 
 the result of a parliamentary revolution 513 
 
 Authority of parliament reached the limit of its growth through the results of the 
 revolution 514 
 
 CHAPTER II. 
 
 HISTORY OF PARLIAMENT FROM HENRY IV. TO HENRY VII. 
 
 1. Review of the Growth of Parliament from the Conquest to the Ac- 
 
 cession of Henry IV.: the sum of governmental power originally vested in 
 the king in council is reduced by a double process of subtraction ; greater part of 
 the judicial work of the council transferred to the courts of law and equity . 515 
 
 Due process of law defined ; the assembly of estates draws to itself the control of 
 the legislative, taxative, and fiscal business of the kingdom 516 
 
 Five substantive rights possessed by parliament at the close of the fourteenth 
 century ; neither process of subtraction exhaustive ; an undefined reserve of both 
 judicial and legislative power remains to the king in council 517 
 
 A definition of the prerogative S 1 ^ 
 
 2. Definition of Parliamentary Privileges the Work of the fifteenth Cen- 
 
 tury : privileges belonging to parliament as a whole ; origin of the modern form 
 of legislation 518 
 
 Bills may originate in either house, except money bills and bills touching the peer- 
 age. Privileges belonging to the two houses separately all depend upon a single 
 code 519 
 
 Privileges of the lords ; right of audience with the sovereign ; presidency of the 
 chancellor ; right to vote by proxy ; right to be tried by peers, and freedom from 
 arrest 520 
 
 Privileges of the commons : right to elect a speaker ; his demand of the rights and 
 
 / privileges of the house 521
 
 CONTENTS. xxxix 
 
 The modern form of the demand and response. Freedom of speech : Haxey's 
 case 522 
 
 Young's case; Strode's case; case of Eliot, Holies, and Valentine . . . 523 
 
 Question finally settled by Bill of Rights. Supply made dependent upon redress of 
 grievances ; doctrine announced in the reign of Henry III. ; originally the grant 
 preceded the redress 524 
 
 Finally the grant is withheld until the petitions are answered. All money bills must 
 originate in the commons ; king shall not take notice of matters debated in par- 
 liament pending the debate 525 
 
 Right of the commons to regulate elections 526 
 
 The franchise regulated by statute in 7 Henry IV. ; the disfranchising statute of 
 8 Henry VI 527 
 
 The commons regulate by law the sheriffs procedure in elections ; right of the com- 
 mons to try contested elections 528 
 
 Right originally vested hi the king in council ; justices of assize given power to in- 
 quire into election returns 529 
 
 Right to determine validity of elections first asserted by the commons in the reign 
 of Elizabeth ; right finally settled hi the reign of James 1 530 
 
 Immunity of members of gemots and parliaments from personal molestation ; laws 
 of ^Ethelberht, Cnut, and Eadward 531 
 
 Statute of ii Henry VI. Exemption from legal arrest and distress; Thorpe's 
 case 532 
 
 Authority of the mace ; writs of privilege at first issued by the chancellor ; Ferrers' 
 
 case 533 
 
 The privilege as defined by statute in 1770. Right of conference with the lords . 534 
 
 3. The House of Lancaster 535 
 
 Its right to reign based upon a parliamentary title ; the succession four times reg- 
 ulated by parliament during the reign of Henry IV 536 
 
 Henry IV. and the church, the statutes against heresy ; state of the law prior to 
 the statutes 537 
 
 Wycliffe and the Lollards; statute of 1382 to which the commons did not as- 
 sent 538 
 
 The statute De Htzretico Comburendo, 1401 ; the final and most cruel statute 
 passed in 2d of Henry V. 539 
 
 Henry IV. and the commons ; their growing influence based upon the money 
 power 540 
 
 The right to make supply depend upon redress finally established ; two vitally im- 
 portant principles of constitutional law defined in 1407 541 
 
 4. The Continual Council 541 
 
 A standing committee of the great council ; can be traced as a definitely organized 
 body from the minority of Henry III. ; beginnings of the doctrine of ministerial 
 responsibility 542 
 
 Growth of the doctrine that the crown should be controlled by the council, and the 
 council by the parliament ; general scope of the council's duties ; its functions leg- 
 islative and judicial as well as executive . 543 
 
 The council daring the reigns of Edward II. and Richard II 544 
 
 The council after the accession of Henry IV. ; the commons request in 1404 that 
 the members of the council be appointed in parliament ; council thus appointed 
 upon the accession of Henry VI 545 
 
 Parliament imposes regulations upon the council and fixes the pay of its members ;
 
 xl CONTENTS. 
 
 the sworn and paid councillors come to be known as the " privy council," during 
 the reign of Henry VI 546 
 
 5. Origin of the Admiralty : office of admiral . .547 
 
 Beginnings of the navy ; Old-English fleets ; the Conqueror and the Cinque Ports ; 
 origin of the permanent fleet; the admiral as the president of the high court of 
 admiralty ; code of sea laws which defined its jurisdiction ; Laws of Oleron . 549 
 
 Encroachments of the admiralty court upon the common law tribunals, stat. 13 
 Rich. II., stat. 15 Rich. II., stat. 21 Hen. IV 550 
 
 Vice-admiralty courts in English colonies in America ; colonial governors made vice- 
 admirals ; admiralty jurisdiction as ultimately defined in the United States . . 551 
 
 6. Henry VI. and the Dynastic Struggle known as the War of the 
 
 Roses : Henry VI.'s the fourth minority since the Conquest .... 552 
 A parliamentary regency established ; the struggle for supremacy in the council . 553 
 
 Legitimation of the Beauforts 554 
 
 Beaufort, who in 1424 had been made chancellor, in 1441 became chief minister ; 
 Suffolk ; England loses her continental possessions ; the struggle between Som- 
 erset and York begins 555 
 
 Pedigree of Richard of York 556 
 
 An heir born to Henry VI., October, 1453 ; with the first battle of St. Alban's, May, 
 1455, civil war begins ; York becomes protector ; Margaret assumes the leader- 
 ship of the Lancastrian cause 557 
 
 Battle of Bloreheath, September, 1459 ; flight of York, Salisbury, and Warwick ; 
 
 York triumphs at Northampton, July, 1460, and states his claim to the crown . 558 
 A compromise which secures the succession to the house of York after Henry's 
 death ; York slain at Wakefield in December; Edward IV. seized the crown and 
 sceptre at Westminster, March 4, 1461, by virtue of his hereditary title . . 559 
 Decisive battle of Towton, March 29, 1461 560 
 
 7. Outline of the Constitution by Sir John Fortescue : all governments di- 
 
 vided into three classes 560 
 
 King of England a " rexpoliticus : " " Quod principi placuit legis habet vigorem " not 
 an English maxim ; limitations imposed upon the crown by the parliamentary 
 
 system 561 
 
 Parliamentary and jury systems the practical guarantees of liberty . . . 562 
 
 8. The House of York : its accession marks the beginning of a long period of re- 
 
 action 562 
 
 Collapse of the immature parliamentary system ; the monarchy powerless when 
 faced by a coalition of the three estates 563 
 
 Is emancipated through the decay of the estate system. Decline of the baronage : 
 Continental feudalism ; William's anti-feudal policy in England .... 564 
 
 Feudal anarchy of Stephen's reign; anti-feudal policy of Henry II.; scutage; 
 strength of the baronage as a military body 565 
 
 Baronage weakened by the breaking up of great estates through subinfeudation ; 
 an attempt to nourish the dying feudalism by an artificial process, giving of 
 liveries 566 
 
 Champerty and maintenance; heraldry 567 
 
 Badges of service become hereditary ; heralds incorporated into a court under the 
 earl marshal ; power of the baronage as a military force broken by the discovery 
 of gunpowder 568 
 
 The church loses its patriot spirit ; struggle between the crown and papacy re- 
 newed in the reign of Edward 1 569
 
 CONTENTS. xli 
 
 Stat. De Asportatis Religiosorum ; Stat. of Provisors ; stat. for the protection of 
 the king's court ; stat. 13 Rich. II.; Stat. of Praemunire 570 
 
 Growing wealth and influence of the clergy ; the Lollard revolt . . . .571 
 
 Statutes of heresy designed to protect the church's spiritual authority ; the church 
 threatened with confiscation 572 
 
 Alarmed by the double assault, the church sought shelter at the feet of the mon- 
 archy. Decline of the commons ; the lower house, at first a truly representative 
 body, ceased to be so through limitations of the franchise 573 
 
 Elected knights originally chosen by the whole shire community ; franchise fixed 
 upon a broad popular basis by stat. 7 Henry IV. ; stat. 8 Henry VI. the first dis- 
 franchising statute in English history 574 
 
 Tendency in the towns for the few to appropriate the franchises which were the 
 birthright of the many 575 
 
 Revival of the monarchy under Edward IV. ; forms of the older constitutional life 
 retained 576 
 
 Edward claimed that the Lancastrian kings were kings " de facto non de jure " . 577 
 
 Edward's policy of peace ; a sweeping bill of attainder and a life grant of the cus- 
 toms ; meetings of parliament grow less and less frequent 578 
 
 No statute in favor of liberty during Edward's reign ; benevolences. Expansion of 
 the judicial powers of the council .......... 579 
 
 Such powers first restrained, then expanded by statute ; scientific perfection of the 
 law in the reigns of Henry VI. and Edward IV 580 
 
 Its practical inefficiency due to the turbulence of the times ; extraordinary powers 
 of the council invoked for the preservation of order in the reign of Henry VI. ; 
 Edward IV. converts the council into an engine of tyranny ; jurisdiction of the 
 high constable 581 
 
 Constructive treason and torture ; bills of attainder and the procedure thereunder 582 
 9. Usurpation of Richard III. : declared protector on 4th May, and crowned 6th 
 
 July, 1483 583 
 
 Henry Tudor challenges the crown, his pedigree; his first attempt in October, 
 1483, unfortunate ; Richard's only parliament met in January, 1484 . . . 584 
 
 Statement of Richard's title blending the elective with the hereditary theories . 58 5 
 
 An outcry against the extortions and impositions of the preceding reign ; benevo- 
 lences forbidden and popular legislation enacted ; statute upon the subject of 
 uses ; tunnage and poundage and a subsidy on wool granted for life . . . 586 
 
 Fall of the house of York ; it establishes tyranny and yet fails to guarantee order 587 
 
 When invasion is threatened, Richard returns to the collection of benevolences ; 
 Henry lands at Milford Haven, August 7th ; battle of Bosworth fought in Leices- 
 tershire, August 22, 1485 588
 
 INTRODUCTION. 
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC OF THE UNITED 
 
 STATES. 
 
 1. As the Constitution of the United States embodies a The typical 
 federal union of political sovereignties whose separate exist- st af e the 
 ence is older than that of the Union itself, 1 the simplest prin- P^^,. 
 ciple of analysis indicates the fact, that, in order fully to federal sys- 
 grasp the nature of the composite whole, it is first necessary 
 
 to comprehend the nature of the units out of whose aggre- 
 gation it arose. Any exhaustive investigation into the struc- 
 ture of our federal system must necessarily begin with the 
 historical origin of the states that compose it. 2 The leading 
 and practical purpose of this treatise will be to unfold in one 
 unbroken story the gradual process of historical development 
 through which the typical English state in America the 
 political unit in our federal system came into existence. 
 
 2. A great French orator has said that " words are The state 
 things," and to this the philologist may add, that, like all 
 other human things, they are subject to the endless variations 
 which are brought about by the changes of time, place, and 
 circumstance. To the student of the " Science of Politics " 3 
 
 this truth is of paramount importance, for the reason that 
 the cardinal terms in which he has to deal often represent in 
 one age a train of ideas which completely vanish in another. 
 Of this fact the word " state " may be used as a striking illus- 
 tration. As employed in modern times the word "state" 
 presents to the mind a political conception which a states- 
 
 1 "They existed before it. They ville, Democracy in America (Bowen's 
 
 could exist without it." Bryce, The ed.), vol. i. pp. 73, 74. 
 American Commonwealth, vol. i. p. 14. 8 The word Politics is here used in 
 
 3 " To examine the Union before we the sense which it bears in the name 
 
 have studied the states, would be to of the famous work of Aristotle. In 
 
 adopt a method filled with obstacles, this sense it is used by Bagehot in his 
 
 . . . The great political principles Physics and Politics, by Pollock in his 
 
 which now govern American society History of the Science of Politics, and 
 
 undoubtedly took their origin and their by Freeman in his Comparative Pali- 
 
 growth in the state." De Tocque- tics.
 
 2 INTRODUCTION. 
 
 man of the ancient world could hardly have grasped, for the 
 reason that the political organization which we call the state 
 had, in the ancient world, no existence. In order clearly to 
 contrast the ancient conception of the state with that which 
 exists in modern times, it will be necessary to utilize the re- 
 sults of recent research into the early history of political in- 
 stitutions. By the marvellous discoveries which have been 
 made within the present century by the masters of the 
 science of language, a great flood of light has been shed upon 
 the earliest forms of social organization which existed in 
 those nations with whose history we are at all concerned. 
 Compara- Through the labors of the comparative philologists, not only 
 tive phi - j iag tne or jgi na i un ity o f the Aryan race been clearly estab- 
 lished, but its prehistoric language has also been so far re- 
 constructed as to distinctly indicate the stage of civilization 
 attained by it before the departure from the common Aryan 
 home. In the words of Peschel, "When the ancient vocab- 
 ulary of the primordial Aryan age is restored by collecting 
 the roots common to all the members, we at the same time 
 obtain an outline of the social condition of these nations 
 in the most ancient period." J This great revelation, which 
 in the history of the intellect has been called " the discovery 
 of a new world," 2 has been brought about by the applica- 
 tion of the comparative method to the study of language, 
 whereby the roots common to a large group of kindred 
 tongues have been traced back to a common source. But 
 the comparative method has not been confined to the study 
 of language only ; it has found a new and a broad field for its 
 operation in its application to the comparative study of politi- 
 cal institutions, of forms of government. Alongside of the 
 science of comparative philology a new science has lately 
 Compara- sprung into existence which has been styled comparative 
 tivepoiitics. p ij t i cs T O tne votary of this new science " a political con. 
 stitution is a specimen to be studied, classified, and labelled, 
 as a building or an animal is studied, classified, and labelled 
 by those to whom buildings or animals are objects of study. 
 We have to note the likenesses, striking and unexpected as 
 those likenesses often are, between the political constitutions 
 
 * Cf. Ent. Brit., gth ed. vol. viii. p. 622. the work of Fredrick Schlegel, in 
 2 See Max M tiller's comments upon Scienct of Language, p. 165.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 3 
 
 of remote times and places ; and we have, AS far as we can, 
 to classify our specimens according to the probable causes of 
 those likenesses." * The most valuable single result so far 
 attained by the application of the comparative method to the 
 study of political institutions is embodied in the discovery 
 that the unit of organization in all of the Aryan nations, unit of or- 
 from Ireland to Hindoostan, was the naturally organized asso- 
 ciation of kindred the family swelled into the clan which ? t mmu ' 
 in a settled state assumed the form of a village -community. 2 
 "The two things, in short, the clan and the village-community, 
 are the same thing, influenced only by those circumstances, 
 geographical or otherwise, which allow one clan or company 
 to adopt a more settled life, while another is driven to linger 
 in, or even to fall back upon a ruder state of things. The ycvos 
 of Athens, the gens of Rome, the mark or gemeinde of the 
 Teutonic nations, the village community of the East and, as I 
 have said, the Irish clan, are all essentially the same thing." 8 
 When we have firmly taken hold of this fact ; when we clearly 
 understand that the original unit of organization was the same 
 in all the Aryan nations, whether situated on the shores of the 
 Mediterranean or the Baltic, we have possessed ourselves of 
 the atom or unit, which, in different forms and different com- 
 binations, everywhere enters into the structure of the state. 
 
 Following the usual historical order, we naturally turn to The Greek 
 the Hellenic world, in which the science of politics was born, 
 in order to ascertain the elements of political organization 
 which there existed when authentic history begins. The 
 dominant political idea which we there encounter is embodied 
 in the independent city which stands towards all other cities 
 as a sovereign commonwealth whose internal affairs are regu- 
 lated by its own domestic constitution. When the internal 
 organization of such a city is examined, the fact is revealed 
 that the city-commonwealth is a composite whole, which has 
 arisen out of the aggregation of village communities. The 
 first stage in the aggregation is represented by the gather- 
 ing of a group of village communities or clans (yo/ea) into a 
 
 1 Freeman, Comparative Politics, p. The village -community is not, how- 
 23. In this brilliant work the name of ever, an exclusively Aryan possession, 
 the new science finds its origin. Maine, Early Hist, of Inst., p. 77. 
 
 2 Cf. Sir Henry Maine, Village-Corn- Comparative Politics > p. 102. 
 munities in the East and West, passim.
 
 4 INTRODUCTION. 
 
 brotherhood (<j>parpia) ; the second by the gathering of brother. 
 hoods into a tribe ; the last by the gathering of tribes into a 
 city. " Several families formed the phratry, several phratries 
 the tribe, several tribes the city. Family, phratry, tribe, 
 city, were, moreover, societies exactly similar to each other, 
 which were formed one after the other by a series of federa- 
 Oniycon- tions." 1 The aggregate thus made up, the independent city, 
 embodied the only practical conception of the state which ex- 
 
 isted in the Hellenic world. 2 To the Greek mind the state, 
 knic world, the city-commonwealth, was an organized society of men 
 dwelling in a walled city with a surrounding territory not too 
 large to allow its free inhabitants to habitually assemble 
 within its walls to discharge the duties of citizens. 3 In this 
 system of cities, internally organized after one general model, 
 Aristotle, were contained the political conditions with which Aristotle, 
 of e poUt?cai r the acknowledged founder of political science, 4 was brought 
 science. {^Q contact ; and, in obedience to his practical temper, he 
 begins his political speculations with a description of the 
 forms of government actually existing around him. It is 
 probable, that in order to collect sufficient data to support 
 the statements and conclusions contained in his Politics, he 
 made, as a preparatory study thereto, the collection called 
 the Constitutions, which is said to have contained a descrip- 
 tion of the organization, manners, and customs of one hun- 
 dred and fifty-eight states or cities. 6 However that may have 
 been, he informs us in the general introduction, which forms 
 the first book of his Politics, that the state differs from the 
 household only as to the number of its members, a fact which 
 will appear from an examination of its elements. Out of the 
 very necessities of social existence arise the relations of hus- 
 band and wife, parent and child, master and servant, and thus 
 the household is formed. Out of a union of households 
 
 1 De Coulanges, The Ancient City familiar with each other. ' 'Avayitalov 
 (Small's trans.), p. 168. See, also, yvuplfciv &\\-fi\ovs, irolol Tivts eicri, robs 
 Comparative Politics, p. 104. iroXiras. Pol., bk. vii. ch. iv. 13. 
 
 2 " During the most brilliant times 4 See Pollock, Hist. Science of Poli- 
 of the Greek Commonwealths, the tics, p. i. 
 
 City, and nothing higher or lower, was 6 The main body of materials thus 
 
 the one acknowledged political unit." collected has been lost, but the frag- 
 
 Comparative Politics, p. 83. ments which remain have been col- 
 
 8 Aristotle thought that a state lected and annotated by Neumann, and 
 
 should not be so large as to deny to are contained in Bekker's Oxford edi- 
 
 its citizens the opportunity to become tion of Aristotle.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 
 
 arises the village or tribe. Out of the union of villages or 
 tribes arises a community of a higher order, the state, which 
 is the natural and necessary completion of the process of ag- 
 gregation in which the family is the unit or starting point. 
 Neither the family nor the tribe is in itself sufficient for 
 all the wants of social existence; it is only in a union of 
 tribes the state that man finds the one form of life that 
 will fully develop all of his capabilities. The conclusion thus 
 attained is embodied in Aristotle's famous maxim that " man Man is 
 is born to be a citizen." The cityless 1 man (airoXis) the 
 natural man of Hobbes and Rousseau must be more or less 
 than man, either superhuman or a monster. Aristotle's 
 political reflections were confined in the main to the constitu- 
 tions of Greek states, and the typical Greek state was the in- 
 dependent city. It is true that sometimes a Greek city would 
 be reduced to a relation of bondage to another city, and it 
 would sometimes confederate upon equal or unequal terms 
 with other cities ; but there was never any such thing as ad- 
 mitting either subjects or allies to a common franchise, there 
 was never anything like a merger of the independent city 
 into a larger aggregation, which, in any proper political sense, 
 could be called a nation. 2 
 
 When we pass from the Greek to the Italian peninsula, The Italian 
 we there find the idea of the independent city to be the lead- 
 ing political idea, and we also find the Italian city to be the 
 resultant of the process of aggregation heretofore described 
 in which the village community or clan is the unit or starting 
 point. In Italy the village-community appears as the gens. 
 Out of the union of gentes arose the tribe, out of the union 
 of tribes arose the state or city-commonwealth. 3 But the 
 idea of the state as an independent city was never carried 
 out with the same completeness in Italy as in Greece, for the 
 reason that the Italian cities, which were generally smaller 
 than those of Greece, manifested a greater willingness to join 
 together in confederations. In this way the history of an- 
 cient Italy is far more a history of confederations than of 
 
 1 " He is the unit out of whom, if have stared and gasped." Pollock, 
 
 there be only enough of them, theorists Hist. Science of Politics, p. 9. 
 
 of the Social Contract school under- 2 Comparative Politics, pp. 84, 91, 92. 
 
 take to build up the State. This is an 8 See De Coulanges, The Ancient 
 
 enterprise at which Aristotle would City, pp. 131-146, 154-177.
 
 INTRODUCTION. 
 
 Extension 
 of the Ro- 
 man fran- 
 chise. 
 
 The state 
 as the na- 
 tion. 
 
 single cities. 1 And yet it was upon the soil of Italy that a 
 group of village communities grew into a single independent 
 city 2 that centralized within its walls the political power of 
 the world. The way in which Rome accomplished this mar- 
 vellous result was by departing from the exclusive policy of 
 the Greek cities, and by extending the right of Roman citi- 
 zenship alike to her conquered enemies and to her faithful 
 allies. The franchise of the Roman city was first extended 
 to Italy, then to Gaul and Spain, and finally to the whole Ro- 
 man world. 3 In the end a right so widely bestowed became 
 of course utterly worthless ; but the theory upon which the 
 right was conferred was never for a moment lost sight of. 
 The freeman who received the franchise of the Roman city 
 could only enjoy it within her own walls ; it was only within 
 the local limits of the ruling city that the supreme powers of 
 the state could be exercised. 4 And so whether we take for 
 illustration the exclusive Greek city, or the great Latin city 
 extending its franchise to all the world, the ancient concep- 
 tion of the state as the city - commonwealth stands forth 
 clearly and distinctly defined. 
 
 3. Out of the settlements made by the Teutonic nations 
 upon the wreck of the Roman Empire has gradually arisen 
 the modern conception of the state as a nation occupying a 
 definite area of territory with fixed geographical boundaries, 
 the state as known to modern international law. In the 
 Germania of Tacitus we have the contemporaneous observa- 
 tions of one of the greatest and most accurate of historians 
 upon the social and political organization of the Teutonic 
 race while yet in its childhood. By the aid of this invaluable 
 sketch it is possible to establish by direct and positive evi- 
 dence the existence of those primitive elements of organiza- 
 tion, common to the whole Aryan world, whose existence in 
 the Greek and Italian peninsulas can only be inferred from 
 
 1 " The Italian confederations had 
 from the beginning a closer union and 
 a nearer approach to national unity 
 than the later and more brilliant con- 
 federations of Greece." Comparative 
 Politics, p. 96. 
 
 2 Maine, Early Hist, of Inst., p. 84. 
 
 8 Guizot, Hut. Rep. Govt.,pp. 181,182. 
 As to the edict of Antoninus Caracalla, 
 
 extending the privilege of Roman citi- 
 zenship to all the free inhabitants of 
 the empire, see Maine, Ancient Law, 
 p. 139; Gibbon, Decline and Fall, vol. 
 i. pp. 185, 193, 194. 
 
 * " Within the walls of Rome alone 
 could be consummated all the acts of 
 a Roman citizen." Guizot, Hist. Rep. 
 . 184.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 
 
 traces and survivals. In the words of Sir Henry Maine, 
 "As societies do not advance concurrently, but at different 
 rates of progress, there have been epochs at which men 
 trained to habits of methodical observation have really been 
 in a position to watch and describe the infancy of mankind. 
 Tacitus made the most of such an opportunity." l According 
 to his account the race now called Teutonic, although of the 
 same physical type, and speaking the same language, and 
 although possessed of a common mythology, and a common 
 system of social, political, and military institutions, did not 
 possess in its own tongue a common name by which to de- 
 scribe the race as a whole, nor any form of central political 
 organization. 2 This homogeneous race was broken up into 
 an endless number of political communities or tribes which 
 stood to each other in a state of complete political isolation, 
 except when united in temporary confederacies. The typical 
 Teutonic tribe the civitas of Caesar and Tacitus repre- Teutonic 
 sented an aggregation of hundreds, while the hundred rep- ^' a ~ f 
 resented an aggregation of village-communities. 3 The spot c^sarand 
 inhabited by the village community is called in German muni- 
 ments the mark, an area of land marked out and defined The mark. 
 by settled boundaries. The absolute ownership of the terri- 
 tory embraced within the mark was vested in the community 
 itself, or in the state of which the mark was a part, while the 
 right to its common enjoyment was vested in its qualified 
 members. Territorially the mark was divided into three 
 parts, the village lands, the arable lands, and the common 
 or waste lands. In the centre of the mark was situated the 
 village in which the markmen dwelt in their homesteads, sur- 
 rounded by inclosures and out -houses. The possession of 
 such a homestead was evidence of the fact that its possessor 
 was a fully qualified member of the mark, and as such en- 
 titled to a full share in the enjoyment of every right that be- 
 longed to any other member of the community. The arable 
 mark was usually divided into three great fields, whose culti- 
 vation was regulated by a system of minute and complicated 
 rules, while the use of the woods, pastures, and meadows was 
 enjoyed in obedience to a scheme of strict proportion. The 
 
 1 Ancient Law, p. 116. * See below, bk. i. ch. ii. c. 5. 
 
 2 Tac. Germania, cc. 1-4.
 
 8 INTRODUCTION. 
 
 internal affairs of the mark were regulated by a village coun- 
 
 cil or mark-moot in which every markman had his place. In 
 
 the assembly of the mark was transacted all business which 
 
 arose out of the system of common cultivation, and out of 
 
 Parallel be- the enjoyment of common rights. 1 The parallel between the 
 
 Teuton^ Teutonic, the Greek, and the Latin tribe seems to be com- 
 
 The y/os, the gens, the mark represent the same 
 thing the village- community ; while the foarpia, the curia, 
 the hundred seem to represent the same thing a group or 
 union of village-communities. 2 Out of the aggregation of such 
 intermediate groups or hundreds arose the tribe itself. But 
 here the parallel ceases. In the Mediterranean peninsulas the 
 resultant of a union of tribes was the city-commonwealth, 
 in Teutonic lands the resultant of a union of tribes was not a 
 city at all but a nation. 3 In ancient Greece and Italy the city 
 became the heart, the centre of social and political life ; while 
 in countries inhabited by the Teutonic race the idea of the 
 city never became dominant. The Teutonic city, if it was to 
 be found at all, was simply the dwelling-place of part of the 
 nation who were in no wise privileged above those who dwelt 
 beyond its bounds. At the time Tacitus wrote the typical 
 Teutonic tribe (civitas) was a distinct commonwealth, the lar- 
 gest and highest political aggregate. Not until nearly a hun- 
 Teutonic dred years later were these scattered tribes gathered into 
 eredhfto larger wholes into nations. 4 When this stage was reached, 
 nations. w hen tribes were fused into the higher political unit the 
 nation the primitive Teutonic conception of the state or 
 commonwealth widened into its full and final development. 
 But another stage of growth had yet to be passed before the 
 new unit, which thus arose out of an aggregation of tribes, 
 reached the full modern conception of the state as a nation 
 possessing a definite portion of the earth's surface with fixed 
 geographical boundaries. The fact must be borne in mind 
 that the primary bond which united the people who composed 
 a Teutonic nation was a personal one, the national king 
 
 1 For the authorities as to the prim- at all." Ibid., p. 101. "In Greece and 
 itive Teutonic mark, see below, bk. i. Italy the union of tribes formed only 
 ch. ii. c. 7. the city ; among all the branches of 
 
 2 Comparative Politics, pp. 102-105,117. the Teutonic stock the union of tribes 
 8 " The Teutons passed from the tri- formed the nation." Ibid., p. 120. 
 
 bal stage into the national stage with- * Zeuss, Die Deutschen und die Nock 
 out ever going through the city stage barstdmme, pp. 303, 304.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 9 
 
 was first among the people, the embodiment of the national 
 being, but not the king of a particular area or region of ter- 
 ritory. The idea of sovereignty was not associated in the 
 Teutonic mind with dominion over a particular portion or 
 subdivision of the earth's surface. The Merovingian line of Tribal sov- 
 chieftains were not kings of France, they were kings of the a 
 Franks ; Alaric was king of the Goths wherever the Goths 
 happened to be, whether upon the banks of the Tiber, the 
 Tagus, or the Danube. 1 The leading idea which seems to 
 have prevailed among the conquering nations who settled 
 down upon the wreck of Rome was that they were simply 
 encamped upon the land whose possession they had won. 
 The conception of sovereignty which the Teutons brought 
 with them from the forest and the steppe was distinctly tri- 
 bal or national and not territorial. The general nature of the 
 transition whereby the primitive notion of tribal sovereignty 
 was gradually superseded by that of territorial sovereignty 
 has been described as a movement from personal to territo- 
 rial organization ; 2 from a state of things in which personal 
 freedom and political right were the dominant ideas to a state 
 of things in which those ideas have become bound up with 
 and subservient to the possession of land. 8 The most striking Territorial 
 single result of the transition, which, for the want of a bet- 
 ter term, has been called " the process of feudalization," 4 f, 
 
 is that the elective chief of the nation, the primitive embodi- cess of feu- 
 ment of the tribal sovereignty, is gradually transformed into 
 the hereditary lord of a given area of land. The new con- 
 ception of sovereignty, which thus grew out of " the process 
 of feudalization," did not become established, however, until 
 after the breaking up of the empire of Charles the Great, 
 out of whose fragments have arisen most of the states of 
 modern Europe. The completion of the transition is marked 
 by the accession of the Capetian dynasty in France. When 
 the hundred years' struggle between the Dukes of Paris and 
 the descendants of Charles the Great ended in the triumph 
 of Hugh Capet, he not only assumed the dynastic title of 
 
 1 Maine, Ancient Law, p. 100 ; Free- * Stubbs, Const, Hist., vol. i. p. 166. 
 man, Norm. Conq., vol. i. p. 53. * Maine, Village Communities, lee- 
 
 2 Palgrave, Eng. Commonw. t pt. i. ture v. "The Process of Feudaliza- 
 p. 62. tion " is its title.
 
 10 INTRODUCTION. 
 
 King of the French, but he also styled himself King of 
 France. 1 Hugh Capet and his descendants were kings in the 
 new territorial sense ; they were kings who stood in the same 
 relation to the land over which they ruled as the baron to his 
 estate, the tenant to his freehold. The form thus assumed 
 by the monarchy in France was reproduced in each subse- 
 quent dominion established or consolidated ; and thus has 
 arisen the state-system of modern Europe in which the idea 
 of territorial sovereignty is the basis of all international rela- 
 tions. 2 The modern conception of the state is, therefore, an 
 outgrowth of " the process of feudalization " through which 
 the Teutonic nations passed after their settlement within the 
 limits of the Roman Empire. 
 
 Growth of 4- Amongst all the states that have arisen out of the set- 
 the English tlements made by the Teutonic nations on Roman soil, there 
 
 kingdom. * 
 
 is not one whose political life has remained more pure, or 
 whose political development has been more persistent or 
 more unbroken than that of the English kingdom. This 
 condition of things has arisen in the main out of the special 
 circumstances under which the Teutonic settlements in Britain 
 were made. In the first place the very physical difficulties 
 that had to be met and overcome impressed upon the Teutonic 
 invasion of Britain a character and form at once local and 
 peculiar. The invaders were compelled to cross the sea in 
 ships, and their sea craft and war craft could only transport 
 bodies of men more or less numerous, and not great armies 
 of invasion by which the whole land could be suddenly over- 
 run. All the evidence goes to show that the Teutonic invad- 
 ers came into Britain in disconnected bands, more or less 
 numerous, each under its own leader, who singled out some 
 
 1 " The important change occurred Francorum and Rex Francia was other 
 when the feudal prince of a limited ter- than right in a general way. Those 
 ritory surrounding Paris began, from things came in gradually. Rot de 
 the accident of his uniting an unusual France comes in pretty early, as early 
 number of suzerainties in his own per- as Wace. I doubt whether Rex Fran- 
 son, to call himself King of France, at cite is ever used, till Hen. IV's Rex 
 the same time that he usurped from the Francice et Navarra, as a formal Latin 
 earlier house their dynastic title of title." See also Norman Conquest, vol. 
 Kings of the French." Maine, A nt;ient i. Appendix, note M, p. 395. 
 Law, p. 104. 2 Upon this whole subject of " terri- 
 
 Mr. Freeman was at first inclined to torial sovereignty," and its relations to 
 
 challenge this statement. He has since modern international law, see Mainq 
 
 written me as follows : " I should not Ancient Law, pp. 99-108. 
 say that what Maine says about Rex
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. II 
 
 special district of country for conquest and settlement. Such 
 a leader, with the limited force at his command, necessarily 
 circumscribed his efforts to a narrow area, from which by 
 dint of hard fighting he was obliged to drive the Celtic 
 masters of the soil. In this way, bit by bit, the land was 
 won. Moving from the south, the east, and the northeast, 
 the invaders drove the Britons slowly to the west. The 
 struggle from its very nature was a bitter one. Invasion no "The Teu- 
 longer signified, as upon the Continent, forcible intrusion, theory." 
 it became, within the districts which the conquerors made 
 their own between the middle of the fifth century and the 
 end of the sixth, practically equivalent to extermination. 
 " The plain fact is that, in utter contrast to the phenomena 
 of Teutonic conquest on the mainland, the Britons were, as 
 a race, exterminated within those parts of Britain which 
 the English occupied while they were still heathens. . . . 
 How far in any particular district the vanquished were slain, 
 how far they were simply driven out, we never can tell. It 
 is enough that they were exterminated, got rid of in one way 
 or another, within what now became the English border." 1 
 " Though the literal extirpation of a nation is an impossibility, 
 there is every reason to believe that the Celtic inhabitants of 
 those parts of Britain which had become English at the end of 
 the sixth century had been as nearly extirpated as a nation 
 can be. The women would, doubtless, be often spared ; but, 
 as far as the male sex is concerned, we may feel sure that 
 death, emigration, or personal slavery were the only alter- 
 natives which the vanquished found at the hands of our 
 fathers." 2 Under such favorable conditions as these the 
 whole fabric of Teutonic life was replanted in a practically 
 free and unincumbered soil. In a state of pure barbaric 
 
 1 Freeman, The English People in its Green, Making of England, p. 132. 
 Three Homes, p. 133. For the contrary view see, as to the 
 
 2 Norman Conquest, vol. i. p. 18, survival of Roman civilization, Coote's 
 3d ed. As Mr. Freeman is now gener- Romans of Britain (1878); as to the 
 ally regarded as the champion of " the permanence of the Celtic race, Pike's 
 Teutonic theory," I have preferred to Origin of the English ; as to Celtic 
 state it in his own language. His influence upon language, Kennedy, 
 latest utterance upon the subject is Ethnological and Linguistic Essays 
 contained in his Four Oxford Lectures, (1861) ; as to "The Welsh Element in 
 1887, in which he quotes both of the English Law," Law Magazine and Re- 
 passages given in the text. See his view, No. cclviii. Nov., 1885; Taswell- 
 lecture on Teutonic Conquest in Gaul Langmead, Eng. Const, Hist., pp. 2, 3, 
 and Britain, pp. 61-112. See also and notes.
 
 1 2 
 
 INTRO D UCTION. 
 
 Teutonic 
 
 tions of the 
 life. 
 
 The town- 
 
 Earliest 
 
 tive printi- 
 
 pic 
 
 The primi- 
 
 heathenism the invaders passed, without intermediate proba- 
 tion, from their seats in the far north to their island home, 
 bearing with them in their blood and bone the primeval 
 polity of the fatherland. The details of the process by which 
 the old Teutonic polity was transferred to Britain are not 
 recorded, but from the state of things which is found to exist 
 when authentic history begins the conclusion is irresistible 
 that the Teutonic settlements in Britain were a substantial 
 reproduction of the older state of things described in the 
 Germania. The chain of evidence upon which this conclu- 
 s ion rests, " no criticism is strong enough or sharp enough to 
 sever." 1 The village community which appears in Germany 
 as the mark, reappears as the tun or township in Britain, 
 where it becomes the "unit of the constitutional machinery." 2 
 The township, like the mark, is at once a cultivating and a 
 political community, and in its qualified members resides the 
 power to order their own village and agricultural life. This 
 power is vested in the village assembly or tun-moot in which 
 the townsmen regulate the internal affairs of the township by 
 the making of by-laws, a term which is said to mean laws 
 enacted by a "by," as the township was called in the northern 
 shires. The tun-moot elected its own officers, and also pro- 
 vided for the representation of its interests in the courts of 
 the hundred and the shire, where the gerefa and four discreet 
 m en appeared for the township. In this arrangement appears 
 tne earliest form of the representative principle. " In these 
 four discreet men sent to speak for their township in the old 
 county assembly, we have the germ of institutions that have 
 ripened into the House of Commons and into the legislatures 
 of modern kingdoms and republics. In the system of repre- 
 sentation thus inaugurated lay the future possibility of such 
 gigantic political aggregates as the United States of America." 8 
 Out of a union of townships arose the hundred, out of a union 
 of hundreds arose the primitive rice or kingdom, the 
 civitas of Caesar and Tacitus. 4 But before the historic period 
 begins these primitive states in which the settlers originally 
 grouped themselves have ceased to exist as independent com- 
 
 1 Stubbs, Const. Hist., vol. i. p. 71. 
 3 Ibid., vol. i. p. 82. 
 
 8 John Fiske, American Political 
 Ideas, p. 71. 
 * Stubbs, Const. Hist., vol. i. p. i T .
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 13 
 
 munities, they have become bound up in seven or eight 
 larger aggregates generally known as the heptarchic king- The hep- 
 doms. These larger aggregates were finally fused into a kingdoms, 
 single consolidated kingdom, which is the ultimate outcome 
 of the process of aggregation in which the local, self-govern- 
 ing communities descend in status without the loss of their 
 autonomy. The consolidated kingdom represents an aggre- The consoi- 
 gation of shires ; the shire an aggregation of hundreds ; the 
 hundred an aggregation of townships. Upon the sub- 
 structure thus made up of local, self-governing communities 
 the English political system has ever depended for its per- 
 manency, its elasticity, its enduring power. In every one of 
 these communities the idea of local self-government was 
 intensely developed, and in their very structure were im- 
 bedded, from the beginning, the germs of the representative 
 system. And from the tendency conscious or uncon- 
 scious upon the part of Englishmen to reproduce these 
 self-governing communities in other lands has resulted the 
 ascendancy and power of the English nation as a colonizing 
 nation. The entire fabric of the new society out of whose New sod- 
 political elements arose in Britain the constitution of the 
 consolidated kingdom was purely Teutonic. Its language 
 was made up of a set of dialects of the Low German ; the only 
 religion which it possessed was the religion of Woden ; its 
 only conception of government and law was a purely Teutonic 
 conception. The witness of language, of religion, and of 
 law all point to the one irresistible conclusion that, within 
 the limits which they made their own, the conquerors of 
 Britain " created a Germany outside of Germany." J The old 
 Teutonic constitution was thus replanted in its purity in the 
 free and unincumbered soil of an island world, where it has 
 been able to work out its historic development in a state of 
 comparative isolation. So deeply were its foundations laid 
 in its island home that it has been able to survive, and to 
 preserve its identity, through all the vicissitudes of time and 
 of change through which it has passed. In the political 
 history of the world the Teutonic constitution, which thus 
 matured on British soil, occupies the foremost place for two 
 
 1 Taine, Hist, of Eng. Literature, Teutonic conquest and settlement of 
 vol. i. p. 50. Upon the subject of the Britain, see ch. Ui. bk. I
 
 14 INTRODUCTION. 
 
 reasons. In the first place, it has had the most continuous 
 and unbroken development ; in the second place, out of that 
 unbroken development has been evolved the most important 
 political principle with which the world has so far become 
 acquainted the principle of representative government. 
 Represen- Of this principle, which has been justly called a Teutonic 
 dpieVreu- invention, the ancient world knew practically nothing. 1 The 
 tion C inven poetic 3 -! systems of all the Teutonic nations, as they appear 
 to us when written history begins, contained germs of the 
 representative principle, germs which were imbedded in the 
 organization of their local, self-governing communities. And 
 in every one of the modern European states that have arisen 
 out of the settlements made by the Teutonic nations on 
 Roman soil a serious attempt has been at some time made in 
 the direction of representative government. But the remark- 
 able fact is that in every Continental state in which such an 
 attempt was made, it ended at last in failure and disappoint- 
 Representa- ment. By the sixteenth century every effort in the direction 
 f representative government upon the Continent of Europe 
 
 out every- had come to an end. 2 In England only among the Teutonic 
 
 where but , . , , -r^ i i 
 
 in England, nations did the representative system survive ; in England 
 only has the representative principle been able to maintain a 
 continuous existence. In this way the English nation has 
 been able to hand down the representative principle from the 
 barbarian epoch to modern times ; in this way England has 
 become the " mother of parliaments " the teacher of the 
 science of representative government to all the world. Since 
 the date of the French Revolution nearly all the states of 
 continental Europe have organized national assemblies after 
 the model of the English Parliament in a spirit of conscious 
 imitation. 3 
 
 1 " It is the great political invention This epoch lasts from the sixteenth 
 of Teutonic Europe, the one form of po- century to the French Revolution." 
 litical life to which neither Thucydides, Guizot, Hist. Rep. Govt., p. 258. See 
 Aristotle, nor Polybios ever saw more also p. 15. 
 
 than the faintest approach." Freeman, 8 "The British political model was 
 
 Hist. Fed. Govt., vol. i. p. 67. followed by France, by Spain and Por- 
 
 2 " In the fourth period, on the Con- tugal, and by Holland and Belgium, 
 tinent, all efforts towards a represen- combined in the Kingdom of the Neth- 
 tative system have failed or almost erlands ; and, after a long interval, by 
 entirely disappeared; pure monarchy Germany, Italy, and Austria." Maine, 
 prevails. England alone decidedly Popular Govt., p. 13. 
 
 obtains a constitutional government.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 15 
 
 5. In our own land the case is far otherwise. The repre- Growth of 
 sentative systems which sprang up as a part of the constitu- colonies 1 in 
 tional machinery of the several provincial states founded by Amenca - 
 English settlers upon American soil were in no proper sense 
 the result of imitation. Like the states themselves of which 
 they were a part, they were the predestined product of a 
 natural process of reproduction. 1 The constitutional history 
 of these provincial states does not begin with the landing of 
 the English in America in the seventeenth century, but with 
 the landing of the English in Britain in the fifth. 2 The 
 English emigrants who founded upon the eastern coast of 
 what is now the United States a group of colonial common- 
 wealths brought with them in their blood and bone, and in a 
 matured form, that peculiar system of political organization 
 which had been slowly developing in the mother country for 
 centuries. They brought with them ready made the lan- 
 guage, the law, the institutions of the old land to be modified 
 and adapted to the changed conditions of the new. The 
 settlements made by the English colonists in America in the 
 seventeenth century were in all material particulars substan- 
 tial reproductions of the English settlements made in Britain 
 in the fifth. In both instances the settlers crossed the sea 
 in ships in small companies, and in both lands they grouped 
 themselves together in distinct and practically independent 
 self-governing communities. 3 
 
 The tide of Aryan migration, from which has been peopled 
 both the Old World and the New, has traversed no land in 
 its whole westward course more capable of supplying all of 
 the varied wants of a great and growing nationality than that fects upon 
 in which the English settlers in America made their homes, ^ 
 The vast expanse of territory now embraced within the limits 
 of the United States offered to the European emigrant not 
 only nearly every variety of soil and climate to which he had 
 
 1 " The local assemblies in which 2 Freeman, The English People in its 
 
 the colonists were represented ' were Three Homes, p. 360. 
 
 not formally instituted, but grew up by 8 " Wherever the Anglo-Saxon race 
 
 themselves, because it was in the na- has gone, wherever they have carried 
 
 ture of Englishmen to assemble.' " their language and laws, these commu- 
 
 Maine, Pop. Govt., p. 223. Hutchinson nities, each with a local administration 
 
 says, "This year (1619) a House of of its own selection, have gone with 
 
 Burgesses broke out in Virginia." See them." Mr. Justice Brown, in The 
 
 Seeley, The Expansion ofEng., p. 67. People v. Draper , 15 N. Y. pp. 532, 562.
 
 1 6 INTRODUCTION. 
 
 been accustomed in the Old World, but it also offered him 
 easy access to its heart through a system of mighty water- 
 ways navigable through nearly their entire course. The fact 
 that most of the navigable rivers of America flow eastward 
 made the new land easily accessible from the Atlantic to 
 those who had once passed the difficulties and perils of its 
 navigation westward. In addition to such inducements as 
 these America also offered to the European emigrant a new 
 and cheap source of bread with which to sustain the begin- 
 struggiefor nings of life in the wilderness. 1 Early in the sixteenth 
 EeTween 011 centur y a spirited competition began between England, 
 England, France, and Spain for the possession of that part of North 
 
 France, and . . , . , . . 
 
 Spain. America which is bounded on the north by the great lakes 
 and the St. Lawrence, on the south by the Gulf of Mexico, 
 on the west by the Mississippi, and on the east by the 
 Atlantic. The results of the first period of struggle for the 
 possession of the heart of the New World may be summed 
 up in the assertion that while Spain succeeded in securing a 
 footing upon its southern, and France upon its northern 
 border, every attempt at settlement made by Englishmen in 
 America during the sixteenth century ended before its close 
 in failure and disappointment. The only circumstance from 
 which England could draw any consolation whatever was 
 embodied in the fact that while her rivals had secured a 
 precarious hold upon Canada and Florida, their mutual hos- 
 tilities and contentions 2 had prevented either from entering 
 into possession of the vast and priceless central district in 
 which the English settlements of the seventeenth century 
 were destined to be established. During that period it was 
 that the permanent English settlements in America were 
 made which were finally incorporated in the thirteen colonies 
 that grew into the Federal Republic of the United States. 
 European ^ n order to regulate the competition for the possession of 
 nations the New World, and to avoid conflicting settlements, and 
 
 agree that 
 
 discovery consequent war with each other, the European nations agreed 
 " to establish a principle which all should acknowledge as the 
 law by which the right of acquisition, which they all asserted, 
 
 1 As to the "Effects of the physio- 2 See Doyle, English Colonies in 
 graphy of North America on men of Am., Virginia, etc., p. loo. 
 European origin," see Narrative and 
 Critical Hist, of Am., vol. iv. pp. x.-xxx.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 17 
 
 should be regulated as between themselves. This principle 
 was that discovery gave title to the government by whose 
 subjects, or by whose authority, it was made, against all other 
 European governments, which title might be consummated by 
 possession." 1 The principle thus established assumed that 
 the Indian tribes found upon the soil were mere temporary 
 occupants. According to the theory of the English constitu- 
 tion the title to all newly-discovered lands accrued to the 
 king in his public and regal character, and the exclusive right 
 to grant them resided in him as a part of the royal preroga- 
 tive : " upon these principles rest the various charters and 
 grants of territory made on this continent." 2 The claim of English 
 the English crown to the territory upon which the English uTda 
 settlements in America were made was based upon the voy- 
 ages of the Cabots made along the American coast during Cabots. 
 the years I49/-98. 3 The first patent issued to the Cabots 
 the oldest surviving document connecting the old land with 
 the new 4 gave to the patentees the right to sail under the 
 royal ensign, and to set up the royal banner in any newly dis- 
 covered land as lieutenants and vassals of the king. The 
 inchoate right thus acquired by discovery at the close of the 
 fifteenth century did not ripen into a perfect title until early 
 in the seventeenth, when the permanent English settlements 
 in America were made. The great title-deed under which The great 
 the English settlers in America took actual and permanent 
 possession of the greater part of the Atlantic seaboard is 
 represented by a charter granted by James I. on the roth l6 6 
 April, 1606, to certain patentees, wherein he created two 
 distinct corporations; and then, in the same document, 
 granted to the one known as the London Company the sec- 
 tion of North American seacoast lying between 34 and 38 
 N. lat. ; and to the other known as the Plymouth Company 
 the section lying between 41 and 45 each grant having 
 an indefinite western extension. The intervening expanse, 
 lying between 38 and 41, was placed as a march or border 
 
 1 Marshall, C. J., in Johnson v. Me- * This document, which is dated C 
 Intosh, 8 Wheat, p. 573. March, 1495 ('496 new st y' e )' is printed 
 
 2 Taney, C. J., in Martin et al. v. The in the Hakluyt Society's edition of the 
 Lessee of Waddell, 16 Peters, p. 409. Divers Voyages, and in Rymer's Fat 
 
 8 See Nar. and Crit. Hist, Am., vol. dera. 
 iii. pp. 1-58.
 
 iS 
 
 INTRODUCTION. 
 
 The Lon- 
 don Com- 
 pany and 
 its work. 
 
 The Plym- 
 outh 
 
 Company 
 and its 
 work. 
 
 land between the domains of the two companies, and its 
 common use was made subject to the limitation that neither 
 should plant a colony within a hundred miles of one pre- 
 viously made by the other. 1 Although the two corporations 
 thus intrusted with the mighty work of English colonization 
 in the New World a work which in the hands of private 
 adventurers had been so singularly unfortunate were short 
 lived, the fact remains that during the brief period of their 
 existence they not only established representative government 
 upon American soil, but they also brought about the founding 
 of two typical settlements which have moulded the whole 
 after course of American history. Under the auspices of the 
 London or Southern Company was founded in 1607 the Vir- 
 ginian settlement at Jamestown the first permanent settle- 
 ment made by Englishmen upon the soil of the New World. 
 Twelve years later (1619) the management of the London 
 Company passed into the hands of liberal-minded men at home 
 who gave to the infant colony the right to convene the first 
 American representative assembly. 2 Five years later (1624) 
 the charter of this company, which had thus made its impress 
 upon all time, was brutally revoked through a legal judgment, 
 which was " one of the earliest of those efforts in which the 
 Stuart reigns were so fruitful, efforts to wrest the process 
 of law to the arbitrary purposes of the crown." 3 Out of the 
 vast territory originally granted to the London Company 
 were carved the domains finally distributed between the five 
 southern colonies of Virginia, Maryland, North Carolina, 
 South Carolina, and Georgia. 4 Under a license obtained 
 from the Plymouth or North Virginia Company a Puritan 
 settlement was established in 1620 at Plymouth, in the south- 
 eastern part of what is now the State of Massachusetts, by a 
 
 1 This charter may be found in Char- 
 ters and Constitutions, compiled under 
 the order of the U. S. Senate, by Ben : 
 Perley Poore, part ii. p. 1888. It is 
 also contained in Stith, and in Hazard's 
 ffist. Collections. 
 
 2 The manuscript proceedings of 
 this assembly, contained in the State 
 Paper Office, London, were published 
 in 1874 as a State Senate Document, 
 Colonial Records of Virginia, with 
 notes by T. H. Wynne. They were 
 
 first published in 1857 in the Collec- 
 tions of the N. Y. Hist. Society. 
 
 8 Doyle, English Colonies in America, 
 Virginia, etc., p. 182. 
 
 4 I will here refer once for all to the 
 admirable article upon the United 
 States " Part I. History and Consti- 
 tution " in Enc. Brit., Qth ed., by 
 Prof. Alexander Johnston, of Princeton, 
 to whom I am indebted for several 
 valuable suggestions.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 19 
 
 band of separatists from the English Church, who had for a 
 time dwelt in Holland, prior to their final departure from the 
 mother country to their New England home. North of the 
 Plymouth settlement was established at a little later day 
 another, by men of the same general creed, but of a broader 
 culture, which, in March, 1629, was incorporated by royal 
 charter under the name of the Governor and Company of 
 Massachusetts Bay in New England a charter which was 
 obtained in order to put at rest any difficulty as to the title of 
 the colony originally derived from a grant made to it by the 
 Council of New England. 1 After establishing the colony of 
 Massachusetts Bay, into which the Plymouth settlement was 
 finally incorporated, 2 the North Virginia Company in June, 
 1635, surrendered its charter to the crown, and out of the 
 territory which had been granted it were carved the domains 
 finally distributed between the four northern colonies of Mas- 
 sachusetts, Connecticut, Rhode Island, and New Hampshire. 
 Out of the march or border land, fixed between the territories 
 of the London and Plymouth Companies by the original grant 
 of 1606, were carved the domains of New York, New Jersey, 
 and Pennsylvania, from the last of which was clipped the 
 State of Delaware. In this wise the heart of North America, 
 which passed to the English crown by right of discovery, was 
 granted, as any royal manor might have been granted, 3 first, 
 to the two trading companies created by the charter of 1606, 
 and, after their dissolution, to the thirteen colonies which 
 united in the making of the Declaration of Independence. 4 
 
 The soil upon which the English colonies in America were The soil 
 planted was granted to them as terra regis by the English the^oiontes 
 crown ; it was not granted to them as folkland by the English ^ ^ and 
 
 parliament. 6 The charters under which the colonial govern- not .ty the t 
 
 parliament 
 
 1 For the history of these settle- ters were issued to two companies of 
 
 ments, see Nar. and Crit. Hist., vol. English adventurers. One of these 
 
 iii. pp. 219-384. charters is the root of English title to 
 
 a October, 1691. the East, and the other to the West. 
 
 8 The language of the charter is, One of these companies has grown 
 
 " To be holden of us, our heirs and into the Empire of India ; the other 
 
 successors, as our Manor of East- into the United States of North Amer- 
 
 Greenwich, in free and common socage, ica." The Am. Common.., Bryce, 
 
 and not in capite." vol. i. p. 416. 
 
 * " Within the period of ten years, 6 See Essays in A. S. Law, pp. 91- 
 
 under the last of the Tudors and the 93, 98-100. 
 first of the Stuarts, two trading char-
 
 20 
 
 INTRODUCTION. 
 
 Colonies 
 mere cor- 
 porations 
 with char- 
 ters irrevo- 
 cable as to 
 the crown. 
 
 The royal 
 colonies 
 Virginia. 
 
 ments were organized were likewise royal grants ; they were 
 not concessions from the English legislature. In contempla- 
 tion of English law the whole group of colonial governments 
 in America created or confirmed by royal charters were mere 
 corporations created by the king, and subject like all others 
 of their kind to his visitorial power, and to the power of his 
 courts to dissolve them in a proper case presented for that 
 purpose. 1 Until some cause of forfeiture arose, the grant, 
 as between the crown and the patentees, was irrevocable, it 
 being the settled doctrine of English law that after a grant 
 of corporate powers made by the crown had been once ac- 
 cepted, the crown could not resume the grant without the con- 
 sent of those in whom its privileges had been vested. 2 The 
 irrevocable rights thus acquired by the colonists as against 
 the crown were revocable, however, at the hands of the 
 parliament. Under the theory of the English constitution, 
 then as now, " Its power is legally speaking illimitable. It 
 may create, and abolish, and change, at its pleasure, with or 
 without the assent of the people or corporation to be thereby 
 affected." 3 A practical illustration of the exercise of this 
 parliamentary power may be found in the famous Municipal 
 Corporations Reform Act of 5 and 6 Will. IV., by which the 
 whole English municipal system was reorganized and reestab- 
 lished. Subject to this illimitable power of the Imperial 
 parliament the English crown organized upon the soil of the 
 New World a group of colonial governments, whose differences 
 of internal organization, and whose greater or less dependence 
 upon the crown, distinguished them broadly from each other. 4 
 Those colonies to which the crown gave most sparingly the 
 right to regulate their own affairs are generally known as 
 royal colonies, a typical representative of which may be 
 found in the Colony of Virginia, whose early constitutional 
 growth happily illustrates the general process of evolution 
 through which the most dependent of the English settlements 
 in America was rapidly transformed from a servile corporation 
 
 1 The charter of Massachusetts was 2 Cf. Dillon, Municipal Corporations, 
 
 cancelled in 1684 by the crown judges vol. i. p. 109, ad ed., and cases cited, 
 
 in a proceeding begun by scire facias 8 Ibid., p. 1 10. 
 
 (Palfrey's New Eng., vol. iii. pp. 391- * See Fiske's classification of the 
 
 393) ; that of Virginia, by a legal judg- colonial governments, The Critical Pe- 
 
 ment rendered in 1624. riod, etc., p. 65.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 21 
 
 into a self-governing state organized upon the model of the 
 English kingdom. The government of the London Company, 
 whose charter granted by James I. in 1606 contained the 
 germs of the Virginian constitution, was vested in a resident 
 council of thirteen appointed by the crown who were author- 
 ized to choose their own president, and to govern "according 
 to such laws, ordinances, and instructions, as shall be in that 
 behalf given " by the king. This resident council was subject 
 to the control of a superior council in England, which was 
 also subject to the ultimate ordaining power of the king in Ordaining 
 council. 1 In the spring of 1609 this complex system of royal CL^in 
 government was relaxed in favor of local control through a council - 
 reorganization of the company whereby the non-resident coun- 
 cil was abolished and the government of the colony vested 
 in a single resident council nominated by the king in the 
 first instance, but vacancies in which were afterwards to be 
 filled by a vote of the whole company. Under this council, 
 which was authorized to choose a governor, and " to make, 
 ordain, and establish all manner of orders, laws, directions, 
 instructions, forms and ceremonies of government, and magis- 
 tracy fit and necessary for and concerning the government of 
 the said colony," 2 the Virginian settlement became almost 
 an independent and self-governing community. In 1612 still 
 further concessions were obtained in favor of the company ; 
 and in 1619, under its instructions, the governor summoned First Amer- 
 an assembly of burgesses from the several hundreds, counties, S 
 and plantations embraced within its limits, which met on the assembly, 
 3Oth of July. 3 The history of the Virginian settlement down 
 to this point clearly illustrates how rapidly even a royal 
 colony slipped from the actual grasp of the crown, and how 
 in its internal organization it involuntarily reproduced the 
 outlines of the ancient constitution. As the basis of its local 
 organization we find the hundred and the shire ; in the colo- 
 
 1 As to the distinction between the tive legislative assembly ever held in 
 ordaining power of the king in council America was convened in the chancel 
 and the law-making power of the king of the church at James City or James- 
 in parliament, see below, book iii. ch. i. town, and was composed of twenty-two 
 10. burgesses from me eleven several 
 
 2 Language of the second charter, towns, plantations, and hundreds, 
 see Charters and Constitutions^ part ii. styled boroughs." Nar. and Crit. 
 p. 1899. Hist., vol. iii. p. 143. 
 
 3 On that day " the first representa-
 
 22 INTRODUCTION. 
 
 nial governor we have a reflected image of the kingship ; in 
 the royal council the house of lords; in the house of 
 English law burgesses the house of commons. 1 The foundation of the 
 the whole f wno ^ e fabric was English law ; in the original charter it was 
 fabric. provided "that all and every the persons, being our subjects 
 which shall go and inhabit within the said colony and plan- 
 tation, and every their children and posterity, which shall 
 happen to be born within any of the limits thereof, shall have 
 and enjoy all liberties, franchises, and immunities of free 
 denizens and natural subjects within any of our other domin- 
 ions, to all intents and purposes as if they had been abiding 
 and born within this our realm of England, or in any other of 
 our dominions." 2 In spite of the wanton proceedings by 
 which its charter was annulled by a judgment of the king's 
 bench in June, 1624, and its affairs transferred to the privy 
 council, the Virginian settlement survived as a royal colony, 
 and its government as finally organized was vested in a rep- 
 resentative assembly chosen by the people, in a royal council 
 nominated by the crown, and in a royal governor armed with 
 a veto power upon legislation. Such was the general struc- 
 ture of a royal colony, 3 a type which, originally represented 
 by Virginia alone, came to be the prevailing type before the 
 severance from the mother country. 
 
 The char- In the same sense in which Virginia stands as the typical 
 r Massa- eS representative of the royal colonies, Massachusetts stands as 
 chusetts. t k e typi ca ] representative of the opposite class, consisting 
 of Massachusetts, Rhode Island, and Connecticut, gener- 
 ally known as the charter colonies, despite the fact that their 
 foundations were laid without the aid or sanction of charters 
 at all. As Tocqueville has expressed it, "in general, char- 
 ters were not given to the colonies of New England till their 
 existence had become an established fact. Plymouth, Provi- 
 dence, New Haven, Connecticut, and Rhode Island were 
 formed without the help, and almost without the knowledge 
 of the mother country." * It may therefore be said that their 
 
 1 The process of reproduction is well 2 See Charters and Constitutions, 
 
 stated by Doyle, English Colonies in part ii. p. 1891. 
 
 Am., Virginia, etc., pp. 215-220. "The 8 See Chalmer's Introduction, vol. L 
 
 colonists proudly looked on the Con- pp. 13-16. 
 
 stitution of their various States as cop- * Democracy in America, vol. i. p. 45. 
 ies of that of the mother country." Connecticut has been graphically de- 
 Green, Hist. Eng.People t vQ\.'vi. p. 169. scribed as " a State which was born,
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 2\ 
 
 free constitutions were older than their charters. The royal 
 charter of 1629 which organized a group of New England 
 settlements into a corporation under the title of the Governor 
 and Company of Massachusetts Bay, and then authorized 
 them to regulate their own affairs as a practically independ- 
 ent and self-governing community, was in fact nothing more 
 than a recognition of a preexisting state of things. 1 The internal or 
 government of the Massachusetts colony was vested by the K< 
 charter in the governor, deputy governor, and eighteen assist- 
 ants, all of whom were to be annually elected by the freemen. 
 The only dependence under which the colony labored at the 
 outset grew out of the fact that it was subject to the control 
 of a corporation in England composed of those by whom its 
 organization had been brought about. With the extinction 
 of this company through the transfer of its charter to Amer- 
 ica that tie was severed, and Massachusetts became, as far as 
 a colony could become, an independent commonwealth, and 
 continued to be such down to the annulment of its charter charter an 
 in 1684 by a scire facias. By the new charter granted it 
 in 1691 its original independence was much curtailed by a 
 provision which gave to the crown the right to appoint a 
 royal governor with an absolute veto upon legislation. Both 
 Rhode Island and Connecticut preserved their free charters 
 unaltered down to the Revolution ; and even then so com- 
 pletely adequate were they to all their wants they did not 
 change them. The charter granted to Connecticut by 
 Charles II. in 1662 was continued as her organic law until 
 1818 ; while the charter granted in 1663 to Rhode Island was 
 continued as her organic law down to 1842.2 
 
 Between the royal and charter governments stood a middle 
 class known as proprietary, which approached nearer to the 
 latter than the former in respect to their freedom from royal 
 
 not made, which grew by natural accre- " The Genesis of a New England State," 
 
 tion of townships, which formed its Johnston, Johns Hopkins Studies, ist 
 
 own government, made its own laws, series, XI. p. 6. 
 
 engaged in its own alliances, fought its 1 " But, if it be not a paradox to say 
 
 own wars, and built up its own body, so, the constitution of Massachusetts 
 
 without the will of King, Kaiser, or was older than the existence of the 
 
 Congress, and which, even at the last, colony." Doyle, English Colonies in 
 
 only made use of the royal authority to Am., Puritan, etc., voL i. p 104. 
 
 complete the symmetry of the bounda- 2 See Charters and Constitutions, 
 
 ries it had fairly won for itself." See part i. p. 252; part ii. p. 1603.
 
 24 INTRODUCTION. 
 
 The propri- control. The proprietary system, which grew out of the idea 
 tem^-! that the work of colonization could be better accomplished 
 Maryland: by p r i va te individuals than by corporate enterprise, rested 
 upon a series of grants made by the crown to one or more 
 proprietors of vast tracts of land coupled with an almost un- 
 limited power of government and legislation. The first pro- 
 prietary government that bore fruit was that of Maryland, 
 whose constitutional history begins with the grant made in 
 1632 to the first 1 Lord Baltimore of the tract of land lying to 
 the north of that actually settled by the Virginia Company. 
 By this grant the proprietor and his successors were not only 
 invested with the title to the land, but they were also author- 
 ized to make laws with the assent and advice of the majority 
 of the freemen or their representatives, free from all real de- 
 pendence upon royal authority. 2 The details of political 
 organization were in a great measure confided to the discre- 
 tion of the proprietor, whose original conception of a constitu- 
 tion consisted of a governor, council, and primary assembly, 
 a veritable Old-English gemote in which every freeman 
 her primary had the right to represent himself and to vote. Gradually as 
 supplanted the primary plan grew inconvenient it was supplanted by a 
 
 representative system, and in 1647 tne governing body was 
 system. divided into two chambers, the lower consisting of an elective 
 house of burgesses, the upper of the councillors and of those 
 specially summoned by the proprietor. 3 In the grant to the 
 proprietors of Carolina we find the same absoluteness of 
 sovereignty over the land, and the same freedom from royal 
 control, with more careful provision however in favor of the 
 freeholders who were endowed with a charter right * to par- 
 ticipate in legislation. Here it was that the proprietors at- 
 tempted to create a political fabric through the aid of Locke 
 a philosopher of the Social Contract school whose 
 Fundamental Constitutions quickly illustrated how vain it 
 
 1 Before the patent passed the seals within his county palatine." Nar. 
 
 George Calvert died, and the charter and Crit. Hist. vol. iii. p. 520. 
 
 was granted to his son Cecilius, second 8 As to the history of the early as- 
 
 Lord Baltimore. semblies, see Ibid., pp. 528-531, 536. 
 
 " The Province was made a county See also Doyle, Virginia, etc., pp. 286- 
 
 palatine; and the Proprietary was in- 291. 
 
 vested with all the royal rights, privi- * See Charters and Constitutions, 
 
 leges, and prerogatives which had ever part ii. p. 1392. 
 been enjoyed by any Bishop of Durham
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 2$ 
 
 was to attempt to govern Englishmen by a paper constitu- Carolina 
 tion l whose complicated and artificial details offended the 
 national instinct by departing from the primitive tradition. 
 When the proprietary system is viewed as a whole the great 
 landlords to whom the original grants of land and political 
 authority were made must be looked upon as the mediums or 
 conduits through which the crown conveyed to the colonists 
 the boon of local self-government. The colonies of Maryland, 
 New York, New Jersey, New Hampshire, Pennsylvania (in- 
 cluding Delaware), Carolina, and Georgia were at the outset 
 proprietary. But as the proprietors one by one surrendered 
 their charters to the crown they were all transformed into 
 royal colonies, except Maryland, Pennsylvania, and Delaware, 
 which remained proprietary down to the Revolution, 2 sub- 
 ject to the charter right of their governors to veto legis- 
 lation. 
 
 The fact that ttie soil upon which the English colonies in American 
 America were planted came to them through royal grants, 3 colonial 
 the fact that every form of political organization established nghts> 
 thereon rested upon royal charters, were the foundation 
 stones upon which the colonists gradually built up, in the 
 light of their actual experience, their theory of the political 
 relations which bound them to the mother country. Their 
 rights as Englishmen endowed with "all liberties, franchises, 
 and immunities of free denizens and natural subjects " flowed 
 from their charters which, as between themselves and the 
 crown, were irrevocable though not non-forfeitable contracts. 
 The earliest form of direct legislative control to which any 
 of the colonies were subjected in the form of ordinances or 
 instructions for their government emanated, not from the 
 law-making power of the king in parliament, but from the 
 ordaining power of the king in council. And at a later day 
 
 1 For the first draft of the Constitu- 8 " The title to the English colonies 
 tions, see Carroll, vol. ii. p. 361 ; for the was not in the people of England nor 
 later modifications, see the Shaftesbury in the state, but hi the crown, and de- 
 Papers, under the years in which they scended with it. The crown alone 
 were issued. could sell or give away these lands. 
 
 2 "There were thus at last three The crown could make laws for the 
 proprietary, seven royal [Va., N. Y., inhabitants, and repeal them ; could 
 N. J., N. H., N. C., S. C., and Ga.], appoint their rulers, and remove them, 
 one semi-royal [Mass.], and two charter Parliament could do neither." Nar. 
 colonies" [Conn, and R. I.]. See and Crit. Hist., vol. vi. p. 3. 
 
 Enc. Brit., gth ed., vol. xxiii. p. 730.
 
 26 INTRODUCTION. 
 
 when the colonial assemblies began the work of legislation on 
 their own account, the validity of their enactments depended, 
 not upon the approval of the English parliament, but upon 
 that of the royal governor who stood as the ever-present rep- 
 resentative of his royal master. With the founding of the 
 colonies, and with the organization of their political systems, 
 the crown had everything to do ; the parliament practically 
 nothing. Apart from the control which it had exerted from 
 the beginning over their external affairs in matters of trade 
 and navigation, the colonies, prior to the latter part of the 
 eighteenth century, had not been drawn within the widening 
 The crown circle of its imperial authority. The whole tendency of their 
 thTon'iy tie early experience was to lead the colonies to believe that the 
 bollndthe crown was trie on ^y ti 6 which bound them to the mother 
 colonies to country, that to each one of them the king stood in the direct 
 relation of chief executive, that to him alone duties were due, 
 and that the only proper mediums of communication between 
 the crown and the colonies were the colonial parliaments. 
 In their local legislatures the colonists had learned how to 
 tax themselves, and how to regulate their home affairs through 
 laws of their own making. 1 Losing sight of the fact that 
 England had grown into an empire since the work of coloni- 
 zation began, the colonists clave to the earlier conception 
 which regarded the home parliament simply as the legislative 
 English organ of the United Kingdom. As such they held that it 
 colonial nac * no right to invade the jurisdictions of their colonial 
 rights. assemblies in order to legislate directly upon their internal 
 concerns. While remoteness and self-interest were alike 
 intensifying in the colonial mind this reasonable yet narrow 
 conception, the growth of English dominion was leading 
 English statesmen at home to elaborate a theory which, in 
 the gorgeous language of Burke, clothed the English parlia- 
 ment with an "imperial character, in which, as from the 
 throne of heaven, she superintends all the several inferior 
 legislatures, and guides and controls them all without anni- 
 hilating any." 2 In the hands of a practical tax-loving 
 statesman like Grenville this imperial theory was not con- 
 
 1 This is well put by Fiske in The 2 Speech on American taxation 
 Critical Period of Am. History, p. 63. April 19, 1774.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 2? 
 
 fined to mere supervision ; in such hands it was held to mean 
 that the Imperial parliament could at any moment override 
 the acts of the colonial assemblies, without consulting their 
 wishes at all, and tax and legislate for the people of Massa- 
 chusetts and Virginia just as it could for the people of Kent 
 and Middlesex. Out of the conflict which finally arose Out of the 
 between the English and the colonial theories as to the 
 practical omnipotence of the Imperial parliament over self- 
 governing communities beyond the four seas, grew the War 
 of the Revolution, and the severance of the colonies from the 
 mother country. 1 
 
 Having briefly outlined the external relations of the colo- internal or- 
 nies both to the crown and to the parliament, let us return of^htfcoT 
 to the question of their internal organization. In the sketch omes> 
 heretofore drawn of the growth of the English kingdom the 
 conclusion was reached that in its matured form it repre- 
 sented an aggregation of shires, each shire representing 
 an aggregation of hundreds, each hundred, an aggregation of 
 townships. In the examination which will be hereafter made 
 of the making of England the fact will be drawn out that the 
 "unit of the constitutional machinery" was the township 
 the English form of the village-community the primary 
 form in which Englishmen group themselves together for 
 self-government. Out of a union of townships grew what English 
 was finally known in England as the hundred ; out of a union 
 of hundreds grew the modern shire ; out of a union of modern 
 
 tion. 
 
 shires grew the English kingdom. The most important fact 
 which this process of state-building reveals is that the Teu- 
 tonic conquerors of Britain accomplished the work of conquest 
 in small companies, and that, in obedience to the race instinct, 
 they grouped themselves together in townships out of whose 
 coalescence finally arose the larger aggregates. The power 
 to subdue and settle a new country, and then to build up a 
 state by this process of aggregation, constitutes the strength 
 of the English nation as a colonizing nation. By this process, 
 
 1 The two conflicting theories are cause that stated by Turgot, who said 
 
 clearly stated by Green, Hist, of the that " colonies are like fruits, which 
 
 English People, vol. iv. pp. 226-230. cling to the tree only till they ripen ? As 
 
 Although this conflict of theory as to the soon as America can take care of itself 
 
 jurisdiction of the Imperial parliament it will do what Carthage did." (Euvrts 
 
 was no doubt the visiole and technical de M. Turgot, Paris, 1808-1811, vol. ii. 
 
 cause of separation, was not the real pp. 19, 66.
 
 28 INTRODUCTION. 
 
 Federal re- capable under favorable geographical conditions of unlimited 
 expansion, has been built up the federal republic of the United 
 States. " In America ... it may be said that the township 
 
 same gener- W as organized before the county, the county before the State 
 the State before the Union." l In order to ascertain how the 
 English colonies in America were constructed, we must look 
 behind their charters at the lives of the men who made the 
 settlements out of which they grew. " Under the shell 
 there was an animal, and behind the document there was a 
 man. . . . The shell and the document are lifeless wrecks, 
 valuable only as a clue to the entire and living existence. We 
 must reach back to this existence, endeavor to recreate it." 2 
 In the effort to recreate the process through which the 
 English colonies in America were made, we must keep 
 steadily in view the process through which their prototype 
 in Britain was made. The elements of organization in both 
 were the same, and the general principle upon which such 
 elements coalesced was substantially the same. It may be 
 stated as a general rule that the English colony in America, 
 like the English state in Britain, represented an aggregation 
 
 County and of counties, and that each county represented an aggregation 
 ^ townships. The hundred the intermediate division 
 between ^ e township and the county, appeared in the 
 
 turn. structure of some of the colonies, but being unnecessary to 
 
 the local wants of the new land it passed out of view. 3 In 
 some instances the colony was formed by the coalescence of 
 the local communities before a charter was granted ; in others 
 the charter was granted first and the colony then subdivided 
 into districts as the local communities were organized. The 
 fruit of both processes was the same a dependent state 
 subdivided into counties and townships as the organs of its 
 local administration. The most striking fact which stands 
 
 1 Tocqueville, Democracy in Am., 2 Taine, Hist, of Eng. Literature, 
 
 vol. L p. 49. " Upon the township was vol. i. p. I. 
 
 formed the county, composed of several 8 The hundred existed in Virginia 
 towns similarly organized; the state and in Maryland, and may be else- 
 composed of several counties, and, where. As to its history in Virginia, see 
 finally, the United States, composed of " Local Inst. of Va.," Ingle, J. H. Stud- 
 several states ; each organization a body tes, 3d series, II.-III. p. 41. "A Tyth- 
 politic, with definite governing powers in ing-man in each Manor, a Constable in 
 a subordinate series." Address of each Hundred." Bacon, Laws oj 
 Mr. Lewis H. Morgan before Am. Ass. Maryland, 1638. 
 for the Adv. of Science, Boston, Aug. 
 26, 1880.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 29 
 
 out in the history of these local communities in the new land 
 is that wherever the one became the active agent of local 
 administration, the other, while it did not cease to exist, 
 became dormant. In America the county and the township 
 did not reappear as co-working agents dividing the duties of 
 local administration in anything like equal proportions. In in the 
 the northern colonies where population became dense, and "oi 
 where the active spirit of the English yeoman and trader 
 reproduced a system of political life as closely organized as it southern 
 
 ... . . c i i the county, 
 
 was vigorous, the township became the active organ of local the active 
 administration for the simple reason that its compact organ- agent> 
 ization was better adapted than that of the shire to the local 
 wants of New England. In the southern colonies where 
 population was more sparse, and where the southern planter 
 reproduced the more tranquil life of the English gentleman 
 who had little or nothing to do with the life of towns, the 
 county became the active organ of local administration for the 
 reason that it satisfied all of the political wants of a rural 
 population. 1 To that extent the local organizations of the 
 northern and southern colonies were different from each 
 other. "Townships and town arrangements exist in every 
 state ; but in no other part of the Union is a township to be 
 met with precisely similar to those of New England. The 
 farther we go toward the South, the less active does the 
 business of the township or parish become . . . As we leave 
 New England we find that the importance of the town is 
 gradually transferred to the county, which becomes the centre 
 of administration, and the intermediate power between the 
 government and the citizen." 2 While the township or parish 
 was thus overshadowed in the southern colonies by county 
 organization, the New England county maintained nothing 
 more than a shadowy existence as a local district for certain 
 judicial purposes. 3 In the middle colonies the two opposing 
 
 1 In revising the MS. Mr. Freeman " the two lands represent two different 
 
 here wrote: "I found in Virginia peo- sides of England. Virginia more nearly 
 
 pie spoke of the county just as they do reproduced the England of the time of 
 
 here. In New England the county the settlement. New England more 
 
 seemed lost. There the town was the nearly reproduced the England of an 
 
 thing, when the city had not swallowed earlier time." 
 
 it up." In his " Introduction to Am. 2 Tocqueville, Democracy in Am., 
 
 Inst. Hist.," y. H. Studies, 1st series, vol. i. pp. 99, 100. 
 
 I. p. 17, Mr. Freeman, in comparing Vir- 8 See Washburn, Judicial Hist, of 
 
 ginia with New England, has said that Mass., p. 31, note I.
 
 30 
 
 INT ROD UC TION. 
 
 colonies. 
 
 The town- 
 
 Composite systems fought for the mastery, and the result was a com- 
 posite system which approached nearer than either to the 
 original model by dividing between the town and the county 
 in something like equal proportions the duties of local gov- 
 ernment. 1 
 
 The remarkable fact is that the township reappears upon 
 the soil of New England rather in the form in which it 
 appeared in Britain when the foundations of the English 
 kingdom were laid than in the form in which it there existed 
 when the migration to America began. The township as it 
 originally appeared in Britain was at once a cultivating and 
 political community in whose qualified members resided the 
 power to elect their own officers and to order their own 
 village and agricultural life. This power was vested in a 
 single village assembly or tun-moot in which the townsmen 
 met to regulate their internal affairs by the making of by- 
 laws, laws enacted by a " by " as the township was 
 called in the northern shires. But during the ten centuries 
 which intervened between the Teutonic conquest and settle- 
 ment of Britain and the making of the English settlements in 
 America the primitive township passed through a marked 
 transformation. In the process of English feudalization the 
 townsn jp was transformed into the manor of the lord, and 
 the once free townsmen became the lord's tenants, while the 
 greater part of the ancient jurisdiction of the tun-moot passed 
 to the manorial courts. And more than this, the township 
 in the home land became involved in ecclesiastical as well as 
 in feudal relations. As a division in the territorial organiza- 
 tion of the church the township became the parish, and as 
 such its boundaries were used to define the jurisdiction of a 
 single priest, "in small parishes the idea and even name 
 of township is frequently, at the present day, sunk in that of 
 the parish ; and all business that is not manorial is dispatched 
 in vestry meetings, which are however primarily meetings of 
 the township for church purposes." 2 In this way the tun- 
 
 Township 
 asthe n n- 
 
 as the par- 
 
 1 "The middle colonies gravitated 
 towards the form of government that 
 obtained in New England or Virginia, 
 as proximity to the one or the other 
 
 acter such as would naturally have 
 been produced by the manner of their 
 settlement." " Town and County Gov- 
 ernment," Channing, J. H. Studies, zd 
 
 dictated, while the local organization series, X. p. 8 
 
 of the Carolinas was of a mixed char- 8 Stubbs, Const. Hist. t vol. i. p. 85.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 3 1 
 
 moot had ceased to exist as a single assembly, and its juris- 
 diction had been split up and absorbed by the parish vestry 
 and manorial courts long before the emigration to America 
 began. It is therefore a remarkable fact, but one perfectly 
 susceptible of explanation, that when the settlers of New 
 England reproduced the township in the new world, they 
 should have reproduced it in its original integrity, unfettered 
 by the feudal and ecclesiastical restraints by which it had 
 been hampered for centuries. As a brilliant American scholar Mr . Fiske's 
 has expressed it, the colonists " were severed now from church statement - 
 and from aristocracy. So they had but to discard the eccle- 
 siastical and lordly terminology, with such limitations as they 
 involved, and reintegrate the separate jurisdictions into one, 
 and forthwith the old assembly of the township, founded in 
 immemorial tradition, but revivified by new thoughts and 
 purposes gained through ages of political training, emerged 
 into fresh life and entered upon a more glorious career." 1 In 
 this way the village community common to the whole Aryan 
 world, which appeared in Britain as the " tun " or township, 
 where it became involved in both feudal and ecclesiastical 
 relations, finally reappeared in its primitive simplicity upon 
 the soil of New England, and there became the active unit of 
 well organized system of local self-government. The govern- The town 
 ment of the New England town, like that of the Old-English meetin s- 
 township, is vested in the town meeting 2 (tun-moot) as a 
 single assembly in which every adult male residing within 
 the township is expected to be present and to vote. When 
 an examination is made of the manner in which a New Eng- 
 land town was formed by men bound together by community 
 of thought and purpose, or by previous neighborhood ; of the 
 manner in which the townsmen vested the town administra- 
 tion in a body of selectmen ; of the manner in which the early 
 proprietors held the lands which they parcelled out among 
 themselves, reserving, to the exclusion of after-comers, certain 
 portions for common pasture and certain portions for common 
 tillage ; of the manner in which the town regulated the herd- 
 
 1 John Fiske, Am. Political Ideas, p. the Roman comitia, the Swiss Landes- 
 49. gemeinde, the English folk-moot."- 
 
 2 " A New England town-meeting is Freeman's " Int. to Am. Inst Hist.," y. 
 essentially the same thing as the Ho- H. Studies, 1st series, I. p. 16. 
 
 meric ayop-h, the Athenian
 
 INTRODUCTION. 
 
 Manors in 
 Maryland. 
 
 Proprietor 
 founds the 
 system. 
 
 ing of cattle and the laying out of highways ; of the manner in 
 which it admitted and excluded members, the student of the 
 history of the village community is not only reminded of the 
 township as it first appears in Britain in historic times, but of 
 the primitive Teutonic mark as it originally existed in the first 
 home land of the race on the shores of the Northern Ocean. 1 
 The fact that the township, stripped of its feudal aspect as 
 the manor, and of its ecclesiastical aspect as the parish, reap- 
 peared in its primitive Teutonic form upon the soil of New 
 England, must not lead to the inference that it did not else- 
 where appear in each of its discarded characters. In the 
 colony of Maryland, whose constitutional history begins 
 under the aristocratic influence of Lord Baltimore, who had 
 authority to model his colony after the Palatinate of Durham, 2 
 the township reappeared as the manor with its feudal relations 
 intact, lord of the manor and his tenants, free and servile, 
 manor-house, church, court baron, court leet and all. The 
 evidence as to the origin and structure of old Maryland 
 manors is of a very clear and satisfactory character. The 
 proprietor under his charter right 3 issued, in 1636, instruc- 
 tions to the governor that every two thousand acres granted 
 to any adventurer should "be erected and created into a 
 manor. . . . And we do hereby further authorize you that 
 you cause to be granted to every of the said Adventurers 
 within every of their said manors respectively ... a Court 
 Baron and Court Leet, to be from time to time held." 4 By 
 general instructions of this character often repeated, and by 
 special grants made under them to particular individuals, the 
 foundations were laid of a manorial system which " became 
 general, so that English manors, English halls, English lords 
 of the manor were scattered all over " 6 the colony of Mary- 
 
 1 For the history of the New Eng- 
 land town, see " The Germanic Origin 
 of N. E. Towns," H. B. Adams, J. H. 
 Studies, ist series, II.; "Town and 
 County Government," E. Channing, 2d 
 series, X.; Fiske, Am. Political Ideas, pp. 
 J 7-56 ; "Town Meeting," by Fiske, in 
 Harper's Magazine, January, 1885 ; 
 Scott's Development of Constitutional 
 Liberty, p. 174; Doyle, Eng. Colonies 
 in Am., Puritan, etc., vol. ii. pp. 7-26. 
 
 2 "Although Palatine rights were 
 granted to the Lord Proprietor, yet 
 
 practically, from the very outset, the 
 government of Maryland was a govern- 
 ment by the people." " Introduction to 
 Am. Inst. Hist.," J. H. Studies, ist se- 
 ries, I. p. 1 6, in note by Dr. Adams. A 
 special study of the Palatinate of Dur- 
 ham has been made by Mr. Basil Sollers. 
 
 8 See Charter of Maryland, art. 19. 
 
 4 Instructions from Lord Baltimore 
 to Governor Calvert, quoted in " Old 
 Maryland Manors," by Mr. John John- 
 son, J. H. Studies, ist series, VII. 
 
 6 Ibid., p. 7.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 33 
 
 land. Coke tells us that, " A court baron is the chief prop 
 and pillar of a manor, which no sooner faileth, but the manor 
 falleth to the ground." 1 In Maryland the court baron was 
 not wanting. From Bozman 2 we learn that "one or two 
 rare instances occurred of the holding both courts baron and 
 courts leet in two distinct manors. ' A court baron was held A court 
 at the manor of St. Gabriel on the 7th of March, 1656, by the Gabriel's 
 steward of the lady of the manor when one Martin Kirke took manor ; 
 of the lady of the manor in full court, by delivery of the said 
 steward, by the rod, according to the custom of the said 
 manor, one messuage, having done fealty to the lady, was 
 thereby admitted tenant.' (MS. Extracts from the records.) 
 This seems to have been conformable to the ancient practice of 
 courts baron in England, on the admission of any tenant of a 
 manor." But what is more important still, in the manuscript 
 records of a court leet and a court baron of St. Clement's a court leet 
 manor in St. Mary's County the property of the Maryland ^t'l'. 
 Historical Society 3 is contained incontestable evidence of 
 the fact that a court leet was held in that manor at intervals 
 between 1659 arj d 1672.* "In 1776 there were still unsold 
 seventy thousand acres of proprietary manors lying in nine 
 counties. In the Maryland Reports is to be found a notable 
 lawsuit over Anne Arundel Manor. The proprietor, Lord 
 Frederick Calvert, sought by means of a common recovery to 
 break the entail upon the manor, and thus prevent its passing 
 into the hands of a natural son of the former proprietor." 6 
 
 The evidence is equally clear as to the existence in New Manors in 
 York of the manorial system. The agent which Holland 
 employed in the colonization of New Netherland was the 
 West India Company, whose general government was vested, 
 
 1 Coke's Copyholder, p. xxxi. nied, was a popular institution, a kind 
 
 2 History of Maryland, vol. ii. p. 581. of Town Meeting on the Lord's Manor. 
 In an editorial note, p. 25, of "Old Such a manorial survival is, like the 
 Maryland Manors," Dr. Adams says, old Town Pasture at Annapolis, a con- 
 " Here, then, is instanced by Bozman necting link between Province Mary- 
 himself a concrete case of a manorial land and Early England." See note 
 court, the records of which Mr. Boz- by Dr. Adams to " Int. to Am. Inst. 
 man appears to have seen." Hist.," J. H. Studies, ist series, I. p. 13. 
 
 8 These records, presented to the 6 Old Maryland Manors, p. 8. For 
 
 society, by Col. B. U. Campbell, are the case referred to, see z Harris and 
 
 printed as an appendix to Old Maryland McHenry, p. 279. As to the effect of 
 
 Manors, pp. 31-38. manorial customs upon the rights of 
 
 * "The Court Leet, the existence of tenants, see Dorsey v. Eagle, 7 Gill and 
 
 which in Maryland has long been de- Johnson, p. 321 (1835).
 
 34 
 
 INTRODUCTION. 
 
 The " pa- 
 troon " as 
 lord of the 
 manor. 
 
 by the charter granted in 1621, in a board composed of 
 nineteen delegates. In June, 1629, the States-General rati- 
 fied the document called " Freedoms and Exemptions " pre- 
 viously granted by the governing body of the West India 
 Company " to all such as shall plant any colonies in New 
 Netherland." Under the immunity thus granted and con- 
 firmed, each proprietor or "patroon" who planted a colony of 
 fifty souls, upwards of fifteen years old, was not only entitled 
 to a large expanse of territory " as a perpetual inheritance," 
 but he was also authorized to erect it into a seignorial fief or 
 manor within which he was entitled to many of the feudal 
 rights incident to lordship. The colonist, whom the "pa- 
 troon " was required to furnish with a well equipped farm, 
 was bound in return to pay to the lord a fixed rent, in addi- 
 tion to a portion of the product of the farm and a part of the 
 increase of the stock. The tenant could not sell his produce 
 elsewhere until the lord had first refused to buy it ; he was 
 required to have his grain ground at the lord's mill ; from the 
 lord he had to obtain a license to fish and hunt within the 
 domain. 1 As lord of the manor the "patroon" was the heir 
 of all who died intestate, 2 and as such he was empowered " to 
 administer civil and criminal justice in person or by deputy 
 within his colonie, to appoint local officers and magistrates ; 
 to erect courts and to take cognizance of all crimes committed 
 within his limits." 3 " Theoretically, the patroon was always 
 present in his court baron. Practically, the government of 
 the colony was administered by a court composed of two 
 commissaries and two schepens, assisted by the colonial 
 secretary and the schout." 4 The manorial system thus 
 established by the Dutch in New Netherland was perpetuated 
 under English forms, after the territory was conquered by the 
 English and transformed into the colony of New York. In 
 Livingston the patent creating Livingston Manor, granted by Governor 
 Dongan in 1686, authority was given for establishing "in the 
 said Lordship and Mannor one Court Leet and one Court 
 Baron ... to be kept by the said Robert Livingston his 
 Heirs and assignes forever or theire or any of theire Stewards 
 
 1 See " Dutch Village Communities 8 O'Callaghan, Hist, of New Nether- 
 
 on the Hudson River," Elting, /. H. land, vol. i. p. 320. 
 
 Studies, 4th series, I. pp. 12-16. 4 Broadhead s Hist, of N. Y. t p. 305 
 
 8 Broadhead's Hist, of N. K, p. 305. 
 
 Manorial 
 courts.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 35 
 
 Deputed and appointed," 1 etc. Under the English and Dutch 
 manorial systems thus established in Maryland and New 
 Netherland the proprietors or " patroons " were nothing more 
 nor less than feudal lords who were endowed with the right 
 to exercise within their own manors all of the feudal incidents 
 of tenure and jurisdiction. Thus did the dying feudalism 
 attempt to strike its roots into the free soil of the New World 
 as a permanent institution. The effort was of course short- 
 lived. In spite of the oppressive seignorial rights granted to The manor 
 the lord, the fact remained that the manor was a self-govern- errfing g com- 
 ing community. In the court baron the free tenants acted mumt y- 
 both as judges and jurors ; in the court leet criminal justice 
 could only be enforced against a tenant through the judg- 
 ment of his peers. In the leet the manorial officers were 
 elected by the tenants, who there enacted by-laws for their 
 own government. 2 The growth of local political life in 
 Maryland and New York, although hampered and retarded 
 for a time by the feudal obstructions by which it was sur- 
 rounded, soon waxed strong enough to break through them 
 all, and to cast aside as obsolete and worthless the shell in 
 which it had passed the period of its incubation. 
 
 Having noted the reappearance in New England of the The parish 
 English village community in its primitive form as the town- u 
 ship, and in Maryland and New York in its feudal form as 
 the manor, let us turn next to Virginia, where it reappears in 
 its ecclesiastical form as the parish. As the township was 
 the form of local organization specially demanded by the 
 social and economic wants of the settlers of New England, it 
 there reappeared as the primary unit of local self-government. 
 "Upon the township was formed the county, composed of 
 several towns similarly organized ; the state composed of 
 several counties," 3 etc. Thus in New England, as a general 
 rule, we find the state to be an aftergrowth which arises out 
 of a process of aggregation in which the township is the unit 
 or starting-point. In Virginia, which will be accepted 
 throughout as a typical representative of the colonial group 
 to which she belonged, the work of state-building, guided by 
 
 1 Docs. Relating to Col. Hist, of N. Y., 8 Mr. L. H. Morgan's Address here- 
 vol. ii. pp. 375, 376. tofore cited. 
 
 2 See Old Maryland Manors, pp. 14- 
 16.
 
 36 INTRODUCTION. 
 
 the peculiar social and agricultural wants of the first settlers, 
 
 Virginia proceeded upon entirely different principles. In Virginia the 
 
 fnt S ocoim- ed colony was first created as an entirety and then subdivided 
 
 ties in 1634. j n f- o self-governing districts as rapidly as they were demanded 
 
 by the growth of population. As early as 1618 the governor 
 
 and council were ordered to divide the colony into counties j 1 
 
 not until 1634, however, was such a division actually made. 
 
 In that year the colony was divided into eight shires which 
 
 were to be governed as English shires were governed, with 
 
 lieutenants and sheriffs, and "sergeants and bailiffs where 
 
 need requires." The eight shires 2 "were James City, the 
 
 country around Jamestown, Henrico, around the settlement 
 
 of Sir Thomas Dale, Charles City, Elizabeth City, Warwick 
 
 River, Warrosquayack, Charles River, and on the eastern 
 
 shore, Accomac. That these counties, as a rule, took their 
 
 names from and embraced the settlements is a curious phase 
 
 in English institutions for it was nothing more or less 
 
 Virginia than the towns growing into the counties. This was very 
 
 grow into different from the origin of counties in England and in New 
 
 which are England. ... In 1680 there were twenty counties, a word 
 
 divided into introduced into the laws in 1639, and the number increased 
 
 parishes. u y 
 
 as it became necessary. . . . When the county had finally 
 become crystallized, it was divided into parishes, precincts 
 for the constables, and walks for the surveyors of highways, 
 the last two divisions being subject to such rules and altera- 
 tions as the county court thought fit to make." 3 When the 
 Virginia parish thus appears in its normal shape it is as a 
 subdivision of the county a subordinate unit subject to the 
 direction and control of the county court. The parish which, 
 like its prototype, thus stood in a subordinate relation to the 
 county, was endowed with all of the ecclesiastical, and nearly 
 all of the civil authority possessed by the English original. 
 "The parish was, as a rule, a division of the county for 
 religious purposes ; but the governing body of the parish, the 
 vestry, had considerable authority in civil affairs." 4 "The 
 township of New England was the parish of England, shorn 
 of its ecclesiastical powers ; the parish of Virginia was the 
 
 1 See Rev. P. Slaughter's History of a Local Institutions of Virginia, Ingle, 
 Bristol Parish, zd ed., p. 4 ; Town and pp. 81-83. 
 
 County Gov/., Charming, p. 43. * Town and County Govt., p. 48. 
 
 2 Hening, vol. i. pp. 223, 224.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. $J 
 
 English parish stripped of some of its civil functions. In Resem- 
 Virginia the parish as it existed in England was instituted, tJeerfthe 
 although, on account of the peculiar circumstances of the vir gl Lnia and 
 young colony it ... never possessed civil powers entirely parish; 
 equal to those of the same institution in the mother country." 1 
 Such local powers as the parish did possess were exercised by 
 the vestry, 2 a body generally composed of twelve members, who 
 were originally elected by the parishioners themselves under 
 the supervision of the sheriff. But as the vestrymen were 
 elected for an indefinite term, and as it was provided by statute 
 in 1661-62 that, in the event of the death or removal of any 
 one of them, his place could be filled by the vestry itself, 8 the 
 governing body of the Virginia parish ceased to be represen- 
 tative, and like its English parent hardened into a close 
 corporation.* The executive officers of the parish were two both harden 
 church wardens whom the vestry elected each year out of corpora^ 
 their own number. Every fourth year the vestry under the tlons ' 
 order of the county court divided the parish into precincts, in 
 each of which two persons were appointed to "procession" 
 the lands, that is, to mark anew their boundaries. Twice at 
 least in each year the vestry met to discharge its intermingled 
 ecclesiastical and civil duties, chief among which was the 
 laying of the annual levy to defray parish expenses. After 
 the parish debts were computed the sum ascertained was 
 divided by the number of tithable persons in the parish, and 
 the sum thus apportioned to each family was paid by its head 
 to the parish collector. It was also the duty of the vestry to 
 hire ministers and to present them to the governor for induc- 
 tion, to provide glebes, parsonages, and salaries, to take 
 charge of the poor, to bind out foundlings or bastards, to 
 present to the court those who offended against good morals, 
 and the like. 5 In the early days, prior to the rise of towns, 
 
 1 Local Institutions of Fa., p. 52. abuse of parochial government in Eng- 
 
 2 In 1643 a statute was passed re- land was supplied in 1831 by Sir J. 
 quiring a vestry to be held in every Hobhouse's Vestry Act, I & 2 Will, 
 parish. See Hening, Stat., vol. i. p. 240. IV. c. 60. 
 
 8 See Laws in Force in 1769, p. 2 ; 6 As to the duties of the vestry, see 
 
 Hening, vol. ii. p. 44. Slaughter's Bristol Parish, xiv.-xix; 
 
 4 For the history of this process in Meade, vol. i. pp. 364,394, 395 : Peyton's 
 
 England, see Sir T. Erskine May, Hist, of Augusta County, p. 97 ; Vestry 
 
 Const. Hist., vol. ii. p. 461; for its his- Book of Henrico Parish, 1730-1773, 
 
 tory in Virginia, see Town and County edited by R. A. Brock ; Town and 
 
 Govt. t p. 57. A partial remedy for this County Govt., pp. 42-53.
 
 38 INTRODUCTION. 
 
 "The vestries . . . represented all the local and municipal 
 government there was in Virginia," l that is, all local govern- 
 ment which was not supplied by the larger and more potential 
 governing body the county. 
 
 The south- County administration in Virginia, which was closely mod- 
 em county: e jj e j a ter tnat Q E ng i an d both in its civil and military as- 
 pects, was vested in the lieutenant, who under the honorary 
 title of colonel was at the head of the militia, in the sheriff, 
 the executive head of the county, and in the county court, 
 which like its English prototype was charged not only with 
 judicial but administrative functions. As finally organized, 
 the county court consisted of eight or more justices or mag- 
 istrates appointed by the governor, four of whom, one 
 being of the " quorum," constituted a court for the dispatch 
 its judicial of business. At the time of the Revolution the jurisdiction 
 1 of the county court extended to all equity causes, and to all 
 cases at common law which did not involve loss of life, limb, 
 or outlawry, and to all matters involving the administration 
 of estates and the care of orphans. In the exercise of its 
 judicial functions it could employ both grand and petit jurors 
 administra- according to the course of the common law. 2 Chief among 
 the administrative functions of the county court were its 
 duty to lay the county rate to defray county expenses, to 
 make in connection with the representatives from the parishes 
 by-laws for the county, to build and keep in repair the court- 
 house, public bridges, and causeways, to keep the public 
 roads in order and the water-ways free from obstructions, to 
 license taverns, recommend inspectors of tobacco, to appoint 
 surveyors of highways, and annually to present to the .gov- 
 ernor the names of three of its members from among whom 
 a sheriff might be appointed for the ensuing year. 3 The 
 meeting of a tribunal which touched the life of the people at 
 so many different points naturally excited general interest. 
 Court-day. " Court-day was a holiday for all the country side, especially 
 in the fall and spring. From all directions came in the peo- 
 ple on horseback, in wagons, and afoot. On the court-house 
 
 1 Hist, of Augusta Cmtnty, p. 97. 8 As to its administrative functions, 
 
 2 As to the early jurisdiction of the see Local Institutions of Va., pp. 92-97; 
 county court, see Hening, vol. i. p. Town and County Government, pp. 45- 
 163. As to its later jurisdiction, see 48. 
 
 Local Institutions of Pa., p. 91.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 39 
 
 green assembled, in indiscriminate confusion, people of all 
 classes the hunter from the backwoods, the owner of a few 
 acres, the grand proprietor, and the grinning, heedless negro. 
 Old debts were settled and new ones made ; there were auc- 
 tions, transfers of property, and if election times were near, 
 stump -speaking. Virginia had no town meeting as New 
 England, but it had its familiar court-day." 1 Such was the 
 nature and influence of the southern county which in Vir- 
 ginia, and in the other agricultural states of the south and 
 the southwest, dominated local administration as did the 
 township in New England. The essential difference in local Difference 
 organization between the northern and southern colonies was 
 therefore only that which exists between the compact organ- j^ 
 ization of an English town and the laxer organization of an south. 
 English county. In both, the colonists grouped themselves 
 together for local government upon the old plan, and yet un- 
 der different circumstances ; and both became not only train- 
 ing-schools for the new political life that was soon to come, 
 but levelling-schools, in which were wiped out all inequalities 
 arising out of prior distinctions of class or nobility of blood. 
 When the appointed time came the indomitable spirit of the 
 new American democracy, which the colonial towns and 
 counties had nourished, went down to the battle of the Revo- 
 lution ; and, when the battle was won, it embodied itself in 
 the constitution of the federal republic of the United States. 
 
 Neither the New England town nor the southern county incorpora- 
 is in contemplation of American law a municipal corpora- England e * 
 tion. Both belong to that class of public corporations known towns< 
 as quasi? a term used to denote the fact that the corporate 
 body to which it is applied has not been completely organ- 
 ized as a full corporation. The status of a New England 
 town whose government is administered by the townsmen 
 themselves in town meeting, and through executive officers 
 chosen by themselves, may be compared to that of an Eng- 
 lish borough that had won exemption from the jurisdictions 
 of the sheriff and the lord, with the right to establish an in- 
 dependent magistracy with a reeve or bailiff as its head, but 
 
 1 Local Institutions of Fa., p. go. Sears, 22 Pick., pp. 122, 130 ; Hooper v. 
 
 2 See Dillon, Municipal Corp., vol. i. Emery, 14 Maine (2 Shep.), p. 375. 
 pp. 91-107 ; Overseers of Poor, etc. v.
 
 40 
 
 INTRODUCTION. 
 
 Municipal 
 history of 
 Boston. 
 
 Incorpora- 
 tion of 
 southern 
 towns. 
 
 which had not yet completed its municipal character by the 
 election of a "mayor," whose appearance marked in the 
 home land the final transition from the primitive system of 
 township government to the new system in which the bor- 
 ough community appears as a communitas or corporation. 
 A like transition takes place in New England whenever a 
 town grows too large for its affairs to be conveniently ad- 
 ministered by the whole body of freemen assembled in town 
 meeting. A typical illustration of this process may be found 
 in the case of Boston, whose affairs continued to be admin- 
 istered under the primitive system down to 1822, at which 
 time its qualified voters numbered seven thousand. The in- 
 conveniences growing out of this state of things finally in- 
 duced the townsmen to obtain a charter l vesting the govern- 
 ment of the city in a mayor and elective council, according 
 to the system adopted in London in the reign of Edward I. 
 Impelled by the same reasons, other New England towns, fol- 
 lowing the lead of Boston, have given up the primitive com- 
 munal system, which is purely democratic, for a municipal 
 system purely representative. 2 Not until a town community 
 is duly incorporated, and the management of its affairs vested 
 in a mayor and representative council, does it satisfy the 
 American conception of a complete municipal corporation. 
 
 With the history of the English shire the history of the 
 English town is closely interlaced. The Old-English town 
 or borough was, in fact, nothing more than a subdivision of 
 the shire, " in which men lived closer together than else- 
 where ; it was simply several townships packed tightly to- 
 gether ; a hundred smaller in extent and thicker in popula- 
 tion than other hundreds." 3 The burgemot or hustings of 
 the Old-English town was nothing but the hundred court in 
 a slightly different form ; its origin was the same, and its 
 procedure substantially the same. The struggle of such a 
 town for municipal existence may be roughly divided into 
 
 1 See Josiah Quincy's Municipal 
 Hist, of Boston, pp. 28, 41 ; Dillon, vol. 
 i. p. 101, and note. 
 
 ^ Although when the population of 
 a town exceeds 10,000 or 12,000 it is 
 usual for it to be incorporated as a 
 city, " the town system is the general 
 one j the city, or representative sytem, 
 
 is the exceptional one," etc. Dillon, 
 vol. i. p. 101. See, also, Am. Political 
 Ideas, p. 33. 
 
 8 Freeman, Norm. Conq., vol. v. p. 
 312. As to the identity of town and 
 hundred in Virginia in the early days, 
 see Local Institutions of Virginia, pp. 
 43-45-
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 4 
 
 four stages : first, for emancipation from the jurisdiction of 
 the sheriff ; second, from that of the lord upon whose land 
 the town had grown up ; third, for the right to elect its own 
 magistracy with a reeve or bailiff as its head ; fourth, to 
 elect in the place of the bailiff a " mayor," whose appearance 
 completed the transition from the old system of township 
 government to the new system in which the borough com- 
 munity appears as a communitas or corporation, which by 
 the common law had the full right to regulate its own affairs 
 without the aid of any statute. 1 Through a similar though 
 less complicated process the southern town or city usually 
 acquires distinct municipal existence and virtual emancipa- 
 tion from the control of the southern county. The first step 
 is taken whenever a settlement or village in any part of the 
 county has become sufficiently populous to require a more 
 strictly organized form of local administration than that sup- 
 plied by the general county government. When that point 
 is reached it is usual for the legislature to supply through 
 general 2 laws an inchoate form of incorporation to the new 
 civic community sufficient for its needs during the interme- 
 diate period through which it must pass before it is prepared 
 for complete municipal existence. Not until that stage of 
 development is reached is it usual for the legislature, by the 
 grant of a special charter, to raise it to the full dignity of a 
 municipal corporation. 
 
 The English self-governing communities which have mul- American 
 tiplied so rapidly upon American soil have, in one serious tions'pos- 
 particular, silently passed through a marked transformation Cerent 
 which seems so far to have escaped the attention of his-p werof 
 
 e A i A i i taxation. 
 
 tonans of American law. A great common law judge, in 
 expounding the immemorial and inherent right of every 
 English local community to tax itself for local purposes, has 
 said that : " From time immemorial the counties, parishes, 
 towns, and territorial subdivisions of the country have been 
 allowed in England, and, indeed, required to lay rates on 
 themselves for local purposes. . . . From the foundation of 
 our government, colonial and republican, the necessary sums 
 
 1 See below, bk. iii. ch. i. 3. Alabama. See Code of 1886, 1486- 
 
 3 A good illustration of the process 1520. 
 may be found in the legislation of
 
 42 INTRODUCTION. 
 
 for local purposes have been raised by the people or author- 
 ities at home. Court-houses, prisons, bridges, poor-houses, 
 and the like, are thus built and kept up, and the expenses of 
 maintaining the poor, and of prosecutions and jurors, are thus 
 defrayed, and of late (in North Carolina) a portion of the 
 common school fund, and a provision for the indigent insane 
 are thus raised, while the highways are altogether constructed 
 and repaired by local labor, distributed under the orders of 
 the county magistrates. When, therefore, the constitution 
 vests the legislative power in the general assembly, it must 
 be understood to mean that power as it had been exercised 
 by our forefathers, before and after their migration to this 
 continent." l It seems therefore to be clear that in the home 
 land every English corporation possessed the immemorial 
 and inherent power to impose taxes for local purposes with- 
 out the aid or sanction of parliamentary authority ; and such 
 seems to have been the law in that American state in which 
 the English customary law has had its purest and most scien- 
 tific development. And yet the fact remains that it is now 
 the settled doctrine of American law that no local corpora- 
 tion, municipal or quasi, has any inherent power to levy taxes 
 for any purpose ; " a municipal corporation has no inherent 
 taxing power; the power it can rightfully exercise is that 
 which the state may deem it expedient to delegate." 2 What 
 general cause has been at work to bring about a change so 
 momentous ; and yet a change whose very presence seems to 
 have escaped observation ? After having sought in vain for 
 a satisfactory solution of the problem at the hands of several 
 of our most eminent authorities, the author has contented 
 himself with the following explanation. From the beginning 
 of our colonial history down to to-day Americans have been 
 trained in the belief that legislative power including the 
 taxing power could only be exercised subject to the limita- 
 tions imposed first by the crown and then by the people upon 
 the particular assembly by which such power was sought 
 to be exercised. In the explanation hereafter to be made of 
 the growth of constitutional limitations the fact will appear 
 that the colonial assemblies could only legislate subject to 
 
 1 Ruffin, J., in Caldwell v. Justices, 2 Mobile &> S. H. R. R. Co. v. Ken* 
 etc., 4 Jones (N. C.) Eq., p. 323. nerly, 74 Ala., p. 574.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 43 
 
 the limitations imposed by the crown in the charters by 
 which such assemblies were created or recognized. When 
 the tie which bound the colonies to the mother country was 
 severed the sovereignty of the crown passed to the people of 
 each state, who revested the legislative power in the state 
 assembly subject to the limitations of the state constitution 
 by which the royal charter was supplanted. When, upon the 
 making of the federal constitution of the United States, this 
 idea of a limited legislative authority, which had existed from 
 the very beginning, was lifted into a higher sphere, it there 
 crystallized into the principle that the federal assembly could 
 legislate only in the execution of powers expressly delegated. 
 In this way the doctrine gained fresh force that in America, 
 as a general rule, no assembly national or local possesses 
 any inherent power of taxation at all, that the authority 
 must come by express delegation from the people. This 
 theory of delegation is the substructure of all the state 
 constitutions which rest upon the principle that the whole 
 legislative power of the state is delegated by the people to 
 the state assembly, which must exercise such power subjected 
 to the limitations of the state and federal constitutions. The 
 American doctrine now is that the state assembly is the 
 reservoir in which the people deposit the entire taxing power 
 of the state, general and local. From this premise the con- 
 clusion is inevitable that local communities in America 
 possess no inherent power of taxation, for the reason that the 
 people of each local community by becoming parties to the 
 state constitution thereby surrender the right of local taxation 
 to the state assembly. Thus it comes to pass that every 
 local corporation is, in contemplation of American law, a 
 mere agent of the state, endowed with the right to exercise 
 only such taxing power as the state may see fit to delegate. 
 
 The representative branch of the English parliament is the Growth of 
 outcome of the ancient local systems of election and repre- 
 sentation immemorially imbedded in the organization of the 
 shires and towns. When the crown found it convenient for 
 financial reasons to summon to the great council representa- 
 tives from the local communities, the undertaking was made 
 easy by the fact that the shires and towns to which the writs 
 were addressed had been so long familiar with the practice of
 
 44 
 
 INTRODUCTION. 
 
 which arise 
 
 the 
 I 
 and towns. 
 
 They as- 
 sume a bi- 
 cameral 
 shape. 
 
 election and representation in their local courts that they 
 found no difficulty in applying it to the selection of represen- 
 tatives to speak for them in the councils of the king. Three 
 centuries before the English settlements in America were 
 made the representative system had thus been lifted in the 
 home land from a lower to a higher sphere. 1 When the 
 English settlers in America organized themselves for local 
 purposes in shires and towns upon the old plan, they laid 
 tne foundations for that after-growth of representative assem- 
 k^ es which came into being as rapidly as the political wants 
 of the several colonies required them. Such assemblies 
 " were not formally instituted, but grew up by themselves, 
 because it was in the nature of Englishmen to assemble." 2 
 Each colonial assembly has its own local and personal history, 
 and yet in their broader outlines there is no great divergence 
 between them. Each and every one was composed in whole 
 or in part of representatives chosen in the local communities ; 
 and, excepting the assemblies of Pennsylvania, Delaware, and 
 Georgia, which consisted of a single chamber, they all as- 
 sumed a bicameral shape. In Connecticut, Rhode Island, and 
 Massachusetts the assembly was composed of two houses, the 
 upper being elected by the people at large, the lower by the 
 towns. When the time came for severance from the mother 
 country the first two did not find it necessary to make any 
 change in the structure of their assemblies at all. In New 
 Hampshire, New York, New Jersey, North Carolina, South 
 Carolina, Georgia, Virginia, and Maryland, the colonial legis- 
 latures consisted of two houses, the upper being the council 
 appointed by the crown through the royal governor, the lower 
 being a representative body elected by the people. When 
 the Revolution came these lower houses, under the name of 
 "provincial congresses," assumed the powers of the state 
 until, under the recommendation of the Continental Con- 
 gress, 3 the several colonies could establish independent gov- 
 
 1 Upon this whole subject, see below, 
 bk. iii. ch. i. 3, 4. 
 
 2 Seeley, The Expansion of England, 
 p. 67. 
 
 8 Under this recommendation Dela- 
 ware, Maryland, New Hampshire, 
 North Carolina, New Jersey, Pennsyl- 
 vania, South Carolina, ana Virginia 
 
 adopted constitutions during the year 
 1776 ; Georgia and New York in 1777 ; 
 Massachusetts in 1780. The charter 
 granted to Connecticut in 1662 was 
 continued as her organic law until 1818 ; 
 while the charter granted to Rhode 
 Island in 1663 was continued as her 
 organic law down to 1842.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 45 
 
 ernments under formal written constitutions, in every one of 
 which, with the exceptions of Pennsylvania and Georgia, 1 the 
 English bicameral system was reproduced. 
 
 When the tie of political dependence which bound the col- The cob- 
 onies to the mother country was severed, the English prov- "omied^to 
 inces in America rose to the full stature of sovereign states. s \ erei s n 
 " When the Revolution took place the people of each state 
 became themselves sovereign." 2 And as soon as they " took 
 into their own hands the powers of sovereignty, the preroga- 
 tives and regalities which before belonged either to the crown 
 or the parliament, became immediately and rightfully vested 
 in the state." 3 On the roth of May, 1776, the Continental 
 Congress recommended to the several conventions and as- 
 semblies of the colonies the establishment of independent 
 governments "for maintenance of internal peace and the 
 defence of their lives, liberties, and properties." 4 Before the 
 end of the year in which this recommendation was made, by 
 far the greater part of the colonies had adopted written con- 
 stitutions in which were restated in a dogmatic form all of 
 the seminal principles of the English constitutional system. 
 Thus ended that marvellous process of growth through which which are 
 the English colonies in America were rapidly developed into 
 a group of independent commonwealths in which each indi- 
 vidual member was, in its organic structure, a substantial re- kingdom. 
 production of the English kingdom. With the adoption of 
 the written constitutions of 1776, the typical English state in 
 America reached its full growth. When the offspring is com- 
 pared with the parent, when the English state in America is 
 compared with the English state in Britain, 5 the resemblance 
 is too close for the relationship to escape the most careless 
 observer. In both, the political substructure is the same 
 the ancient Teutonic system of local, self-governing commu- 
 nities composed of the township, the hundred, and the shire. 
 In each, municipal organization rests upon substantially the 
 same foundation. So far as central organization is concerned, 
 
 1 In 1789 Georgia adopted the bi- 6 I can here say with Professor 
 cameral plan; in 1790, Pennsylvania. Seeley, " Bjr England I mean solely the 
 
 2 Taney, C. J., in Martin et. al. v. state or political community which has 
 The Lessee of Waddell, 16 Peters, p. 410. its seat in England." The Expansion 
 
 8 Ibid., p. 416. of Eng., p. 7. 
 
 * See Charters and Constitutions, vol. 
 i. p. 3.
 
 4 6 
 
 INTRODUCTION. 
 
 Legislative 
 depart- 
 ment. 
 
 Constitu- 
 tional limi- 
 tations an 
 American 
 invention. 
 
 every American state is a mere reproduction of the central 
 organization of the English kingdom with such modifications 
 as have necessarily resulted from the abolition of nobility, 
 feudality, and kingship. In the new as in the old the central 
 powers of the state are divided into the three departments 
 legislative, executive, and judicial which, in the same qual- 
 ified sense, are separate and distinct from each other. 1 
 
 So far as the legislative department is concerned, the Eng- 
 lish bicameral system everywhere reappeared. Our houses 
 of representatives are nothing but the house of commons over 
 again, while our state senates represent the house of lords with 
 the elective principle substituted in lieu of hereditary right. 2 
 The resemblance extends, however, far beyond the mere form 
 of the assembly. It has ever been an elementary principle of 
 American constitutional law that every state legislature is 
 endowed by its very nature with the omnipotence of the 
 English parliament, save so far as that omnipotence is re- 
 strained by the express terms of constitutional limitations 3 
 an American invention which rests upon the doctrine of the 
 sovereignty of the people as distinguished from the sover- 
 eignty of parliament. 4 Such limitations naturally arose out 
 of the process of historic development through which Amer- 
 can legislatures came into existence. From the very begin- 
 ning the powers of the colonial assemblies were more or less 
 limited through the terms of the charters by which such 
 assemblies were either created or recognized. And even in 
 colonial times, " Questions sometimes arose . . . whether 
 the statutes made by these assemblies were in excess of the 
 powers conferred by the charter ; and if the statutes were 
 found to be in excess, they were held invalid by the courts, 
 
 1 The English maxim as to the di- 
 vision of powers was followed in the 
 structure of the state constitutions only 
 in the limited and qualified sense in 
 which it was understood in England. 
 See Federalist, No. xlvi. Dawson's ed., 
 pp. 334-342. In the light of Madison's 
 exposition I cannot see how Mr. Fiske 
 can suppose that there was a " mis- 
 conception " upon this subject in the 
 minds of the framers either of the state 
 or federal constitutions. The " literary 
 theory " of the English constitution mis- 
 led neither Madison nor Hamilton. 
 
 See The Critical Period, etc., pp. 289- 
 292. 
 
 2 The ordinary judicial powers of the 
 house of lords were everywhere cut 
 off, except in New York, where the 
 senate was made a supreme court of 
 appeal. 
 
 8 See Cooley's Const. Lint., p. 107 
 (5th ed.), and cases cited ; Mangan v. 
 State, 76 Ala., p. 60 ; Davis v. State, 68 
 Ala., p. 58. 
 
 * See Democracy in America, vol. L 
 pp. 123-130 ; Cooley's Const. 
 ch. vii.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 47 
 
 that is to say, in the first instance, by the colonial courts, or, 
 if the matter was carried to England, by the Privy Council." 1 
 The statement may be made, as a general rule, that the 
 colonial charter embodied "a frame of government established 
 by a superior authority, creating a subordinate law-making 
 body, which can do everything except violate the terms and 
 transcend the powers of the instrument to which it owes its 
 existence. So long as the colony remained under the British 
 crown, the superior authority, which could amend or remake 
 the frame of government, was the British crown or parlia- 
 ment. When the connection with Britain was severed, that 
 authority passed over, not to the state legislature, which 
 remained limited, as it always had been, but to the people 
 of the now independent commonwealth, whose will speaks 
 through what is now the state constitution, just as the will 
 of the crown or parliament had spoken through the charters 
 of 1628 and 1691." 2 
 
 The elective chief magistrate of an American state simply Theexecu- 
 represents another phase of the general process of reproduc- tive P wer - 
 tion. "The governor of the independent state succeeded 
 the governor of the dependent colony, and he, whether 
 elected or nominated, was essentially a reflected image of 
 kingship. The governor of the state retained the position 
 of the governor of the colony, with such changes as a repub- 
 lican system necessarily required." 3 So far as judicial The judi- 
 organization is concerned, there has been but a slight depart- cia 
 ure from the ancient original. Such differences as do exist 
 are rather differences of detail than of organic structure. 
 In both systems the unit of local judicial administration 
 is the county, where all causes, except equity and probate 
 causes, are tried in the first instance according to the course 
 of English customary law, subject to review in a central 
 
 1 Bryce, 754* Am. Commonwealth, who says, in reference to the Rhode 
 vol. i. p. 243. Island case, that it " is worthy of note 
 
 2 Ibid., p. 415. The case of Trevett that the first case in which a legislative 
 v. Weeden, decided in Rhode Island in enactment was declared unconstitu- 
 1786, seems to be the first case in which tional and void, on the ground of in- 
 a legislative act was declared void by compatibility with the constitution of 
 reason of repugnance to the principles the state, was decided under one of 
 of a state constitution. The second these royal charters." 
 
 case is that of Bayard v. Singleton, 8 Freeman, Hist. Fed. Govt., vol. i. p 
 Martin (N. C.), p. 48, decided in 1787. 314, note I. 
 See Cooley (Const. Lim., p.-36, note l) f
 
 4 8 
 
 INTRODUCTION. 
 
 appellate court modelled after the great courts at Westmin- 
 ster. It is not the ancient county court, however, that is 
 The assize the local centre of judicial administration. In America as 
 conrt c the * n England the ancient county court is overshadowed by the 
 session o? S ~ ass i ze or circuit court held periodically in every county by 
 the English the itinerant or circuit judge sent to preside in the local tri- 
 
 race 
 
 bunals by state authority. In every assize or circuit court 
 held where English law prevails, the jury of presentment and 
 the trial jury enter as component parts into the structure of a 
 tribunal, which, in its modern form, is the special possession 
 of the English race. Each colony started out by adopting 
 the whole body of English statutory and customary law l so 
 far as its principles could be adapted to their changed social 
 and political conditions. By a perusal of the colonial codes 
 it is possible to trace the beginnings of the great work of 
 adaptation, which has not yet eliminated all of the obsolete 
 elements of the ancient system. Even in the land law of 
 the United States, which rests upon the broad principle that 
 all lands are held allodially, definite traces of feudal law still 
 survive. Although feudal tenures were abolished by the 
 statute of 12 Car. II. c. 24, the leading principles of the 
 system still survive as the basis of the English and American 
 law of real property. As one of our own jurists has ex- 
 pressed it, "Though our property is allodial, yet feudal ten- 
 ures may be said to exist among us in their consequences 
 and the qualities which they originally imparted to estates." z 
 When all of these elements of likeness are considered, who 
 can fail to perceive that the typical English state in America 
 is, in a constitutional sense, simply the English kingdom 
 transferred to a new theatre, where it has entered upon a 
 wider destiny with its political horizon unclouded by the 
 waning shadows of nobility, feudality, and kingship. 
 
 6. Having traced in some detail the growth of the English 
 of govern colonies in America down to that point in their history at 
 which they appear as thirteen sovereign commonwealths, 
 each one of which is a substantial reproduction of the English 
 kingdom, the attempt will next be made to outline the 
 
 1 " British and colonial statutes made 2 Gibson, C. J., in 9 Serg. and R. 
 
 prior to the Revolution continued also (Penn.), p. 333. See, also, 3 Serg. and 
 
 in force unless expressly repealed." R., p. 449. 
 The Critical Period, etc., p. 69. 
 
 Feudal 
 principles 
 still linger 
 in Ameri- 
 can land 
 law. 
 
 Federalism 
 
 ment.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 49 
 
 process through which these commonwealths were drawn 
 together first in lax and imperfect confederacies, and finally 
 in the most perfect federal union which has ever existed in 
 ancient or modern times. In order the more clearly to com- 
 prehend the process through which federalism has finally 
 taken on in America its most perfect form, it will be helpful 
 to glance for a moment at its history as a system of govern- 
 ment prior to the making of its last and most successful 
 experiment. A federal union may be defined to be the 
 joining together of sovereign states under any form of con- 
 federation more permanent than a mere alliance, wherein 
 each state surrenders a part of its sovereignty for the com- 
 mon good of all, without the surrender of its individual right 
 to regulate such internal affairs as concern it only. It is the 
 very opposite of that kind of union which is brought about by 
 the incorporation or fusion of two or more states or cities 
 into a single body with equal rights common to all. The 
 ideal or perfect federal government may be defined to be one A perfect 
 which is but a single state in all matters which concern the e rnment g 
 federal body as a whole, and yet a group of states perfectly 
 independent in all matters which concern each member of 
 the group as a local self-governing community. To the ideal 
 federal government, the federal commonwealths which have 
 actually existed in history can only be regarded as more or 
 less close approximations. Out of the entire group of such 
 commonwealths four have been specially commended for 
 study to students of the history of federal government for the 
 reason that their constitutions illustrate the closest approaches 
 which have so far been made to the perfect federal ideal. 
 These four are the Achaian League (B. c. 281-146); the The closest 
 Confederation of the Swiss Cantons (from 1291) ; the Seven 
 United Provinces of the Netherlands (1579-1795) ; and the ideaL 
 United States of North America (from 1781). "Of these 
 four, three come sufficiently near to the full realization of the 
 federal idea to be entitled to rank among perfect federal 
 governments. The Achaian League, and the United States 
 since the adoption of the present constitution, are indeed the 
 most perfect developments of the federal principle which the 
 world has ever seen." 1 In considering the internal structures 
 
 1 Freeman, Hist, of Federal Government, vol. i. pp. 5, 6.
 
 50 INTRODUCTION. 
 
 of these more perfect federal systems a sharp distinction must 
 be drawn between those in which the central power deals only 
 with the government of states as states, and those in which 
 Federal the central power acts directly upon all citizens. According 
 to the manner in which the central power exercises its special 
 functions federal governments are usually divided into two 
 classes. Those in which the central power is only authorized 
 to issue requisitions to the state government for each to carry 
 out are known as "confederated states;" while those which 
 are sovereign within their own spheres, and which can enforce 
 such sovereignty directly upon every citizen, are known as 
 "composite states." 1 The scholars who have in our own 
 time passed beyond the Greece of Thucydides into the Greece 
 of Polybios, 2 who have passed beyond the period in which the 
 independent city-commonwealth was the dominant political 
 idea into the later and less brilliant period of Hellenic free- 
 Greek fed- dom occupied by the history of Greek federalism, have at last 
 the Achaean P u ^ before us in a tangible form the history of at least one 
 League, ancient federal league whose internal structure entitles it to 
 be ranked among " composite states." Careful analysis of the 
 constitution of the Achaian League seems to have clearly 
 established the fact that its government was really national ; 
 that there was an Achaian nation, with a national chief, a 
 national assembly, and national tribunals ; that every Achaian 
 citizen owed a direct allegiance to the central authority as a 
 citizen of the league itself, and not merely of one of the cities 
 that composed it. 3 The supreme power was vested in a single 
 primary assembly which met at stated intervals, and in a gen- 
 eral (STpaTTjyos), elected for a stated term like the American 
 president, who was assisted . by ten magistrates who formed 
 
 1 As to the distinction between the vol. ii. p. 427, as to the character of 
 
 two classes, see J. S. Mill, Rep. Govt., Polybios as a historian. Mr. Freeman, 
 
 p. 301 ; Prof. Barnard, Lectures on after referring to Grote's depreciation 
 
 American War, Oxford, 1861, pp. 68- of "the Greece of Polybios" (vol. xii. 
 
 72; Tocqueville, Democracy in Amer- pp. 527-530), laments the fact that his 
 
 tea, vol. i. pp. 250, 265 et seq.; Free- great work "lies almost untouched in 
 
 man, Hist, of Fed. Govt., vol. i. pp. n, our universities." Fed. Govt., pp. 219- 
 
 12, and notes. Tocqueville (vol. i. p. 227, note i. In Germany the federal 
 
 201) says that the constitution of the period of Grecian history has excited 
 
 United States is neither exactly national more interest. 
 
 nor exactly federal : it is a novel thing 8 " The Achaian League was, in Ger- 
 without a name " un gouvernment na- man technical language, a Bundesstaat, 
 tional incomplet" See upon the whole and not a mere Staatenbund." Free- 
 subject, Federalist, Nos. xxxviii., xxxix. man, Hist, of Federal Govt., vol. i. p. 
 
 3 See Mommsen, Romische Geschichte, 259, citing Helwing, p. 237.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 5 1 
 
 around him a permanent cabinet or council. 1 Although the 
 central assembly did undoubtedly levy federal taxes (at KOIVCU 
 cio-^opai' 2 ), the probabilities are that such taxes were collected 
 not by federal tax collectors, but through the requisition sys- 
 tem under which each city was permitted to raise its quota 
 through its own local machinery. The Achaian League can whose na- 
 therefore only hold its place among " composite states " by ern^'ent ^ 
 virtue of the fact that its national government acted directly rectiy^'pon 
 upon the citizen, and not by reason of the fact that it had the citizen. 
 passed beyond the requisition stage to that in which a federal 
 government collects its taxes through the direct agency of its 
 own officers. 3 And yet, whatever general resemblance may 
 be traced between the Achaian League (the product of a 
 union of city-commonwealths) and the United States (the 
 product of a union of modern states), the fact remains that 
 the history of the one had no direct or conscious influence 
 upon the making of the other. That the makers of the Makers of 
 constitution of the United States had no real knowledge of const^u 1 
 the history of the ancient league is made certain by that ^"^ow" 
 writer in the " Federalist " who tells us that " could the interior edge of this 
 structure and regular operation of the Achaian League be 
 
 ascertained, it is probable that more light might be thrown 
 by it on the science of federal government, than by any of 
 the like experiments with which we are acquainted." 4 The 
 only federal governments with whose internal organizations only ac- 
 the builders of our federal republic were really familiar, and wuh'the 
 whose histories had any practical effect upon their work, st 5* u l. es 
 were those which had grown up between the Low-Dutch tonic 
 communities at the mouth of the Rhine, and between the 
 High-Dutch communities in the mountains of Switzerland, 
 and upon the plains of Germany. 6 Down to the making of the 
 second constitution of the United States, the Confederation 
 
 1 Freeman, Hist, of Federal Govt., * No. xviii. That the American 
 
 vol. i. pp. 263, 282, 285. Union was not a conscious imitation of 
 
 3 Pol. iv. 60. the Achaian League is clearly brought 
 
 * Mr. Freeman holds that even if the out in Federal Government, vol. i. p. 
 
 federal taxes were collected through 319. Such knowledge as the framers 
 
 requisitions, that fact should not die- did possess of Greek federalism seems 
 
 grade the " Achaian League from the to have been chiefly drawn from the 
 
 rank of a composite state to that of a work of the Abbe" Mably, Observations 
 
 mere confederacy." Federal Govern- sur FHistoire de Grece. See Federalist, 
 
 ment, vol. i. p. 14. See, also, p. 309, No. xviii. p. 117. 
 
 and note 2. 6 See Federalist, Nos. xix., xx.
 
 52 INTRODUCTION. 
 
 of Swiss Cantons, the United Provinces of the Netherlands, 
 and the German Confederation really represented the total 
 advance which the modern world had made in the structure 
 of federal governments. Such advance was embodied in the 
 idea of a federal system made up of a union of states, cities, 
 or districts, representatives from which composed a single 
 federal assembly whose supreme power could be brought to 
 bear not upon individual citizens, but only upon cities or 
 ail of which states as such. The fundamental principle upon which all 
 the reqiusi- such fabrics rested was the requisition system, under which 
 ^ sys " the federal head was simply endowed with the power to 
 make requisitions for men and money upon the states or 
 cities composing the league for federal purposes ; while the 
 states alone, in their corporate capacity, possessed the power 
 to execute and enforce them. The first advance made by 
 the English colonies in America in the path of federal union 
 ended with the making of the first constitution of the United 
 States, embodied in what is known as the Articles of Confed- 
 eration. Up to that point nothing new had been achieved ; 
 the fruit of the first effort was simply a confederation upon 
 the old plan with the federal power vested in a single assem- 
 bly which could only deal through the requisition system 
 with the states as states. 
 
 Effects of The group of English provincial states, as they appear in 
 onfeden America towards the close of the eighteenth century, were a 
 tion. substantial reproduction of that older group of English com- 
 
 monwealths, generally known as the heptarchic kingdoms, as 
 they appear in Britain in the eighth. Their historical origin 
 was the same, and their systems of political organization 
 substantially the same. And yet in spite of these likenesses 
 the younger group, in their earlier efforts at union, were 
 unable to look to the political experience of the elder either 
 for light or guidance, for the reason that the widely different 
 geographical conditions by which they were respectively 
 surrounded had prescribed for each a widely different des- 
 tiny. Confined within the narrow and impassable limits of 
 an island world, it became "the manifest destiny" of the 
 English states in Britain, advancing in the path of political 
 aggregation, to coalesce in the formation of a single consoli- 
 dated kingdom. Situated upon the shores of an almost
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 53 
 
 boundless continent, it became "the manifest destiny " of the 
 English states in America, advancing in the path of political 
 confederation, to unite in the flexible bonds^of a federal 
 system capable of unlimited expansion. 1 "The circumstances 
 of the tenth century led the English kingdoms in Britain 
 naturally and necessarily to coalesce in the shape of a con- 
 solidated kingdom. The circumstances of the eighteenth 
 century led the English commonwealths in America as 
 naturally and necessarily to coalesce in the shape of a federal 
 commonwealth." 2 
 
 A remarkable fact in the history of the colonies was their Effects of 
 rapid growth in population. During the century and a half of e popuia- 
 that intervened between the founding of the first settlements f 
 and the close of the French and Indian War the population 
 of the thirteen had swelled to full a million and a half 3 
 nearly one fourth of that of the mother country. This rapid 
 increase in population forced upon the early settlements the 
 necessity of continually widening their boundaries. In this 
 way disputes arose not only among the colonists themselves, 
 but with settlers of other nationalities grouped about them 
 whose boundaries were defined in grants from their own sov- 
 ereigns. The difficulties and dangers growing out of this 
 condition of things brought about the formation of the first 
 American confederacy. No sooner had the four New Eng- 
 land colonies of Massachusetts, Connecticut, New Haven, and 
 Plymouth completed their existence than their disputes be- 
 tween themselves, and their hostilities with the Dutch in 
 New Netherland, growing out of encroachments on their 
 territory, with the French in Canada, arising out of conflict- 
 ing grants, and with the Indians, impelled them, " encom- 
 passed by people of several nations and strange languages," 
 to enter " into a consociation for mutual help and strength." 
 The federal constitution of this short-lived league, formed 
 upon the requisition plan, was embodied in formal articles 
 of confederation, 4 eleven in number, which were agreed upon 1643- 
 at Boston, in May, 1643. It wa s provided that the affairs 
 
 1 See American Political Ideas, Fiske, million of negroes." Green, ffist. of 
 
 chapter iii., entitled " Manifest Des- the Eng. People, vol. iv. p. 167. 
 
 tiny." * The articles were first printed in 
 
 * Freeman, The English People* in 1656 in London, in Governor Eaton's 
 
 its Three Homes, p. 186. code entitled New Haven's Settling in 
 
 8 " 1,200,000 whites and a quarter of a New England.
 
 54 INTRODUCTION. 
 
 of the confederacy should be managed by a board of federal 
 commissioners, and that the members of the league should 
 be known henceforth as the United Colonies of New Eng- 
 land. 1 A hundred years and more then passed by before 
 the whole colonial group was for the first time aroused to 
 the necessity for union by the presence of a common dan- 
 ger which also grew out of the question of territorial expan- 
 New sion. The French, who early in the seventeenth century 
 
 France. ^ a( j p OSsesse d themselves of Canada and the St. Lawrence, 
 possessed themselves early in the eighteenth of the Missis- 
 sippi, founding in 1718 the city of New Orleans. Between 
 the mouths of the two mighty rivers were placed at points 
 of the greatest strategic value a line of forts which were de- 
 signed to protect from English intrusion that vast domain 
 called New France, which stretched on the west of the Alle- 
 ghanies from New Orleans to Quebec. By such means as 
 these the French hoped to retain for themselves the valleys 
 of the Mississippi and Ohio, and to confine the English colo- 
 nies within that comparatively narrow strip of country lying 
 between the Appalachian range and the Atlantic Ocean. 
 The strug- But when the time for expansion came, when the necessities 
 f the swelling English population impelled them to pass the 
 tops of the Alleghanies in order to possess themselves of the 
 great valleys beyond, upon which France had first laid hold, 
 the fact was revealed that the young giant of the Atlantic 
 had only been bound with the thongs of Lilliput. 2 When 
 the English colonial system came in collision with the French 
 colonial system, when the new self-governing soldiery which 
 had been reared in the southern counties and in the New 
 England townships went out together under the lead of the 
 mother country to do battle with a colonial power which had 
 never been trained in self-reliance, it " was like a Titan over- 
 throwing a cripple." 3 France's dream of empire in the west 
 was broken, she was forced to give up her priceless posses- 
 
 1 As to the history and structure of 373 ; Memorial Hist, of Boston, vol. i. 
 
 the New England confederation, see p. 299. 
 
 " Acts of the Federal Commissioners," 2 See Nar. and Crit. Hist., vol. v. 
 
 which form the ninth and tenth vol- ch. viii., entitled " The Struggle for the 
 
 umes of the Plymouth Records ; Doyle, great valleys of North America." 
 English Colonies in America, Puritan, 8 Fiske, Am. Political Ideas, p. 56 
 
 etc., vol. i. pp. 220-265 ; Nar. and Crit. See the criticism of this statement in 
 
 History, vol. iii. pp. 315,334,338,354, Nar, and Crit. Hist,, vol. v. p. 533, 
 
 note i.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 55 
 
 sions and to retire from North America. The results of the Effects of 
 French and Indian War were momentous in their effects upon indTan war 
 the cause of union. By the overthrow of the one enemy that "^sVol* 
 they feared, the only real cause for the dependence of the union - 
 colonies upon the mother country was removed at a blow ; 
 by their joint endeavors was won that vast domain beyond 
 the Alleghanies which was destined to become a national 
 possession ; in the thick of the fight the new nationality 
 heretofore unconscious of its real character finally awoke to 
 a sense of its oneness. The struggle for expansion thus be- 
 came the training-school in which the colonists were for the 
 first time made to realize their capacity for concert of action 
 upon which they had mainly to rely in the greater fight that 
 was soon to come. Within two years after the making of 
 the Peace of Paris, by which the French and Indian War was 
 formally terminated, the colonies were called upon to act in 
 concert in resisting the Stamp Act which in February, 1765, 
 had passed the Imperial parliament. 1 When Massachusetts stamp Act 
 spoke the word for the first American congress, the nine of oct^^s 
 the thirteen colonies that met in New York in response to 
 the summons took the first step on the way to union. Nine 
 years later, when Massachusetts at the suggestion of Virginia 
 again gave the word, the First Continental Congress assem- First Con- 
 bled in Philadelphia in September, 1774, in which all the Congress. 
 colonies were represented except Georgia. In this the first Sept ' I774 ' 
 American assembly which was really national, and in which 
 Washington sat in his colonel's uniform, the new-born spirit 
 of union was embodied in a resolution which made the cause 
 of the people of Massachusetts the cause of all by the dec- 
 laration that if force shall be used " all America ought to 
 support them in their opposition." In the Second Conti- Second 
 
 f , _, Continental 
 
 nental Congress which met in the same place in May of the Congress. 
 following year all of the colonies appeared, and, in the sum- x 
 mer of 1776, all took part in the two great acts 2 which gave 
 
 1 It "passed through both houses Lee moved a resolution, which was 
 with less opposition than a turnpike adopted by congress on the nth, 
 bill." Green, Hist, of the Eng. Peo- "That these United Colonies are, and 
 pie, vol. iv. p. 230. The Peace of Paris of right ought to be, free and inde- 
 was the fruit of a treaty signed in Paris pendent states. . . . And that a plan of 
 in February, 1763. For its history, see confederation be prepared and trans- 
 Parkman, Montcalm and Wolfe, vol. ii. mitted to the respective colonies for 
 p. 383, etc. their consideration and approbation." 
 
 2 On the 7th of June Richard Henry
 
 INTRODUCTION. 
 
 Declaration 
 of Inde- 
 pendence. 
 July 4, 1776. 
 
 Congress 
 the national 
 government 
 down to 
 March i, 
 1781. 
 
 Articles of 
 Confedera- 
 tion. 
 
 life and character to the new nationality. By one concurrent 
 act, performed through their representatives in congress as- 
 sembled, the colonies severed their political relations with the 
 English crown, and thus became independent states, save so 
 far as that independence was limited by the federal relations 
 into which they had entered prior to the making of the Dec- 
 laration of Independence. 1 What those federal relations were 
 depends upon the nature and extent of the powers of the 
 Second Continental Congress which was the cohesive force 
 which held the states together, and managed their federal af- 
 fairs from the time of its meeting down to the ist of March, 
 i/Si, 2 when the articles of confederation took effect as a 
 constitution binding on all the states. Down to that time 
 the congress was the national government such a govern- 
 ment as it was de jure and de facto ; and the general scope 
 of its powers cannot be more clearly expressed than in the 
 language of Justice Chase, who said that " The powers of 
 congress originated from necessity, and arose out of and were 
 only limited by events, or, in other words, they were revolu- 
 tionary in their very nature. Their extent depended on the 
 exigencies and necessities of public affairs." 3 
 
 The move upon the part of congress to devise some form 
 of confederation under which the colonies could permanently 
 unite preceded by three weeks the promulgation of the Dec- 
 laration of Independence. 4 But the task proved a difficult 
 one. Not until after a year and a half had been consumed 
 
 1 "The transformation of the colo- 
 nies into ' states ' was, therefore, not 
 the result of the independent action of 
 the individual colonies. It was accom- 
 plished through the 'representatives 
 of the United States;' that is, through 
 the revolutionary congress, in the name 
 of the whole people." Von Hoist, 
 Const. Hist, of the 7. S., vol. i. p. 5. 
 To the same effect, see Fiske, The 
 Critical Period, p. 91. This seems to 
 be the more reasonable view, but the 
 Supreme Court of the United States, 
 in Ware v. Hylton, 3 Dallas, p. 224, 
 expressed through Justice Chase a con- 
 trary opinion, as follows : " I consider 
 this as a declaration, not that the Uni- 
 ted Colonies jointly, in a collective ca- 
 pacity, were independent states, etc, 
 but that each of them was a sovereign 
 and independent state," 
 
 2 On that day Maryland signed the 
 articles and completed the constitu- 
 tion. 
 
 8 See Ware v. Hylton, 3 Dallas, p. 
 232. Von Hoist incorrectly attributes 
 this statement to Jay, C. J. 
 
 4 The committee appointed under the 
 resolution of the nth of June, 1776, to 
 draft "articles of confederation and 
 perpetual union," completed its work 
 by the I2th of July, but the result was 
 not finally adopted by Congress until 
 November, 1777. "John Dickinson is 
 supposed to have been the principal 
 author of the articles of confedera- 
 tion ; but as the work of the commit- 
 tee was done in secret, and has never 
 been reported, the point cannot be de- 
 termined." The Critical Period, etc^ 
 
 P- 93-
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. $? 
 
 in study and debate did the draft of the first constitution of 
 the United States reach completion. Not until November, 
 1777, were the articles of confederation submitted by con- 
 gress to the states for adoption, whereupon they were 
 promptly signed by all except Delaware, New Jersey, and 
 Maryland. Their refusal to enter into the confederacy grew 
 out of the controversy as to the ultimate ownership of the 
 great western territory of which France had been dispos- The west, 
 sessed. After the Revolution had extinguished the rights of toiy. en 
 the English crown in this vast domain, Virginia, New York, 
 Connecticut, and Massachusetts undertook to claim it for 
 themselves under conflicting and irreconcilable titles. The 
 three resisting states, whose western boundaries were irrev- 
 ocably fixed, could never hope to share in this great heri- 
 tage unless its ownership should be vested in the corporate 
 person of the new nationality. To prevent such a contin- 
 gency the claiming states had procured an amendment of the 
 articles to the effect that no state should be deprived of ter- 
 ritory for the benefit of the United States. 1 Delaware and 
 New Jersey soon withdrew from the controversy, leaving the 
 fight for national dominion over this priceless possession to 
 Maryland alone. In her " Instructions " to her delegates Maryland's 
 read in congress, May 21, 1779, her position was clearly and ^polfthe 
 distinctly defined. She claimed " that a country unsettled k^tT 
 at the commencement of this war, claimed by the British the United 
 crown, and ceded to it by the treaty of Paris, if wrested from 
 that common enemy by the blood and treasure of the thirteen 
 states, should be considered as common property, subject to 
 be parcelled out by congress into free, convenient, and inde- 
 pendent governments, in such manner and at such times as 
 the wisdom of that assembly shall hereafter direct." 2 For- 
 tunately for the future of the country, from this high ground 
 she never withdrew. In January, 1781, Virginia agreed con- 
 ditionally to yield her claims; 3 on March i, 1781, New York 
 executed a transfer of her rights to the United States ; and 
 on that day Maryland completed the new constitution by giv- 
 ing it her adhesion. 4 Exactly three years thereafter Virginia 
 
 1 See Journals of Congress^ vol. ii. 8 Journal of Va. House of Delegates, 
 p. 304. p. 79. 
 
 * See Ibid., vol. iii. p. 281. * Journals of Congress, vol. iii. pp.
 
 58 INTRODUCTION. 
 
 conveyed without conditions, and in due time Massachusetts 
 and Connecticut did substantially the same thing. In this 
 way the new nationality became the sovereign possessor of 
 " the whole northwestern territory the area of the great 
 states of Michigan, Wisconsin, Illinois, Indiana, and Ohio 
 (excepting the Connecticut reserve)," 1 which, under the ar- 
 ticles of confederation, it had no express right either to hold 
 or govern. 2 Not until Maryland had been assured that this 
 great prize should belong to the new confederacy, not until 
 its right to possess this vast domain as folkland had been 
 clearly admitted, did she agree to become a member of the 
 league whose constitution soon proved itself to be more weak, 
 more worthless, more impotent than that of any of the older 
 Teutonic leagues after which it had been patterned. In their 
 first effort American statesmen exhibited no fertility of re- 
 character source in the making of federal constitutions. The new 
 federal con- fabric simply embodied the old story of a confederation with 
 stitution. tne f ec i era i power vested in a single assembly, without an ex- 
 ecutive head, and without a judiciary. Congress could make 
 treaties with foreign nations, but it could not force the states 
 to observe them ; it alone could decide controversies between 
 the states, and yet it could not enforce the final decree ; it 
 could declare war, but it could raise neither men nor money 
 save through the old and ineffectual system of requisitions 
 interstate upon the states as states. If there was one feature that 
 p ' raised the new constitution above its fellows it was the new 
 system of interstate citizenship which it embodied. 3 But 
 such a negative virtue as that was not sufficient to save it 
 from the general condemnation which fell upon it as its de- 
 ficiencies were day by day revealed in the storm and stress of 
 protracted war. Federalism, which as a system of govern- 
 ment already stood low enough in the estimation of mankind, 
 
 581, 582, 591. What has been here said domain, a power totally foreign to the 
 
 as to the influence of Maryland in this articles of confederation," under the 
 
 great transaction has been chiefly drawn ordinances of 1784 and 1787, see Dr. 
 
 from the brilliant monograph of Dr. Adams's paper cited above, p. 44; Fiske, 
 
 H. B. Adams, entitled " Maryland's The Critical Period, pp. 192-207. 
 
 Influence upon Land Cessions to the 8 See sec. one, art. four, of articles. 
 
 United States," J. H. Studies, 3d "The articles of confederation first 
 
 series, I. brought in the rule that any one might 
 
 1 The Critical Period, p. 194. at will transfer his membership from one 
 
 2 As to " the exercise of national state to another." Bancroft, Hist, oj 
 sovereignty in the sense of eminent the Const., vol. i. p. 118.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 59 
 
 was put in no better plight by the first American experiment. 
 The full significance of that fact naturally fell with the great- 
 est weight upon the heart of the mighty chief whose person- Washing- 
 ality was called upon to supply the unity and cohesion which ton ~ 
 could not be derived from the new constitution. As Luzerne 
 wrote of him to Vergennes at a little later day, " More is 
 hoped from the consideration of a single citizen than from the 
 authority of the sovereign body." l From the very outset 
 Washington saw that no good could come of the new compact 
 unless more adequate powers were vested in the federal assem- 
 bly. In the month before the articles were finally accepted 
 by Maryland he wrote : " I never expect to see a happy termi- 
 nation of the war, nor great national concerns well conducted 
 in peace, till there is something more than a recommendatory 
 power in congress." 2 So completely had this conviction taken 
 hold of his mind by the close of the war, that he made its ex- 
 pression the most solemn feature in the circular letter which Ms circular 
 in June, 1783, he addressed through the governors of the states 
 to the whole people as his " legacy " to his country. " The 
 newspapers of the day, as they carried the letter of Washing- 
 ton into every home, caught up the theme, and demanded a 
 revision of the constitution, 'not by congress, but by a conti- 
 nental convention, authorized for the purpose.' " 3 Ere the 
 echo of Washington's great appeal had died away the states, 
 under the lead of Virginia 4 whose conduct he inspired, gath- 
 ered in the famous federal convention of 1787 in which was 
 framed the present constitution of the United States. 
 
 7. The work of the federal convention which met in Phila- The Fedet 
 delphia on May 14, 1787, is generally and justly regarded as tion, May 
 the most perfect and the most important piece of political I4> I787 ' 
 .work ever performed by a deliberative assembly in ancient or 
 modern times. In the words of Mr. Gladstone, "As the 
 British constitution is the most subtile organism which has 
 proceeded from progressive history, so the American consti- 
 tution is the most wonderful work ever struck off at a given 
 
 1 August, 1783. Printed in Appen- through which the convention was 
 dix to Bancroft, vol. i. p. 326. brought about, and as to the parts 
 
 2 Washington to Sullivan, February taken by Washington and Madison, 
 4, 1781. Sparks, vol. vii. p. 402. see The Critical Period, etc., pp. 212- 
 
 8 Bancroft, vol. i. p. 113. 229. As to Virginia's initiative, see 
 
 * For the details of the process Bancroft, vol. i. ch. viii.
 
 60 INTRODUCTION. 
 
 time by the brain and purpose of man." l The men themselves 
 who accomplished the mighty task seem to have been over- 
 come at its close by the grandeur of their achievement. 
 When the masses of the people had the opportunity to ex- 
 amine its provisions, and to feel the practical benefits which 
 it wrought in their political condition, they too became im- 
 bued with a spirit of intense admiration ; they put it upon a 
 pedestal and made it a popular idol ; as a German historian 
 Canoniza- has expressed it, the new constitution soon passed through a 
 cpnstitu- e process of canonization. 2 The one evil effect of this ardent 
 and uncritical spirit was to mislead for a time the minds of 
 men as to the real character of a work whose true value as 
 an enduring institution rises higher and higher in the light 
 of its actual history. The uncritical enthusiasts who looked 
 upon the framers of the new constitution as demigods and 
 not as men, and who held up their work as a spontaneous 
 creation produced under the effects of an intellectual inspi- 
 ration, unwittingly put upon it the gravest reproach to which 
 it could possibly have been subjected. It is just because it 
 was no such thing that it has been able to survive all the 
 vicissitudes through which it has passed, and to stand forth 
 to-day stronger and better for having passed through the 
 severest ordeal in which any political fabric was ever tested. 
 The consti- To the student of institutions the constitution of the United 
 ^creation! * States is not a " creation " at all, neither is it a paper constitu- 
 tion in the sense in which that term is usually understood. 
 If it had been, it would have withered long ago and disap- 
 peared along with the many other paper constitutions formu- 
 lated about the same time by the excited dreamers of the 
 French Revolution who refused to believe with Sir James 
 Mackintosh that "constitutions are not made, they grow." 
 In the light of the calm critical spirit which now prevails, and 
 with the abundant historical knowledge at the command of 
 all, there is no reason why any one should be misled as to 
 the real origin and character of our federal constitution. 
 
 1 This statement is quoted only as that a viable constitution can ever be 
 
 evidence of the esteem in which the ' struck off at a given time by the brain 
 
 work of the convention is held by the and purpose of man.' " See The New 
 
 greatest of statesmen. I believe with Princeton Review, September, 1887, p. 
 
 Professor Johnston that, " If the bril- 186. 
 
 liant success of the American constitu- 2 Von Hoist, vol. i. pp. 64-70. 
 tion proves anything, it does not prove
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 6 1 
 
 From the biographies of the fraraers themselves it is easy to 
 ascertain what their race-traits were ; from the histories of 
 the colonies from which they came it is equally easy to ascer- 
 tain what had been the character of their prior political 
 training and experience ; from the history of the events 
 which had recently preceded their meeting we can derive with- 
 out any great effort the overshadowing causes which brought 
 them together. As to the secret proceedings of the conven- proceed- 
 tion itself, industry has exhausted its resources in gathering contention, 
 together every scrap of existing evidence which can possibly 
 throw light upon the subject. 1 The incomplete Journal of the 
 convention has been edited and published under the sanction 
 of congress ; the contemporaneous private correspondence of 
 the members has been gathered together from every quarter ; 
 the archives of our own state department have been carefully 
 searched ; the archives of the foreign governments that had 
 representatives in the country at the time have been made 
 to yield up their treasures, 2 until everything calculated to 
 throw light upon what was done in the "secret conclave" has 
 at last been made accessible to every inquirer. In the Feder- 
 alist papers we have a contemporaneous exposition little less 
 remarkable for intellectual vigor than the constitution itself. 
 Out of such a mass of material it would be easy to spin a 
 volume. The difficult task is to so lift up out of the mass the 
 great central facts and thoughts as to make them present 
 vividly to the mind a clear and simple picture of what actually 
 occurred. Through every great transaction there runs a 
 logical order of thought, as well as a historical sequence of 
 facts. And yet it often happens that a mere narration of the 
 facts in the order in which they occurred will utterly fail to 
 
 1 The most important single source tion of congress," in 1830-45, and re- 
 of information as to the proceedings of printed in Philadelphia in 1888. 
 the federal convention is Elliot's De- 2 In the appendices to Bancroft's 
 bates, in which is contained not only the Hist, of the Constitution, 1883, can be 
 debates which took place in the state found a rare collection of letters and 
 conventions on the adoption of the papers touching the making of the con- 
 constitution, but also the Journal of stitution, and the causes which led to 
 the Federal Convention, Yates' Min- the meeting of the convention, very 
 utes of the Proceedings, Madison's few of which had ever before been pub- 
 Journal of the Federal Convention, to- lished. See Mr. Bancroft's criticism 
 gether with the official letters of many upon the manner in which the inconi- 
 of the leading members in explanation plete Journal of the convention has been 
 of their conduct, and other documents interpolated by its editors. Preface, pp. 
 of the highest historic value. These de- xiv., xv. 
 bates were published " under the sane-
 
 62 INTRODUCTION. 
 
 reveal to the mind the full scope of the intellectual process 
 moving behind them. This is eminently true of the proceed- 
 ings of the federal convention. From the mere record it is 
 impossible to grasp the full significance of all that transpired. 
 In attempting to read the mind of the convention, the fact 
 must be recognized that "under the shell there is an animal, 
 and behind the document there is a man." 1 In the light of 
 this truth the effort will be made to explaiji within a narrow 
 compass, first, the sources whence came the great thoughts 
 that dominated the convention ; second, what those great 
 thoughts were ; third, the forms which they finally assumed. 
 Race-traits An assembly could hardly have been convened in the 
 ers! e *~ United Kingdom more English as to race and political train- 
 ing than that made up of the fifty-five delegates who com- 
 posed the federal convention. The Virginia delegation was 
 simply a brilliant group of English country gentlemen who 
 had been reared on the right side of the Atlantic. Alexander 
 Hamilton and Robert Morris were born English subjects ; 
 the father of Franklin was an English emigrant from North- 
 amptonshire ; Charles Cotesworth Pinckney had been edu- 
 cated at Oxford and the Middle Temple; Rutledge had 
 studied law at the Temple ; and James Wilson, the most 
 far-sighted man perhaps in the whole convention, was born 
 Political near St. Andrews in Scotland. As to political training, they 
 training. na( j a ^ been reared under the English system of local self- 
 government which had grown up alongside of the English 
 customary law in the several states which they represented. 
 These states they had helped to transform from English 
 provinces into independent commonwealths whose constitu- 
 tions were substantial reproductions of that of the English 
 kingdom. In fine, the only practical conception of the state 
 which they possessed was that embodied in the constitution 
 of the old land modified as it had been in the new by the 
 abolition of nobility, feudality, and kingship. So far as 
 Biackstone scientific knowledge was concerned, the oracles usually con- 
 Montes- suited at that day were Biackstone and Montesquieu. The 
 quieu. Spirit of Laws " was studied by Washington as a part of his 
 preparation for the work of the convention ; 2 and Madison 
 
 1 Taine, Hist, of Eng. Literature, 2 Washington drew the outlines of 
 vol. i. p. i. three new constitutions, each one of
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 63 
 
 tells us in the "Federalist," that "The British constitution 
 was to Montesquieu what Homer had been to the didactic 
 writers on epic poetry. As the latter have considered the 
 work of the immortal bard as the perfect model from which 
 the principles and rules of the epic art were to be drawn, 
 and by which all similar works were to be judged ; so this 
 great political critic appears to have viewed the constitution 
 of England as the standard, or, to use his own expression, as 
 the mirror of political liberty." l 
 
 The first effort which American statesmen had made to causes 
 construct a federal constitution had resulted in something polled the"" 
 which was a radical departure from the whole course of m akin g of 
 
 r the second 
 
 their political experience. They had sought a model for the omstitu- 
 new structure entirely outside of the political history of the 
 mother country. The result was a fabric whose internal 
 organization violated every political maxim with which they 
 were familiar. It had no executive head; it had no judiciary; 
 it vested and confused the legislative, executive, and judicial 
 powers in one assembly instead of two ; it had no power to 
 enforce its mandates. No scheme of government ever elab- 
 orated with so much care ever proved a more complete and 
 hopeless failure than that embodied in the articles of con- 
 federation. During the war, when executive force and finan- 
 cial promptness were most essential, it had failed to supply 
 either. At the end of the war it found itself burdened with Financial 
 a great debt for which it had no ability to provide a fact onheam- 
 which brought great discredit upon the new nationality. In federation - 
 the hope of restoring the public credit an earnest effort was 
 made in 1782 to give to congress the power to command a 
 permanent revenue through the imposition and collection of 
 a duty on imports. 2 Two years after the refusal of the states 
 to grant that power to congress, Robert Morris, the able 
 financier, who had so long stood up against every difficulty, 
 gave up his hopeless task ; and, after informing Marbois, 3 the 
 
 which aimed at the making of a stronger states had assented except Rhode Isl- 
 and more perfect union. See North and, whose refusal was followed by the 
 Am. Review, xxv. p. 263; Bancroft, withdrawal of Virginia. Subsequently 
 vol. i. p. 278. all the states agreed to grant the power 
 1 No. xlvi. p. 334, Dawson's ed. except New York, who defeated the 
 a Such a power could only be be- last attempt by annexing to her assent, 
 stowed through an amendment of the given in May, 1786, the proviso that 
 articles which required unanimous con- she should appoint her own collectors, 
 sent. At the close of 1782 all the 8 Dipl. Cor., vol. xii. p. 494.
 
 64 INTRODUCTION. 
 
 representative of France in America, that he could not even 
 provide for the interest on the Dutch loan which France 
 had guaranteed, on the first of November, 1784, finally retired 
 from the office of superintendent of the finances of the 
 United States. 1 In the midst of the weariness, inaction, and 
 confusion which existed at this time Marbois wrote to Ray- 
 neval : " The people, scarcely escaped from war, are already 
 losing that public spirit which up to this time made good 
 the want of energy in the government. There is neither 
 congress, nor president, nor minister in any department. 
 All matters, and especially those of finance, fall into a worse 
 Root of the confusion than before." 2 The rock upon which the confed- 
 uls!tbn req eration had gone to wreck was the requisition system, under 
 system. which the federal treasury was practically dependent upon 
 the states for voluntary contributions. Out of ten million 
 dollars, called for by congress for the four years ending in 
 1786, only one fourth was actually collected. Under the 
 pressure of such circumstances congress lost both prestige 
 and authority ; and by the time of the meeting of the federal 
 convention the government of the confederation had practi- 
 cally disappeared. The country was beginning to be threat- 
 ened with anarchy, 3 with dangers from within and dangers 
 Four great from without. The pressure of these dangers brought into 
 union 65 for tne foreground four great motives for union. The English 
 order in council of the 2d of July, 1783, as to the carrying 
 trade between America and the British West Indies made it 
 imperatively necessary that the states should vest in a central 
 government the power to regulate and protect their foreign 
 commerce; while other motives of self-interest made it 
 equally necessary that such central power should be armed 
 with the authority to govern the national domain, to provide 
 a revenue for the satisfaction of the public creditors, and to 
 protect domestic trade by prohibiting the states from impair- 
 ing the obligation of contracts.* As Madison expressed it in 
 
 1 See Bancroft, Hist, of the Const., 8 This is well brought out by Fiske 
 vol. i. p. 165. Morris tendered his in The Critical Period, etc., ch. iv., 
 resignation to congress in January, " Drifting toward Anarchy." 
 
 1783, but did not actually give up his * For a full statement of the four 
 post until November, 1784. See Ibid., great motives, see Bancroft, vol. i. p. 
 p. 80. 146. 
 
 2 November 20, 1784. 'Printed in 
 Appendix to Bancroft, vol. i. p. 396.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 65 
 
 a letter written to Lee in November, 1784: "The union of 
 the states is essential to their safety against foreign dangers 
 and internal contention ; the perpetuity and efficiency of the 
 present system cannot be confided in ; the question, therefore, 
 is, in what mode and at what moment the experiment for 
 supplying the defects ought to be made." 1 The utter worth- 
 lessness of the confederation and the pressing necessity for 
 a new federal government were admitted on every hand. 
 The difficulty was to find out how to construct something 
 that would be adequate to the necessities of the new nation- 
 ality. Experience had shown that a league based upon the 
 requisition system was a mere rope of sand, and yet every 
 other federal commonwealth that had ever existed down to that 
 time had rested upon that impotent expedient. At this point The new 
 necessity became the mother of invention, after a painful {dea* the 
 travail America gave birth to a novel and irresistible political *$**' 
 idea, what the Germans would call a path-breaking idea /<* 
 (pahnbrechende Idee). In February, 1783, Pelatiah Webster Peiatiah 
 published at Philadelphia a tract entitled " A Dissertation on Webster; 
 the Political Union and Constitution of the thirteen United 
 States of North America," in which he not only advocated 
 permanent courts of law and equity, and a stricter organiza- 
 tion of the executive power, but also a national assembly of 
 two chambers instead of one, with power not only to enact 
 laws, but to enforce them on individuals as well as on states? 
 A year later this tract, which had been reprinted at Hartford, Noah Web- 
 
 ster * 
 
 was followed by another of the same tenor by Noah Webster, 
 of that place, in which he proposed "a new system of govern- 
 ment which should act, not on the states, but directly on 
 individuals, and vest in congress full power to carry its laws 
 into effect" 8 This brand-new idea which the Websters seem 
 to have been the first to express, the idea of giving to the 
 federal government the power to execute its laws not on 
 states in their corporate capacity, but directly on individuals, 
 embodied the most important and far-reaching political 
 principle to which our career as a nation has given birth. Of 
 this new principle, after its incorporation into the present 
 
 1 Madison Papers, vol. ii. pp. 707, 708. 8 Madison Papers, vol. ii. p. 708. See 
 3 See P. Webster's Political Essays, Noah Webster's Sketches of American 
 p. 228. Policy, pp. 32-38.
 
 66 
 
 INTRODUCTION. 
 
 Thenew 
 comes the 
 
 tution. 
 
 Tocque- constitution, Tocqueville said : " This constitution, which 
 may at first be confounded with federal constitutions which 
 have preceded it, rests in truth upon a wholly novel theory 
 which may be considered a great discovery in modern political 
 science. In all the confederations which preceded the Amer- 
 ican Constitution of 1789, the allied states, for a common 
 object, agreed to obey the injunctions of a federal govern- 
 ment ; but they reserved to themselves the right of ordaining 
 and enforcing the execution of the laws of the Union. The 
 American states, which combined in 1789, agreed that the 
 federal government should not only dictate, but should exe- 
 cute its own enactments. In both cases the right is the same, 
 but the exercise of the right is different ; and this differ- 
 ence produced the most momentous consequences." 1 The 
 " novel theory," the new self-sustaining principle which 
 became the basis of the more perfect union, and superseded 
 therein the impotent system of requisitions, having been pro- 
 pounded by two political thinkers from three to four years 
 before the meeting of the convention, must have been made 
 the subject of careful consideration beforehand by those who 
 were to give to it its first practical application. That it was 
 the dominant idea in the convention itself is proven by the 
 result, the framers made it the foundation of their immortal 
 work. That it was so regarded at the time is proven by evi- 
 dence both clear and abundant. Mr. Davie, of North Caro- 
 lina, in advocating the new constitution in the convention in 
 which his own state finally ratified it, said: "Another radical 
 vice in the old system, which was necessary to be corrected, 
 and which will be understood without a long deduction of 
 reasoning, was, that it legislated on states, instead of indi- 
 viduals. . . . Every member saw that the existing system 
 would be ineffectual, unless its laws operated on individuals, 
 as military coercion was neither eligible or practical." 2 In 
 
 Hamilton, the New York convention Hamilton said : " We contend that 
 
 Davie. 
 
 1 Democracy in America, vol. i. pp. 
 198, 199, Bowen's ed. A greater than 
 Tocqueville has very recently restated 
 the matter as follows : " Its central or 
 national government is not a mere 
 league, for it does not wholly depend on 
 the component communities which we 
 call the States. It is itself a common- 
 
 wealth as well as a union of common- 
 wealths, because it claims directly the 
 obedience of every citizen and acts im- 
 mediately upon him through its courts 
 and executive officers." Bryce, The 
 American Commonwealth, vol. i. p. 13. 
 2 Elliot's Debates, vol. iv. pp. 21-23.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 67 
 
 the radical vice in the old confederation is, that the laws of 
 the Union apply only to the states in their corporate capacity 
 . . . the states have almost uniformly weighed the requisition 
 by their own local interests ; and have only executed them 
 so far as answered their particular convenience or advan- 
 tage." 1 In the light of their own painful experience the 
 framers of the new constitution ventured upon the experi- 
 ment of constructing a federal government that would oper- 
 ate not on the states in their corporate capacity but directly 
 upon individuals an experiment which drew after it conse- 
 quences which tended directly to systematize and strengthen 
 the whole fabric into which it entered as a component part. 
 
 As soon as it was settled that the new idea was to be made The new 
 the premise upon which the work of the convention was to the con- 
 
 proceed, as soon as it was settled that the new government 
 was to be endowed with the power to execute its own laws ite state -" 
 and decrees directly upon individuals, it became apparent 
 that it must be strictly organized and equipped with ma- 
 chinery adequate to that end. The builders of the more 
 perfect union were thus forced to give to it a completely 
 organized constitution, " with the usual branches, legislative, 
 executive, and judicial ; with the direct power of taxation, 
 and the other usual powers of a government ; with its army, 
 its navy, its civil service, and all the usual apparatus of a 
 government, all bearing directly upon every citizen of the 
 Union without any reference to the governments of the sev- 
 eral states." 2 When this point was reached, when it became 
 manifest that the new federal commonwealth had to be or- 
 ganized as a "composite state," it was more than natural 
 that the English constitutional system, in the form in which 
 it had reappeared in the several states, should have been 
 adopted as the standard for imitation. 3 At this point the 
 creative work of the framers ended, and the work of repro- 
 duction began. The first great step in the work of reproduc- 
 tion was taken when the proposition was made to divide the 
 
 1 Elliot's Debates, vol. ii. p. 231. pressed with great force by Professor 
 
 8 These are the attributes which Mr. Johnston, in an article in the New 
 
 Freeman says a " composite state " Princeton Review for September, 1887, 
 
 should possess. Federal Govt., vol. i. an article from which Mr. Bryce has 
 
 p. n. made a copious extract in his first vol- 
 
 8 What the federal constitution owes ume. See p. 666. 
 to the state constitutions has been ex-
 
 68 
 
 INTRODUCTION. 
 
 The divi- 
 sion of the 
 federal 
 head into 
 the three 
 depart- 
 ments : 
 Jefferson. 
 
 Division 
 made ac- 
 cording to 
 the maxim 
 as under- 
 stood in 
 England. 
 
 sum of federal power which under the articles of confed- 
 eration had been vested in a single assembly into the three 
 departments, legislative, executive, and judicial. The neces- 
 sity for such a division seems to have been first stated by 
 Jefferson, who in a letter to Madison written from Paris, De- 
 cember 16, 1786, used this language: "To make us one 
 nation, as to foreign concerns, and keep us distinct in domes- 
 tic ones, gives the outline of the proper division of powers 
 between the general and particular governments. But to 
 enable the federal head to exercise the powers given to best 
 advantage, it should be organized as the particular ones are, 
 into legislative, executive, and judiciary''' 1 Jefferson thus 
 made it clear that he had found the model for his division of 
 the federal head into three departments in the constitutions 
 of the states, each one of which had adopted the political 
 maxim that the three departments of power shall forever 
 remain separate and distinct in the same qualified sense in 
 which that maxim was understood in the English system. 
 Speaking of the constitution of the mother country, Madison 
 said : " On the slightest view of the British constitution we 
 must perceive that the legislative, executive, and judiciary de- 
 partments are by no means totally separate and distinct from 
 each other." 2 Speaking of the constitutions of the states he 
 said : " If we look into the constitutions of the several states, 
 we find, that, notwithstanding the emphatical, and, in some 
 instances, the unqualified terms in which the axiom has been 
 laid down, there is not a single instance in which the several 
 departments of power have been kept absolutely separate 
 and distinct." 3 After the federal head had been split into 
 the three departments, legislative, executive, and judicial, in 
 the qualified sense in which such division was understood in 
 the state constitutions, each department was organized in 
 accordance with English ideas, in so far as they could be 
 
 1 See yefferson's Correspondence, by 
 T. J. Randolph, vol. ii. pp. 64, 65. 
 
 2 Federalist, No. xlvi. p. 335. 
 
 8 Ibid., p. 337. I here repeat what 
 was said in note i, p. 46. The maxim 
 as to the division of powers was ac- 
 cepted in the qualified sense in which 
 it was understood by Montesquieu, 
 who accepted it in the form in which 
 it existed in the English system. As 
 
 to Montesquieu's views of the English 
 constitution, see Spirit of Laws, bk. 
 xi. ch. 6. Speaking of these views, so 
 far as they relate to the division of 
 powers, Madison says, "he did not 
 mean that these departments ought to 
 have no partial agency in, or no control 
 over the acts of each other." Page 336. 
 See, also, Paul Janet's Histoire de la 
 Science Politique,
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 69 
 
 applied to a " composite state " at once federal and republi- 
 can. 
 
 The organization of the executive department of the new The execu- 
 government was attended with great difficulty. In the teeth ment: er 
 of the prevailing prejudice against monarchy, it was no easy 
 task to devise an acceptable scheme through which the fed- 
 eral chief magistrate could be clothed with the constitutional 
 attributes of an English king. And yet that result was sub- 
 stantially accomplished. 1 Although the president was sim- 
 ply a magistrate to be obeyed within the range of his powers, 
 and personally liable to impeachment if he overstepped them, 
 still he was endowed with as much if not more real power 
 than was possessed even then by the dreaded original. The 
 elective principle, it is true, was substituted for hereditary 
 right, a definite term of office was prescribed, and all the 
 pomp and pageantry of power was sternly cut off, and yet 
 the real resemblance which remained between the two na- 
 tional chiefs was too close to escape the enemies of the con- 
 stitution, who bitterly assailed it on that ground. 2 And here 
 let the fact be emphasized, that the kingship, whose constitu- 
 tional attributes the framers reproduced, was not the shad- 
 owy kingship of to-day which reigns but does not govern, 
 " the figure they had before them was not a generalized Eng- the presi- 
 lish king nor an abstract constitutional monarch ; it was no cTorge IIL 
 anticipation of Queen Victoria, but George III. himself, 
 whom they took for their model. Fifty years earlier, or a 
 hundred years later, the English king would have struck 
 them in quite a different light." 3 
 
 1 "The president is. beyond doubt, sovereign" (The Critical Period, etc., p. 
 
 the English king modified by the ne- 289), loses sight of the fact that at the 
 
 cessities of a state of things in which time the copy was made the real Eng- 
 
 hereditary succession was out of the lish executive was the king and not the 
 
 question, and in which even a life term prime minister. Maine's statement 
 
 of office would have awakened the great- covers the whole matter. If any one 
 
 est jealousy." Freeman, The English fancies that George III., even during 
 
 People in its Three Homes, p. 375. the ministry of Pitt, was a "fictitious 
 
 8 See Hamilton's brilliant reply to executive," let him read May's first 
 
 this attack, in the Federalist, Nos. Ixvii., chapter, entitled "Influence of the 
 
 Ixviii., Ixix Crown during the Reign of George III." 
 
 8 Maine, Popular Govt., p. 212. Mr. Const. Hist., vol. i. pp. 15-104. Since 
 
 Fiske, when he says that, " curiously the above was written I find that Mr. 
 
 enough, what they copied in creating Bryce says: "In 1787, when the con- 
 
 the office of president was not the real stitutional convention met at Philadel- 
 
 English executive or prime minister, phia, the cabinet system of government 
 
 but the fictitious English executive,' the was in England still immature. It was
 
 70 INTRODUCTION. 
 
 Theiegisia- In the organization of the legislative department, the fram- 
 ment. epar ers of the constitution departed from the old idea of a federal 
 assembly consisting of a single chamber, in order to adopt 
 the English system of two chambers, in the form in which 
 that system had reappeared in the several states. The 
 adaptation of this dual system to the complicated interests 
 of a federal republic gave rise to difficulties which at one 
 time seemed to be insurmountable. The convention which 
 framed the constitution was divided into two parties gener- 
 ally known as nationals and federals. At the head of the 
 nationals stood the delegates from Virginia, who came to the 
 convention with a well-considered scheme known as " the 
 "The Vir- Virginia plan," which contemplated the abolition of the con- 
 The great- federation and the substitution in its stead of a consolidated 
 tL^esser national government. This plan, constructed in the main by 
 states. Madison, at the instance of Washington, was laid before the 
 convention by Edmund Randolph, 1 the governor of Virginia, 
 in a weighty speech which emphasized the necessity of mak- 
 ing the new government operate directly upon individuals 2 
 through the medium of laws enacted by a national assembly 
 in which the American people instead of the American 
 states should be represented, an assembly whose members 
 should be apportioned according to population, and elected 
 by the people and their representatives. Such assembly was 
 to be divided into two houses, the members of the lower 
 house to be elected directly by popular vote, while the mem- 
 bers of the upper house or senate were to be chosen by the 
 lower out of persons nominated by the state legislatures. 
 This plan which contemplated the creation of a national ex- 
 ecutive, and a national judiciary, and the vesting of the legis- 
 lative power in a national assembly which could be domi- 
 nated and controlled by a combination of a few of the greater 
 states, and which was to be endowed not only with original 
 powers of legislation in all cases in which the powers of the 
 states were insufficient, but also with a negative on state laws, 
 
 so immature that its true nature had 2 In the course of his speech Ran- 
 
 not been perceived." The American dolph said that " the confederation was 
 
 Common-wealth, vol. i. p. 273. made in the infancy of the science of 
 
 1 Elliot's Debates, vol. i. pp. 180-182. constitutions, when the inefficiency of 
 
 Randolph's resolutions were offered requisitions was unknown." Elliot, 
 
 on May 2gth. pp. 126-128.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. Jtt 
 
 naturally met with a storm of opposition from the smaller 
 states who were to be denied corporate representation in 
 both chambers. When the momentous issues thus presented 
 were so divided that they could be considered in detail a reso- 
 lution, which originated with Virginia, was adopted without Adoption of 
 debate which settled the fact as a starting-point, that how- iafsysfemT 
 ever the respective branches of the national legislature should 
 be constituted, it should consist of two houses instead of one. 1 
 As to the composition of the houses themselves, the question 
 which first arose was whether or no the lower house should be 
 organized on a popular basis after the model of the English 
 house of commons. After a debate in which such men as 
 Gerry, Sherman, Martin, and the Pinckneys expressed grave 
 distrust of the wisdom of the people, the convention was in- 
 duced by Madison, 2 Hamilton, Wilson, and others to decide 
 that the members of the lower house should be chosen di- 
 rectly by popular election. When this difficulty was removed 
 the convention was free to grapple with the vital question 
 before it, the question whether or no the states as such 
 were to be represented in the new assembly. If " the Vir- 
 ginia plan," which was supported by Pennsylvania, Massa- 
 chusetts, and North Carolina, was to prevail, the lesser states, 
 which under the articles of confederation were entitled to 
 an equal vote, would be placed at the mercy of their more 
 powerful associates. At this stage of the proceedings, as 
 a counter- blast to the Virginia scheme, the smaller states 
 under the lead of William Patterson brought before the con- 
 vention "the New Jersey plan," 8 which proposed nothing The New 
 more than a reformation of the articles of confederation. 
 This plan contemplated the continuance of the old federal 
 assembly consisting of a single chamber in which each state 
 had an equal vote ; an executive in the form of a council ; 
 and a federal judiciary with a limited and inadequate juris- 
 diction. When angry and protracted debate between the 
 two opposing parties, who had now reduced their conflicting 
 
 1 This resolution was opposed only vented at an earlier day for the pur- 
 by Pennsylvania. Elliot, vol. i. p. 187'; pose of adjusting between the sections 
 Gilpin, p. 753. the basis of taxation. 
 
 2 Madison adjusted the basis of rep- 8 Elliott's Debates, vol. i. pp. 208- 
 resentation as between the north and 210. Patterson's propositions were of- 
 the south through his famous three fered June 1 5th. 
 
 fifths compromise which he had in-
 
 72 
 
 INTRODUCTION. 
 
 " The Con- 
 
 Compro- 
 mise -" 
 
 The senate 
 
 a national 
 
 Thejudici- 
 ment. epart 
 
 views to definite propositions, had brought the convention to 
 "the verge of dissolution," Roger Sherman and Oliver Ells- 
 worth suggested the famous "Connecticut compromise" 
 which proposed that the national principle contended for by 
 the greater states should prevail in the organization of the 
 lower house, and that the federal principle claimed by the 
 smaller states should prevail in the organization of the upper 
 house or senate. The new proposal, which at first met with 
 but little favor, was referred to a committee with Elbridge 
 Gerry as chairman, and on the 5th of July 1 the committee 
 reported in favor of the compromise. After eleven days of 
 debate the report was adopted on the i6th of July by a ma- 
 jority of only one vote. 2 The supreme conflict between the 
 two opposing parties in the convention thus happily ended 
 in an arrangement in which the theories of both were al- 
 lowed to prevail. It was finally agreed that the legislative 
 department of the new government should be divided into 
 two chambers, one of which should be organized upon a fed- 
 era ^ the other upon a national basis. As a recognition of 
 the federal principle each state was to be allowed an equal 
 representation in the senate ; as a recognition of the national 
 principle the representation of each state in the house of 
 representatives was to be determined by the extent of its 
 population. 3 In the organization of the senate the elective 
 principle of course took the place of hereditary right. Thus 
 modified by republican and federal ideas the English bicame- 
 ral system, in the form which it had assumed in the several 
 states, passed into the constitution of the United States. 
 
 The most consummate and, with a single exception, the 
 most original work accomplished by the framers of the con- 
 stitution was in the organization of the federal judiciary. 4 
 
 1 Elliot's Debates, vol. i. p. 226. 
 
 2 Connecticut, Delaware, Maryland, 
 New Jersey, and North Carolina voted 
 in the affirmative ; Georgia, Pennsyl- 
 vania, Virginia, and South Carolina in 
 the negative. Massachusetts' vote was 
 divided, and New York was absent, 
 Elliot, vol. i. p. 238. 
 
 8 " The principle of the independ- 
 ence of the states triumphed in the 
 formation of the senate, and that of 
 the sovereignty of the nation in the 
 
 composition of the house of represen- 
 tatives." De Tocqueville, Democracy 
 in Am., vol. i. p. 148. As to the re- 
 spective constitutions of the two cham- 
 bers, see Federalist, Nos. Hi. to Ixvii. 
 
 * " The work was chiefly done in 
 committee by Ellsworth, Wilson, Ran- 
 dolph, and Rutledge, and the result did 
 not differ essentially from the scheme 
 laid down in the Virginia plan." The 
 Critical Period, etc,, p. 300.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 73 
 
 Section one of article three of the constitution provides that, 
 "The judicial power of the United States shall be vested in 
 one supreme court, and in such inferior courts as the con- 
 gress may, from time to time, ordain and establish." The 
 inferior courts contemplated in this section were established 
 by the provisions of the Judiciary Act of i/SQ. 1 The organi- 
 zation of the federal judicial system rests, therefore, in part 
 upon the express provisions of the constitution, and in part 
 upon congressional legislation. The most potent and unique 
 element in the system is its head. The supreme court of Supreme 
 the United States has no prototype in history. 2 Judicial tri- 
 bunals have existed as component parts of other federal sys- 
 terns, but the supreme court of the United States is the only typemhis- 
 court in history that has ever possessed the power to finally 
 determine the validity of a national law. Such a jurisdiction 
 necessarily arises out of the American system of constitu- 
 tional limitations upon the legislative power, a system un- 
 der which all judges, both state and federal, possess the 
 power in their respective spheres to pass upon the validity of 
 every law that can emanate from a state or federal legisla- 
 ture. 3 In the English system such a jurisdiction could not 
 exist for the reason that the English constitution imposes no 
 limitation upon its legislative assembly ; there is no " higher 
 law" by which the English courts can test the validity of an 
 act of parliament. 4 The great federal court, thus endowed Theguar- 
 with the very highest judicial functions, has from its birth conltitu- e 
 been the watchful guardian of the national constitution, and tlon - 
 its beneficent influence has been steadily displayed not only 
 in checking the encroachments of the federal legislature, 6 but 
 in rendering more harmonious the relations of the states with 
 
 1 " That great act was penned by 8 See above, p. 46, note 3. See, also, 
 Oliver Ellsworth, a member of the Bryce's chapter on " The Courts and 
 convention which framed the consti- the Constitution," Am. Commonwealth, 
 tution, and one of the early chief jus- vol. i. pp. 237-254. 
 
 tices of this court. It may be said to * Austin holds that an act of parlia- 
 
 reflect the views of the founders of the ment, which violates fundamental prin- 
 
 republic as to the proper relations be- ciples, though legal and binding, may 
 
 tween the federal and state courts." still be unconstitutional. See Province 
 
 Mr. Justice Field, in Ex parte Vir- of Jurisprudence, lect. vi 
 
 ginia, 100 U. S. p. 325. 5 In this connection I refer with 
 
 2 " The supreme court of the United pleasure to an able essay, entitled " The 
 States ... is not only a most interest- Supreme Court in Politics," read by 
 ing but a virtually unique creation of my distinguished friend, the Hon. H. 
 the founders of the constitution." A. Herbert, before the Alabama State 
 Maine, Popular Govt., p. 217. Bar Association in August, 1883.
 
 74 INTRODUCTION. 
 
 each other. The jurisprudence which regulates the proced- 
 ure and moulds the decrees of this high court is English 
 jurisprudence, and in this way it has become a new fountain 
 inferior not only of federal but of English law. The system of in- 
 mererepro- ferior federal courts is a substantial reproduction of the Eng- 
 fhe^En Ush ^ sn s y stem ^ itinerant judicature. The national judge goes 
 itinerant down into the districts and the circuits to try cases over which 
 the federal jurisdiction extends, with or without juries, ac- 
 cording to their character. In law causes, both civil and 
 criminal, the federal courts proceed according to the course 
 of the English customary law, while in equity and admiralty 
 causes they cling with equal tenacity to the general body of 
 English jurisprudence. 
 
 National 8. From a purely scientific point of view the constitution 
 citizenship. of the United States never reached its logical completion 
 until after the adoption of the fourteenth amendment. As 
 heretofore pointed out, the new principle which became the 
 basis of the more perfect union, and which imparted to it 
 its distinctive character, was that the sum of federal power 
 vested in the new constitution should operate not upon states 
 in their corporate capacity, but directly upon individuals. If 
 that principle had been carried, at the time of its adoption, 
 to its logical conclusion, it would then have been settled that 
 the individuals upon whom the new government was to act 
 should be primarily its own citizens. 1 Even in such a federal 
 system as the Achaian League, " Every Achaian citizen 
 stood in a direct relation to the federal authority, and was in 
 full strictness a citizen of the league itself, and not merely 
 of one of the cities which composed it." 2 And yet at the 
 time of the adoption of the present constitution the sense of 
 nationality had not sufficiently developed to permit the state- 
 ment of the ultimate and inevitable conclusion, that every 
 citizen of the Union is primarily a citizen of the United States, 
 and not merely of one of the states which compose them. 
 The one particular in which the first confederation rose above 
 the older Teutonic leagues after which it had been patterned 
 was embodied in the new principle of interstate citizenship 
 
 1 No greater logical anomaly can be 2 Freeman, Federal Government, vol 
 imagined than a federal government i. p. 259. 
 acting directly upon individuals, and yet 
 a government without citizens.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 75 
 
 which it originated. 1 Section one of article four of the arti- interstate 
 cles of confederation provided that, " The better to secure 
 and perpetuate mutual friendship and intercourse among the 
 people of the different states in this Union, the free inhabit- 
 ants of each of these states, paupers, vagabonds, and fugitives 
 from justice excepted, shall be entitled to all privileges and 
 immunities of free citizens in the several states." The sub- 
 stance of that provision was reproduced in section two of arti- 
 cle four of the present constitution which provides that, 
 " The citizens of each state shall be entitled to all privileges 
 and immunities of citizens in the several states." Beyond 
 that point the framers of the more perfect union were not 
 prepared to go. They did not attempt to do more than es- 
 tablish an interstate citizenship to which they imparted the 
 qualities of uniformity and equality by denying to every state 
 the right to discriminate in favor of its own citizens as 
 against those of any other state. There was no attempt 
 whatever, either in the constitution itself or in any act of 
 congress passed after its adoption, to establish or define 
 citizenship of the United States as such, as a distinct and 
 independent thing from state citizenship. " That the consti- Consti- 
 tution itself has defined citizenship of the United States by todefine 
 declaring what persons, born within the several states, shall of tl t he nship 
 or shall not be citizens of the United States will not be pre- united 
 tended. It contains no such declaration." 2 In the absence 
 of any positive assertion by federal authority of any such 
 thing as a primary citizenship of the United States as such, 
 there was really no substantial basis upon which to maintain 
 its existence. If any such thing as a federal or national citi- 
 zenship existed at all, it was nothing more than a secondary 
 and dependent relation. The better view is that prior to the 
 adoption of the fourteenth amendment a man was a citizen 
 of the United States only by virtue of his citizenship in one 
 of the states composing the Union. In the famous case of The Dred 
 Dred Scott it was held that no state had the power to raise a Scott case 
 man of African descent to the rank of a citizen so as to make 
 him a citizen of a state or of the United States. 3 While there 
 
 1 " The principle of inter-citizenship 2 Mr. Justice Curtis in Dred Scott v. 
 
 infused itself neither into the constitu- Sandford, 19 Howard, p. 575. 
 
 tion of the old German empire, nor of 8 See the opinion of the court in 
 
 Switzerland, nor of Holland." Ban- this case, p. 406. 
 croft, Hist, of Const., vol. i. p. Il8.
 
 76 INTRODUCTION. 
 
 can be no doubt that the leading motive which led to the 
 adoption of the fourteenth amendment was to reverse the 
 results of the Dred Scott case, and to secure the right of 
 citizenship to the African race, the fact remains that the 
 first section of the amendment, without making any direct 
 reference to the question of race at all, contains the first pos- 
 itive definition ever given of citizenship of the United States 
 as a primary and substantive thing, independent of state 
 First sec- citizenship. 1 The first section of the amendment provides 
 FourtUSh tnat > " All persons born or naturalized in the United States, 
 Amend- an( j su bject to the jurisdiction thereof, are citizens of the 
 
 ment first ' J 
 
 defines na- United States and of the state wherein they reside. No state 
 zenship! *~ shall make or enforce any law which shall abridge the privi- 
 leges or immunities of citizens of the United States ; nor shall 
 any state deprive any person of life, liberty, or property, with- 
 out due process of law ; nor deny to any person within its 
 jurisdiction the equal protection of the laws." When, in what 
 "Slaughter- are commonly known as the " Slaughter-House Cases," this 
 Cases?" new provision of the constitution came for the first time be- 
 fore the supreme court of the United States for construction, 
 a far-reaching discussion arose which touched the very foun- 
 dations of the Union itself. 2 After great deliberation the 
 court announced through Mr. Justice Miller a weighty judg- 
 ment which, while it fully upheld the supremacy of the federal 
 authority within its proper sphere, pointedly recognized the 
 fact that neither the civil war, nor the three amendments 
 in which its political results were embodied, had materially 
 altered the constitutional relations of the state and federal 
 governments to each other. While it was admitted that 
 the amendments had imposed additional limitations upon 
 them, it was held to be clear that there was no intention "to 
 fetter and degrade the state governments by subjecting them 
 to the control of congress, in the exercise of powers hereto- 
 fore universally conceded to them of the most ordinary and 
 fundamental character." 3 In this judgment the fact was rec- 
 
 1 "No such definition was previously John A. Campbell for the plaintiffs in 
 found in the constitution, nor had any error attracted scarcely less attention 
 attempt been made to define it by act than the judgment of the court itself, 
 of congress." The Slaughter - House 8 The Slaughter-House Cases, 16 
 Cases, 1 6 Wallace, p. 72. Wallace, p. 78. 
 
 2 The profound argument of the Hon.
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 77 
 
 ognized, that the order of citizenship had been reversed ; that Under the 
 under the fourteenth amendment the primary citizenship in Amend- 
 
 this country is to the United States ; and the secondary, to 
 
 the state of the citizen's residence. 1 It was further held that 
 
 the two citizenships were separate and distinct from each united 
 
 other. In the words of the court, " It is quite clear, then, 
 
 that there is a citizenship of the United States and a cit- 
 
 izenship of the state, which are distinct from each other, 
 
 and which depend upon different characteristics or circum- 
 
 stances in the individual." 2 Only the privileges and im- 
 
 munities which belong to a citizen of the United States as 
 
 such are placed by the fourteenth amendment under the 
 
 protection of the federal constitution ; " those belonging to 
 
 the citizen of the state as such, . . . must rest for their se- 
 
 curity and protection where they have heretofore rested ; for 
 
 they are not embraced by this paragraph of the amendment." 3 
 
 Thus through the conservative and sagacious judgment of which com- 
 
 the great federal court, over whose high threshold the waves 
 
 of passion have seldom broken, the logical symmetry of the 
 
 constitution was completed by the recognition of a primary tution. 
 
 and independent federal citizenship whose privileges and im- 
 
 munities were wisely limited to those only " which owe their 
 
 existence to the federal government, its national character, 
 
 its constitution, or its laws." 4 While the legitimate results 
 
 of the civil war were thus firmly upheld, the constitution was 
 
 at the same time carefully guarded against the centralizing 
 
 tendencies to which it had imparted a fresh and menacing 
 
 force. 
 
 9. The attempt has now been made to put in a clear and Summary. 
 positive light three propositions of the highest historic value. 
 First, that the English colonies in America, which were finally 
 transformed into independent commonwealths through their 
 severance from the mother country, were in a legal and con- 
 stitutional sense involuntary and unconscious reproductions 
 of the English kingdom, inevitable products of a natural 
 process of political evolution. The process of growth through 
 which the typical English state in America passes before it 
 takes on its final form is broken into three stages. It first 
 
 1 See dissenting opinion of Mr. Jus- 2 Same case. Opinion of the court, 
 tice Bradley, The Slaughter- House Cases p. 74- 
 p. 112. 8 Ibid., p. 75. * Ibid., p. 79.
 
 78 INTRODUCTION. 
 
 appears as a mere corporation created by royal authority 
 with only such powers of local self-government as the crown 
 sees fit to delegate. Out of the corporate body thus created 
 emerges the colonial government with an executive head, a 
 judiciary, and a legislative assembly which can do everything 
 but violate the limitations imposed by the charter from which 
 the dependent community derives its political existence. 
 When the tie of dependence which binds the colony to the 
 mother country is severed, the free community finally rises 
 to the full stature of a sovereign state, wherein the people 
 and not the crown are the source of all political authority. 
 The royal charter is then either supplanted by or continued 
 as the state constitution, wherein the people delegate to the 
 three departments the right to exercise the sum of political 
 power vested in them, subject to such restrictions only as are 
 imposed by express constitutional limitations. Second, that 
 when the sovereign commonwealths thus created were driven 
 by the pressure of a common danger to unite in a confed- 
 eracy, their first experiment resulted in the formation of a 
 league, based upon the requisition system, which represented 
 no advance whatever in the science of federal government ; 
 that this first departure from the entire course of their prior 
 political experience soon ended in weariness, failure, and 
 disappointment. Third, that when in the presence of the 
 anarchy which the failure of the articles of confederation 
 threatened, the English states in America were driven to 
 make a fresh effort to construct a more efficient federal 
 system, the exigencies of the occasion brought forth the most 
 important and far-reaching political principle to which our 
 career as a nation has so far given birth. That principle, 
 which was that the federal head should operate directly on 
 individuals and not on states, drew after it the most momen- 
 tous consequences by forcing the construction of a "com- 
 posite state," divided, as the individual states were divided, 
 into three departments, legislative, executive, and judiciary. 
 At this point the creative work of the framers ended and the 
 work of reproduction began. In the organization of the 
 three departments the framers of the present federal consti- 
 tution reproduced, as far as it was possible, the English 
 constitutional system in the form in which it had reappeared 
 in the constitutions of the several states. The analysis which
 
 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 79 
 
 has been made therefore results at last in the conclusion that 
 the typical English state in America was the fruit of a 
 process of involuntary and unconscious growth, that the 
 federal republic of the United States was the fruit of a pro- 
 cess of voluntary and conscious reproduction. The second 
 federal constitution was made, as far as it could be made, 
 after the English model ; but it might have been made as 
 the earlier and laxer union was made on an entirely different 
 model. Such a contrary course might have been pursued, 
 and yet it was more than natural that men of a highly 
 conservative temper, who were intimately familiar with the 
 English constitutional system in the form in which it had 
 reappeared in the several states, should have applied it, so far 
 as it could be applied, to the organization of the federal re- 
 public. "Although the framers of our constitution were 
 without any grasp of the modern conception of the historical 
 continuity of the race, they revered the ancient constitutional 
 traditions of England. And thus it came to pass that Magna 
 Carta, the Acts of the Long Parliament, the Declaration of 
 Right, the Declaration of Independence, and the Constitu- 
 tion of 1787, constitute the record of an evolution." 1 If that "Thegov- 
 be true, then the Constitution of the United States was not a tteSed 
 spontaneous creation ; it was the final product in a new soil State , s is 
 
 r not the re- 
 
 of a sturdy plant transplanted from an island world where, in suit of spe- 
 comparative isolation, it had been slowly maturing for centu- tu>n, C but "of 
 ries. In the open sunlight of the rfew land the later growth evolution " 
 has been both strong and rapid ; in the vast domain of the 
 New World the old plant has found room for unlimited expan- 
 sion. The history of this later development cannot be sev- 
 ered from that of the earlier and more tedious process of 
 growth which made it possible. The life of the plant is an 
 indivisible whole, and unless it is studied as a whole its real 
 history can never be fully mastered. That conviction has im- 
 parted to the weary task essayed in this work a definite and 
 practical purpose. In attempting to unfold the history of the 
 constitutional growth of the English kingdom in one un- 
 broken story the author has followed the only plan upon 
 which, in his humble view, can ever be written an exhaustive 
 commentary upon the constitution of his country. 
 
 1 W. T. Brantly's essay on the tion," in Southern Law Review^ August, 
 " Formation of the Federal Constitu- 1880, vol. vi. p. 352.
 
 go INTRODUCTION. 
 
 [A psychological explanation of the tendency of a race to reproduce in 
 a new land the institutions of the old (see page 15, note i), may be found 
 in Mr. Herbert Spencer's statement (Principles of Psychology, vol. I, p. 
 422, Am. ed.) that " Hereditary transmission applies to psychical peculiari- 
 ties as well as to physical peculiarities ; while the modified bodily structure 
 produced by new habits of life is bequeathed to future generations, the 
 modified nervous tendencies produced by such new habits of life are also 
 bequeathed ; and if the new habits of life become permanent the tenden- 
 cies become permanent." The same idea has been thus expressed in an- 
 other form in Crane and Moses' Politics, p. 70 : " The long continuance 
 of a people under any given political order engenders a habit of political 
 thought and action which ripens into a political instinct, and becomes 
 powerful in determining the form of institutions and the direction of 
 political progress. . . . And it is this political instinct that must be taken 
 account of if we would fully understand later political progress ; it is in 
 its force and persistence that we discern the main cause of that tendency 
 displayed in kindred natures to preserve in their governments the essen- 
 tial features of the primitive political institutions of the race to which 
 they belong."] 
 
 [My friend, the Hon. Kemp P. Battle, President of the University of 
 North Carolina, has lately written me in regard to the case of Bayard v. 
 Singleton (see p. 47, note 2), as follows : " North Carolina contests the 
 honor with Rhode Island. The North Carolina judges who rode circuit, 
 but who were also supreme court judges, refused, in May, 1786, to dis- 
 miss an ejectment writ on affidavit of the defendant that his title was de- 
 rived from confiscation sale, the general assembly having enacted a 
 law requiring such dismissal when such an affidavit should be made. 
 Did Rhode Island decide earlier than May ? I have found no proof that 
 she did." The Hon. A. M. Waddell, of North Carolina, in a recent pub- 
 lication, thus puts the mattery " While it is true that the Rhode Island 
 case was the first one decided, it is equally true that before that decision 
 was rendered Iredell had made a powerful and conclusive argument in 
 the North Carolina case (which was pending before the Rhode Island 
 case arose), and had followed it up by publishing in the New Berne 
 papers of August 17, 1786, an address to the public on the subject." 
 As New Berne was the author's birthplace, he may be pardoned for a 
 special interest in the subject.]
 
 BOOK I. 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 CHAPTER I. 
 
 THE TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. 
 
 I. DURING the fifth century, four of the Western provinces General 
 of the Roman Empire Britain, Gaul, Italy, and Spain ^uTonic f 
 
 were in turn overrun by successive hordes of Teutonic invad- conquest on 
 
 , , . , , the Conti- 
 
 ers who came to settle down permanently on the conquered nent. 
 soil. 1 Out of the fusion of the Teutonic settlements made 
 in Britain between the middle of the fifth century and the 
 end of the sixth has grown the English nation ; 2 out of the 
 rude systems of social and political life which the settlers 
 brought with them in their blood and bone from the father- 
 land has grown the English Constitution. With the found- 
 ing of the Teutonic settlements in Britain the history of 
 English institutions really begins. In order fully to grasp 
 the early history of these settlements, in order clearly to 
 point out the several vital particulars in which they differed 
 from all other Teutonic settlements made upon Roman soil, 
 it will be necessary to resort to a contrast for the sake of 
 illustration. Within the continental provinces of Italy, Gaul, 
 and Spain, Rome had made a profound impression upon the 
 whole fabric of social and political life. The language, the 
 laws, the institutions, of the people were thoroughly Roman. 
 Roman roads led to Roman cities, in which were contained 
 
 1 For a list of the monarchies estab- end of the sixth, see Guizot's Hist. 
 
 lished by the Teutonic invaders during Rep. Government, p. 27. 
 the interval which elapsed between the 2 Freeman, Origin of the English 
 
 beginning of the fifth century and the Nation, part ii.
 
 82 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Italy, Gaul, 
 
 the end of 
 century. 
 
 Teutonic 
 
 settleTown 
 in the midst 
 
 of the con- 
 
 tinentai na- 
 
 Con uest 
 nowhere as- 
 
 form of ex- 
 tion! in 
 
 all the objects of Roman art, cities which were governed 
 by Roman municipal institutions. 1 By the end of the fourth 
 century the fabric of this society was not only Roman, it 
 was f as t becoming Christian. The ancient paganism had al- 
 ready broken down before the aggressive force of the Chris- 
 tian Church. In the provincial cities were fixed the sees of 
 Christian bishops, who formed a part of an ecclesiastical 
 system based upon the dominant faith. 2 The three great 
 streams of Teutonic invasion, which spread in successive 
 waves over these Latinized and Christianized provinces of the 
 empire, were unequal both in force and effect. In Gaul the 
 Teuton made his deepest impression, in Italy the least, while 
 in Spain his influence occupies a middle place between the 
 two. But the general character of his influence was every- 
 where the same ; it only varied in degree. Wherever we find 
 tne Teutonic invaders conquering and entering into posses- 
 s i on o f a continental province, we have an example of a new 
 
 f- x 
 
 nation intruding itself into the midst of an older nation and 
 settling down by its side upon the conquered soil. 3 The 
 invaders came as conquerors, it is true ; but they came rather 
 as imitators than as mere destroyers. They had long been in 
 contact with Roman civilization ; they had tested the power 
 of the Roman arms ; they had felt the charm of the Roman 
 name ; and they had nearly all become converts to the Chris- 
 tian religion before the invasions began. 4 And, besides, the 
 i nva ders were nowhere opposed by any fierce or prolonged 
 native resistance. The consequence was that conquest no- 
 where assumed the form of extermination. 5 The land was 
 generally divided between the conquerors and the conquered 
 
 1 As to the history of the Roman 
 municipal system, see Guizot, Hist, 
 Representative Gov., lect. xxii. part i. ; 
 Savigny's Hist, of the Roman Law, vol. i. 
 pp. 16-98 ; De Coulanges, The Ancient 
 City, pp. 470-519. 
 
 " At the end of the fourth century 
 and the beginning of the fifth, Christian- 
 ity was no longer a simple belief ; it was 
 an institution, it had formed itself 
 into a corporate body. It had its gov- 
 ernment, a body of priests ; a settled 
 ecclesiastical polity for the regulation 
 of their different functions ; revenues ; 
 independent means of influence." 
 Guizot, Hist, of Civilization, vol. i. p. 48. 
 
 8 A full treatment of this subject 
 will be found in Freeman, Norm. Cong., 
 vol. i. ch. ii. ; Stubbs' Const. Hist., vol. 
 i. ch. i. ; Origin of the English Nation, 
 part ii. 
 
 4 The invaders first became ac- 
 quainted with Christianity in its Arian 
 form ; in Italy, Africa, Spain, and Gaul, 
 they were for a long time involved in 
 that heresy. In the end, however, they 
 everywhere embraced the orthodox 
 faith. Gibbon, Decline and Fall, vol. 
 iii. pp. 547, 573. 
 
 8 The Teutonic conquerors styled 
 themselves guests of the conquered. 
 Ibid., vol. ill p. 315.
 
 I.] TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. 83 
 
 according to certain fixed proportions. 1 The Roman native 
 was permitted to enjoy his own laws, while the conqueror 
 retained for himself his own barbaric code. 2 In this way 
 Teutonic life and law settled down by the side of Roman 
 life and law, and a struggle for the mastery was the natural 
 consequence. By an analysis of the result must be deter- 
 mined the extent to which the different elements prevailed. 
 
 So far as language is concerned the conquerors everywhere Conquerors 
 adopted the tongue of the conquered. Out of the old Latin Ln^uage 6 
 speech the Romance languages French, Spanish, Italian, *"{ h ^J 
 and the rest were born. 3 The Romance languages are quered. 
 nothing but Latin, with a deep infusion of Teutonic words. 4 
 So far as religion is concerned the conquerors everywhere 
 adopted the creeds of the conquered. Only in the domain of 
 polity and military organization can the Teutonic element 
 claim in the new combination a position of dominant impor- 
 tance. The leading principles which are worked out in the 
 constitutional histories of France and Spain are Teutonic, 
 an assertion which may be applied in a modified form to the 
 states of Northern and Southern Italy. 6 After making due 
 allowance, however, for Teutonic influence upon polity and 
 military organization, the predominant fact must be recog- 
 nized in the general result that the framework of the older 
 society survived ; it remained in the end Roman and Chris- The older 
 tian ; it did not become heathen and Teutonic. In the his- mained r Ro- 
 tory of the continental provinces there is no lack of historical man . a . nd 
 
 ITT e. ^ Christian: 
 
 continuity. We do not find upon the Continent, as we shall it did not 
 hereafter find in Britain, a century and a half of heathenism, heathenand 
 darkness, and legend intervening between the overthrow of Teutomc - 
 the Roman province and the beginning of the new Teutonic 
 society. 6 In Italy, Spain, and Gaul the older civilization, 
 while taking to itself many elements of Teutonic life, not only 
 
 1 Hallam, Middle Ages, vol. i. p. 149. and the feudal system of the South, the 
 
 a "The Frank was judged by the municipalities of Lombardy, and the 
 
 Salic or Ripuary code ; the Gaul fol- parliaments of Naples, are much more 
 
 lowed that of Theodosius." Ibid., vol. German than Roman." Ibid., vol. i. 
 
 i. p. 1 54. p. 7. 
 
 * Max Miiller, Science of Language, " Concerning all the other prov- 
 
 pp. 170, 195. inces of the Western Empire we have 
 
 4 Freeman, Norm. Cony., vol. i. p. continuous information. It is only in 
 
 it. Britain that one age of fable completely 
 
 6 Stubbs, Const, ffist., vol. i. p. 2. separates two ages of truth." Ma- 
 
 "The republican history of the North caulay, Hist. o/Eng.,\o\. L p. 6.
 
 84 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 continued to be Roman and Christian, but preserved through- 
 out its identity and continuity. 
 
 General 2. In Britain the continental aspects of Teutonic conquest 
 
 orreutonic completely disappear; such conquest there assumed a char- 
 
 Britain St in acter anc * ^ orm at once ^ oca ^ anc * peculiar. This changed 
 condition of things resulted, in the main, from two causes. 
 In the first place, apart from its insular character, the very 
 remoteness of Britain from the seat of empire necessarily 
 weakened the tie which bound it to the life of Rome. 1 It 
 is, therefore, easy to understand why Roman civilization in 
 Britain took such shallow root. In no other province did the 
 language, the laws, the institutions of Rome rest upon such 
 superficial foundations. 2 And yet all the externals of Roman 
 life were there. The municipia and colonies sprang up within 
 the area which the legions had reduced to subjection, 3 and a 
 net-work of Roman roads by which the country was inter- 
 sected connected them with each other. The cities were, no 
 doubt, thoroughly Romanized, but it is extremely doubtful 
 whether Roman civilization ever made any serious impression 
 upon the mass of the Celtic provincials. The language of 
 Rome was doubtless spoken in the cities and towns, and by 
 the wealthy classes outside of the towns, but it is hardly 
 possible that it could ever have been spoken by the main 
 Roman civ- body of the people. 4 Roman civilization in Britain was 
 Britain 11 m nothing but an exotic, with no real, self-sustaining hold upon 
 nothing but tne native Celtic race. Consequently, when the power and 
 
 an exotic. * J * 
 
 support of Rome were withdrawn, it collapsed from lack of 
 power to maintain an independent existence. The Teutonic 
 invaders of what had been Roman Britain never came in 
 contact with the full force of Roman civilization ; they only 
 encountered a set of superficial influences already in a state 
 of disorganization and decay. In the second place, the in- 
 vaders came directly into Britain from their seats in the far 
 
 1 Green, Making of Eng., p. 6. * Green, Making of Eng., p. 12. 
 
 2 " No otherwise can we even plau- " Latin was undoubtedly the speech of 
 sibly account for the instantaneous col- the cities, the speech of government, lit- 
 lapse of the imperial authority : it fell, erature, and polite life. Welsh was 
 with one vast and sudden ruin, the mo- under a cloud, just as English was, ages 
 ment the artificial supports, upon which after, in the days of Norman rule." 
 it relied, were removed." Kemble, Freeman, Origin of the Eng. Nation, 
 Saxons in Eng., vol. ii. p. 284. p. 102. 
 
 ' Ibid., vol. ii. p. 265.
 
 I.] TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. 85 
 
 North, where they had lived completely removed from the 
 power and influence of Rome. Excepting perhaps a single 
 expedition, the legions had never been seen upon their 
 shores ; with Roman standards and with Roman missionaries 
 they were equally unfamiliar. They possessed no conceptions 
 either of government or of law except such as were indigenous 
 to the race ; they knew no religion except the religion of 
 Odin. In this state of pure barbaric heathenism the invaders 
 entered, without intermediate probation, upon the conquest 
 of Britain. Such conquest necessarily differed from every 
 continental conquest in the manner in which it was under- 
 taken, and it also differed as to the native resistance which it 
 encountered. The invaders were compelled to cross the sea The invad 
 in ships, and their sea craft and war craft could only trans- 
 port bodies of men, more or less formidable, and not great 
 armies of invasion by which the whole land could be suddenly 
 overrun. All the evidence goes to show that the Teutonic 
 invaders came into Britain in disconnected bands, each under 
 its own leader, who singled out some special district of coun- 
 try for conquest and settlement. 1 Such a leader, with the 
 limited force at his command, necessarily circumscribed his 
 efforts to a narrow area, from which, by dint of hard fighting, 
 he was obliged to drive the Celtic masters of the soil. In 
 this way, bit by bit, the land was won. Moving from the 
 south, the east, and the northeast, the invaders drove the 
 Britons slowly to the west. The struggle, from its very 
 nature, was a bitter one; invasion no longer signified forci- 
 ble intrusion ; it became the equivalent of extermination, invasion 
 Everything goes to show that the first stage of Teutonic equivalent 6 
 conquest in Britain signified the utter annihilation of the nation 6 " 
 native race within the limits which the conquerors defined within' cer- 
 
 .... , o T-. r , ^ i torn limits. 
 
 with their swords. 2 Before the invader settled down the Celt 
 was either expelled or exterminated, and with him disappeared 
 whatever he had acquired of the civilization, language, religion, 
 or law of Rome. 8 In the general wreck, even the Roman 
 
 1 "The story of the conquest con- land, p. 128; Freeman, Origin jf Eng. 
 
 firms the English tradition that the in- Nation, p. 107. 
 
 vaders of Britain landed in small parties, 2 This restatement of the " Teutonic 
 
 and that they were only gradually rein- theory " must be taken with the quali- 
 
 forced by after-comers. Nor was there fications put upon it in the Introduc 
 
 any joint action among the assailants to tion. See above, p. n. 
 
 compensate for the smallness of their 8 " The proofs of such a displacement 
 
 numbers." Green, Making of Eng- lie less in isolated passages from chron-
 
 86 
 
 Result of 
 the con- 
 trast. 
 
 " A Ger- 
 many out- 
 side of 
 Germany." 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 English na- 
 tion Teu- 
 tonic as to 
 race. 
 
 municipalities perished. 1 The Teuton came into Britain as a 
 mere destroyer ; and of the Romanized natives of the land he 
 learned absolutely nothing. 
 
 3. Under these favorable circumstances the whole fabric of 
 Teutonic life was replanted, in its primitive purity, on a free 
 and unincumbered soil. " While the Germans of Gaul, Italy, 
 and Spain became Romans, the Saxons retained their lan- 
 guage, their genius, and manners, and created in Britain a 
 Germany outside of Germany." 2 By this statement the dif- 
 ference between Teutonic conquest and settlement in Britain 
 and Teutonic conquest and settlement upon the Continent is 
 clearly defined. In the one case the invaders were absorbed 
 in the mass of the conquered ; Teutonic life simply became 
 an element in the older Roman society. In the other the 
 invaders absolutely annihilated, within the limits which they 
 made their own while they were still heathens, every vestige 
 of the existing civilization, and established in its stead their 
 whole scheme of barbaric life. The Teutonic polity thus 
 established in Britain in its purity has been able to survive, 
 and to preserve not only its identity but its primitive instinct 
 in all the vicissitudes of change and of growth through which 
 it has passed. 
 
 4. The invaders, who thus established a new nationality in 
 Britain, were of the purest Teutonic type, and all spoke dia- 
 lects of the Low-German. From the earliest period in their 
 insular history, these settlers knew themselves as " the Eng- 
 lish kin ; " 8 and out of their union has arisen the English 
 nation, which, through all the vicissitudes of internal growth 
 and external influence, has preserved both its national char- 
 acter and its identity. In the course of its history it has 
 received many infusions, it is true, for the most part, how- 
 ever, from other branches of the Teutonic stock. No nation 
 can claim absolute purity of blood; foreign elements are 
 present in the veins of every people. But the national 
 character is never lost so long as the paternal element is 
 strong enough to absorb all other elements and to impress 
 
 icle or history than in the broad fea- 
 tures of the conquest itself." Green, 
 Making of Eng., p. 132. 
 
 1 Kemble, Saxons in Eng., vol. ii. 
 p. 295 j Stubbs, Const. Hist., vol. i. p. 6l. 
 
 2 Taine, Hist, of Eng. Literature, 
 vol. i. p. 50. 
 
 8 Freeman, Norm. Cong., vol. i. p. 15; 
 citing the entries in Chronicle under the 
 years 443, 449, and 473.
 
 I.] TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. 87 
 
 upon the nation, as a whole, its own image and instincts. 
 The very fewness of Celtic words in the English language 
 shows how small the admixture must have been from that 
 source. 1 When the Danes came to commingle their blood AH after, 
 with that of their advancing English brethren, it was simply th^Low. 
 the blending together of men of the same Low-Dutch stock, j^jj h 
 the one heathen, the other Christian. With the coming of 
 the Normans, the English nation entered upon its first real 
 struggle for national existence. And yet the Norman himself 
 was originally a Teuton ; " he was a Dane who had gone into 
 Gaul to get covered with a French varnish, and who came 
 into England to be washed clean again." 2 But the Norman 
 struggled hard to maintain the peculiar type which he had 
 assumed in France, and he left nothing undone to make it 
 the predominant element in the national character. But he The Nor- 
 failed ; the conquerors were absorbed into the mass of the ^g Eng- 
 conquered ; the Normans became Englishmen. 3 lishmen. 
 
 5. Out of the fusion of the Teutonic settlements in Britain 
 the English nation was born ; out of the fusion of the dialects English 
 spoken in those settlements the English language was born, thefesuftof 
 English is not the dialect of Kent, Wessex, or Mercia ; it is of e a ij u t ^ on 
 the result of the union of all the Low-Dutch dialects spoken Low-Dutch 
 in Britain in one composite whole, 4 which has preserved, one whole, 
 through a long period of change and of growth, its organic 
 structure and its identity. The greatest period of trial 
 through which the English language has ever passed began 
 with the Norman Conquest. For a long time after that 
 event the lordly foreign tongue reigned in the castle and the 
 hall, while the humbled native speech reigned in the cottage 
 and the hamlet. But, in the end, the lordly speech passed 
 away, and the English tongue survived with a deep infusion 
 
 1 The Celtic words in our language pies at present. He found it already 
 only number about thirty ; and by far exhibiting in its laws, its language, its 
 the larger part of these refer to some national character, the most essential of 
 object or occupation peculiar to females, the features which it still retains. Into 
 Cf. Fowler's English Grammar, ed. the English nation which he thus found 
 1881, pp. 76-78 ; Creasy, Eng. Con., p. already formed his own dynasty and his 
 29. own followers were gradually absorbed. 
 
 2 Freeman, Origin of the Eng. Na- The conquered did not become Nor- 
 tion, p. 53. mans, but the conquerors did become 
 
 8 "The Norman found in the land Englishmen." Freeman, Norm.Conq., 
 
 substantially the same English nation vol. i. p. 6. 
 
 which still exists, occupying substan- * Max Miiller, Science of Language, 
 
 tially the same territory which it occu- p. 67.
 
 88 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 of Romance words. The following epitome of the origin and 
 
 history of our English tongue is from the graphic pen of one 
 
 Max Mul- of its greatest living masters : " If we speak of the language 
 
 'MEngifsh'' f England, we ought, no doubt, to know something of the 
 
 is Teutonic, political history of the British Isles, in order to understand 
 
 and nothing r . 
 
 but Teu- the present state of that language. Its history begins with 
 the early Britons, who spoke a Celtic dialect ; it carries us on 
 to the Saxon conquest, to the Danish invasions, to the Nor- 
 man Conquest ; and we see how each of these political events 
 contributed to the formation of the character of the language. 
 The language of England may be said to have been in suc- 
 cession Celtic, Saxon, Norman, and English. But, if we 
 speak of the history of the English language, we enter on 
 totally different ground. The English language was never 
 Celtic, the Celtic never grew into Saxon, nor the Saxon into 
 Norman, nor the Norman into English. The history of the 
 Celtic language runs on to the present day. It matters not 
 whether it be spoken by all the inhabitants of the British 
 Isles, or only by a small minority in Wales, Ireland, and 
 Scotland. A language, as long as it is spoken by anybody, 
 lives and has its substantive existence. The last old woman 
 that spoke Cornish, and to whose memory it is now intended 
 to raise a monument, represented by herself alone the ancient 
 language of Cornwall. A Celt may become an Englishman, 
 Celtic and English blood may be mixed ; and who can tell at 
 the present day the exact proportion of Celtic and Saxon 
 "Lan- blood in the population of England? But languages are 
 j^vfr esa ' never mixed. It is indifferent by what name the language 
 mixed," spoken in the British Islands be called, whether English or 
 British or Saxon ; to the student of language English is Teu- 
 tonic, and nothing but Teutonic. ... In the English dic- 
 tionary the student of the science of language can detect, by 
 his own tests, Celtic, Norman, Greek, and Latin ingredients, 
 but not a single drop of foreign blood has entered into the 
 organic system of the English language. The grammar, the 
 blood and soul of the language, is as pure and unmixed in 
 English as spoken in the British Isles, as it was when spoken 
 on the shores of the German Ocean by the Angles, Saxons, 
 and Jutes of the continent." 1 
 
 1 Max Muller, Science of Language r p. 79,
 
 I.] TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. 89 
 
 6. The " English kin " transferred to Britain, as a whole, institu- 
 that rough yet vigorous system of political and military 
 organization which everywhere prevailed among the Teutonic 
 tribes of the fatherland. Wherever a district of country was 
 won from the native race, the conquerors encamped upon the 
 soil ; and then, after having divided the land upon the basis 
 of that peculiar system which rested at once upon military 
 and tribal divisions, they organized themselves into political 
 communities. 1 The unit in the system, as we shall see more 
 fully hereafter, consisted of a narrow tribal division, originally 
 united by the family tie, whose members possessed the power 
 to regulate their own local and domestic concerns. A group 
 of such units, or village communities, when bound together, 
 constituted the next largest political division ; in this combi- 
 nation appears the earliest form of the representative prin- 
 ciple. 2 By the union of these larger divisions were formed 
 the numberless petty states into which the settlers were 
 originally subdivided. The Teutonic political system as a General 
 whole rested upon the collective weight of individual freemen the Teu- 
 
 acting together in an expanding series of popular assemblies 
 whose jurisdictions, beginning with the smallest local affairs, 
 so widened as to embrace the gravest national concerns. 
 The foundations of this primitive system, composed of these 
 local, self-governing communities, were so deeply laid in 
 Britain, that the system itself has been able to survive all the 
 mutations through which the English nation has passed. 
 When the Norman came he seized the central powers of the 
 state, but the local Teutonic system remained unshaken by 
 the assault. Upon this local system as a substructure the The sub- 
 Norman built up his administrative system as a superstruc- 
 ture ; and out of the fusion between the two has grown the cpnstitu- 
 modern constitution. Just as the Romance words which the 
 Norman brought with him were woven into the woof and 
 warp of the English tongue, so the Norman's ideas of law and 
 of administration were woven into the primitive constitution. 
 
 1 " It was this military organization sions of the host supplied here, as in its 
 
 of the tribe that gave from the first its older home, a rough groundwork of 
 
 form to the civil organization. In each local distribution." Green, Making 
 
 of the little kingdoms which rose on the of Eng., p. 169. 
 
 wreck of Britain, the host would camp 2 Green, Hist, of the Eng. People, 
 
 on the land it had won, and the divi- vol. i. p. 14.
 
 90 THE OLD-ENGLISH COMMONWEALTH. 
 
 In the same sense in which the English language is Teutonic 
 the English constitution is Teutonic. 1 That strong local 
 system, as originally established in Britain by the Teutonic 
 invaders, has never ceased to exist. It has passed through a 
 long process of change and of growth, it has taken on many 
 new forms, it has borne great fruit, it has controlled the 
 destinies of a nation, " which, while reforming in all direc- 
 tions, has destroyed nothing ; which has preserved both its 
 trees and its constitution, which has lopped off the dead 
 branches without levelling the trunk ; which alone, in our 
 days, among all nations, is in the enjoyment not only of the 
 present, but of the past." 2 
 
 The prob- /. The problem, then, which the student of English political 
 worked'out. institutions is called upon to work out involves an examination 
 of the entire process of historic development through which 
 the primitive Teutonic constitution has passed under the com- 
 bined action of internal growth and external influence. The 
 starting-point in the solution of the problem necessarily con- 
 sists of a close insight into the nature of the primitive system 
 as originally established in Britain, without that all attempts 
 to work out the subsequent development will fail. But we 
 cannot obtain that insight by relying entirely upon the insular 
 history of the English nation ; we must look beyond to the 
 homes of the "English kin" in the fatherland ; we must begin 
 with the brief history of the childhood of the whole Teutonic 
 race as contained in those terse sketches of the ancient free- 
 dom which have been drawn by the Roman historians. 
 
 1 "The German element is the pater- 2 Taine, /ftrf. of Eng. Literature,voL 
 nal element in our system, natural and ii. p. 517. 
 political." Stubbs, Const. Jfist.,vol.i. 
 p. II.
 
 CHAPTER II. 
 
 THE FOUNDERS IN THE FATHERLAND. 
 
 I. THE earliest account of the Teutonic tribes in general, Early MS- 
 and of the Suevi in particular, is contained in the military Stoni? 6 
 memoirs of Caesar, who has condensed into a few passages of race: * 
 his Commentaries such information as he had been able to Tacitus. 
 derive from his own observations, and from the reports of the 
 Gallic provincials. 1 But, as Caesar's sketch is vague and gen- 
 eral, and as it varies in at least one serious particular from the 
 more extended account given, a century and a half later, by 
 Tacitus, it cannot be safely followed wherever it departs from 
 the later narrative. It is almost impossible to believe that the 
 whole Teutonic people could have been in the purely nomad 
 state described by Caesar, when we find them, only a century 
 and a half later, dwelling in villages as permanent cultivators 
 of the soil. The moving, restless tribes which hovered upon 
 the Roman frontier, and with which Caesar was naturally most 
 familiar, may have been, and likely were, in the unsettled 
 state described by him. 2 But the soundest critics refuse to 
 accept his statement as true in this respect, even in his day, 
 of the whole Teutonic race. 3 One of the most striking fea- 
 tures in Caesar's sketch is the contrast which he draws be- 
 tween the abstemious, poverty-loving, and warlike Germans, 
 and their more cultivated, yet less warlike, neighbors, the 
 Gauls. It is somewhat such a contrast as Tacitus drew at a 
 later day, between the barbaric virtues of the Germans and 
 the voluptuous degeneracy of his own countrymen.* 
 
 1 Caesar, De Bello Gallico, vi. 21, 22, was true of some earlier period. Die 
 
 23, 24. As to the Suevi, iv. I, 3. Deutschen und die Nachbarstamme, von 
 
 3 Stubbs, Select Charters, etc., p. 52. Kaspar Zeuss (Munchen, 1837), p. 52 et 
 
 8 "But so deeply does the posses- seq. 
 
 sion of land enter into the principle of * The contrasts contained in the 
 all the Teutonic institutions, that I can- Germania are so frequent and so 
 not bring myself to believe in the ac- pointed that it was at one time re- 
 curacy of Caesar's statement." Kern- garded as a satire on Roman manners, 
 ble, Saxons in England, vol. L p. 39. " With regard to their moral hue, Tad- 
 Zeuss maintains that Caesar's account tus has painted the Germans, as Mon-
 
 92 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 Cesar's 2. Caesar, after indulging in some inaccurate assertions 
 
 concerning Teutonic mythology, 1 begins by saying that the 
 Germans pass their lives in hunting and in the pursuit of 
 arms ; from childhood they are inured to labor and to a hardy 
 chastity of habit of life. 2 And then, after speaking of their chastity and 
 n^?. 61 its supposed effects upon physical development, he remarks 
 that they do not apply themselves to agriculture, milk, 
 cheese, and flesh being their chief articles of food. 3 No one 
 has a fixed quantity of land, or boundaries that he can call 
 Annual ai- his own, but the magistrates and chiefs annually set apart to 
 lotments of ^ severa } communities, united by the family tie or by com- 
 mon religious rites, for occupation during a single year, a 
 portion of land whose amount and location is fixed according 
 to circumstances. The next year they compel the group to 
 remove to some other place. 4 Many reasons are then given 
 for this peculiar habit of unrest, all of which go to show that 
 such a system was perpetuated in order to preserve the mar- 
 tial spirit of the people from the enervating influences which 
 flow from fixed habitations, and from the enjoyment of per- 
 sonal comfort ; and also from the discontent resulting from 
 the unequal distribution of money and estates. 5 
 
 Aversion to The greatest prestige which the several states or tribes can 
 neighbors. p Ossess consists in the extent of the uninhabited lands sur- 
 rounding their territory, which they themselves have laid 
 waste. They take it as a tribute to their courage that their 
 old neighbors have abandoned their homes through fear of 
 them, and that no one else will take their place. And this 
 state of things adds to their safety, for the danger of sudden 
 invasion is thereby taken away. 6 Whenever a state engages 
 in war, defensive or offensive, magistrates, with the power of 
 life and death, are chosen for that particular emergency. In 
 
 taigne and Rousseau the savages, in a 4 " Neque quisquam agri modum cer- 
 fit of ill humor against his country; turn aut fines habet proprios; sed 
 his book is a satire on Roman man- magistratus ac principes in annos sin- 
 ners." Guizot, Hist, of Civilization, gulos gentibus cognationibusque homi- 
 vol. i. p. 418. This fancy has now num, qui una coierunt, quantum et quo 
 passed away. Waitz, Deutsche Ver- loco visum est agri attribuunt atque 
 fassungs-Geschichte, i. 21 ; Stubbs, Const, anno post alio transire cogunt." De 
 Hist., vol. i. p. 17. Bella Gallico, vi. 22. See Laveleye, 
 
 1 Kemble, Saxons in England, vol. i. Primitive Property, pp. 102-105. 
 
 p. 40- 8 Caesar, De Bella Gallico, vi. 22. 
 
 8 Caesar, De Bella Gallico, vi. 21. Ibid., vi. 22. 
 
 8 Ibid., vi. 22.
 
 II.] THE FOUNDERS IN THE FATHERLAND. 93 
 
 time of peace there is no common magistracy, but the chiefs NO com- 
 of the several districts administer justice and discourage liti- tracy 
 gation. Plundering expeditions beyond the borders of one's 
 own state are not considered dishonorable, but, on the con- 
 trary, they are commended as good schools in which to exer- 
 cise the young men, and to diminish idleness. When a chief Fidelity to 
 offers himself in the public assembly as the leader of such J^der"" 
 an enterprise, and calls upon all who so desire to follow him, 
 those who approve the cause and the man promise their aid 
 amid the applause of the multitude. If those who enter into 
 such an engagement fail to perform it, they are regarded as 
 deserters and traitors, and no faith is afterwards reposed in 
 them. 
 
 To violate the rights of hospitality is considered a sacri- Hospital- 
 lege ; strangers who come among them, from whatever cause, lty> 
 are considered sacred, and are protected from injury ; the 
 homes of all are open to them, and every one is ready to share 
 his meal with them. 1 There had been a time when the The Gauls. 
 Gauls surpassed the Germans in valor ; they had even sent 
 colonies across the Rhine and pressed war upon the Germans 
 without provocation. But the Gauls were conquered in so 
 many battles, and gradually became so accustomed to defeat, 
 that they ceased even to compare themselves in prowess with 
 the Germans. 2 Such is the brief initial outline which the 
 great Roman statesman has drawn of that mighty race of 
 which the English is a part. For an enlargement of that 
 outline we must look to the Germania of Tacitus, and to the 
 subsequent researches by which its meaning has been illus- 
 trated. 
 
 3. During the century and a half which intervenes be- Germania 
 tween the account of Caesar and that of Tacitus, knowledge 
 of the German tribes must have greatly increased at Rome. 
 Just before the beginning of the Christian era a determined Theat- 
 effort was made under the leadership of Drusus, the step-son m 
 of Augustus, to make Germany a Roman province. The ef- 
 fort of Drusus, which his sudden death interrupted, was con- province, 
 tinued, in turn, by Tiberius, Varus, and Germanicus, until the 
 results which followed a battle, near Minden, A. D. 16, put an 
 end to all attempts upon the part of the Romans to conquer 
 
 1 Caesar, De Bella Gallico^ vl 23. 2 Ibid., vi. 24.
 
 94 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 Germany. 1 And, apart from the knowledge which must have 
 been obtained during these frequent attempts at conquest, 
 the contact upon the frontier was continuous. The precious 
 accumulation of facts contained in the Germania is, how- 
 ever, the surest indication of just how far a knowledge of the 
 Germans had advanced at Rome up to the time when the 
 Germania narrative of Tacitus was written. Leaving out of view spe- 
 of manners c ^ n ti ces f particular tribes, this invaluable summary con- 
 customs, tains a brief abstract of the manners, customs, and institutions 
 
 and mstitu- 
 
 tions ; common to the German race as a whole. As Montesquieu 
 has expressed it, it is the work of a man who has condensed 
 everything because he knew everything. 2 A narrative so 
 broad and comprehensive in its character must necessarily 
 its rare his- be lacking in fulness of detail. But such evidence as the 
 tone value. Germania does contain is of the rarest historic value, for 
 it consists of the contemporary observations of a cultivated 
 historian made upon the customs and institutions of a mighty 
 race while yet in its childhood. 3 If we will but picture to 
 ourselves the historian Bancroft, in his library at Washington, 
 making an abstract of the customs and institutions of the 
 Indian tribes upon our frontier, we shall possess a reasonably 
 correct idea of the relation which existed between Tacitus 
 and the barbarians beyond the Rhine. 
 
 Distinctive 4. According to the Germania the race which is now called 
 race-traits. Teutonic was pure and indigenous, unmixed by intermarriage 
 with any foreign stock, of the same physical type, speaking 
 the same language, possessing a common mythology, and a 
 common system of social, political, and military institutions, 
 and yet, possessing no collective name in its own language 
 by which to describe the race as a whole, nor any form of 
 central political organization. 4 The word German 6 is prob- 
 
 1 Sime, Hist, of Germany, pp. 12- 6 Tacitus indicates that the name 
 14. German was first applied by the Gauls 
 
 2 Spirit of Laws, bk. xxx. ch. 2. to the Tungri, and finally to the whole 
 8 " As societies do not advance con- race. Germania, c. 2. See Waitz, 
 
 currently, but at different rates of prog- D. V. G., \. 24. According to Grimm 
 ress, there have been epochs at which ( Geschichte der Deutschen Sprache, p. 
 men trained to habits of methodical 787) the word signifies "good shout- 
 observation have really been in a posi- ers " ; according to some other author- 
 tion to watch and describe the infancy ities, " East-men " or neighbors. When, 
 of mankind. Tacitus made the most in after times, the German tribes had 
 of such an opportunity." Sir Henry realized their unity of tongue and de- 
 Maine, Ancient Law, p. 116. scent, they spoke of their language 
 4 Tac., Germania, cc. 2, 4. simply as the " Lingua Theotisca," the
 
 II.] THE FOUNDERS IN THE FATHERLAND. 95 
 
 ably of Celtic origin, and is supposed to have been first ap- The word 
 
 plied by the Gauls to a particular Teutonic tribe, and finally proSbiy of 
 
 to the whole race. The great national virtue was chastity S ltlc 
 
 and respect for the marriage tie. To be content with one 
 
 wife and true to her was a part of the German instinct. 1 
 
 The great national vices were drunkenness and gambling. 
 
 To be drunk for days was a disgrace to no man, while the 
 
 ruined gamester would, at last, put even his liberty at stake, 
 
 and allow himself to be sold into slavery. 2 The Germans Absence of 
 
 had no cities, but dwelt in villages, or in homesteads near C1 
 
 villages. 3 Their chief property consisted of flocks and herds, 
 
 in which they felt the greatest pride. 4 Their peculiar system 
 
 of agriculture will be examined hereafter. 
 
 5. This homogeneous race, although possessed of a com- The state 
 mon system of social and political institutions, was neverthe- 
 less broken up into an endless number of states or political 
 communities, which stood in relation to each other in a state 
 of complete political isolation, except when united in tempo- 
 rary confederacies. In their general descriptions of the Ger- 
 man people, both Caesar and Tacitus had constantly in their 
 minds the existence of these disconnected states into which 
 the race, as a whole, was subdivided. 5 In order, therefore, to 
 grasp the full import of these descriptions, this fact must be 
 kept constantly in view. Both writers attempted to convey 
 a distinct idea of the form which Teutonic society assumed 
 among a given number of the German people politically 
 united in what each termed the civitas ; with the further ex- The 
 
 planation, that what was true of the race in one state, was and Tad- 
 true of the race in all the states ; excepting, perhaps, the few tus> 
 particulars in which the monarchical states differed from the 
 non - monarchical. The attempt will therefore be made to 
 render the picture of Tacitus less abstract, by applying what 
 he says of the German race, as a whole, and of the states in 
 general, to one particular portion of the race, bound together 
 in such a distinct political organization as he called the 
 
 language of the people (theod) ; whence 2 Tac., Germ., cc. 22, 23. 
 
 the name "Deutsch." Max Miiller, 8 Ibid., c. 16. 
 
 Lectures on the Science of Language, ii. * Ibid., c. 5. 
 
 230; Stubbs, Const. Jfist., vol. i. pp. 17, 6 Caesar, De Bella Gallico, vi. 23; 
 
 38, and notes. Tac., Germ., cc. 8, 10, 12, 13, 14, 15, 19, 
 
 1 Tac., Germ., c. 18. 25, 30, 41.
 
 96 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 civitas. A great many terms have been used by the English 
 
 writers as equivalents of the civitas of Caesar and Tacitus. 
 
 Political community, tribe, state are, however, the terms usu- 
 
 ally employed to express the idea. But no word in our lan- 
 
 guage will express the exact idea unless it be attended by 
 
 special qualifications indicating the precise sense in which it 
 
 The state is used. The primary bond which united the people in what 
 
 S n a ai pe or- will be called for convenience the state was a personal one ; 
 
 ganization ^ e fa^g o f fa e s t a t e was the first among the people, the head 
 
 of the race ; and not the king of a particular area or region 
 
 occupying a of territory. And yet, in the time of Tacitus, the states, into 
 
 ar^oaer- which the German race was broken up, were permanently oc- 
 
 ritory> cupying districts of country which were defined by definite 
 
 boundaries. And so the conception of the state, although 
 
 resting upon the idea of personal connection, must also have 
 
 been associated with the idea of territorial possession. As 
 
 the distinction has been well expressed : " The idea of the 
 
 state was not merely a personal but a geographical idea, if 
 
 not in theory at least in fact." 1 Let us, therefore, present to 
 
 our minds such a state, composed of a number of the German 
 
 people, great or small, occupying a definite area of country, 
 
 surrounded, perchance, by an uninhabited expanse, which the 
 
 people of that particular state have themselves laid waste. 2 
 
 This is the condition in which the primitive Teutonic state 
 
 The largest appears when written history begins. The largest division of 
 
 the state such a state has been designated by many terms. In Latin 
 
 ao tne wor d usually employed is pagus ; in German, gau or gd ; 
 
 hundred. m Old-English, scir or shire. 3 But all these terms finally 
 gave way on the Continent to the word hundred, which will 
 be employed whenever it is necessary to describe the largest 
 division of the continental Teutonic state. These divisions 
 or districts which will be called hundreds were, in their turn, 
 subdivided into village-communities the vici* of Tacitus 
 
 Tacitus. whose origin and structure will be specially considered 
 hereafter. 
 
 Having now defined the nature of the state and its sub- 
 
 1 Essays in Anglo-Saxon Law, p. 3 tudines habere." Caesar, De Bella Gal' 
 (Boston, 1876). lico, vi. 23. 
 
 2 " Civitatibus maxima laus est, quam 8 Kemble, Saxons in England, vol. i 
 latissime circum se vastatis finibus soli- p. 72 ; Essays in A. S. Law, p. 5. 
 
 * Tac., Germ., cc. 12, 16.
 
 II.] THE FOUNDERS IN THE FATHERLAND. 97 
 
 divisions, an examination will next be made of the account 
 which Tacitus gives of the different ranks into which the 
 people were divided ; and of the general structure of their 
 social, military, and political institutions. 
 
 6. The whole fabric of Teutonic society rested upon two pistinc- 
 fundamental conceptions : the possession of land, and dis- ra nk:no- 
 tinctions of rank. These two ideas are so interlaced that ^' freed- 
 they can hardly be severed from each other. As the man men > ^ 
 who was not free could, at first, hold no land within the lim- * 
 its of the village-community ; so the man who held no land 
 in the community was not entitled to the full measure of 
 freedom, however high may have been his rank or station. 1 
 According to Tacitus, Teutonic society was divided into four 
 ranks or classes: the nobles, nobiles ; simple freemen, in- 
 genui, freedmen, liberti ; and slaves, servi? 
 
 The simple land-owning freeman, though not of the high- The simple 
 est order in the state in respect to privileges, may be justly freeman 
 regarded as the base upon which rested the whole structure 
 of social and political life. 3 Such a freeman was certainly 
 endowed with every political right which the state could be- 
 stow. 4 As a fully qualified member of the local community shares in 
 he was entitled to his due portion of land in the annual allot- iuotS 1 ! 
 ment, and to the enjoyment of all common rights incident 
 thereto. 6 As such land-owner he had also the right to be 
 present and to participate in all public assemblies, great or 
 small, where his own interests, and those of the community 
 of which he was a part, were discussed and determined. He 
 was endowed with the right to bear arms, and to wear them his right to 
 on all occasions, public and private, 6 and with them to de- 
 fend his life and his honor. He possessed the right of pri- 
 vate war, either alone or with the aid of his kindred. In 
 the long hair which floated over his shoulders he wore the 
 
 1 Kemble, Saxons in England, vol. Northern Sea." Green, Hist. English 
 
 i. p. 35. People, vol. i. p. 32. 
 
 a Tac., Germ., cc. 7, 24, 25. * " The imgeruats or simple freeman 
 
 8 " The base of Roman society here is in every point, except descent, the 
 
 as everywhere throughout the Roman equal of the noble." Stubbs, Const. 
 
 world was the slave, the peasant who History, vol. i. p. 22. 
 
 had been crushed by tyranny, political 6 G. L. von Maurer, Dorfverfassung, 
 
 and social, into serfdom. The base of i. pp. 61-65 ; Markenverfassung, pp. 
 
 the new English society was the free- 59-02 ; Einleitung, pp. 93, 97. 
 
 man whom we have seen tilling, judg- Tac., Germ., cc. II, 13. 
 
 ing, or fighting for himself by the
 
 9 8 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Emancipa- 
 tion of 
 youths. 
 
 his wergiid. badge of his freedom. By his wergild his social position was 
 measured. 1 In peace he had his place in the public assem- 
 blies : in war he was a member of the host, a defender of the 
 
 The noble. State. 
 
 The noble was simply a freeman with certain special priv- 
 ileges which accrued to him by virtue of his blood. His 
 political status was in nowise superior to that of a simple 
 freeman, but his personal status was certainly attended with 
 great dignity and advantage. 2 In the monarchical states the 
 kings were chosen on account of their nobility of blood. 3 In 
 honor of illustrious birth the son of a famous father was 
 often called to the dignity of prince or chief ; and even the 
 comitatus was based in its arrangements upon different de- 
 grees of rank and station. 4 Upon the life of the noble, a 
 higher price was set than upon that of an ordinary freeman. 
 
 The youth upon attaining his majority, whether the son of 
 a noble or of a simple freeman, did not pass into the full pos- 
 session of freedom until he had been first emancipated by the 
 state. Until he reached the proper age he was considered 
 simply as a member of the household. When the proper 
 time arrived he was introduced in the state assembly, and 
 there invested, either by a magistrate or by some near rela- 
 tive, with shield and spear. 5 Thus endowed with the right 
 to bear arms, he ceased to be a mere member of the family, 
 he became a member of the state. It is not likely, how- 
 ever, that such a youth, even after his emancipation, entered 
 into the full enjoyment of all political rights until he had 
 become the possessor of rights in land. 6 
 
 The freedmen were not of much higher consideration than 
 actual slaves. They obtained no rank in their master's fam- 
 ily ; and, if we except that part of Germany in which mon- 
 archy was established, they never participated in public af- 
 fairs. 7 It is not to be presumed that this class enjoyed the 
 possession of political rights. 
 
 Among the Germans the unfree, the servi, were divided 
 
 1 Kemble, Saxons in England, vol. this ceremony, see Sohm, R.- und G. 
 
 Freedmen. 
 
 The unfree: 
 
 i. pp. 133, 134. 
 
 * Ibid., vol. i. p. 135. 
 
 8 Tac., Germ., c. 7. 
 
 4 Ibid., c. 13. In debate a noble was 
 entitled to precedence. Ibid., c. II. 
 
 6 Ibid., c. 13. For a full account of 
 
 V. t Beilage I. 
 
 8 Waitz, D. V. G., i. pp. 323, 
 ichs- 
 
 324; 
 
 Sohm, Fr&nkische Reichs- und 
 richtsverfassung, pp. 545-558; Stubbs, 
 Const. Hist., vol. i. p. 22. 
 i Tac., Germ., c. 25.
 
 II.] THE FOUNDERS IN THE FATHERLAND. 99 
 
 into two classes which represented two distinct grades of 
 servitude. 1 The higher class were mere agrarian dependents agrarian de- 
 who were obliged to furnish their masters a certain quantity pen 
 of grain, cattle, or clothing. Such dependents, however, 
 were allowed their own separate homes, and their manage- 
 ment. They obeyed their masters, but it was an unusual 
 thing for them to be whipped or punished in any way. It 
 sometimes happened that the master, in his rage, killed his 
 dependent, and then it seems that the crime passed unpun- 
 ished, and without compensation to any one. 2 This class, no 
 doubt, resulted in the main from conquest, especially in those 
 cases in which the conquerors occupied the land of the con- 
 quered, and reduced the original possessors of the soil to a 
 condition of dependence, in which they might still maintain 
 themselves while they toiled for their lords. 8 
 
 The condition of the lowest class of the unfree repre- Slaves, 
 sented the full measure of abject servitude. This class 
 seems to have been composed of those who had fallen vic- 
 tims to the national vice of gambling. 4 When the German 
 had lost his all at play, he would put even his person and 
 his liberty at stake. If he lost, he yielded himself up to 
 a slavery in which he could be chained and exposed for sale. 
 To the victims of play may be added such prisoners of war 
 as were reduced to a state of predial or menial servitude ; 
 and to these may possibly be added slaves by reason of 
 crime. 5 
 
 7. The results of recent investigation into the early history ownership 
 of institutions, and into the primitive forms of ancient law, theTmage- 
 have been fruitful indeed. By the light of the knowledge community. 
 thus attained it is now possible to define the primary forms 
 of political union and of land-ownership 6 prevalent among 
 
 1 Tac., Germ., cc. 24, 25 ; G. L. von groups of men either in fact united by 
 Maurer, Hofverfassung, i. p. 5 sq. blood-relationship, or believing or as- 
 
 2 Tac., Germ., c. 25. suming that they are so united, is now 
 8 Kemble, Saxons in England, vol. entitled to take rank as an ascertained 
 
 i. ch. viii. ; Stubbs, Const. Hist., vol. i. primitive phenomenon, once universally 
 
 p. 23. characterizing those communities of 
 
 * Tac., Germ., c. 24. mankind between whose civilization 
 6 Kemble, Saxons in England, vol. and our own there is any distinct con- 
 
 i. pp. 194, 200. nection or analogy." Maine, Early 
 
 * " We at length know something History of Institutions,^. \. See, also, 
 concerning the beginnings of the great Laveleye, Primitive Property, pp. 102- 
 institution of Property in Land. The 1 10. 
 
 collective ownership of the soil by
 
 100 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [Cn. 
 
 The patri- 
 theory. 
 
 Collective 
 wner 
 
 yields to in- 
 ownership, 
 
 those races with whose legal history we are at all concerned. 
 It seems to be clear that the earliest tie which bound men 
 together in communities was the tie of kinship, the earliest 
 form of social and political organization, that of the family, 1 
 whose members were either actually united by blood relation- 
 ship, or assumed to be so. The first form of authority which 
 existed in such a community was vested in its patriarchal 
 head or chief. 2 The first idea, therefore, of sovereignty which 
 existed in the family, or in the clan into which the family 
 widened, was a personal or tribal sovereignty as distinguished 
 from a territorial one. 3 It is assumed that this tribal consti- 
 tution of society first prevailed among nomad communities ; 
 and it is probable that its original principles entered upon a 
 gradual process of change so soon as the tribal community 
 finally settled down upon a definite area of land. From that 
 time the land begins to be the basis of society instead of the 
 kinship. 4 The theory seems to be well settled that this 
 archaic form of organization and of collective land-ownership 
 by groups of men, united by the family tie, was common to 
 all the races which compose the Aryan family. 5 The traces 
 of such a system have been established from Ireland to 
 Hindoostan. 6 Such a type of organization could only con- 
 tinue to exist in its primitive form among a people whose 
 social condition was stationary. With the first advance in 
 the path of civilization the principle of collective land-owner- 
 ship naturally gave way to the principle of individual owner- 
 ship. And such has been the transition through which the 
 village-community in most countries has passed. The first 
 step was taken when each man became the individual pos- 
 sessor of his homestead; the next, when the arable land 
 ceased to be held in common subject to allotment ; the last, 
 when the pasture lands were finally divided. In this way the 
 
 1 Maine, Early History of Institu- 
 tions. See lecture iii., " Kinship as the 
 Basis of Society." 
 
 2 As to the Patriarchal Theory, see 
 Maine, Ancient Law, p. 118 sq. 
 
 8 Ibid., p. 99. 
 
 * Maine, Early Hist, of Institutions, 
 p. 72. 
 
 6 But this form of organization is 
 not exclusively an Aryan possession, 
 Ibid., p. 77. Society in primitive 
 
 times, " In fact, and in the view of the 
 men who composed it, was an aggrega- 
 tion of families. The contrast may be 
 most forcibly expressed by saying that 
 the unit of an ancient society was the 
 Family, of a modern society the In- 
 dividual." Maine, Ancient Law, p. 
 121. 
 
 8 See Maine, Village-Communities in 
 the East and West, pp. 13, So.
 
 II.] THE FOUNDERS IN THE FATHERLAND. IOI 
 
 waste lands alone remained the common property of the Waste 
 community. 1 From the evidence which has been recently last to be 
 brought to light in the different countries in which this dlvlded - 
 system has been examined, it is now possible to study its 
 history in every stage of development and decay. In those 
 countries in which the progress of civilization has been most 
 marked, its traces are the faintest ; in those of which the 
 contrary is true, its form is most distinct. In Russia 2 and The RUS- 
 in India the structure of this system can still be viewed in S1 
 its integrity. Wherever the village-community has existed 
 among the races of the Aryan family it is possible to trace 
 the existence of the village council, the organ, which, in its The village 
 archaic form, corresponds to what is now called the legisla- cc 
 ture. To this embryo can be traced the origin of the most 
 famous senates of the world. 3 The history of the village 
 council is closely interlaced with the early history of institu- 
 tions in Germany and in England. 
 
 Tacitus tells us that the Germans did not dwell in cities. Teutonic 
 Some dwelt in villages, vici, but not after the Roman fashion, ^ e maA 
 with a series of connected buildings, for every homestead s y stem - 
 stood detached, with a vacant space of ground about it. 
 Others dwelt apart from the villages in isolated homesteads, 
 wherever a grove, meadow, or spring happened to attract 
 them. 4 In another and famous passage, which has given rise German 
 to a vast amount of learned discussion, is described the German 
 method of agriculture : " The fields are alternately occupied 
 by the whole body of cultivators according to their number, 
 and these they afterwards divide among themselves according 
 to their individual dignity." 5 The extent of the waste lands 
 
 1 Maine, Early Hist, of Institutions, the modern world, or, in other words, 
 p. 81 ; Stubbs, Const. History, vol. i. p. of all governments in which sovereign 
 52. power is exercised by the people or 
 
 2 In a recent work, entitled Russia, shared between the people and the 
 by Mr. D. Mackenzie Wallace, is con- king." Maine, Early Hist, of Institu- 
 tained a very interesting chapter (viii.) tions, p. 388. 
 
 in which is described the present con- 4 Tac., Germ., c. 16 ; Waitz, D. V. 
 
 dition of the Russian " mir " or village- <?., i. p. 108. 
 
 community. 6 There are two readings of this very 
 
 8 " From this embryo have sprung difficult passage, c. 26 : " Agri pro 
 
 all the most famous legislatures of the nume'ro cultorum ab universis in vices 
 
 world, the Athenian Ekklesia, the Ro- \al. vicis] occupantur, quos mox inter 
 
 man Comitia, Senate, and Prince, and se secundum dignationem [al. digni- 
 
 our own Parliament, the type and par- tatemj partiuntur." As to the proper 
 
 ent of all the 'collegiate sovereign- interpretation of this passage, see 
 
 ties ' fas Austin would call them) of Waitz, D. V, <?., i. pp. 132-137 ; G. I*
 
 IO2 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 The v icus 
 identical 
 with the 
 mark. 
 
 The mark 
 in the time 
 of Tacitus. 
 
 Structure 
 of the mark. 
 
 rendered this method of partition easy : " They change the 
 arable land, from year to year, and there is land to spare." l 
 Thus the Germans dwelt together, either collectively in 
 villages, or upon separate farms in the vicinity of villages- 
 The vicus of Tacitus represents the Teutonic form of the 
 village-community, 2 and constitutes an important link in the 
 chain of its history. If we could accept as of undoubted 
 authority Caesar's statement in reference to the community of 
 kindred, occupying, subject to allotment, a given area of land 
 for one year which it abandoned the next, 3 we would have a 
 perfect picture of the Teutonic village-community, while its 
 members were still in a purely nomad state. However this 
 may be, it is quite certain, that at the time Tacitus wrote the 
 annual migrations have ceased ; the village-communities have 
 settled down upon definite areas of land, the arable part of 
 which is cultivated according to the scheme of annual allot- 
 ment which Tacitus has described. But it is impossible to 
 work out the history of the Teutonic cultivating community 
 by relying exclusively upon the brief outline contained in the 
 Germania, its full history must be interpreted by the light 
 of later facts, and by the aid of generalizations based upon 
 the record of usages, and upon the general analogies of Scan- 
 dinavian law. 4 
 
 The portion of territory occupied by the community of kin- 
 dred cultivators was termed in the German muniments the 
 mark, something, as the term denotes, marked out and de- 
 fined, and having settled boundaries. 6 The absolute owner- 
 
 von Maurer, Einleitung, pp. 5, 6 ; 
 Stubbs, Const. History, vol. i. p. 19; 
 Select Charters, p. 59. 
 
 1 " Arva per annos mutant, et super- 
 est ager," c. 26. " It implies no more 
 than this, that within the mark which 
 was the property of all, what was 
 this year one man's corn-land, might 
 the next be another man's fallow." 
 Kemble, Saxons in England, vol. i. p. 
 40. 
 
 2 Maine, Village Communities, p. 
 10. 
 
 Caesar, De Bella Gallico, vi. 22. 
 
 * Stubbs, Const. History, vol. i. pp. 
 35. 48. 
 
 6 See Kemble's chapter upon " The 
 Mark," Saxons in England, vol. i. p. 
 35. But since Kemble's day this whole 
 
 subject has been worked out in great 
 detail by G. L. von Maurer, in a series 
 of works of the highest authority. 
 Einleitung zur Geschichte der Mark-, 
 Hof-, Dorf-, und Stadt- Verfassung und 
 der offentlichen Gewalt : Munchen. 
 Geschichte der Dorfverfassung in 
 Deutschland : Erlangen. Geschichte 
 der Frohnhbfe, der Bauernhofe und der 
 Hofverfasstmg in Deutschland : Erlan- 
 gen. Geschichte der Markenverfassung 
 in Deutschland: Erlangen. Geschichte 
 der Stadteverfassung in Deutschland: 
 Erlangen. See, also, Nzsse,A^rtculfurai 
 Community, etc., Ouvry ; Maine, Vil- 
 lage-Communities, lects. i., Hi. ; Hearn, 
 The Aryan Household ; Seebohm, The 
 English Village Community ; Laveleye, 
 Primitive Property.
 
 II.] THE FOUNDERS IN THE FATHERLAND. 103 
 
 ship of the territory embraced within the mark was vested 
 either in the community itself or in the state within which 
 the mark was embraced, while the right to its common en- 
 joyment and possession was vested in its qualified members. 
 The mark might be located either in the forest or in the 
 plain, according to the nature of the country in which the 
 kindred chanced to fix their settlement ; and its border land, 
 according to circumstances, consisted either of wood or 
 waste. 1 The mark was divided into three parts, r the vil- 
 lage, the arable lands, and the common or waste lands. 2 In 
 the centre of the mark was situated the village in which The village, 
 the mark -men dwelt in their homesteads, surrounded by 
 their inclosures and outbuildings. 3 Within the precinct 
 of the family dwelling-place the head of the family was su- 
 preme. No one had the right to enter there except himself 
 and those under his paternal authority. It could not be in- Sacredness 
 vaded even by officers of the law. 4 The possession of such a homestead, 
 homestead was evidence of the fact that its possessor was a 
 fully qualified member of the mark, and as such entitled to a 
 full share in the enjoyment of the arable, the pasture, the 
 meadow, and waste lands belonging to the community. 5 The 
 arable land embraced within the mark was usually divided The arable 
 into three great fields ; and it was so arranged that, in the 
 rotation of crops, each field could lie fallow once in three 
 years. 6 In the fields under cultivation in any given year, 
 every householder had allotted to him his equal share, which 
 he cultivated separately by his own labor, together with that 
 of his sons and slaves. But he was required to cultivate 
 according to fixed rules ; he was obliged to sow the same 
 crop with the rest of the community and to allow his portion 
 of the uncultivated field to lie fallow with the rest. 7 The rules 
 regulating this system of cultivation were both minute and 
 complicated. The woods, pastures, and meadows which were The corn- 
 embraced within the mark were undivided, and employed in 
 
 1 Konrad Maurer, Kritische Ueber- 8 G. L. v. Maurer, Einleitung, p. 21. 
 schau, \. 65-72. * Village-Communities, p. 78. 
 
 2 Maine, Village-Communities, p. 78. 6 Dorfverfassiing, vol. i. pp. 61-65. 
 The author of Village-Communities has 6 See Laveleye, Primitive Proper- 
 condensed into a few pages of that ty, p. no, as to the time of the intro- 
 work a summary of Von Maurer's con- duction of this triennial rotation of 
 elusions as to the structure of the crops. 
 
 mark, pp. 77-82. .. 7 Village-Communities, pp. 79, 80.
 
 104 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 The mark- 
 moot. 
 
 Theory of 
 aggrega- 
 tion: 
 
 common, and, originally, without restriction. 1 When this 
 primitive condition of things ceased, however, the use of the 
 common lands was regulated by strict proportion, and an 
 elected or hereditary officer watched to see that the common 
 domain was equitably enjoyed. 2 
 
 Such was the mark in its agricultural aspect, and such were 
 the relations which the mark-men bore to each other as com- 
 mon cultivators of the soil. We must next consider the po- 
 litical aspect of the mark, and the character of the assembly 
 in which its internal affairs were considered and determined. 
 Every free mark-man had his place in the village council or 
 mark-moot, which, if the assumption of Kemble be followed, 
 must have had jurisdiction, in the early stages of social de- 
 velopment, over all causes which could in any way affect the 
 interests of the individuals composing it. 3 But in historic 
 times the marks appear as members of larger communities, 
 and in the assemblies of such communities was vested the 
 judicial power. In the mark-moot was transacted all the busi- 
 ness which arose out of the system of common cultivation, and 
 out of the enjoyment of common rights. The annual allot- 
 ment of the arable lands, the rotation of crops, the choice of 
 the meadow, the admission of a new member into the mark, 
 were all questions which were determined in the mark-moot. 4 
 
 Within the limits of the mark are found dwelling together, 
 in the peculiar corporate relations which have just been de- 
 scribed, all grades of Teutonic life, nobles, freemen, freed- 
 men, and slaves, constituting a naturally organized, self- 
 governing community. A group of families or households 
 settled upon a given portion of land, and bound together in 
 the organization of the mark, probably represented the orig- 
 
 1 G. L. v. Maurer, Markenverfas- 
 sung, p. 142. 
 
 2 Village-Communities, p. 79. "Vil- 
 lage cow-herds, swine-herds, and goose- 
 herds are still employed in many parts 
 of Germany." See " The Germanic 
 Origin of New England Towns," 
 Adams, J. H. Studies, ist series, II. 
 
 P- IS- 
 
 3 Kemble, Saxons in England, p. 55. 
 Bishop Stubbs says that, " It is un- 
 necessary to suppose that there was 
 a period when the village marks ad- 
 ministered justice among themselves. 
 
 . . . But the initiatory stage of legal 
 proceedings may well have been gone 
 through, complaints heard, and prer 
 sentments drawn up, in the village 
 council." Const, History, vol. i. p. 51. 
 4 G. L. von Maurer, Einleitung, pp. 
 141-150. " It is with a reverence such 
 as is stirred by the sight of the head- 
 waters of some mighty river that one 
 looks back to these village-moots of 
 Friesland or Sleswick. It was here 
 that England learned to be a ' mother 
 of Parliaments.' " Green, History of 
 the English People, vol. i. p. 13.
 
 II.] THE FOUNDERS IN THE FATHERLAND, IO5 
 
 inal basis upon which rested all Teutonic society. 1 And if 
 that theory be accepted which begins with the marks as the 
 units of organization, it becomes easy to work out the process 
 through which the larger divisions arose out of their aggrega- 
 tion. In the attempt heretofore made to describe the struc- 
 ture of the Teutonic state, as it first appears in the written 
 history of the race, it was necessary to begin with the state 
 as an existing political organization occuping definite geo- 
 graphical limits, without reference to the questions involved 
 in the origin of its subdivisions, and in the process through' 
 which it was evolved out of their gradual coalescence. The 
 unwritten history of this process rests upon the theory of 
 aggregation ; and as that theory depends, in a great measure, 
 for authority, so far as English history is concerned, upon the 
 great names of Kemble and Freeman, it may be well to state 
 it in their own language. In the words of Kemble : " Next as stated by 
 in the order of constitution, if not of time, is the union of two, Ken3 
 three, or more marks in a federal bond for purposes of a 
 religious, judicial, or even political character. The technical 
 name for such a union is in Germany a gau or bant ; in 
 England the ancient name ga has been almost universally 
 superseded by that of scir or shire. . . . The ga is the second 
 and final form of unsevered possession ; for every larger ag- 
 gregate is but the result of a gradual reduction of such dis- 
 tricts, under a higher political or administrative unity, different 
 only in degree and not in kind from what prevailed individu- 
 ally in each." 2 In the words of Freeman: "We must re- as stated by 
 member that the kingdom, like all our ancient divisions, from 
 the shire, perhaps from the hundred upwards, was formed 
 by the aggregation of smaller divisions. The unit is the 
 mark, roughly represented by the modern parish or manor. 
 The shire must not be looked on as a division of the king- 
 dom nor the hundred or the mark as a division of the shire. 
 The hundred is in truth formed by an aggregation of marks, 
 the shire by an aggregation of hundreds, and the kingdom 
 by the aggregation of shires. The aggregation of marks into 
 shires is indeed mainly to be inferred from local nomencla- 
 
 1 Kemble, Saxons in England, vol. i. 2 Kemble, Saxons in England, vol. i. 
 p. 53. See, also, Seebohm, English p. 72. 
 Village Community, preface, x.
 
 106 . THE OLD-ENGLISH COMMONWEALTH. [CH. 
 
 ture and from the analogy of other Teutonic countries, but 
 the aggregation of shires into kingdoms is matter of recorded 
 history." 1 If we accept, therefore, the primitive Teutonic 
 community, represented by the mark, as the unit, and then 
 apply to its union with other units of the same class the 
 theory of aggregation, the making of the Teutonic state be- 
 comes at once obvious and easy. 
 
 The hun- 8. The mark has now been considered as an isolated, self- 
 
 ?hehundred governing community, and also as the smallest subdivision 
 
 court : O f th e Teutonic state. In the ascending order it is necessary 
 
 to examine the structure of the next largest division the 
 
 hundred. By the union of two or more marks was formed 
 
 iheflagus, gau, or shire, known in later times as the hundred, 
 
 a word which, in some form, enters into all of the Ger- 
 
 manic constitutions. When the written history of the primi- 
 
 tive Teutonic state begins, the formative period has ended ; 
 
 the state is an existing organization, occupying definite geo* 
 
 graphical limits, while the original units out of whose aggre- 
 
 gation it arose have descended to the status of mere divisions 
 
 and subdivisions. Connected in this way with the occupa- 
 
 tion of definite areas of land, these divisions and subdivisions 
 
 represent forms of organization not only personal but terri- 
 
 their names torial. 2 The name of the territorial district represented by 
 
 in different the hundred has varied in different countries, and the name 
 
 countries. o f fa cour^ composed of all the freemen residing within the 
 
 district, has varied nearly as much as that of the district it- 
 self. That fact must not be allowed, however, to mislead us 
 as to the true character of either ; for the hundred, and the 
 hundred court, in respect to both judicial and administrative 
 functions, were of all Teutonic institutions the most endur- 
 ing and the most important. 3 The faithful investigations of 
 
 1 Freeman, Norm. Cong., vol. i. p. 66. of Clovis, the reforms of Charlemagne, 
 
 2 " At the time when German law the dissolution of the Frankish empire, 
 and society were first brought within the dissolution of the county system, 
 the view of history, the German popu- the dissolution of public authority by 
 lar assembly consisted, and to all ap- feudalism, the complete beginning of a 
 pearance had always consisted, of the wholly new development in the iso- 
 free inhabitants of a fixed geographical lated territories. The hundred consti- 
 district." Essays in A. S. Law, p. 3. tution gave way at last only to a more 
 
 3 " The hundred, and the principle powerful enemy, the awakening le- 
 that the hundred community is a judi- gal science of the sixteenth century." 
 cial body, outlived the storms of the Sohm, Altd. R.- u. G. Verf., i. p. 541. 
 folk wanderings, the political creations See Essays in A. S. Law, p. 20.
 
 II.] THE FOUNDERS IN THE FATHERLAND. TO/ 
 
 the German scholars into their own legal antiquities have Their im- 
 finally established the fundamental principle, that the whole KStfon" 
 Teutonic race, from the earliest period of its history, vested 
 both the administration of law and political administration 
 in the hands of popular assemblies. The smallest of these 
 assemblies is represented by the mark-moot ; the circle then 
 widens as we ascend to the assembly or court of the hun- 
 dred until, in the state assembly, appears the highest devel- 
 opment of popular power. The hundred court, like all other The hun- 
 Teutonic courts, was a popular assembly, composed of all the a'popTiar 
 freemen resident within the district. In this court was ad- assembl > r - 
 ministered regularly and frequently the customary law. It 
 met perhaps once a month, and, in addition to its judicial 
 duties, it discharged many administrative functions. 1 Taci- 
 tus tells us that each hundred, pagus, sent a hundred war- 
 riors to the army, called hundreders ; and that this name, at 
 first numerical only, became in time a title of honor. 2 In President 
 the state assembly a chief was chosen to act as magistrate dred coill?" 
 
 in each hundred. He presided in the hundred court, and 
 with him were associated a hundred companions or assist- bl y- 
 ants, chosen from the body of the people, who attended to 
 give their advice and to strengthen the hands of justice. 3 
 
 9. As by the union of two or more marks the hundred was The state 
 formed, so by the union of two or more hundreds the state ^ 
 was formed. The supreme powers of the state were vested 
 in a state assembly, in which every freeman had his place. 
 The character of this assembly and the methods of its pro- 
 cedure are described in the Germania with some detail. In 
 the assembly of the hundred the people met in council, 
 mainly for the purpose of judicial administration ; in the 
 state assembly they met together mainly for the purpose of 
 political action. 4 In the deliberation of the assembled peo- its func- 
 ple every man had an equal voice ; and it was the custom political; 7 
 for all to appear fully armed. The state assembly met at 
 fixed and stated intervals, unless sooner called together by 
 
 1 Essays in Anglo-Saxon Law, p. 5. and were of universal application. 
 
 8 Tac., Germ., c. 6. Sohm, Die frankische Reichs- und Ge- 
 
 Ibid., c. 12. The duty of attend- richtsverfassung, vol. i. p. 333; Roth, 
 
 ance upon the courts and the obliga- Geschichte des Beneficialwesens, p. 42. 
 
 tion of military service resulted from * Sohm, Fr. R. G. F., pp. 1-8. 
 
 the possession of personal freedom,
 
 io8 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 its business 
 prepared 
 beforehand 
 by a perma- 
 nent coun- 
 cil, which 
 settled all 
 minor 
 questions. 
 
 Criminal 
 law: 
 
 All 
 
 offences, 
 except trea- 
 son and 
 effeminacy, 
 could be 
 atoned for 
 by fines. 
 
 some sudden emergency. When the people had assembled 
 in sufficient numbers the business began after silence had 
 first been proclaimed by the priests, who possessed the co- 
 ercive power to enforce it. The business presented to the 
 consideration of the assembly was all prepared beforehand 
 by a permanent council. This council was composed of the 
 magistrates, principes, who decided all minor questions, re- 
 serving only the graver ones for the consideration of the 
 whole people. When the proper time arrived, the debate 
 was opened by the king, or a chief, and then the rest were 
 heard in turn, according to age, nobility of descent, renown 
 in war, or fame for eloquence. No one could dictate to the 
 assembly, all could persuade, no one could command. 
 When a proposition was put forward to which the people 
 were opposed they expressed their dissent in loud murmurs ; 
 when it pleased them, they expressed their approval by the 
 clash of arms. 1 Here the magistrates, principes, were chosen 
 to administer justice in the marks and hundreds, pagos 
 vicosque? 
 
 10. In the state assembly, as a high court of justice, ac- 
 cusations were exhibited and capital offences prosecuted. 3 
 Those guilty of treason and desertion were hanged, those 
 guilty of cowardice and unnatural vices were suffocated in 
 the mud. In the infliction of these penalties the spirit of 
 the law was, that crimes against the state should be made 
 notorious, while the infamous forms of vice should be buried 
 out of sight. All other offences could be atoned for by 
 fines, a part of which were paid to the king or state, and a 
 part to the person injured, or to his family. 4 The Germans 
 felt bound to take up both the enmities and friendships of 
 their parents and relatives. But in their enmities they were 
 not implacable. Injuries were adjusted by a settled measure 
 of compensation. Even homicide was atoned for by a fixed 
 number of cattle ; and, in this way, the whole family received 
 satisfaction, a useful institution to the state, as it served to 
 curb that spirit of revenge, which naturally results from too 
 much liberty. 6 And the value of this method of settling 
 
 1 Tac., Germ., c. II. 
 
 2 Ibid., c. 12. 
 
 Sohm, Fr. R. G. F., p. 5. 
 
 4 Tac., Germ., c. 12. 
 6 Ibid., c. 21.
 
 II.] THE FOUNDERS IN THE FATHERLAND. 1 09 
 
 difficulties is increased when we reflect upon the fact that 
 convivial meetings were frequent in which drunken brawls 
 generally ended in a scene of blood. 1 
 
 1 1. Tacitus makes it very clear that each state had its own Kingship: 
 constitution and that these constitutions were substantially 
 the same in every particular except one, in some of the 
 states kingship prevailed, in others it did not. 2 In the mo- 
 narchical states the kings were chosen from among those 
 of noble blood, while the generals, duccsl were chosen from 
 among those who possessed the greatest military fame. The 
 power of the king was neither arbitrary nor unlimited, while 
 the general commanded more by exhibitions of valor than 
 by positive authority. 3 Although in war the sole command 
 was not vested in the king, and although in peace his powers 
 were very limited, yet he was certainly surrounded at all 
 times with attributes of great dignity and privilege. He rep- 
 resented in his person the national unity, he was the noblest 
 of the people, the head of the state. 4 As a perquisite he re- 
 ceived a portion of the fines imposed in the courts of justice. 6 
 But the most important consideration arising out of this 
 primitive kingship is the principle of election involved in it. principle of 
 The king was simply one of the people made eligible by no- e 
 ble blood to an office which the people only by election could 
 bestow. Noble blood simply made the candidate eligible ; 
 while the title to the office rested alone upon election. The 
 operation of this complex principle pervades the whole his- 
 tory of English kingship. 
 
 In the non-monarchical states the conception of national Sovereignty 
 unity was embodied solely in the idea of the civitas, working !" s 
 through the state assembly, and through the magistrates 
 chosen by it for local administration. In such a state, in 
 time of peace, all ordinary matters were determined by the 
 permanent council composed of the magistrates ; in the 
 event of war the great council was convened and generals 
 chosen by it for its management. Under this form of gov- 
 ernment, that portion of the fines accrued to the state which 
 in the monarchical states passed to the king. 6 
 
 1 Tac., Germ., c. 22. 4 Kemble, Saxons in England, vol. i. 
 
 2 Ibid., cc. 7, 12, 25. p. 137. 
 
 8 Ibid., c. 7. 6 Tac., Germ., c. 12. 
 
 8 Ibid., c. 12.
 
 no 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Military or- 
 ganization : 
 
 its likeness 
 to political 
 organiza- 
 tion. 
 
 The comi- 
 tatus: 
 
 its divisions 
 of rank ; 
 
 Relative 
 duties of 
 princeps 
 and comites. 
 
 12. So closely did the scheme of military organization, 
 common to all of the Teutonic tribes, resemble the system of 
 political organization upon which the state was constructed, 
 that a comparison has been happily made between the state 
 in its territorial aspect and the army in permanent encamp- 
 ment. 1 In the social and political order the narrowest form 
 of local organization was represented by the kindred grouped 
 together in village-communities. In one of the elements of 
 which the army was composed, the same principle of cohesion 
 appeared. The mass of the people fought together in "fami- 
 lies and affinities ;" 2 in these groups of kindred appeared upon 
 the battle-field the village-communities. The larger divisions 
 of the state were also distinctly represented. Each /#.? or 
 hundred contributed its quota of a hundred warriors to the 
 host. These warriors, chosen from the flower of the youth, 
 constituted the infantry, which was looked upon as the basis 
 of the national strength. 3 
 
 The third element of the army consisted of bands of pro- 
 fessional warriors, united to a leader of their choice in a close 
 and peculiar personal relation which Tacitus has described 
 with terse and graphic force. The leader of such a band was 
 the princeps, his war-like followers, the comites ; and it was 
 no disgrace to any man to be seen among the followers of a 
 chief. The clanship or comitatus thus formed had its divi- 
 sions of rank, which were fixed by the princeps. There was 
 great emulation among the comites of every princeps as to 
 who should hold the highest place in his esteem ; and among 
 the principes as to who should have the most numerous and 
 bravest following. To be always surrounded by a band of 
 chosen young men in peace an ornament in war a bul- 
 wark was the greatest dignity and power that a chief could 
 possess. Upon the battle-field it was a disgrace for the prin- 
 ceps to be surpassed by his comites, and it was a disgrace for 
 the comites not to equal their leader in valor. To survive a 
 battle in which their chief had fallen was eternal infamy. To 
 defend and protect the princeps, to make even their own re- 
 nown subservient to his, was the highest and holiest duty of 
 the comites. The chieftains fought for victory, the comites 
 
 Stubbs, Const. Hist., vol. i. p. 31. 2 Tac., Germ., c. 7. 8 Ibid., c. 6.
 
 II.] THE FOUNDERS IN THE FATHERLAND. Ill 
 
 for their chief. The comitatus could only be kept together 
 by violence and war, for the comites were entirely dependent 
 upon the bounty of their chief. At one time they demanded 
 from him that war-horse, at another, this bloody and victo- 
 rious lance. The table of the chief, though rude, had always 
 to be bountiful, for it was the only pay of his followers. War 
 and plunder supply the means of liberality. 1 In the bonds 
 of this strange military association, the chief and his follow- 
 ers were united by the closest ties of mutual interest and 
 honor. Both in peace and war the comites were required to 
 serve the princeps even to the death, and in return the prin- 
 ceps shared his spoils with them and gave them bread. 
 
 In the structure of the comitatus was imbedded the germ origin of 
 of a great after-growth. The relation of lord and vassal, the feu3aUsm - 
 first outcome of the comitatus, was purely a personal one. 
 But in the process of time, when the lord makes a grant of 
 land to his vassal in consideration of past services and upon 
 the further consideration that the vassal will hold such land 
 upon the tenure of military service, a new relation becomes 
 involved with the old one. When the two relations become 
 inseparably welded together the result is feudalism. 2 But we 
 are now only concerned with the comitatus as an element in 
 the host, its growth and influence belong to later times. 
 
 The host was therefore composed of three distinct elements : The host 
 the main body of the people fighting in groups united by the ofThreef 
 tie of kinships ; the chosen infantry contributed by the hun- elements - 
 dreds ; and the bands of mounted warriors, each under the 
 leadership of its own trusted chief. When the whole people 
 were in arms we have "popular assembly, parliament, law 
 court, and army in one." 3 The close relationship thus exist- 
 ing between the systems of political and military organization 
 is, in one respect, worthy of special attention. It is easy to 
 understand how an army of invasion, composed either of the 
 whole people of a state, or of a single subdivision, embodied 
 in its very organization the primitive political system, which 
 it would naturally reproduce wherever a settlement was made 
 in the conquered territory. If the expedition happened to be 
 
 1 Tac., Germ., cc. 13, 14. See Kern- 2 Freeman, Norm. Conq., vol. i. pp. 
 
 ble's chapter (vii.) on " The Noble by 58-63. 
 
 Service," Saxons in England, voL i. 8 Essays in A* S. Law, p. 
 p. 162.
 
 112 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Divisions 
 of the host 
 give form 
 to civil or- 
 ganization. 
 
 Teutonic 
 heathen- 
 ism ; its in- 
 fluence 
 upon na- 
 tional char- 
 acter. 
 
 composed of a single group of kindred, upon a settlement 
 being made in a new land, its members would naturally draw 
 together upon the old plan in a village-community. 1 If the 
 expedition happened to be composed of many groups, united 
 under a common leadership, a cluster of village-communities 
 would as naturally result. After the units of organization had 
 thus been reproduced and brought into contact, through the 
 ordinary law of federation, first the hundreds and last the 
 state would reappear. When the attempt shall be made 
 hereafter to reason out, upon scanty evidence, the probable 
 form in which the earliest Teutonic settlements in Britain 
 were made, the foregoing theory will constitute a serious 
 factor in the argument. 
 
 13. No conception of the primitive Teutonic constitution 
 can be at all rounded and complete that does not embrace 
 some insight into the national character which pervaded 
 everything, impressed itself upon everything. 2 With the very 
 warp and woof of that national character the forces of Teu- 
 tonic heathenism were subtly interlaced. In all the vicissi- 
 tudes of life, the fierce barbarians of the north felt impressed 
 with a sense of reverence and of awe in the contemplation of 
 the great forces of nature about them, these they regarded 
 as personal divinities. 3 There can be no doubt about the 
 fact that the true interpretation of every mythology depends, 
 to a great extent, upon a correct observation of the physical 
 phenomena out of which it arose.* The light, sensuous as- 
 pects of nature about the shores of the Mediterranean Sea 
 reappeared in the mythology of the versatile Greek, idealized 
 but yet unaltered. And so the stern aspects of nature about 
 the shores of the Northern Ocean reappeared in the mythology 
 
 1 " And as they fought side by side 
 on the field, so they dwelled side by 
 side on the soil. Harling abode by 
 Harling, and Billing by Billing ; and 
 each ' wick ' or ' ham ' or ' stead ' or 
 ' tun ' took its name from the kinsmen 
 who dwelled together in it." Green, 
 Hist, of the English People, vol. i. p. 10. 
 
 2 See Kemble's chapter (xii.) on 
 " Heathendom," Saxons in England, 
 vol. i. p. 327. 
 
 8 " The primary characteristic of this 
 old Northland mythology I find to be 
 impersonation of the visible workings 
 of nature. . . . What we now lecture 
 
 of as science, they wondered at, and 
 fell down in awe before, as religion. 
 The dark, hostile powers of nature they 
 figured to themselves as Jotuns (giants), 
 huge, shaggy beings, of a demoniac 
 character. Frost, Fire, Sea-Tempest, 
 these are Jotuns. The friendly powers, 
 again, as Summer-heat, the Sun, are 
 gods. The empire of this universe is 
 divided between these two ; they dwell 
 apart in perennial internecine feud." 
 Carlyle's Heroes and Hero-Worship, p. 
 1 6. 
 
 4 Buckle, History of Civilization in 
 England, vol. i. pp. 118-124.
 
 II.] THE FOUNDERS IN THE FATHERLAND. 113 
 
 of the Greek's Aryan brother, and impressed upon his serious 
 character a deep sense of reverence, fidelity, and faith. From 
 Tacitus we learn that the Teutonic race possessed a common 
 mythology, 1 but we can derive from the Germania no adequate 
 conception of its character. Geographically this mythology Geograph- 
 once extended over all Scandinavia, including Iceland, over of Teutonic 
 England, and over considerable portions of France and Ger- m y thol gy- 
 many. 2 When the Teutonic nations separated, the form of 
 the original faith, which each horde of emigrants took with 
 them, became modified, of course, by the local circumstances of 
 the particular country in which it was finally replanted. The 
 Niebelungen-Lied was its offspring in Germany, the song The song of 
 of Beowulf its offspring in England. 3 As Christianity ad- S^e re ~ 
 vanced, Teutonic heathenism retreated before it, step by mor ai tem- 
 
 i . ., , . , f . . per of the 
 
 step, to the north, until the circle of its influence was at English, 
 last narrowed down to the limits of Ultima Thule. Here it 
 expired after recording its purest traditions in the literature 
 of Iceland. In the Eddas is preserved the genuine record 
 of the ancient faith. In the forms of the Norse gods who 
 move through the mighty epic, all the great forces of nature 
 were vividly personified. Each god impersonated some phys- Each Norse 
 ical or moral force, and according as it was friendly or un- 
 friendly to man, it was adored as a divinity or dreaded as a 
 demon. The roaring of the storm was to the Northman the 
 coming of the angry Thor, whose chariot wheels shook the 
 universe which the light of his eyes illumined. To his mind 
 the whole life of the world consisted of a great struggle 
 between the gods of good and light on the one side, and of 
 evil and darkness on the other. Out of this struggle creation 
 began ; through the results of the struggle everything in the 
 end was to be destroyed. Everywhere the struggle was 
 majestic, the powers terrible, the results profound, every- 
 thing was huge, vast, terrific. Still, behind the sombre veil 
 of grandeur and of gloom there was the hope of a resurrec- yo 
 tion, and of a life beyond the grave. The noble and heroic 
 were borne after death to Valhalla, the base and cowardly 
 
 1 Germ., cc. 2, 7, 10. fathers ; and the secret of their moral 
 
 8 Anderson, Norse Mythology, p. 34. temper, of their conception of life, 
 
 8 " But the thin veil of Christianity breathes through every line." Green, 
 
 which he has flung over it fades away Hist, of the Eng. People , vol. i. pp. 17, 
 
 as we follow the hero-legend of our 18.
 
 114 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 The primi- 
 tive religion 
 as a source 
 of princi- 
 ples and 
 morals. 
 
 A century 
 and a half 
 of English 
 heathen- 
 ism. 
 
 Engles, 
 Saxons, 
 and Jutes. 
 
 Saxons : 
 our earliest 
 knowledge 
 of them de- 
 rived from 
 Ptolemy. 
 
 were dragged down to Nastrond. It has been said by a 
 Danish poet 1 that the Asa Faith unfolds in five acts the 
 most glorious drama of victory ever composed by mortal bard. 
 In the religion of the Northman there was nothing frivolous 
 or sensuous, everything was earnest, sincere, heroic. 
 The greatest of the Norse gods was Odin, the progenitor of 
 kings, the lord of battle and of victory. In this stern and 
 high-thoughted system of mythology we see reflected as in a 
 mirror the moral, social, and intellectual characteristics of 
 that mighty race of which the English people is a part. In 
 its traditions we possess a record of their earliest thoughts 
 and feelings, and in these we discover the sources of their 
 proud self-consciousness, their love of liberty and strife, their 
 heroism, and their power. " In the old Gothic religion were 
 embodied principles . . . and morals that in due course of 
 time and under favorable circumstances evolved the Republic 
 of Iceland, the Magna Carta of England, and the Decla- 
 ration of Independence." 2 The Teutonic invaders trans- 
 planted into Britain the primitive religion, and the history 
 of the English race begins with a century and a half of un- 
 broken heathenism. The possession of Woden's blood was, 
 among the first settlers, an indispensable prerequisite to 
 kingship. Every royal house in every Old-English kingdom 
 traced its descent from Woden, 3 his name is a part of the 
 national epos. But in the names of the days of the week 
 is perpetuated the most enduring memorial of the ancient 
 faith. 
 
 14. Thus far only such matters have been considered as 
 relate to the history of the Teutonic race as a whole. Let 
 us now gather together the few existing fragments which 
 relate to the individual histories of the three tribes Engles, 
 Saxons, and Jutes by whom the whole fabric of Teutonic 
 life was transplanted from the Continent into Britain. The 
 Saxons are not mentioned by Tacitus, but of the three tribes 
 their history is most complete. For our earliest knowledge 
 of this tribe we are indebted to Ptolemy, from a passage in 
 whose geography it appears that, about the middle of the 
 second century, there was a people called Saxons dwelling at 
 
 1 Grundtvig. 8 Kemble, Saxons in England, vol. L 
 
 . a Anderson's Norse Mythology, p. 129. p. 335.
 
 II.] THE FOUNDERS IN THE FATHERLAND. 11$ 
 
 the north side of the Elbe on the neck of the Danish penin- 
 sula, and on three small islands at the mouth of that river. 1 
 From this account it is plain that the Saxons had not then 
 attained to any great importance. About a century and a 
 half later we have the account of Eutropius, who describes Account of 
 the Saxons as actively engaged in piratical warfare on the Eutr P lus - 
 coast of Gaul, A. D. 28/. 2 Sixty years afterwards we hear of 
 Magnentius attempting to strengthen his precarious hold 
 upon power by an alliance with the Franks and Saxons, 
 whom, in return, he protected and encouraged. 3 It seems to 
 be probable that, by the fourth century, in the names of 
 Frank and Saxon had been merged the names of many other 
 tribes occupying the same seats, and better known in earlier 
 times than either. The tendency seems to have been for the 
 tribes on the Lower Rhine to become Franks, while those 
 between the Rhine and the Oder were becoming Saxons. 
 But the mere common name as yet implied no common 
 organization, certainly nothing beyond an occasional union 
 for temporary emergencies. 4 Only a portion of the Saxons Only a por- 
 
 , * T .. it in A i ij tion of the 
 
 passed over into Britain, the bulk remaining in their old saxonspass 
 homes to play an important part in the history of northern ^ Bnt ' 
 Europe, upon which the great Saxon Confederation has made 
 an abiding impression. 6 
 
 The Angles or Engles are the only one of the three tribes Engies: 
 mentioned by Tacitus, but only as one of a number of North th e y three 
 German tribes, whose positions he does not define. 6 Accord- ^ 
 ing to Ptolemy, the Engles and Saxons were situated in the Tacitus, 
 second century between the Elbe, the Eyder, and the War- 
 now." At the time of the migrations the Engles, or at least 
 a portion of them, were residing in the district of Angeln or 
 
 1 Cf. Ptolemaeus, Georg. lib. ii. c. 2. number of German tribes had drawn 
 A little after Ptolemy's account, Mar- together into the people of the Saxons, 
 cianus of Heraclea assigns to the Sax- and it was to this people that the 
 ons the same position on the neck- of pirates of the Channel belonged." 
 the peninsula. See Turner's Hist, of Green, Making of England, p. 15. 
 
 the Anglo-Saxons, vol. i. p. 76. 6 " Of all productions of the German 
 
 2 Eutropius, ix. 21 (Monum. Hist, mind within the domain of law, the 
 Brit., p. Ixxii.). Sachsenspiegel was the purest and the 
 
 8 Turner, Hist, of the Anglo-Saxons, greatest." Essays in Anglo-Saxon 
 
 vol. i. p. 106. Law, p. 6. 
 
 * Stubbs, Const. Hist., vol. i. pp. 38, 6 Tac., Germ., c. 40. 
 39. " In their homeland between the 7 " In the modern duchies of Hoi- 
 Elbe and the Ems, as well as in a wide stein, Lauenburg, and Mecklenburg." 
 tract across the Ems to the Rhine, a Stubbs, Select Charters, p. 5.
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 Whole tribe 
 probably 
 passed into 
 Britain. 
 
 Jutes reap- 
 pear as 
 Danes in 
 later his- 
 tory. 
 
 Engleland in Sleswick, while the main body lay probably in 
 what is now Lower Hanover and Oldenburg. 1 It would 
 seem from the deserted state of the district of Angeln, as it 
 appeared hundreds of years afterwards, that the whole tribe 
 of the Engles passed over in a body into Britain, leaving but 
 a slight trace upon continental history. 2 And this idea is 
 strengthened by the very wide extent of their British con- 
 quests. To the new nationality, born of the union of the 
 three tribes by whom Britain was won, the Engles gave 
 their name, the conquered land became Engla-land or 
 England. 
 
 North of that portion of the Engle situated in Sleswick, 
 were the seats of the Jutes, whose name is still preserved in 
 the district of Jutland. Under the name of Danes the Jutes 
 reappear in later history. The three tribes were of the 
 purest Teutonic type, and all spoke dialects of the Low- 
 German. 
 
 1 Green, Hist, of the English People, 
 vol. i. p. 7. 
 
 2 Baeda, Hist. Eccl., i. 15. 
 
 NOTE. The fact should be borne 
 in mind that the criticisms of the Ger- 
 man village community theory more 
 than once stated in the text by Fus- 
 tel de Coulanges, Enama - Sternegg, 
 Ross, and others have had their in- 
 fluence upon the views of the English 
 writers. In 1883 appeared Mr. See- 
 bohm's work on the English village 
 community, in which he finds the manor 
 to be the direct outcome of the Ro- 
 man villa. His theory is that the rank 
 and file of the people were from the 
 first slaves, in a condition of servile de- 
 pendence upon an overlord, and that, 
 therefore, their condition was one of 
 progressive amelioration instead of pro- 
 gressive degeneration. The insuffi- 
 ciency of the evidence upon which See- 
 bohm's assumption rests was first set 
 forth in a critical manner by Professor 
 Allen, of the University of Wisconsin, 
 in a paper upon the Village Commu- 
 
 nity and Serfdom in England. Then 
 Mr. T. E. Scrutton, in reviewing the 
 Influence of Roman Law upon the Law 
 of England, finds that the proof of a 
 Roman parentage for the English manor 
 is so incomplete as to leave the burden 
 of proof still upon Mr. Seebohm. In 
 the mean time a reviewer (Professor 
 Kovalensky) of Mr. Paul Vinogradoff's 
 untranslated Russian work, entitled In- 
 quiries into the Social History of Me- 
 diceval England, states it to be Mr. 
 Vinogradoff's opinion, in which the re- 
 viewer concurs, that Mr. Seebohm's 
 theory has failed. Last comes Mr. 
 John Earle, who, in his Introduction to 
 the land charters and other Saxonic 
 documents, concludes that the English 
 manor is of composite origin ; that the 
 Roman villa supplied the dominical ele- 
 ment, while the free churls settled be- 
 side it, and received from the hand of 
 the superior officer who occupied it the 
 lands which they cultivated after the 
 agricultural customs derived from the 
 continent.
 
 CHAPTER III. 
 
 THE TEUTONIC CONQUEST AND SETTLEMENT OF BRITAIN. 
 
 i. ABOUT the middle of the fifth century the first perma- Roman 
 nent Teutonic settlements in Britain were made, with that Bntam - 
 event the history of English institutions really begins. With 
 that part of the history of Britain which precedes the making 
 of these settlements we have no direct concern, save so far 
 as that history is necessary to a full comprehension of their 
 character. 1 In order the more clearly to explain the nature 
 of these settlements, a brief review has already been made of 
 the precedent history of the settlers themselves. Let us now 
 glance for a moment at the precedent history of the land that 
 they won. 
 
 The great tide of Aryan migration never ceased to flow The 
 westward until its Celtic wave, spreading over the British 
 Isles, reached at last the western shores of Ireland. This 
 whole island-world is found in the possession of Celtic peo- 
 ples when its history begins. 2 The two incursions which 
 Caesar made into Britain resulted in nothing more than the 
 bringing of this dim and distant realm within the domain of 
 Roman history. 3 During the distractions of the civil war 
 which ensued, Britain fora long time passed out of view. Not 
 until a century after Caesar's invasion, when the republic had 
 become the empire, was the subjugation of Britain under- 
 taken in earnest by the emperor Claudius by the hand of his 
 general Aulus Plautius. 4 Nearly forty years then elapsed be- 
 
 1 "The English conquest of Brit- Gneist, Eng. Parliament, p. 2 (Shee's 
 ain cannot be thoroughly understood trans.). 
 
 without some knowledge of the earlier * Tac., Agric., c. 13; Annals, bk. xii., 
 
 history of the Celt and the Roman." cc. xxxi.-xxxix. Dr. Guest says as 
 
 Freeman, Norm. Conq., vol. i. p. 2. to the origin of London : " When in 
 
 2 It is more than probable, however, the autumn of 43 Aulus Plautius drew 
 that the Celts were not the original in- the lines of circumvallation round his 
 habitants of the British Isles. As to camp, I believe he founded the present 
 the existence of a pre-Aryan people, metropolis of Britain." "Aulus Plau- 
 see \V. W. Kinsley's Views on Vexed tius," Archaol. Journal, vol. xxiii. p. 
 Questions, p. 151. 180 
 
 8 Froude's Cezsar, p. 237. See, also,
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Aulus 
 Plautius 
 and Ag- 
 
 ricola. 
 
 Britain be- 
 comes a 
 province. 
 
 Superficial 
 character of 
 Roman civi- 
 lization. 
 
 A mere 
 military de- 
 partment. 
 
 The de- 
 fences of 
 Britain. 
 
 Barrriers 
 
 against the 
 Picts. 
 
 fore the work begun by Plautius was completed by Agricola, 
 by whom Britain was really reduced to a state of subjection. 
 Before his recall by his jealous master the whole island had 
 been overrun, and by far the greater part of it had passed 
 under the rule of Rome. Although Tacitus states in his life 
 of Agricola that the southern part of Britain was reduced to 
 the form of a province under the auspices of Plautius and 
 Ostorius Scapula, 1 yet it is not to be supposed that its organ- 
 ization was fully accomplished until the peaceful age of the 
 Antonines, when all the provinces became the objects of spe- 
 cial care upon the part of the central administration. 2 An 
 attempt has heretofore been made to sketch the general as- 
 pects of Roman civilization in Britain for the purpose of 
 pointing out the marked character of its influence upon the 
 life of the cities, and the superficial character of its influence 
 upon the greater mass of the rural population. And the fact 
 was then observed how the whole adventitious fabric col- 
 lapsed and disappeared as soon as the foreign support, by 
 which it had been nourished and sustained, was taken away. 
 The very remoteness of Britain from the seat of empire, its 
 insular position, the harshness of its climate to men of the 
 south, 3 its border warfare, all conspired to make it a mere 
 military department. It was simply a place to be plundered 
 and enslaved. " ' Levies, Corn, Tribute, Mortgages, Slaves,' 
 under these heads was Britain entered in the vast ledger 
 of the empire." 4 And under these heads only could her con- 
 tributions be recorded, for to the intellectual resources of the 
 Roman world she contributed absolutely nothing. 5 
 
 And yet, oppressive as may have been Roman rule in 
 Britain, its masters were careful to guard it against its foes. 
 In the north the walls of Hadrian, Antonine, and Severus 
 were constructed to bridle the constant incursions of the Picts. 
 Despite these barriers, however, these marauders, about the 
 middle of the fourth century, penetrated into the very heart 
 of the province, and almost tore it from the empire ere the 
 general Theodosius could drive them back to their fastnesses 
 
 1 Tac., Agric., c. 14. 
 fl Gibbon's Decline and Fall, vol. i. 
 p. 42 ; Green's Making of England, 
 
 p. 2. 
 
 8 See Ibid., p. 7. 
 
 * Kemble, Saxons in England, voL 
 ii. p. 278. 
 
 Macaulay's Hist, of England, vol. L 
 p. 4. Kemble, Saxons in England^ 
 vol. ii. p. 280.
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 1 19 
 
 in the Highlands. 1 But the most formidable foes of Britain 
 were destined to appear as pirates, and to make their attacks 
 from the sea. While the Picts were repeating their incur- 
 sions from the north, ravages were being made upon the 
 western coast by the Scots, the name then applied to the 
 people of Ireland. 2 And about the time these attacks in the 
 west began, a still fiercer race of pirates appeared upon the 
 eastern coast, with whose origin and history we are somewhat 
 familiar. The first recorded appearance of the Saxons as Saxons ap- 
 pirates in the Channel is in A. D. 287, when they are found pirate? in 
 ravaging the coast of Gaul. 3 It is not, however, until the year |n e 2 8!^ nnel 
 364 that we hear of them as taking part in an attack upon do not at- 
 Britain itself. 4 How serious and incessant this new scourge untn^e^ 1 
 upon the eastern coast proved itself to be, may be inferred from 
 the measures of defence provided against it by the provincial 
 administration. The most vulnerable part of the coast-line, 
 extending from the Wash on the east to the Isle of Wight on 
 the south, was guarded by a line of fortresses, and the de- 
 fence of the district so organized was committed to an officer 
 who bore the title of " Count of the Maritime Tract," or " of 
 the Saxon Shore." 5 With the walls upon the north, and TheSax- 
 with this semicircle of fortresses along the southeastern 01 
 coast-line, the legions were able to protect the province 
 against both Picts and Saxons up to the moment of their final 
 withdrawal to the centre of the empire. 6 After the removal 
 of the legions Britain was left to her own defence, and for a Britain left 
 period of thirty years the abandoned province maintained an 
 equal struggle with her assailants. At last, weakened by in- 
 ternal dissensions, her power of resistance suddenly gave 
 
 1 Ammianus, lib. xxvii. cc. 8, 9 ; Conquest. But the orthodox view now 
 Gibbon's Decline and Fall, vol. ii. p. is that the " Saxon Shore " derived its 
 569. name from its use as a barrier against 
 
 2 Green's Making of England, p. 15. Saxon invasions. See Dr. Guest's 
 8 Eutropius, ix. 21. E. E. Settlements, p. 33 et seq. ; Stubbs, 
 * Ammianus, lib. xxvi. c. 4. Const. Hist,, vol. i. p. 59, note ; Free- 
 6 Palgrave (English Com., p. 384), man, Norm. Conq., vol. i. p. 7, note 3 ; 
 
 Lappenberg (Anglo-Saxon Kings, ed. Green's Making of England, p. 19, 
 
 1881, vol. i. pp. 57, 58), Kemble (Saxons note. 
 
 in England, vol. i. pp. 10-14), Skene 6 In 410 Honorius, in a letter ad- 
 
 (Celtic Scotland, vol. i. p. 151), and dressed to the cities of Britain, acqui- 
 
 others have maintained that the " Saxon esced in the independence of the prov- 
 
 Shore " derived its name from Saxon ince, which he instructed to provide 
 
 settlements made along it of an earlier for its own defence. Zosimus, lib. vi. 
 
 date than that assigned by the Chroni- c. 10 ; Gibbon, Decline and Fall, voL 
 
 cles to the begining of the Teutonic UL p. 317.
 
 120 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 way ; and at that moment, according to the traditional ac- 
 count, 1 she appealed to the Teutonic pirates in the Channel 
 to save her from her Celtic foes. 
 
 importance 2. During the century and a half which intervened between 
 riod h of P Teu- the middle of the fifth century and the end of the sixth, the 
 tonic con- Teutonic settlements in Britain were made. Within that 
 
 quest, and 
 
 dimness of period the whole of the island, south of the firths of Forth 
 
 and Clyde, passed from the possession of the native race to 
 
 that of the conquerors, with the serious exception of a broad 
 
 and almost continuous strip of country extending along the 
 
 entire western coast, and embracing North and West Wales, 
 
 The welsh Cumbria and Strathclyde. Within this area the entire native 
 
 the west or Welsh population withdrew, with whatever of civilization, 
 
 religion, or law they had derived from Rome. In that part 
 
 of the land which the conquerors had made their own, they 
 
 planted the whole fabric of Teutonic life, social, political, 
 
 and heathen, 2 which they had brought with them in their 
 
 Out of the blood and bone from the fatherland. Out of the fusion of 
 
 the'xeu- the Teutonic settlements, made within the limits and during 
 
 ments'grew ^ e P e " o< ^ to which we have referred, has grown the English 
 
 the English nation ; out of the primitive political institutions embedded in 
 
 nation. 
 
 these settlements has grown the English constitution. It is, 
 therefore, impossible to exaggerate the historic importance 
 of this period of conquest and settlement, it is the starting- 
 point of everything. Its importance, however, is fully equalled 
 Period of by its obscurity. A period of historic darkness and legend 
 darkness intervenes between the overthrow of what had been the Ro- 
 and legend. man p rov ince and the beginning of the new Teutonic society. 
 And the difficulties which arise out of this fact are greatly 
 increased by the further fact that such light as we do possess 
 concerning the period which follows is of the dimmest and 
 most uncertain character. How to bridge this chasm which 
 divides the old from the new is the most difficult problem in 
 English history. The first step in the solution of this prob- 
 lem was taken when, in the last chapter, an examination was 
 
 1 As to the historic value of the tra- 2 " The proofs of such a displace- 
 
 ditional account of the English conquest ment lie less in isolated passages from 
 
 of Britain, as contained in the English chronicle or history than in the broad 
 
 Chronicles, see Freeman, Norm. Conq. t features of the conquest itself." 
 
 vol. i. p. 7, and Dr. Guest, E. E. Settle- Green, Making of Eng., p. 132. See 
 
 ments, in Salisbury volume of Transac- above, p. 85. 
 tions of the Archaological Institute.
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 121 
 
 made of the primitive Teutonic constitution as it appeared 
 in the home land at the end of the first century. It was, 
 however, three centuries and a half after that time before 
 the migrations into Britain began. Just what amount of de- 
 velopment took place in the interval it is impossible to deter- 
 mine. In the light of the later evidence, there is no reason 
 to suppose that any material advance took place in the direc- 
 tion of civilization. 
 
 As to the history of the conquest itself, the written evi- Fragment- 
 dence consists of a few scanty and uncertain fragments. oPth^con- 
 Upon the part of the conquered we have only the Historia <i uest - 
 and Epistola of Gildas, really a single work, written probably cudas; 
 about the year 56O. 1 Upon the part of the conquerors we 
 have, in the opening of that invaluable compilation generally 
 known as the English Chronicle, much that is valuable in English 
 regard to the conquests of Kent, Sussex, and Wessex, inter- 
 mixed no doubt with much that is mythical. As to the con- 
 quest of Mid-Britain, or the eastern coast, there is no written 
 account from either side ; while the fragment from the An- 
 nals of Northumbria, embodied in the later compilation which 
 bears the name of Nennius, alone throws light upon the con- Nennius. 
 quest of the north. 2 There is neither record nor tradition 
 to guide us as to the manner in which the country was par- 
 celled out among the conquerors ; and only by the aid of local 
 nomenclature, and by the surviving traces of the older life 
 imbedded in the customary law, can be determined the forms 
 in which the first settlements were made upon the conquered 
 soil. But at the moment when the period of conquest ends, Christian- 
 Christianity begins, and from its introduction the committing e 
 of the customary law to writing appears to have begun. 3 Of 
 the existing laws, those of ^Ethelberht, Hlothere and Eadric, 
 Wihtred, Ine, Eadward the Elder, ^Ethelstan, Eadmund, and 
 Eadgar are mainly in the nature of amendments of custom ; 
 while those of Alfred, ^Ethelred, Cnut, and those which bear 
 
 1 See Stubbs and Haddan, Councils 8 The promulgation of the laws of 
 of Britain, vol. i. p. 44; Skene, Celtic ^Ethelberht took place at some time 
 Scotland, vol. i. p. 116, note; Green, between the coming of Augustine, in 
 Making of Eng., p. 24, note 3. 596, and his death, in 605. Baeda says 
 
 2 For a complete statement of the these laws were enacted " cum consilio 
 authorities upon the early period, see sapientium." Hist. Eccl., ii. 5. Cf. 
 Green's Hist, of Eng. People, vol. i., Kemble, Saxons in England, vol. ii. p. 
 " Authorities for Book I." 241 ; Essays in A. S. Law, p. 8.
 
 122 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Bada. 
 
 Archaeolog- 
 ical and 
 geographi- 
 cal re- 
 search. 
 
 General 
 character of 
 the con- 
 quest, and 
 nature of 
 the early 
 settlements. 
 
 Form of the 
 migration. 
 
 Distribu- 
 tion of the 
 land. 
 
 the name of Eadward the Confessor, aspire to the character of 
 codes. 1 Just before the middle of the eighth century we have 
 the Ecclesiastical History of Baeda, from which is derived the 
 only substantial account of the century and a half which fol- 
 lowed the coming of Augustine. To these imperfect records 
 have been added the fruits of the most careful and exhaustive 
 archaeological and geographical research. Even the physical 
 conformation of the conquered territory has been minutely 
 examined as one of the surest of documents bearing upon the 
 history of the conquest itself. 2 
 
 3. The period of piratical visitation which began when 
 the freebooters from the north appeared in the Channel as 
 mere plunderers who simply came to harry the coast, and 
 then to sail away again gave way about the middle of the 
 fifth century to a period of conquest and settlement. For a 
 century and a half after that time the coming of the Teutonic 
 tribes into Britain assumed the form of a migration. 3 All the 
 evidence tends to show that the emigrants came in discon- 
 nected bands, more or less numerous, each under its own 
 leader or ealdorman, 4 who singled out some particular section 
 of country for conquest and settlement. The fact that the 
 invaders were compelled to cross the sea in ships, capable of 
 transporting only small bodies of men, precludes the idea of 
 invading hordes by which the whole land could be suddenly 
 overrun. The weakness of the attack, and the fierceness with 
 which it was resisted, were the dominant causes which de- 
 termined the character of the conquest itself. By dint of 
 hard fighting, bit by bit, district by district, the land was won. 
 As we may happen to accept one or the other of two leading 
 theories that exist as to the manner in which the land was orig- 
 inally distributed, the conclusion may be reached, either that 
 the invaders divided the land according to fixed rules as they 
 advanced, or, after the first period of struggle was over, that 
 
 1 Stubbs, Select Charters, etc., p. 60 ; 
 Cf. Ancient Laws and Institutes of the 
 Anglo-Saxons, Thorpe. 
 
 2 I refer chiefly to the works of Dr. 
 Guest, contained in the volumes of 
 Transactions of the Archaological In- 
 stitute ; and to Mr. Green's Making of 
 England. 
 
 8 ' See Stubbs's chapter on " The Mi- 
 gration," Const. Hist., voL i. p. 57. 
 
 Freeman, Origin of Eng. Nation, 
 p. 65. 
 
 * See entries in the E. Chron., a. 449, 
 a. 495 ; Freeman, Norm. Cong., vol. L 
 p. 49, and Appendix K. The fact must, 
 however, be borne in mind that each 
 band of invaders constituted a part of 
 a general migration. Stubbs, Const. 
 Hist. vol. i. p. 65.
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 123 
 
 a rearrangement took place according to established forms. 1 
 No matter which theory be the true one, as to the broader 
 aspects of the distribution the fact remains, that the invaders 
 did settle down upon the land in marks or village-communi- 
 ties, and did possess it according to the principles of owner- 
 ship which that system represented. 2 The Teutonic host not The host 
 only embodied within itself all the elements of political life, JUnhe'eTe- 
 but its very organization presented the most natural scheme m ^ c ^ OT . 
 of allotment upon which a division of the land could be made, gamzation. 
 The clans of kindred warriors represented the village-com- 
 munities ; the hundreds of warriors, the pagi or gds ; while 
 the host as a whole was in fact the state assembly, not in 
 council but in action, the whole people in arms. When, 
 therefore, the conquering host settled down upon a definite 
 area of land, the state reappeared as a necessary consequence. 3 
 Or it may have been that the invaders often came in num- 
 bers only sufficient to constitute a single group, or even one 
 village-community. Out of the union of such communities 
 arose gds or shires, which finally became organized into states 
 or kingdoms. In Britain the village-community or mark is 
 represented by the township ; 4 the pagus, gd, or shire, by a 
 group of townships united in the district known in later times structure of 
 as the hundred ; 5 while a union of pagi or gas is the primi- the primi- 
 
 ' -TOO r tive rug or 
 
 tive rice or kingdom. The political structure of the primitive kingdom. 
 
 1 Dr. Konrad Maurer, after discuss- 8 Stubbs, Const. Hist., vol. i. pp. 31, 
 ing both theories, gives his adhesion to 71. 
 
 the first. Kritische Ueberschau, i. p. * " The township ( I state the mat- 
 
 100 ; Essays in A. S. Law, p. 57. ter in my own way) was an organized, 
 
 2 To Kemble belongs the credit of self-acting group of Teutonic families, 
 being the first to apply the results of exercising a common proprietorship 
 German research into the mark system over a definite tract of land, its mark, 
 to the history of English institutions, cultivating its domain on a common 
 See ch. ii. on "The Mark," and ch. system, and sustaining itself by the 
 iii. on "The Ga or Scir," Saxons in produce." Maine, Village-Communi- 
 England, vol. L Cf. Freeman's Norm, ties, p. 10. 
 
 Cong., vol. i. p. 66 ; Maine, Village- 6 " From the first, the township or 
 
 Communities, lects. i., iii., v. Mr. Mo- village-community must have been re- 
 
 rier's Essay on Land Tenure, published garded as forming a part of the larger 
 
 by the Cobden Club (Macmillan, 1870) ; aggregate, the hundred." Digby, Law 
 
 Nasse's treatise On the Agricultural of Real Property, p. 7. This " aggre- 
 
 Community of the Middle Ages, Colonel gate" was originally a shire, and it 
 
 Ouvry's translation (Macmillan, 1871), never descended to the status of a hun- 
 
 p. 28 ; Stubbs, Const. Hist., vol. i. pp. dred until the state of which it was the 
 
 49-52, 82-85 ; Digby, Law of Real largest division became itself a shire. 
 
 Property, pp. 4-8 ; Essays in Anglo- Essays in Anglo-Saxon Law, p. 19. 
 Saxon Law, p. 83 ; Seebohm, Eng. Vil- 
 lage Community, Preface, x.
 
 124 THE OLD-ENGLISH COMMONWEALTH. [CH. 
 
 state would therefore be the s-ame, whether it arose out of 
 the settlement of a single conquering host, or out of the grad- 
 ual coalescence of smaller settlements originally isolated and 
 independent. 
 
 Theheptar- Before the historic period begins, the petty states or king- 
 dom a'nfg- doms, into which the settlers originally grouped themselves, 
 of eS rimi- n na< ^ ceased to exist as independent communities, they had 
 tive king- become bound up in the larger aggregates generally known as 
 the heptarchic kingdoms. 1 It is possible, however, from this 
 condition of things to reason back, and to determine with 
 reasonable certainty the structure of these early kingdoms 
 before the process of aggregation began. The later evidence 
 Theprimi- justifies the assumption, which will be adhered to throughout, 
 that these early or primitive kingdoms were reproductions, 
 * n ever y material particular, of the continental Teutonic 
 
 tas of Cae- states, the civitates of Caesar and Tacitus. 2 In tun-moot 
 Tacitus. as in mark-moot, 3 the assembled villagers met together to 
 regulate their own local and agricultural concerns ; in the 
 gemot, or meeting of all the freemen resident within the 
 pagtis or early shire, we have in fact, if not in name, the hun- 
 dred court of the continent ; 4 while the primitive state as- 
 sembly is the folk-moot, the meeting of the whole people in 
 arms. By adhering firmly to this conception of the structure 
 of the petty states, or early kingdoms as they will be called, 
 into which the conquerors originally grouped themselves, it 
 will be possible hereafter the more clearly to explain the 
 historical origin and structure of the various divisions and 
 subdivisions which appear in the composition of the consoli- 
 dated kingdom of England after the work of aggregation has 
 been finally accomplished. 
 
 The new The whole fabric of the new society, which completely dis- 
 
 pu C re e iy y Teu- P lace d within certain limits the older Celtic society, was 
 
 tonic. purely Teutonic. Its language was made up of a set of dia- 
 
 lects of the Low-German ; the only religion which it pos- 
 
 sessed was the religion of Woden ; its only conception of law 
 
 1 Stubbs, Const. Hist., vol. i. p. 169. 8 See Mr. Green's graphic descrip- 
 
 2 " The civitas or populus of Tacitus, tion of the structure of the early king- 
 the union of several pagi, is in Anglo- doms in which the conquerors origi- 
 Saxon history the rice, or kingdom," nally grouped themselves. Making of 
 etc. Stubbs, Const. Jfist., vol. i. p. England, pp. 169-171. 
 
 119- * Essays in Anglo-Saxon Law, p. 20.
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 
 
 and government was a purely Teutonic conception. The wit- 
 ness of language, of religion, and of law, all point to the one 
 irresistible conclusion that, within the limits which the con- 
 querors made their own while they were still heathens, the 
 whole fabric of Romano-British life passed away. 1 And this 
 conclusion is greatly strengthened by the fate of the Roman Fate of the 
 cities. The German instinct was averse to dwelling within 
 the confines of walled cities : in the woods and in the plain 
 the German made his home ; his boundaries were the boun- 
 daries of the mark, his walls the mound and quick-set hedge 
 by which his " tun " or village was surrounded. The aban- 
 doned Roman cities went to ruin and decay, and with them 
 perished the system of municipal life which they embodied. 2 
 In the course of time, it is true, the sites of many of these 
 deserted cities were reoccupied by the conquerors, 3 but the 
 new system of municipal life which they established had no The new 
 connection with the old, it was simply the "tun " or village municipal 
 life in a higher state of organization. But it will not suffice llfe< 
 for us simply to examine the broader aspects of the new soci- 
 ety ; we must descend to details, and examine the specific 
 forms in which the older life reappears when the work of con- 
 quest is done. 
 
 4. The political and social life of the founders in the fa- pistinc- 
 therland rested upon two fundamental conceptions, dis- ^L- 
 tinctions of rank and the possession of land, 4 two cardinal 
 ideas which are fully developed in the life of the village-com- 
 munities when Teutonic history begins. The original basis 
 of land-ownership was freedom ; 6 the freeman alone could 
 possess family land 6 within the village ; and upon this pos- 
 session, the badge of his freedom, depended his right to par- 
 
 1 Freeman's Origin of the English could again cover the whole area of 
 Nation, part ii. ; Four Oxford Lectures, their ruined predecessors. It was not 
 pp. 72-85; Green's Making of Eng- till Cnut's time that York could cover 
 land, ch. iv. ; Stubbs, Const. Hist., vol. the area of Eburacum. It was not till 
 i. p. 6l. after Dunstan's day that Canterbury 
 
 2 No one can successfully maintain grew big enough to fill again the walls 
 the continuity, in Britain, of Roman of Durovernum." Making of Eng- 
 municipal institutions. Cf. Kemble, land, p. 138. 
 
 Saxons in England, vol. ii. ch. vii., 4 Kemble, Saxons in England, vol. 
 
 " The Towns ; " Stubbs, Const. Hist., i. p. 35. 
 
 vol. i. p. 92 ; Green, Making of Eng- Ibid., vol. i. p. 132. 
 
 land, p. 136. 6 For a definition of family land see 
 
 8 " And even when life returned to Essays in Anglo-Saxon Law, p. 68. 
 them, it was long before the new towns
 
 126 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 The free 
 
 and the 
 unfree. 
 
 The free ; 
 the ceorl. 
 
 The eorl. 
 
 The un- 
 free; laets. 
 
 ticipate in the enjoyment of the common lands, the property 
 of the whole community. 1 The free were divided into two 
 classes, nobles and simple freemen ; while the unfree con- 
 sisted of agrarian dependents, who occupied their masters' 
 lands upon the basis of a fixed contribution, and of slaves, 
 whose condition represented the full measure of servitude. 2 
 In the settlements made by the kindred warriors in Britain, 
 the primitive divisions of rank distinctly reappear. In 
 Old-English phrase the noble is the eorl, the simple freeman 
 the ceorl ; 3 while beneath eorl and ceorl stand the unfree, 
 representing different degrees of servitude. 4 
 
 The ceorl in the new .society is the basis of the village life, 
 just as the simple freeman was the basis in the older society. 5 
 He is the "waepned man," the " free - necked man," whose 
 neck has never been bent by a master. 6 Within the village- 
 community he possesses the "ethel" 7 or "alod," which en- 
 titles him to the enjoyment of all rights to which any other 
 free member of the community is entitled. But in the host 
 and in the assembly he is simply a unit with no distinction of 
 birth to lift him above his fellows. 8 
 
 In the new life as in the old the eolas or aethelings are the 
 highest order of freemen, distinguished above the rest of 
 their class by reason of their noble blood, and by the posses- 
 sion of large estates. 9 The eolas, the nobles of the first set- 
 tlements, and their descendants, represent the ancient nobil- 
 ity of immemorial descent, as distinguished from the later 
 nobility by service. 
 
 The unfree among the settlers in Britain may be grouped 
 in two broad divisions, laets and slaves. 10 The laet was a 
 
 1 G. L. von Maurer, Markenverfas- 
 sung, pp. 59-62 ; Dorfverfassung, pp. 
 61-65; Einleitung, p. 71 et seq. 
 
 2 Tac., Germ., cc. 7, 24, 25. 
 
 8 Kemble, Saxons in England, vol. 
 i. 131-136; Freeman, Norm. Cong., 
 vol. i. p. 55. 
 
 4 Kemble, Saxotis in England, vol. i. 
 ch. viii., " The Unfree ; The Serf." 
 
 6 Green, Making of England, p. 173. 
 
 6 Kemble, Saxons in England, vol. i. 
 p. 131. 
 
 7 The terms ethel and alod are usu- 
 ally employed by the best writers to de- 
 scribe the land held in full ownership. 
 
 Konrad Maurer, Kritische Ueberschau, 
 vol. i. p. 97 ; Kemble, Saxons in Eng- 
 land, vol. i. p. 88. " The ethel, hid, or 
 alod: " Stubbs, Const. Hist., vol. i. p. 75. 
 See Sir F. Pollock's criticism upon the 
 use of ethel and alod in an article " On 
 Early German and English Land 
 Laws," contained in La-w Magazine 
 and Review, London, February 1882, p. 
 127. 
 
 8 Freeman, Norm. Cong., vol. i. p. 
 
 9 Green, Making of England, p. 174. 
 
 10 Kemble, Saxons in England, voL 
 i. ch. viii., "The Unfree; The Serf."
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 12J 
 
 dependent cultivator, whose dependence resulted from the 
 fact that he was a landless man : he had no share in the land 
 of the community; he was the cultivator of the land of 
 another. As to the lord whose land he tilled he was unfree, 
 but, save as against him, his life and limb were as secure as 
 the ceorl's. He had his own house and home, and the lord 
 could not take from him the land he tilled so long as he paid 
 his rent in labor or in kind, and performed such other ser- 
 vices as were due to his lord. But he could leave neither 
 land nor lord at his will ; and, as he owned no land in the 
 village-community, he had originally no part or place in its 
 political life. 1 
 
 Below the laets were the slaves, whose condition repre- Slaves, 
 sented the full measure of servitude, a servitude as abject 
 as the slavery described in the German ia. Slavery might re- 
 sult from one of many causes, and was either casu or natural 
 The lowest condition of slavery was represented by the 
 thcow, who was either wealJi that is, of British extraction 
 or of the Teutonic stock, and a descendant of the slaves 
 of the first settlers. 3 The wite-theow was the man who could 
 not pay his debts, or who had lost his freedom through crime, 
 and whose kindred would not make up the fine for him. 4 The 
 esne served either for hire or for land, and may have been a 
 little better off than the theow. 5 Then there were the men 
 who, compelled by famine, " bowed their heads for meat in 
 the evil days." 6 But no matter what the cause from which 
 the slavery may have resulted, in contemplation of law the 
 slave was the mere chattel of his lord, a part of his stock, for The slave 
 whose wrong-doing he answered as for the mischief done by 
 his cattle. The slave had no legal rights, no wergild, no 
 credibility as a witness, and a wrong done to him was only an legal rights. 
 offence as against his master. 7 At his death his status de- 
 scended to his children ; and even the children of a freeman 
 
 1 Green, Making of England, p. 185 ; 8 Stubbs, Const. Hist., vol. i. p. 78. 
 Essays in Anglo-Saxon Law, p. 86. * Ibid., vol. i. p. 78, and note 4. 
 
 2 " The serfs casu comprise serfs by 6 Kemble, Saxons in England, vol. i. 
 the fortune of war, by marriage, by p. 215. 
 
 settlement, by voluntary surrender, by 6 This form of involuntary servitude 
 
 crime, by superior legal power, and was sanctioned by the church. Cf. 
 
 by illegal power or injustice. The re- Theodore's Pentiential ; Stubbs and 
 
 maining class are serfs natura, or by Haddan, Councils, vol. iii. p. 202. 
 
 birth." Kemble, Saxons in England, 7 Stubbs, Const. Hist., vol. i. p. 79 ; 
 
 vol. i. p. 194. Green, Making of England, p. 186.
 
 128 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Practice 
 kinder than 
 theory. 
 
 The primi- 
 tive village- 
 community 
 in Britain ; 
 
 a miniature 
 democracy. 
 
 Growth of 
 the new 
 kingship. 
 
 Invading 
 tribes non- 
 monarchi- 
 cal. 
 
 by a slave mother were slaves according to the old English 
 proverb, " Mine is the calf that is born of my cow." But the 
 dictates of humanity secured to the slave some rights which 
 the theory of the law denied him. His two loaves a day and 
 his holidays were secured to him, and out of his savings, 
 which in theory at least belonged to his master, he was al- 
 lowed to purchase his own freedom and that of his children. 1 
 
 The primitive Teutonic village-community in Britain rep- 
 resented, therefore, a settlement made up of eorls and ceorls, 
 with their unfree dependents, who stood, in relation to their 
 lords, in different degrees of servitude. The political power 
 of such a community was embodied in the village-moot ; in 
 which the land-owning freemen met together, and passed all 
 laws, or rather by-laws, necessary for the ordering of their 
 village and agricultural life. The title to the territory of the 
 free community, as a whole, was vested in the community 
 itself ; while within it each villager possessed his homestead 
 and the right to a definite portion of arable land, which enti- 
 tled him to the enjoyment of all common rights. 2 With this 
 conception of the primitive free community clearly before us, 
 it will be possible to trace with more distinctness the devel- 
 opment of an institution which grew up alongside of and at 
 last overshadowed the miniature democracy. But in order 
 fully to grasp the nature of this institution and its devel- 
 opment, an examination must be made into the nature of 
 the new kingship to which the migration and conquest gave 
 birth. 
 
 From the German ia we learn that in the fatherland king- 
 ship prevailed in some of the states, while in others it did not. 3 
 That kingship did not prevail among the Saxons is affirma- 
 tively stated by Baeda ; 4 and the highest authorities agree in 
 the inference that the other tribes that joined in the migra- 
 tion did not differ from the Saxons in that respect. 6 Every 
 band of invaders, great or small, that came to engage in the 
 
 1 Kemble, Codex Diplomatic, 
 mcccli., and dccccxxxiv. 
 
 2 As to the character of the inde- 
 pendent village-community in Britain, 
 see Freeman, Norm. Cong., vol. i. p. 
 57 ; Essays in Anglo-Saxon Law, p. 
 82 ; Maine, Village-Communities, p. 10 ; 
 Green, Making of Eng., pp. 175, 176. 
 
 8 Tac., Germ., cc. 7, 12, 25. 
 
 * " Non enim habent regem iidem 
 Antiqui Saxones, sed satrapas pluri- 
 mos suae genti praepositos." Hist. 
 Eccl., v. 10. 
 
 6 Royalty among the conquerors of 
 Britain was one of the results of the 
 migration. Freeman, Norm. Conq. t
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 129 
 
 work of conquest, was necessarily obliged to intrust its for- 
 tunes to some leader or chieftain of its choice. According 
 to the Chronicle, the chieftains who led the first expeditions Thehere- 
 into Britain bore no higher title than heretoga or ealdorman. dolman. 
 In A. D. 449 the Jutish war-bands landed under the com- 
 mand of two heretogas, Hengist and Horsa, and in A. D. 455 
 Horsa was slain, and Hengist and ./Esc his son obtained 
 the kingdom. In A. D. 495 two ealdormen came to Britain, 
 Cerdic and Cynric his son; and in A. D. 519 they became 
 the kings of the West Saxons. The evidence justifies the 
 conclusion that each expedition was led by a chosen chief- 
 tain, who might bear as a civil ruler the title of ealdorman, 
 while as war leader he might bear the title of heretoga. 1 
 But as the conquest advanced, and as definite districts of 
 country were permanently secured, and as the various groups 
 of conquerors within such districts felt the need of drawing 
 together under a permanent instead of a temporary leader- 
 ship, the ealdorman was advanced to the dignity of a king Ealdorman 
 who could represent in his person the unity of a new national j^ omes 
 life. In this wise a brood of petty kings grew up that con- 
 tinued to survive for centuries. In order to attach the idea 
 of permanency to the new kingship, the name of the son was 
 often associated with that of the father as a recognition of 
 the hereditary principle ; while, in order to impart sanctity to 
 the person of the new king, fable at once traced his descent 
 in an unbroken line from Woden. 2 This recognition of the Blending 
 hereditary principle was attended and modified, however, ^reditary 
 by the older principle of election. 3 The right to the throne with the 
 might be vested by the original choice in one royal house, but principle, 
 the question as to which member of that house should receive 
 the succession when a vacancy occurred was one which the 
 national assembly alone could determine. For centuries the 
 right to reject the immediate heir of the last king, in favor of 
 
 vol. i. p. 51. See, also, Appendix K, A Freeman, Norm. Cong., vol. i. p. 51 ; 
 
 "On the Change from Ealdormen or Kemble, Saxons in Eng., vol. ii. p. 
 
 Heretogan to Kings," Stubbs, Const. 12?. 
 
 Hist., vol. i. p. 66. Upon this subject * Stubbs, Const. Hist., vol. i. p. 67. 
 Kemble says, " Kingship, in a certain 8 " The elective principle is the safe- 
 sense, seems to me rooted in the Ger- guard of their freedom ; the monar- 
 man mind and institutions, and univer- chical principle is the condition of their 
 sal among some particular tribes and nationality." Kemble, Saxons in Eng. t 
 confederacies." Saxons in Eng., vol. voL L p. 137. 
 i. p. 137.
 
 130 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 some other member of the same house more competent to 
 govern, was freely exercised. How far the power and dignity 
 of a king exceeded that of an ealdorman it is difficult to de- 
 termine, but it is quite clear that the title of king did carry 
 with it an advance in both respects. It is probable that the 
 king was not chosen until a group of war-bands, each under 
 its own ealdorman, had united in the formation of a kingdom. 
 In this way the king was advanced to the supreme command 
 The eaidor- and to national authority, while the ealdorman, descended to 
 thread of the status of a subordinate, although still possessing the 
 
 highest command in his own district 1 
 
 Ws district. The fact must be constantly borne in mind, that the new 
 
 ereignty? v king was the king of a nation, the leader of his people, the 
 
 head of the race, and not the king of a country and lord of 
 
 the soil. The idea of territorial as distinguished from tribal 
 
 The king's sovereignty was the growth of later times. 2 In war the king, 
 
 duties? a ' as leader of the host, possessed supreme command, while in 
 
 peace his powers were coordinate with the national assembly, 
 
 with whose concurrence he performed all important acts. 
 
 He maintained, not his own peace, but the national peace, 
 
 and executed justice on the breakers of it : but justice was 
 
 not yet the king's justice ; it was the justice of the village, 
 
 the hundred, and the folk, in whose moots was vested juris- 
 
 The dignity diction. 3 As the process of aggregation advanced, as the 
 
 grows S as lp early kingdoms became bound up in the seven or eight hep- 
 
 oUggrega- tarc hic kingdoms, which finally united under the rule of one 
 
 tion ad- royal house, the institution of kingship grew with each ex- 
 
 vances. J . ' 
 
 pansion of territory. As an heptarchic king rose in power 
 and importance above the petty royal head of a primitive 
 state, so did the king of all the English rise in power and 
 
 1 Freeman, Norm. Conq., vol. i. pp. kings, King John was the first who al- 
 52, 66. ways called himself King of England 
 
 2 " Some years ago I pointed out (Freeman, Norm. Cong., vol. i. pp. 82, 
 (Ancient Law, pp. 103 et seq.) the evi- 84). His predecessors commonly or 
 dence furnished by the history of in- always called themselves kings of the 
 ternational law that the notion of English." Maine, Early Hist, of 
 territorial sovereignty, which is the Insts., p. 73. " Territorial sovereignty 
 basis of the international system, and the view which connects sovereignty 
 which is inseparably connected with with a limited portion of the earth's 
 dominion over a definite area of land, surface was distinctly an offshoot, 
 very slowly substituted itself for the though a tardy one, of feudalism." 
 notion of tribal sovereignty. Clear Ancient Law, p. 102. 
 
 traces of the change are to be seen in 8 Stubbs, Const. fKst. t vol. i. p. 68 j 
 the official style of kings. Of our own Green, Making of Eng., p. 172.
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 131 
 
 importance above an heptarchic king. 1 In the process of 
 aggregation was thus involved the growth of kingship, and 
 in the growth of kingship were involved all the elements of 
 constitutional life. 
 
 Reference has heretofore been made to the structure of Thecomi- 
 the comitatus, the personal following of professional warriors u 
 who grouped themselves around a king or chief in a strange 
 relation of fidelity and dependence which rendered them a 
 class apart from the body of the people. 2 Each chieftain by 
 whom a war-band was led to the conquest of Britain came 
 attended by his comites, and their fortunes advanced together. 
 In return for their fidelity and service the comites expected 
 to receive from their chief whatever of bounty lay in his 
 power to bestow ; but it was a part of his absolute duty to 
 supply them from his own board with their daily bread. The 
 chief therefore becomes in Old-English the hlaford, the loaf- Thehiaford 
 giver, a term which, by an entire departure from its original 
 
 meaning, finally softened down into the modern form of lord ; 
 while the comes, the hlafaeta, the loaf-eater, becomes the Thegesith 
 gesift, gesith or companion. 3 Under these names the old II 
 relations at first reappear. The right upon the part of the 
 king to maintain a body of gesiths or household retainers 
 has been called a very jewel in the crown : but this right was 
 not confined to kings alone ; it was enjoyed alike by all the 
 great men of the nation. 4 As kingship advanced in power 
 and privilege, kings were able, of course, to confer upon their 
 dependents a status and emoluments such as no one else 
 could bestow. And as the king grew in power and impor- 
 tance the companion or gesith soon changed his original title 
 for a new one that more clearly expressed his somewhat The thegn- 
 changed relation. He became the thegn or servant instead n noba . e 
 of the companion of his lord. In this way originated a new ty 
 nobility by service, which grew and widened until it at last 
 
 1 Freeman, Norm. Conq., vol i. p. 53. * " The difference between the comi- 
 
 2 Above, p. no. tes of the princeps and the household 
 8 Kemble, Saxons in England, vol. i. of the private man depends funda- 
 
 p. 169. For an elaboration of the whole mentally only on the public and politi- 
 
 subject see Kemble's chapter, " The cal position of the master. Now, the 
 
 Noble by Service," in the first, and king, the perpetual princeps represen- 
 
 " The King's Court and Household," tative of the race, conveys to his per- 
 
 in the second, volume of Saxons in sonal following public dignity and im- 
 
 England. And also Freeman's Norm, portance." Stubbs, Const. Hist., voL 
 
 Conq,, vol. i. p. 58. , - i. pp. 149, 150. ,
 
 132 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 absorbed and superseded the older nobility of blood. 1 The 
 ancient eorl passed away and the thegn took his place. The 
 status of the thegn materially depended upon the status of 
 his lord. As a king stood above ealdorman or bishop, so 
 stood the king's thegns above their thegns. 2 The king, as 
 Benefits de- the representative of the race, conferred upon his following, 
 fteg^om* at once body-guard and council, not only dignity and impor- 
 hisiord. tance, but substantial benefits. As no one could judge a 
 king's thegn but his lord, the royal following became exempt 
 from the jurisdiction of the popular tribunals. 3 The greatest 
 boon, however, which such a thegn expected his lord to be- 
 stow was a grant of land out of the public domain, which the 
 king had the power to make with the consent of the witan. 4 
 Upon estates created in this way the thegns began to dwell, 
 and thus ceased to be members of their master's household. 
 The thegn- And so the thegnhood grew into a territorial nobility, 5 into 
 com'es'Tter- tne central institution of the state. And so heavily did this 
 rit bU'f institution, involving the relation of lord and man, press upon 
 the whole social and political fabric, that it finally became a 
 settled principle that every man should have a lord to act as 
 his protector and surety, the lordless man became almost 
 an outlaw. 6 But depressing as the institution of thegnhood 
 may have been to the simple freemen as a class, it led in 
 the end to the firm establishment of a liberal principle of 
 advancement that has ever abided at the root of English 
 society. The ceorl could not become an eorl for the simple 
 reason that "a man cannot change his forefathers." The 
 
 1 Kemble, Saxons in England, vol. i. 6 " The development of the comita- 
 pp. 168, 176. tus into a territorial nobility seems to 
 
 2 " The word thegn became equiva- be a feature peculiar to English his- 
 lent to noble or gentle. The king's tory." Stubbs, Const. Hist., vol. i. p. 
 thegns formed the highest rank of 1 52. " The dependent might be con- 
 gentry; the thegns of ealdormen and nected with the king, (i) by service, (2) 
 bishops formed a lower class." Free- by comitatus, (3) by commendation, 
 man, Norm. Conq., vol. i. p. 60. (4) by reception of land as a benefice. 
 
 8 Kemble, Saxons in Eng., vol. i. p. Frank feudalism grew out of the two 
 
 176; Green, Making of Eng. t p. 174. latter, the English nobility of service 
 
 * Baeda complains that, in his day, from the two first." Ibid., p. 153, note 
 
 so much of the folkland was bestowed i. On the growth of Frank feudalism, 
 
 upon pseudo-monasteries that there was see Waitz, D. V. G., ii. 262. 
 no place where the sons of nobles or 6 On the relation of lord and man, 
 
 veteran warriors could receive a grant, which developed into the relation of 
 
 Epist. ad Ecgbirhtum Archiepisco- lord and tenant, see Kenelm Digby, 
 
 pum, n. Saxons in Eng. t vol. i. p. Law of Real Property, p. 20. Free- 
 
 291. man, Norm. Conq. t voL i. p. 61.
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 133 
 
 thegnhood, however, rested upon more elastic principles ; it its ranks 
 was not an hereditary caste, but an aristocratic class, whose toThe^iass 
 ranks were ever open to members from the class beneath it. beneath ll> 
 The ceorl who had so thriven as to acquire five hides of land, 
 or who had been sufficiently successful as a merchant, could 
 become a thegn. 1 
 
 The most important outcome of the comitatus, from which The reia- 
 arose this new nobility by service, was the relation of lord ^dman ^ 
 and man ; a relation at first purely personal, and not neces- 
 sarily connected with the holding of land. 2 This relation, 
 therefore, represented but one element of feudalism, which represents 
 implied not only the mutual relation of trust and fidelity be- l^iuof d 
 tween lord and vassal, but along with it the holding of land by feudallsm - 
 the tenure of military service, which service was due from 
 the vassal or tenant to the lord as lord of the fief. 3 From the 
 earliest times in England, as soon, no doubt, as the idea of 
 a nation as an organized political community had become fully 
 developed, the obligation of military service for the protec- 
 tion of the state was imposed upon the holding of all land by 
 freemen as a necessary burden. 4 This obligation, which no 
 landholder could escape, was embodied in the inevitable 
 trinoda necessitous, which consisted of service in the field, and 
 in the repair of bridges and fortresses. 5 But this service was citizen to 
 due from the citizen to the state, or from the subject to the 
 sovereign, and not from a vassal to his lord. 6 The two great 
 elements of feudalism the relation of lord and man, and the 
 holding of land by military service were thus embedded in 
 an embryonic form in English institutions from the very Feudalism 
 beginning. But these elements never became inseparably inembrvo - 
 welded together into a definite and harmonious system until 
 after the Norman Conquest. 7 Not until after that event did 
 
 1 Creasy, The English Const., p. 42 ; 8 Freeman, Norm. Conq., vol. i. pp. 
 Stubbs, Const. Hist., vol. i. p. 162. 62, 63. 
 
 2 " In our own early records this re- * Digby, Law of Real Property, p. 22. 
 lation of princeps and comes has devel- 6 "This common burden was the 
 oped into the relation of lord and man. trinoda necessitas, in its origin required 
 . . . But this relation is not at first of all people, not resting on land, and 
 necessarily connected with the holding therefore not the subject of immun- 
 of land ; the relation is that of prin- ity" Essays in A. S. Law, p. 61. 
 ceps and comes, of king and his thegns, 6 Freeman, A T orm. Cong., vol. i. p. 63. 
 of lord and man, not of lord and ten- T " The relation of lord and vassal 
 ant." Digby, Law of Real Property, existed, and the relation of military 
 p. 21. tenure existed; but vassalage and mill-
 
 134 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Ownership 
 of land, and 
 the growth 
 of great 
 estates. 
 
 Family 
 land. 
 
 Common 
 land. 
 
 Folkland. 
 
 The ethel 
 or alod. 
 
 The mark. 
 
 the relation of lord and man fully develop into the technical 
 relation of lord and tenant. 1 
 
 5. A definite conclusion has now been reached as to the 
 general nature of Teutonic conquest in Britain, and also as 
 to the manner in which the invaders settled down upon the 
 conquered soil. There can no longer be any doubt of the 
 fact that the " English kin " brought with them, and re- 
 planted, at some stage of its development, the primitive sys- 
 tem of land-ownership represented in the fatherland by the 
 village-community of kindred cultivators, called in the Ger- 
 man muniments the mark, which developed in Britain into the 
 " tun " or township. The process has already been explained 
 through which these village-communities, or townships, be- 
 came united in pagi, gds or shires, out of whose union grew 
 the early states or kingdoms. The territory of a state, thus 
 constituted, originally embraced three kinds of land, each one 
 of which represented a fundamentally distinct conception. 
 Within the village-community or township is found the home- 
 stead of the family, and the portion of arable land to which the 
 family is entitled ; and these, together with the common rights 
 appurtenant thereto, constitute the family estate. The lands 
 that belong to the corporations, that is to the townships, to the 
 buhrs, and to the hundreds, as the early shires are called in 
 later times constituted the common lands. All lands that 
 remained belonged to the people or folk in their collective capa- 
 city. The folklands were, therefore, the public domain, the 
 lands of the state. 2 Family land, common land, and folkland 
 all have their origin in the customary law, from which must 
 be ascertained their character and attributes. 3 The history 
 of family land cannot be severed from the history of the mark, 
 into whose structure it entered as a component part. The 
 primitive Teutonic mark consisted, as heretofore explained, 
 of three parts, the village, in which the mark-men dwelt ; 
 the arable lands, which were almost invariably divided into 
 
 tary tenure had not yet been insepa- 
 rably welded together. . . . The Norman 
 Conquest no doubt strongly tended to 
 promote the further development of 
 the feudal element; but, as in every 
 other case, it only opened and prepared 
 the way for further changes." Free- 
 man, Norm. Cong., vol. i. p. 63. 
 
 1 See Kenelm Digby on the " Devel- 
 opment of the Idea of Tenure, "Law of 
 Real Property, p. 37. 
 
 2 See the invaluable essay upon An- 
 glo-Saxon Land-Law, by Mr. H. Cabot 
 Lodge, Essays in A. S. Law, p. 57. 
 
 8 Ibid., p. 70.
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 135 
 
 three great fields ; and the waste lands. The cardinal ele- 
 ment in the family estate was the homestead and its cur- 
 tilage, situated in the mark village ; " Suam quisque domum 
 spatio circumdat" 1 as Tacitus has expressed it. In the house The home- 
 lands, thus set apart from the rest of the communal territory, earliest e 
 appears the first form of individual ownership in land ; 2 a con- d^ u a f j m " 
 ception which the invaders transported into Britain intact. 3 ownership; 
 The possession of the homestead in the village entitled the 
 family to an equal allotment in the arable fields, while the al- 
 lotment in the arable was the basis upon which depended the 
 enjoyment of common rights. The house lands in the village, 
 the allotment in the arable, together with the common rights 
 appurtenant thereto, constituted the family estate, generally 
 called by the best writers the ethel or alod* As agriculture 
 improved and population increased, the principle of individual 
 ownership, at first represented by the house lands, broke 
 through the communal system by extending itself to the ara- a principle 
 ble lands. After the arable fields had been allotted in per- 
 manent instead of temporary ownership to the several house- 
 holds in the village, only the waste lands remained as the 
 common property of the community. From the general history Decay of 
 of village-communities it may be safely inferred that through ^common 
 this process the system of common cultivation represented cultivation - 
 by it fell into decay. 6 Whether the mark-men among the 
 first settlers in Britain cultivated the arable lands in common 
 as a general rule, is a question which cannot now be positively 
 determined. But the fact that the system of common culti- 
 vation did exist in certain localities has been too firmly estab- 
 lished by recent investigations to admit of serious contro- 
 
 1 Tac., Germ., c. 16. K. Maurer, Kritische Ueberschau, i. p. 
 
 2 G. L. v. Maurer, Einleitung, p. to; 97 ; Stubbs, Const. Hist., vol. i. pp. 75, 
 Konrad Maurer, Kritische Ueberschau, 76. Mr. Lodge says that he prefers the 
 i. p. 99; Digby, Law of Real Property, term "family land" to ethel or alod, 
 p. 5 ; Essays in A. S. Law, p. 69. for the reason that " in the family alone 
 
 * " If a ceorl and his wife have a can be found the characteristics which 
 child together, and the ceorl dies, let the define and separate it from all other 
 mother have her child and feed it ; let estates." Essays in A. S. Law, p. 
 them give her six shillings for support, 68. Mr. F. Pollock, in reviewing Mr. 
 a cow in summer, an ox in winter. Lodge, says that he prefers the term 
 Let the kin hold the homestead until it "heir land" to "family land." Law 
 (the child) be grown up." Ine, c. 38; Magazine and Review, London, Feb., 
 K. Maurer, Kritische Ueberschau, i. p. 1882, p. 127. 
 
 99 ; Essays in A. S. Law, p. 70. 6 Maine, Early Hist, of Institutions, 
 
 * See Kemble, Saxons in Eng., ch. p. 81 ; Stubbs, Const. Hist., voL i. p. 
 iv. vol. i., "The Ethel, Hid, or Alod ;" 52.
 
 136 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Survivals 
 of the sys- 
 tem. 
 
 Lammas 
 lands. 
 
 The word 
 " mark " in 
 England. 
 
 The mark 
 as the 
 township. 
 
 Family 
 land an es- 
 tate of in- 
 
 heritance. 
 
 versy. Lands representing the arable portion of the ancient 
 village-community are still found in many parts of England, 1 
 and when the soil is arable they are usually called " com- 
 mon," " commonable," or " open " fields, or simply " inter- 
 mixed " land ; when the lands are in grass they are known as 
 " lot meadows," or Lammas land, Lammas-day being the 
 time at which the common rights begin. 2 " One of the lar- 
 gest of the common fields was found in the immediate neigh- 
 borhood of Oxford ; and the grassy baulks which anciently 
 separated the three fields are still conspicuous from the 
 branch of the Great Northern Railway which leads to Cam- 
 bridge." 3 The word " mark," march (mearc), occurs much less 
 frequently in Old-English than in the German muniments, a 
 circumstance which Kemble attributes to the fact that "the 
 system, founded upon what it represents, yielded in England 
 earlier than in Germany to extraneous influences." 4 And 
 when the word does occur, it more frequently bears the sig- 
 nification of a mere boundary than its full original meaning. 6 
 The mark really appears in English history as the township, 
 a word derived from the " tun " or quick-set hedge by which 
 the cluster of homesteads in the midst of the mark was en- 
 circled and protected. 6 By the time the historic period is 
 reached, the system of common cultivation, as a general rule, 
 has ceased ; the arable lands have been divided ; and each 
 individual owns separately, as his "alod," not only his home- 
 stead, but the field which he cultivates ; the common or waste 
 lands alone remain the common property of the community. 7 
 
 Family land was essentially an estate of inheritance. 8 
 Tacitus tells us, that among the Germans, although wills 
 
 1 Maine, Village-Communities, p. 85. 
 
 2 Ibid., pp. 85-39, containing extracts 
 from Marshall's Elementary and Prac- 
 tical Treatise on Landed Property, 
 London, 1804. See the late case of 
 Warrick v. Queen's College, Oxford, 
 Law Reports, 6 Chancery Appeals, p. 
 723, by Lord Chancellor Hatherley; 
 Maine, Early Hist, of Insts., p. 4 ; 
 Digby, Law of Real Property, p. 8. 
 
 8 Village-Communities, p. 89. 
 
 * Kemble, Saxons in England, vol. i. 
 p. 36. 
 
 6 The term " mark " occurs in its full 
 signification only in certain charters ; 
 e. g., Cod. Dip., dcxxxiii. For other 
 
 instances of its use, see Schmid, Gesetze, 
 p. 631. Professor Stubbs says that it 
 is not found in its full sense in the 
 laws. Const. Hist., vol. i. p. 83, and 
 note 2. 
 
 ' Village-Communities, p. 10 ; Digby, 
 Law of Real Property, p. 7 ; Green, 
 Making of England, p. 175; Stubbs, 
 Const. Hist., vol. i. p. 83. 
 
 7 " Finally, whatever land a man can 
 call his own is his ' ethel ' or ' alod,' 
 as distinguished from the common 
 lands, and from the folklands or public 
 domain." Digby, Law of Real Prop* 
 erty, p. n. 
 
 Essays in A. S. Law, p. 73.
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 137 
 
 were unknown, the law of inheritance was a fixed institution. 1 
 
 But long before the period when laws and charters begin, the 
 
 family as such had ceased to hold land. When in the course 
 
 of historical development the household was supplanted by 
 
 the individual, the family estate was probably held and ad- 
 
 ministered either by individuals in that capacity alone, or as 
 
 the heads of households. 2 The influence of the family in 
 
 historic times survived, however, in the exercise of certain 
 
 rights, and in the inalienability of family land, a principle inaiienaba- 
 
 which first yielded to the doctrine that lands were alienable jiy Lid" 1 " 
 
 within the limits and with the consent of the family. 3 When 
 
 wills were introduced by the church, family land became sub- wills at 
 
 ject to devise, the validity of the will originally depending for validity 
 
 upon family consent. The force of family influence gradu- 
 ally gave way, however, as the idea of individual ownership, 
 and the use of written instruments in the alienation of land, 
 became firmly established. In some cases the consent of the 
 king and the witan was substituted for the consent of the 
 family, as a confirmation of the alienation ; in other cases the 
 alienation was made without the consent or confirmation of 
 either. 4 
 
 As the family tie weakened, and as the communal system Common 
 fell into decay, the ethel or alod of the free townsman, 
 embracing both house-land and arable in severalty, arose out 
 of the primitive family estate. The common lands of the 
 marks or townships, 6 and of the other corporations, then 
 remained as the only pure representatives of the communal 
 principle. The history of these common or waste lands is their his- 
 
 f i i e i i t orv coex- 
 
 coextensive with the history of the law of real property, and tensive with 
 the system of common rights by which their enjoyment is [^ofiSd 
 regulated is an elementary part of the common law. In property. 
 
 1 Tac., Germ., c. 20. comments thereon, in Essays on A. S. 
 
 2 Essays in A. S. Law, pp. 69, 74 ; Law, p. 76. 
 
 Maine, Ancient Law, p. 261. * Cod. Dip., ccxxv ; Essays in A. S. 
 
 8 Essays in A. S. Law, pp. 75, 76. Law, p. 77. 
 
 As to the " ancient difficulties of alien- 6 " The historical township is the 
 
 ation," and as to "the expedients by body of alodial owners who have ad- 
 
 which advancing communities endeav- vanced beyond the stage of land-corn- 
 
 ored to overcome them," see Maine, munity, retaining many vestiges of that 
 
 Ancient Law, pp. 263, 264. See the will organization ; or the body of tenants of 
 
 of a certain Alfred (Cod. Dip., cccxvii.) a lord who regulates them or allows 
 
 in which is defined " which of my kin them to regulate themselves on princi- 
 
 and friends are the men to whom I will pies derived from the same." Stubbs, 
 
 my yrfe-land and my boc-land" and Const. Hist. t vol. L p. 85.
 
 138 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [Cn. 
 
 Folkland. 
 
 Growth of 
 great 
 estates ; 
 
 probabili- 
 
 regard to the possession and enjoyment of these lands arose 
 the long controversy concerning inclosures, which has ex- 
 tended down to the present century. 1 
 
 All the land embraced within a state which belonged 
 neither to individuals nor to corporations was the property 
 of the people in their collective capacity, the folkland, the 
 public domain. 2 The folkland rested upon the principle that 
 royal and public are not the same. 3 Out of the folkland 
 estates were given to the king as a private individual, and 
 estates were given to the crown ; but the residue was the 
 public property, the property of all, subject only to the dispo- 
 sition of the witan acting conjointly with the king. 4 
 
 A special class of alodial estates now remain to be consid- 
 ered, a class which probably originated, in the main, outside 
 of and apart from the village-communities. When documen- 
 tary history begins great inequality exists in the distribution 
 of land; great proprietors are found in the possession of 
 great estates. Nothing more substantial than conjecture can 
 explain the origin of such estates. 5 The probabilities are, 
 however, either that at the time the original conquests were 
 made, large allotments of land were set apart to the king or 
 chief and to his principal followers, to be held by them in 
 severally ; or that as soon as states were organized large 
 allotments were made to the king and to his followers out of 
 the public domain. In some cases it may have been that 
 the extinction of families and the transfer of small estates 
 brought about an accumulation of land in the hands of certain 
 individuals. 6 Another great factor that entered into the 
 formation of large estates was the right of redemption from 
 the waste, the bringing of the common lands into cultivation, 
 
 1 " The history of inclosures and of 
 inclosure acts is now recognized as of 
 great importance to our general his- 
 tory." Maine, Village-Communities, p. 
 85 ; Essays in A. S. Law, p. 91 ; 
 Bentham s Works, vol. i. p. 342. 
 
 2 Allen and Kemble were the first to 
 ascertain the true nature of folkland 
 and bookland. See Royal Prerogative, 
 p. 1 29 ; Saxons in England, vol. i. ch. xi. 
 
 8 " The folc-land rests on the princi- 
 ple in the constitution that royal and 
 public are not the same thing ; that the 
 king, not alone, but only at the head of 
 
 the whole body of the people, repre- 
 sents the public power ; that, therefore, 
 the public objects are the objects of all, 
 and the public property the property of 
 all." Sohm, Verfassungsgeschichte, vol. 
 i. p. 34. See Essays in A. S. Law, p. 
 91. 
 
 * Digby, Law of Real Property, pp. 
 9, 10, 14 ; Essays in A. S. Law, pp. 61, 
 92. 
 
 6 Stubbs, Const. Hist., vol. i. p. 73 , 
 Digby, Law of Real Property, p. 9 j 
 Freeman, Norm. Cony., vol. i. p. 57. 
 
 8 Stubbs, Const. Hist., vol. i. p. 73.
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 139 
 
 a process which the great man with many slaves could carry on 
 much more rapidly than his poorer neighbors. 1 The greater 
 land-owners were the king and the crown, the great nobles 
 and the church, the greatest being the state, possessed of 
 the public domain. The large estate of the great man, like 
 the small estate of the free townsman, was his ethel or 
 alod. 2 As population increased, and as the primitive com- Thede- 
 munal system became inadequate to its necessities, landless township; 
 men settled down upon the estates of all the great proprietors 
 and organized thereon village-communities, whose general 
 character was identical with that of the free communities, 3 
 with one vital exception. In the one case the title to the 
 land occupied by the cultivating community was vested in the 
 community itself, the free townsmen looked up to no superior 
 lord ; in the other the title was vested in the lord, and the title to its 
 dependent townsmen were his men, or, in the language of vested in 
 later times, his tenants. 4 The distinction is therefore appar- the lord> 
 ent between the primitive system represented by the inde- 
 pendent Teutonic community and the new order of things 
 brought about by the growth of great men and great estates. 
 The growth of the principle of lord and man drew after it a 
 conflict between these two systems, which finally resulted in 
 a loss upon the part of the free communities of their primitive 
 independence. 5 Through various processes the house-lands The free 
 and the arable of the free townsmen became vested in a tieTTose"" 
 single lord, and then the waste or common land passed as an theii ; inde - 
 
 r pendence. 
 
 incident. In this way the waste of the once free townsmen 
 became the lord's waste, while the townsmen became his The de- 
 tenants. 6 After the Conquest the dependent township appears township 
 
 as the manor of the lord. 
 
 The attempt has now been made to define the general na- Bookiand. 
 ture of alodial estates, of common lands, and of folkland, 
 in a word, of all such lands as originated in custom, and took 
 
 1 G. L. von Maurer, Einleitung, pp. tion ; " Freeman, Norm. Conq., vol. i. 
 158-186 ; Essays in A. S. Law, p. 84. pp. 57-62 ; Stubbs, Const. Hist., vol. i. 
 
 2 " Whatever land a man could call p. 85 ; Digby, Law of Real Property, 
 his own, whether it was the house and pp. 8, 13, 43, "Growth of Manors." 
 inclosure of the free townsman or the * Essays in A, S. Law, p. 89. 
 domain of the king or great man, was 8 As to the growth of the manor out 
 his 'ethel' or 'alod.'" Digby, Law of the mark, see Maine, Village-Corn- 
 of Real Properly, p. n. munities, p. 143; Digby, Law tf Real 
 
 8 Maine, Village-Communities, lee- Property, pp. 20-26, 43. 
 ture v. f " The Process of Feudaliza- 6 Essays in A. S. Law, p. 90.
 
 140 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 The witness 
 of the com- 
 munity. 
 
 The new 
 method of 
 convey- 
 ancing. 
 
 Estate con- 
 veyed by 
 book usu- 
 ally a fee- 
 simple. 
 
 The alod 
 disappears 
 in the book- 
 land. 
 
 their character and attributes from the customary law. With 
 a clear conception of the nature of the three kinds of owner- 
 ship thus originating in one common source, it will be easier 
 to define the nature of such estates as did not originate in 
 custom but in written instruments, upon whose terms their 
 character depended. Before the introduction of written in- 
 struments by the church, 1 whenever a transfer of land was 
 to be made, the parties in interest went to the land with 
 chosen witnesses, and there, in their presence, the actual pos- 
 session was delivered by the grantor to the grantee. 2 But 
 with the advent of the church a new method of conveyancing 
 was introduced ; written instruments were substituted for the 
 witness of the community. These instruments, which were 
 called books, 3 were designed with a twofold object, first, 
 to put in the most solemn and enduring form evidence of the 
 fact that the claims of the nation, of the community, and of 
 the family to the land conveyed were effectually barred ; 
 second, to establish evidence of title that would be more 
 potent in litigation than mere oral testimony. 4 This new 
 method of transfer was employed in the conveyance of lands 
 both public and private, and the estate usually conveyed was 
 the largest possible, corresponding very nearly to our fee- 
 simple. 6 As the primitive method of transfer by actual de- 
 livery gave way to the new method of transfer by book, by 
 which absolute estates were generally created, the term 
 "bookland" became nearly if not quite coextensive in mean- 
 ing with "alodial," which simply meant land held in absolute 
 ownership. 6 In this way the alod disappeared in the book- 
 land. 7 In the alienation of folkland the new method by book 
 found a wide field for its operation. The king, with the 
 
 * Essays in A. S. Law, pp. 102, 
 in. 
 
 5 E. g., " quam in semper possideat 
 et post se cui voluerit heredum relin- 
 quat." Cod. Dip., cxvii. Cf . Essays 
 in A. S. Law, p. 104. 
 
 6 Digby, Law of Real Property, p. 
 
 1 " Proof of its (the book's) intro- 
 duction by church influence would be 
 superfluous. Mr. Kemble accepted the 
 fact long since, and it has not been dis- 
 puted." Essays in A. S. Law, p. 101. 
 
 3 As to the ancient mode of convey- 
 ancing, see A. Heusler, Die Geivere, 
 pp. 7-20 ; Von Bethmann - Hollweg, 
 Civil Process, p. 493 ; Essays in A. S. 
 Law, p. 101 ; Kemble, Saxons in Eng., 
 vol. i. p. 299. 
 
 8 The book was divided into the 
 Invocjftion, the Proem, the Grant, the 
 Sanction, the Date, and the Teste. 
 Cod. Dip., Introduction, p. ix. 
 
 7 " As the primitive allotments grad- 
 ually lost their historical character, as 
 the primitive modes of transfer became 
 obsolete, and the use of written rec- 
 ords took their place, the ethel is lost 
 sight of in the bookland." Stubbs, 
 Const, ffisf., vol. t p. 76.
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 141 
 
 consent of the witan, could carve estates out of the folkland 
 and bestow them either upon individuals or religious corpo- 
 rations, and the land so granted was said to be " booked " to 
 the grantee. In this way the king's thegns and the religious 
 houses were enriched without stint out of the public domain. 1 
 
 Family land, the alod, was primarily a " full, free, and un- Rights of 
 burdened estate," 2 subject only to the inevitable trinoda ne- 
 cessitas, which consisted of the duty of rendering military 
 service (expeditio), and of repairing bridges and fortresses 
 (pontis arcisve constructed)? To this burden all lands were 
 subject. As a general rule, when a grant was made out of 
 the folkland by book, it was provided that the grantee should 
 hold the land free from all rent or service of any kind, ex- 
 cepting only the trinoda necessitas* It was also generally 
 expressed in the book that the grantee could dispose of the 
 land as he pleased in his lifetime, or dispose of it by will at 
 his death, or, if he died intestate, that it should descend to 
 his heirs. 6 These powers, however, depended upon the terms 
 of the grant, by which the right of alienation could be re- 
 stricted to the kindred, or the course of descent limited to 
 Irneal descendants or to heirs male or female. 6 It thus be- they de- 
 came established in the customary law that the rights of the 
 grantee of bookland depended upon the terms of the grant ; 
 and in some of the charters it was expressly provided that 
 any breach of the conditions of the grant should, ipso facto, 
 work a forfeiture of the estate. 7 
 
 No special reference has so far been made to such inter- Laeniand 
 ests in land as were held by those who possessed less than andTtfri- 
 an absolute estate. The general character of estates held butes - 
 absolutely by the great proprietors the king, the church, 
 and the greater nobles has already been defined. In ad- 
 dition, however, to their own estates, certain great individuals 
 
 1 Digby, Law of Real Property, pp. 6 " The capacity of selling the land 
 12, 13. is often mentioned in Domesday as a 
 
 2 K.. Maurer, Kritische Ueberschau, characteristic of absolute ownership." 
 i. p. 98. Cf. Essays in A. S. Law, pp. Digby, Law of Real Property, p. 14, 
 78-80. and note 3, citing Freeman, vol. iv. p. 
 
 8 Digby, Law of Real Property, p. 732 ; Allen, On the Royal Prerogative, 
 
 13. p. 145. 
 
 * Kemble, Saxons in Eng., vol. i. p. 6 Law s of Alfred, c. 41 ; Kemble, 
 
 301. " Hence a free hide, hida libera, Saxons in Eng., vol. i. p. 308 ; Digby, 
 
 is properly called ' An hiwisc aegefaeles Law of Real Property, p. 14. 
 
 landes,' a hide of land that pays no 7 Cod. Dip., xlvi., ccccvi., dcxli ; Es 
 
 gafol or tax. Cod. Dip., No. 1070." says, in A. S. Law, p. 109.
 
 142 THE OLD-ENGLISH COMMONWEALTH. [CH 
 
 were allowed to take possession of folkland and to hold and 
 
 use it upon sufferance, subject to the will of the state or of 
 
 the king as its representative. 1 A person who held a loan 
 
 or "laen" of a portion of the folkland in this way, held it 
 
 purely upon sufferance and according to custom, and not 
 
 under the terms of a book or charter. 2 Any individual or 
 
 corporation possessed of proprietary rights over land could 
 
 grant to another the beneficial enjoyment of the same, to be 
 
 held either under the terms of a book or subject only to the 
 
 terms of the customary law. 3 Land so let or loaned was 
 
 called laenland. The estate or laen thus created was not a 
 
 leasehold ; it was not an estate for a term of years, or for a 
 
 A "laen" fixed and limited time: it was generally an estate for life or 
 
 fstete a fo y r an lives. That is to say, if a man was in possession of land, 
 
 life - although he might hold only upon sufferance, his possession 
 
 was prima facie a possession for life. 4 If the laen was held 
 
 by book, upon its terms its character and extent depended ; 
 
 Occupancy if there was no book, the laen was held at the will of the 
 
 of the lord lord, subject to the rights and limitations imposed upon that 
 
 booked' 1 " 1 w ^ ky the customary law. 6 Reference has already been 
 k en -" made to the dependent communities that grew up, not only 
 upon the folkland, but upon the estates of all the great pro- 
 prietors. Each group organized itself into a township, whose 
 internal arrangements were identical with those of the free 
 community. The title to the land so occupied by the depend- 
 ent community remained in the lord ; while the dependent 
 townsmen, the lord's tenants, acquired by long occupancy, 
 and by the payment of certain dues in services or in kind, a 
 prescriptive right to continue in possession. A case of this 
 kind presents a distinct illustration of what has been called 
 an "unbooked laen," that is, of a laen or occupancy depend- 
 ing upon the will of the lord, as modified by the customary 
 law. The system of letting land for fixed rent and services 
 
 1 " A large proprietor, like Duke Al- those which are held by book and 
 fred, already referred to, held extensive those which are not. To the latter 
 estates of folc-land, which he let out to class belong the unbooked laens of a 
 poor freemen, his tenants." Essay sin lord's utland, already discussed, and all 
 A. S. Law t p. 59, citing Cod, Dip.> estates of folc-land." Essays in A. 
 cccxvii. S, Law, p. 95. 
 
 2 Essays in A. S. Law, pp. 59, 95. * Ibid., p. 95 ; Digby, Law of 
 8 Digby, Law of Real Property, p. Property, pp. 16, 17. 
 
 16. " Such being the definition of 6 Essays in A, S. Law, p. 86. 
 there are two classes of them,
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. H3 
 
 had become sufficiently general by the end of the seventh 
 century to be made the subject of special legislation. 1 
 
 6. The growth of the township out of the mark, and the The town- 
 character of the estates which the townsmen possessed, were ti*moot. C 
 subjects necessarily involved in the preceding examination 
 of the ownership of land. But the township, like the mark, 
 possessed a political as well as an agricultural aspect. In the 
 states or kingdoms which arose as the conquest advanced, the 
 township was the narrowest form of local government, and 
 it has ever remained the " unit of the constitutional ma- 
 chinery." 2 In the qualified members of this corporate unity 
 resided the power of ordering their own village and agricul- 
 tural life. 3 This power was vested in the village assembly 
 or tun-moot, which, in an independent township, consisted of 
 all the alodial owners residing within it ; in a dependent one, 
 of the body of tenants who had united in the formation of a 
 village-community upon the land of a lord. In the tun-moot, Tun-moot 
 which could hardly have possessed more than quasi-judicial 
 functions, resided the power to regulate all the internal affairs 
 of the township by the making of by-laws, a term which is shi P. 
 said to mean laws enacted by a " by," as the township was 
 called in the northern 4 shires. The tun-moot elected its and elected 
 own officers and also provided for the representation of its cers^n'd 
 interests in the courts of the hundred and the shire, where [,ve r s esenta ~ 
 the gerefo. and four selectmen appeared for the township. 6 
 In this arrangement appears the earliest form of the repre- 
 sentative principle. 
 
 With the advent of Christianity the township became in- The town, 
 volved in new relations. The limits of the political divisions palish* e 
 of the country were adopted as the boundaries of ecclesias- 
 tical jurisdictions. The diocese of a bishop was usually made 
 coextensive with a shire or kingdom, while the limits of the 
 township were used to define the jurisdiction of a single 
 priest. 6 In this way the township became so involved with 
 
 1 " If a man agree for a virgate of 2 Stubbs, Const. Hist., vol. i. p. 82. 
 land or more, at a fixed rent, and shall 8 Green, Making of Eng., p. 187. 
 plough it, if the lord wish to yield him * Palgrave, Commonwealth, p. 80. 
 the land for rent and service, it is not ' Hen. I., vii. 8. Stubbs, Const. 
 
 necessary for him to take it if he will /fist., vol. i. p. 95. 
 
 give him no house, nor shall he lose 6 Kemble, Saxons in Eng., vol. ii. p. 
 
 the land." Ine, c. 67. Cf. Essays in 359 ; Stubbs, Const. Hist., vol. i. p. 227 ; 
 
 A. S. Law, p. 85. Green, Making of Eng., pp. 332, 333.
 
 144 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 as the 
 manor. 
 
 Jurisdiction 
 of the 
 tun moot 
 divided 
 between 
 the parish 
 vestry and 
 
 the mano- 
 rial courts. 
 
 The hun- 
 dred and 
 the hun- 
 dred-moot. 
 
 the parish, and the meeting of the township for church pur- 
 poses became so involved with the meeting of the vestry, 
 that in small parishes the idea and even the name of the 
 township is frequently lost in that of the parish. 1 
 
 As the process of feudalization advanced, as the principle 
 of lord and man became dominant, the free townships lost 
 their independence, and became subject to a superior lord. 2 
 After the Norman conquest the dependent township appears 
 as the manor of the lord, and the ancient jurisdiction of the 
 village moot survives to this day in the parish vestry and in 
 the manorial courts. The land-holding inhabitants of the 
 township, considered as members of the parish, still assemble 
 in vestry-meeting for the purpose of electing the parish offi- 
 cers, and for the ordering of other local interests not involved 
 in the manorial jurisdiction; 3 while in the court baron and 
 customary court the land-holding inhabitants, considered as 
 tenants of a lord, still meet together and regulate many 
 things pertaining to husbandry and pasturage which originally 
 belonged to the mark-moot. 4 The very existence of a manor 
 depends upon the continuance within it of a sufficient number 
 of freehold tenants to compose a court baron ; for, as Coke 
 has expressed it, " a court baron is the chief prop and pillar 
 of a manor, which no sooner faileth, but the manor falleth to 
 the ground." 6 
 
 7. Having considered the origin and growth of the town- 
 ship and its court, it next becomes necessary in the ascend- 
 ing order to examine the origin and history of the district 
 which represented a union of townships, 6 known in later 
 times as the hundred. It has heretofore been maintained 
 
 1 " The parish, then, is the ancient 
 vicus or tun-scipe regarded ecclesiasti- 
 cally. As many townships were too 
 small to require or to support a sepa- 
 rate church and priest, many parishes 
 contain several townships." Stubbs, 
 Const. Hist., vol. i. p. 227. See, also, 
 Ibid., p. 85. 
 
 2 On the " Development of the Ma- 
 norial System," see Digby, Law of 
 Real Property, p. 43 ; Maine, Village- 
 Commitnities, lecture v., " The Process 
 of Feudalization." 
 
 8 Digby, Law of Real Property, p. 
 8 ; Stubbs, Const. Hist., vol. i. p. 91. 
 
 4 " The right of the markmen to 
 determine whether a new settler should 
 
 be admitted to the township exists in 
 the form of admitting a tenant at the 
 court baron and customary court of 
 every manor ; the right of the mark- 
 men to determine the by-laws, the local 
 arrangements for the common hus- 
 bandry, or the fencing of the hay-fields, 
 or the proportion of cattle to be 
 turned into the common pasture, exists 
 still in the manorial courts and in the, 
 meetings of the townships. " Stubbs, 
 Const. Hist., vol. i. p. 04. See, also, 
 Maine, Village-Communities, p. 139. 
 
 6 Coke's Copyholder, xxxi. ; Digby, 
 Law of Real Property, p. 53. 
 
 6 "The technical name for such a 
 union is in Germany a gau or bant ;
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 145 
 
 that the early English kingdoms or petty states, in which the 
 settlers originally grouped themselves, were aggregations of 
 pagi, gds t or shires, each one of which represented an ag- 
 gregation of townships. It follows, therefore, that the dis- Modem 
 trict in which the townships were embraced was originally a hu . n ^ ire j| 
 
 ... \ originally a 
 
 pagus, or shire ; and, as such, a division and not a subdivi- shire, 
 sion of a state. This district, usually described in the earlier 
 documents as regio, pagus, or provincial probably repre- 
 sented either the pagus or district in which the hundred 
 warriors originally settled themselves, or a union of town- 
 ships originally isolated and independent. 2 These districts 
 were not at all uniform in size, their boundaries generally 
 depending upon the physical conformation of the country in 
 which the settlements were made. In the process of aggre- 
 gation, out of which the united kingdom finally arose, and 
 which will be more fully explained hereafter, the early king- 
 doms descended in status one degree : they themselves be- 
 came divisions of a greater whole ; that is to say, scirs or 
 shires. And as a necessary consequence, the shires of which 
 they were composed descended to the status of subdivisions 
 known in later times as hundreds. In this way the conclusion 
 is attained, which may be accepted as a general law, that " the 
 state of the seventh century became the shire of the tenth, while 
 the shire of the seventh century became the hundred of the 
 tenth" z The word "hundred," as applied to the territorial 
 district, first occurs in the laws of Eadgar. 4 The hundred- 
 moot was composed of all the freeholders resident within the 
 district, together with the representatives from the town- 
 ships, and was a court of both civil and criminal jurisdiction. 8 
 It met frequently, and no suit could be carried to a higher 
 
 in England the ancient name gd has 2 Stubbs, Const. Hist., vol. i. pp. 71, 
 
 been almost universally superseded by 72, 98. 
 
 that of stir or shire." Saxons in 8 This is the conclusion reached by 
 
 Eng ., vol. i. p. 72. " The union of a Mr. Henry Adams, in his admirable 
 
 number of townships for the purpose essay upon " Anglo-Saxon Courts of 
 
 of judicial administration, peace, and Law," after a very exhaustive examina- 
 
 defence, formed what is known as the tion into the original authorities. Es- 
 
 hundred or wapentake ; a district an- says in A. S. Law, p. 19. 
 
 swering to the pagus of Tacitus, the * Eadgar, i. Constitutio de hundre- 
 
 harred of Scandinavia, the huntari or dis. For a comparison of Eadgar's 
 
 gau of Germany." Stubbs, Const. Ordinance of the Hundred with those 
 
 Hist., vol. i. p. 96, note 2 ; Grimm, R. of Childebert and Clothaire, see Select 
 
 A., p. 532. Charters, pp. 68-70. 
 
 1 Terms used as equivalents for 8 " The judges of the court were the 
 
 shire. Essays in A. S. Law, p. 16. whole body of suitors, the freeholders
 
 146 
 
 THE OLD-ENGLISH COMMONWEALTH* 
 
 [CH. 
 
 The early 
 kingdom 
 and the 
 folk-moot. 
 
 Early 
 kingdoms 
 preserve 
 their folk- 
 moot, and 
 for a long 
 time their 
 tribal kings. 
 
 court until it had first been heard in the court of the hun- 
 dred. 1 
 
 8. While the development of Germany advanced in the 
 path of political consolidation, that of England advanced in 
 the path of political confederation. 2 The course of this de- 
 velopment is broken into two distinct and well defined 
 epochs : the first, embracing the drawing together of the 
 early kingdoms into the seven or eight aggregates generally 
 known as the heptarchic states ; the second, the drawing 
 together of the heptarchic states into the one united king- 
 dom of all the English under the house of Cerdic. It will 
 not be necessary for the present to look beyond the first 
 period, during which the early kingdoms coalesced in the for- 
 mation of the heptarchic states. In the structure of these 
 larger aggregates one fact of paramount importance stands 
 prominently forth, and that is that the early kingdoms de- 
 scend in status without a sacrifice of their autonomy ; they 
 preserve their ancient boundaries, their national assemblies 
 or folk-moots, and their tribal kings. The kingdom of the 
 Mercians in Mid-Britain seems to have been a mere confed- 
 eracy, which resulted from the gradual union of smaller 
 states, whose kings, during the early days, still continued to 
 exist. 3 In the same way Wessex consisted of a union of 
 kindred states, each having its own ealdorman or under- 
 king. From the Chronicle we learn that five West Saxon 
 kings appeared at one time in a single battle. 4 East Anglia 
 was made up of two settlements, the North and South Folk, 
 whose names are still preserved in the shires of Norfolk and 
 Suffolk, into which the kingdom was finally divided. Kent, 
 like East Anglia, was probably composed of two tribal divi- 
 sions originally distinct ; and in the eighth century it broke 
 up into the kingdoms of the East and West Kentings, prob- 
 ably upon the lines of the earlier states. 5 And only after a 
 
 answering to the ' rachimburgii ' of the 
 Franks." Stubbs, Const. Hist,, vol. i. 
 pp. 103, 104. 
 
 1 ^Lthelstan, iii. 3 ; Eadgar, iii. 2. 
 
 2 Essays in A. S. Law, p. zi. The 
 " confederation " here referred to must 
 be understood to mean no more than 
 the coalescence of the local communi- 
 ties into one whole, without the loss of 
 their autonomous character. 
 
 8 Freeman, Norm, Cong., vol. i. pp. 
 18, 19. " In the early days of Mercia, 
 kings of Hwiccia, Hecana, Middle 
 Anglia, and Lindsey still subsisted." 
 Stubbs, Const. ffisf.,vo\. i. p. 171. 
 
 4 E. Chron., a. 626. 
 
 5 " It is probable that from the ear- 
 liest times Kent had at least two kings, 
 whose capitals were respectively Can- 
 terbury and Rochester, the seat of two
 
 III.] THE TEUTONIC CONQUEST OF BRITAIN. 147 
 
 long period of struggle did Bernicia and Deira finally unite 
 in the kingdom of Northumbria. 1 
 
 Such being the principle upon which the early kingdoms Theheptar- 
 coalesced in the formation of the heptarchic states, the ques- doms"aifd 
 tion naturally arises as to the form and structure of the na- the w ! tena ' 
 
 gemot. 
 
 tional assemblies of these aggregated states. The primitive The rim| 
 Teutonic conception of an assembly, whether local or na- tive nation- 
 tional, rested upon one simple idea, and that was that every p^rdydeJ 
 freeman resident within a state or district had the right to ocratl> 
 appear and represent himself in the assembly or court of such 
 state or district. In the composition of the assemblies of the 
 early kingdoms there was no departure from primitive tradi- 
 tions. The townsmen met in tun-moot, the freemen of the shire 
 in shire-moot, while the whole people composed the state- 
 assembly or folk-moot. And even after the early kingdoms had 
 become bound up in larger aggregates they still firmly adhered 
 to the original principle, so far as the composition of their 
 own assemblies was concerned, without extending it to the 
 national assemblies of the aggregated states. That is to say, 
 if the right of all the people to attend in the assemblies of 
 the aggregated or heptarchic states continued to exist in the- 
 ory, it was not exercised in fact. The national assembly of in the hep- 
 an heptarchic state was not a folk-moot, but a witenagemot ; stItes C the 
 it was not a great tumultuary assembly composed of the ^emu 
 whole body of the people, but a small assembly composed of shrinks up 
 
 J ' J into a body 
 
 the great and wise men of the land, who met as councillors purely aris- 
 of the king. The only consistent theory upon which this tocratic - 
 changed condition of things can be explained is, that, as the 
 process of aggregation advanced, the limits of the greater 
 kingdoms so widened as to render a general attendance both 
 irksome and difficult, and for this reason the mass of the peo- 
 ple simply ceased to attend. 2 In this way assemblies purely 
 democratic in theory, without the formal exclusion of any 
 class, shrank up into assemblies purely aristocratic. The 
 representative principle existed, it is true, in the lower ranges 
 
 bishoprics." Kemble, Saxons in developed in his chapter (vi.) on the 
 
 Eng., vol. i. p. 148. Witenagemot, Saxons in England, vol. 
 
 1 For the history of Northumbria, ii. ; and as restated by Mr. Freeman, 
 
 see Green's Making of England, chap- Norman Conq., vol. i. pp. 67-71, and 
 
 ter vi. Appendix Q ; Comparative Politics, p. 
 
 8 This is the theory of Kemble as 232.
 
 148 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 The repre- 
 sentative 
 principle 
 not yet ex- 
 tended to 
 national 
 assemblies. 
 
 of organization, 1 but the idea had not yet sufficiently devel- 
 oped to be employed in national concerns. The time had 
 not yet come for the early kingdoms which afterwards be- 
 came shires to send representatives to a national parliament ; 
 that principle was destined to be the growth of later times. 
 Such was the origin and history of the witenagemot, whether 
 considered as the national assembly of an heptarchic state, 
 or as the national assembly of all the English when finally 
 united under the house of Cerdic. 
 
 1 In the representation of the townships in the courts of the hundred and the 
 shire.
 
 CHAPTER IV. 
 
 THE GROWTH OF NATIONAL UNITY. 
 
 I. DURING the century and a half that intervened between The ii m i ts 
 the middle of the fifth century and the end of the sixth, the f Teutonic 
 
 J conquest. 
 
 Teutonic invaders possessed themselves of all that part of 
 Britain which had been embraced within the limits of the 
 Roman Empire. 1 The same physical obstacles which had 
 shaped the advance of the Roman invader, shaped the ad- 
 vance of his Teutonic successor, and thus the limits of the 
 one became the limits of the other. The disconnected war- 
 bands, each under its own personal leader, unconsciously 
 united in the common design of driving the Celtic nation 
 slowly to the west. Those of the native race who did not 
 withdraw from the conquered soil were either absorbed or 
 exterminated. 2 In this way the eastern portion of Britain 
 became thoroughly heathen and Teutonic, while the western 
 still remained in the possession of the Romanized and Chris- 
 tianized Celts. Britain as a country never ceased to exist, Britain ^ , 
 however, until the invaders, through the results of two mem- country 
 
 never 
 
 orable battles, were able to dismember the British nation, and ceased to 
 to dissolve it into distinct groups of isolated peoples. By the " 
 battle of Deorham (577), the West Saxons under Ceawlin 
 won the Severn valley, and in this way cut off the Britons Deorham 
 in the southwestern peninsula from the main body of their 
 race. 8 By the battle of Chester (613) the Northumbrians, and ches . 
 under ^Ethelfrith, divided the district of country now known ter - 
 as Wales from the northern provinces of Cumbria and Strath- 
 clyde. 4 With the battle of Deorham the first period of con- 
 
 1 " It was not the island of Britain * E, CAron., a. 577 ; Guest, " Con- 
 
 which Engle and Saxon had mastered ; quest of Severn Valley," Archaol.Jour* 
 
 it was the portion of it which lay within nal, xix. p. 194 ; Green, Making of Eng^ 
 
 the bounds of the Roman Empire." p. 1 24. 
 
 Green, Making of England, p. 141. * Baeda, Hist. ccl., ii. 2 ; Making of 
 
 * This statement is repeated with the Eng., p. 235. 
 qualifications heretofore put upon it 
 See above, pp. n, 85.
 
 ISO 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Conquest 
 assumed a 
 more hu- 
 mane form. 
 
 Nature of 
 the early 
 settle- 
 ments. 
 
 Distribu- 
 tion of the 
 conquered 
 territory. 
 Settle- 
 ments of 
 the Jutes, 
 
 of the 
 Saxons, 
 
 of the 
 
 Engles. 
 
 quest came to a close ; with that event the period of pitiless 
 war and extermination gave way to a period of settlement. 
 The conquest was far from complete, it is true, but from that 
 time forth it assumed a new and more humane form ; the 
 conquered Welsh were suffered to remain upon the soil, not 
 as equals, but as men and citizens whose rights, to a limited 
 extent, were recognized by law. 1 The weakness of the Teu- 
 tonic attack upon Britain, the absence of a common design 
 among the invaders beyond that of winning the same land, 
 the stubbornness with which the invasion was resisted, the 
 difficult nature of the country itself, sufficiently explain the 
 slowness with which the land was won. As each separate war- 
 band or folk expelled or exterminated the native race within 
 a given area, the kindred warriors settled down upon the soil 
 with their wives, children, cattle, and slaves. 2 In this way the 
 -very slowness and thoroughness of the conquest made possi- 
 ble the character of the settlements that followed in its train. 
 The three invading tribes of Engles, Saxons, and Jutes 
 divided the conquered area among themselves in very unequal 
 proportions. The Jutes, who were the first to establish a 
 permanent Teutonic settlement in Britain, founded only the 
 kingdom of Kent, and a small principality embracing the Isle 
 of Wight and a part of Hampshire. 8 All the remaining 
 English territory south of the Thames, together with some 
 districts to the north of that river, was occupied by the three 
 kingdoms of the South, East, and West Saxons. North of 
 the Thames lay the three great kingdoms of the Engles. 4 In 
 the eastern peninsula, between the fens and the German 
 Ocean, the Engles settled down thickly upon the soil ; there 
 the Northfolk and the Southfolk united in founding the king- 
 dom of East Anglia. 6 Between the H umber and the Forth 
 lay the realm of the Northumbrians, which arose out of the 
 union of Bernicia and Deira. 6 In Central Britain the West 
 
 1 " The Welshman was acknowledged 
 as a man and a citizen ; he was put 
 under the protection of the law ; he 
 could hold landed property ; his blood 
 had its price, and his oath had its as- 
 certained value." Freeman, Norm. 
 Cong., vol. i. p. 23, citing Laws of Ine, 
 2 3. 24, 32, 33. 40, 54, 74, in Thorpe's 
 Laws and Inst., vol. i. pp. 119-149. 
 
 2 Stubbs, Const, Hist., vol. i. p. 64. 
 
 8 E. Chron., a. 449 ; Baeda, Hist. Eccl. t 
 lib. i. c. 15 ; Guest, E. E. Settlements in 
 South Britain, p. 43 ; Making of Eng* 
 land, pp. 26, 149. 
 
 * Freeman, Norm. Cong., vol. i. pp. 
 16. 17. 
 
 6 Kemble, Saxons in Eng., vol. ii. p. 3, 
 
 8 Finally united by Oswiu, 651.
 
 IV.] THE GROWTH OF NATIONAL UNITY. 151 
 
 Engle, whose limits became a march or border-land against 
 the Welsh, established the kingdoms of the Mercians, or men 
 of the March. 1 
 
 The disunited Teutonic settlers in Britain, who are spoken Formation 
 of in the very earliest records as belonging to " the English tarchlc hep ' 
 kin," must have been conscious, from an early period, of w^ " 13 - 
 the possession of common blood, common speech, common 
 faith, and common social and political institutions. The only 
 differences which can be discovered among the various peo- 
 ples who joined in the conquest "are differences of dialect, 
 or distinctions in the form of a buckle or the shape of a grave 
 mound. 2 And yet it is quite certain, in the light of the later 
 evidence, that there was a perfect absence of anything like 
 cohesion or national unity in the mass of separate war-bands 
 or folks that encamped upon the conquered soil. As the 
 conquest advanced, as definite districts of country were 
 permanently secured, and as the groups of warriors within 
 such districts felt the need of drawing together under a per- 
 manent instead of a temporary leadership, the heretoga or The war- 
 war-leader was advanced to the dignity of a king. From C omesking. 
 the military organization of the host were derived the first 
 forms of civil organization. In this way were formed the 
 numberless early kingdoms or petty states into which the 
 settlers were originally subdivided. 3 For centuries one of 
 the greatest obstacles to a union of the incoherent mass arose 
 out of the tenacity with which the German instinct preserved 
 the identity of these early settlements, and out of the faith- 
 fulness of each group to its ancient boundaries and to its 
 tribal king. 4 But before the historic period begins, these 
 early settlements or petty states have ceased to exist as inde- 
 pendent communities, they have taken one step in the gether in 
 
 r * . seven or 
 
 direction of union, they have become bound up in the seven eight larger 
 or eight larger aggregates generally known as the heptarchic a| 
 kingdoms. These kingdoms are distinctly developed by the 
 time of the conversion, when, for the first time, we are able 
 
 1 Green, Making of Eng., p. 82 and 8 See above, p. 89. 
 
 note. * " Whilst the kin of the kings sub- 
 
 2 Green, Making of Eng., p. 154, cit- sisted, and the original landmarks were 
 ing Wright ( The Celt, the Roman, and preserved, neither religion, nor common 
 the Saxon, pp. 481, 482), who " considers law, nor even common subjection, suf- 
 the round buckles as peculiar to the ficed to weld the incoherent mass." - 
 Jutes, the cross-shaped to the Engle." Stubbs, Const, ffist., vol. i. p, 170.
 
 152 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [Cn. 
 
 Survival of 
 ancient 
 boundaries 
 and tribal 
 kings. 
 
 Relation of 
 the heptar- 
 chic king- 
 doms to 
 each other. 
 
 The bret- 
 waldas, 
 Palgrave's 
 view of 
 their char- 
 acter. 
 
 Baeda. 
 
 to grasp a definite idea of the form which English society in 
 Britain had assumed. 1 The internal structure of each hep- 
 tarchic kingdom clearly reveals the history of its formation. 
 The prolonged existence of petty kings in each under-king- 
 dom or principality, the distinctness of the ancient tribal 
 boundaries, disclose the fact that each heptarchic kingdom 
 represented, in some form, a union or confederacy of older 
 states. 2 
 
 2. By reason of certain errors and misconceptions upon 
 the part of the older historians, the relations really existing 
 between the heptarchic kingdoms have been, until very 
 modern times, seriously misunderstood. According to the 
 old theory, these kingdoms were bound together in a regu- 
 lar confederacy, whose affairs were regulated by an organ- 
 ized and systematic central authority, at whose head was 
 placed, by election or otherwise, a recognized national chief. 
 This chief or bretwalda has been presented to us by the 
 ingenuity of Sir Francis Palgrave as an emperor of Brit- 
 ain, and as the bearer of the imperial titles of the Roman 
 state. 3 But this whole fabric of error has at last broken 
 down under the brilliant and incisive criticism of Kemble, 
 who was the first to perceive how the original authori- 
 ties had been misconceived and misunderstood. The whole 
 theory of the bretwaldadom rests upon a passage in Baeda, 
 and upon one founded upon it in the Chronicle under the 
 year 827. Baeda 4 tells us that ^Ethelberht of Kent "was 
 indeed but the third among the kings of the Angle race who 
 ruled over all the southern provinces, which are separated 
 from those of the north by the river Humber and its contig- 
 uous boundaries ; but the first of all who ascended to the 
 kingdom of heaven. For the first of all who obtained this 
 supremacy (imperium) was yElla, king of the South Saxons ; 
 the second was Caelin, king of the West Saxons, who in their 
 tongue was called Ceawlin ; the third, as I have said, was 
 /Ethelbert, king of the men of Kent ; the fourth was Raed- 
 
 1 " When written history first shows 
 us the new Britain in the pages of 
 Baeda, we find the original mass of 
 folks and war-bands already gathered 
 together in some eight or nine distinct 
 peoples," etc. Green, Making of Eng. y 
 p. 153 ; Baeda, ffist, Eccl., i. 15. 
 
 2 Kemble, Saxons in Eng., vol. ii. 
 pp. 2-5. 
 8 Palgrave, Eng. Commonw., vol. i 
 
 Hist. cct., ii., v.
 
 IV.] THE GROWTH OF NATIONAL UNITY. 153 
 
 wald, king of the East Anglians, who even during the life of 
 ^Ethelbert obtained leadership (ducatuni) for his nation," etc. 
 First imperium and then ducatum are the words that Baeda 
 uses to describe the supremacy, predominance, or leadership 
 which he was striving to explain. The Chronicler, when he The Chron- 
 reached his entry for the year 827, wrote : " In this year 1C 
 king Ecgberht conquered the Mercian kingdom and all that 
 was south of Humber; and he was the eighth king that was 
 bretwalda." Then, after copying Baeda's list of seven, from 
 ^Ella to Oswiu, he adds at the close of it, " the eight was 
 Ecgberht, king of the West Saxons." l Although this pas- 
 sage occurs in six different manuscripts, in one only, the 
 Winchester version, does the spelling bretwalda occur: "of 
 the remaining five, four have bryten-walda or -wealda, and 
 one breten-anweald, which is precisely synonymous with 
 bry ten wealda. " 2 It required the acuteness of Kemble to Kembie's 
 perceive that the reading bretwalda was a false one, and criticism. 
 that the meaning attached to it of ruler of Britain or of 
 Britons was not the real meaning. 3 Adopting the reading 
 brytenwealda, a word compounded of wealda, a ruler, and 
 the adjective bry ten, which, in conjunction with such a word 
 as wealda, signifies nothing more than extensive, powerful, 
 he arrived at the conclusion that brytenwealda really indi- 
 cated nothing more than a powerful king, whose dominion 
 was widely extended. After a very careful and exhaustive 
 review of the argument of Kemble, Mr. Freeman thus ex- Freeman's 
 presses his conclusion as to the character of the bretwal- view< 
 dadom : " I believe then there was a real, though not an 
 abiding or a very well defined, supremacy, which was often, 
 perhaps generally, held by some one of the Teutonic princes 
 of Britain over as many of his neighbors, Celtic and Teu- 
 tonic alike, as he could extend it over." 4 Mr. Green, in re- Green's 
 viewing this conclusion, has said : "The little word " Celtic" view> 
 in this very cautiously expressed passage is, no doubt, big 
 enough to serve as a base for the theory of an imperial 
 
 1 Green, Making of Eng., p. 298, I doubt whether his correction of the 
 note i. etymology is of much strictly historical 
 
 2 Kemble, Saxons in Eng., vol. ii. p. importance." Freeman, Norm. Conq., 
 20. vol. i., Appendix, note B, p. 367. 
 
 8 "As a piece of Teutonic scholar- * Norm. Cong., vol. i. pp. 16-19, ^d 
 ship Mr. Kemble is probably right, but Appendix, note B, pp. 306-376.
 
 154 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Supremacy 
 of the bret- 
 waldas only 
 a tempo- 
 rary and 
 uncertain 
 overlord- 
 ship. 
 
 National 
 unity the 
 joint work 
 of the 
 church and 
 the sword. 
 
 The king- 
 doms of 
 Northern, 
 Central, 
 and South- 
 ern Britain. 
 
 The three- 
 fold divi- 
 sion only 
 broken 
 down after 
 a struggle 
 of two cen- 
 turies. 
 
 character which Mr. Freeman attributes to the rule of the 
 later West Saxon kings through their supremacy over the 
 Celtic people about them. Such a theory in the case of 
 the later monarchy may be true or false ; but in applying it 
 to the kings in Baeda's list we seem to me to be going beyond 
 the evidence we possess." 1 It is, therefore, safest to define 
 the supremacy of bretwaldadom attained by the several 
 Teutonic princes in Britain, before the heptarchic kingdoms 
 were united under the final supremacy of Wessex, to be 
 nothing more than a fluctuating and uncertain overlordship, 
 which any one of the Teutonic kings might acquire and hold, 
 as long as he was able, over any number of the other Teu- 
 tonic states. 
 
 When written history first reveals to us, through the pages 
 of Bseda, the form which the new society in Britain had as- 
 sumed, the seven or eight aggregates, generally known as the 
 heptarchic states, were even then manifesting a tendency to 
 group themselves in three great masses, soon to be known as 
 the kingdoms of Northern, Central, and Southern Britain. 2 
 The limits of the northern kingdom, the realm of the North- 
 umbrians, stretched from the Humber to the Forth. The 
 southern kingdom of the West Saxons extended from the 
 line of Watling Street to the coast of the Channel. Between 
 the two lay the kingdom of Mid-Britain, destined to become 
 most powerful under the leadership of the Mercian kings ; 
 when ^thelfrith in 593 became king of Northumbria, it is 
 probable that this threefold division was clearly established. 3 
 How to destroy this threefold division so as to unite the 
 whole English nation under the rule of a single overlord, was 
 a problem which required for its solution a period of more 
 than two hundred years. During this period two forces, 
 widely different in character, were constantly working in the 
 same direction ; and through their joint efforts national unity 
 was at last attained. These two forces were the church and 
 the sword. The organizing and centralizing power of the 
 one made possible and enduring the final triumph of the 
 other. 
 
 4. In dealing with the early history of the English people 
 
 1 Green, Making of Eng.^ p. 
 note. 
 
 299, 
 
 2 Ibid., p. 153. 
 Ibid., p. 212.
 
 IV.] THE GROWTH OF NATIONAL UNITY. 155 
 
 the fact must be constantly borne in mind that the Teutonic The con- 
 
 conquest of Britain differed in two material particulars from 
 
 all other Teutonic conquests made within the limits of the ^"national 
 Roman Empire. In every other province the conquerors church. 
 gradually accepted both the language and the religion of the 
 conquered. 1 But in Britain they accepted neither, there 
 they clung with tenacity to their native speech and to their 
 ancient faith. A sullen spirit of national hate seems to have 
 forbidden any attempt upon the part of the British Christians 
 to preach the gospel to their heathen neighbors. For a cen- For a cen- 
 tury and a half after the conquest began the invaders of Brit- haH the* 
 ain remained heathen. By the intervention of this unbroken C 9 n 1 ? l !? r ? rs 
 
 * of Britain 
 
 barrier of English heathendom the Celtic Christians were en- remain 
 tirely isolated and cut off from the continental churches of 
 the West. In order to break down this barrier, so as to bring 
 Britain once more within the domain of the Christian world, 
 Gregory sent forth a band of missionaries to reconquer for 
 Rome what the legions had given up. 2 
 
 When Augustine landed in 597 upon the shores of Kent Latin 
 he found the power of its king, ^Ethelberht, the third in the a 
 line of bretwaldas, supreme in Mid-Britain. 3 The Kentish i uests - 
 overlord, who had already married a Christian wife among the 
 Franks, received the Roman missionaries with the tolerant 
 spirit of his race, and in a short time ^Ethelberht and his 
 people were converted to the new faith. Kent thus became Kent the 
 the first Christian kingdom, and Canterbury, the first city cen- tianking 
 tre established by the conquerors, finally became the spiritual dom * 
 metropolis of the English nation. 4 But the conversion of 
 Kent entirely failed to satisfy the comprehensive plans of 
 Pope Gregory. Four years after the landing of the first mis- 
 sion, Mellitus, Justus, and Paulinus, with other missionaries, 
 arrived from Rome bearing a letter to Augustine in which 
 was marked out a plan of ecclesiastical organization designed 
 to embrace the whole island. 5 In this scheme London and 
 York, which had been the principal cities of Roman Britain, 
 
 1 See above, p. 83. stroyed. The new England was ad- 
 
 2 Baeda, Hist. Eccl., \. 2, 5, 26. mitted into the older commonwealth of 
 8 " But more than the tongue of nations." Green, Making of Eng., 
 
 Rome returned with Augustine. Prac- p. 215. 
 
 tically his landing renewed that union * Freeman, Norm. Conj., vol. L p. 
 
 with the Western world which the 19. 
 
 landing of Hengest had all but de- 6 Baeda, Hist. Eccl., i. 29.
 
 1 5 6 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Gregory's 
 plan of or- 
 ganization : 
 London 
 and York. 
 
 jEthelberht 
 undertakes 
 to propa- 
 gate the 
 faith. 
 
 Conversion 
 of the East 
 Saxons. 
 
 East An- 
 glians re- 
 ject the 
 new faith. 
 
 Eadwine of 
 Northum- 
 
 bria; 
 
 his conver- 
 sion fol- 
 lowed by 
 that of the 
 
 Deirans. 
 
 were designated as the centres of two archbishoprics, to each 
 of which were to be annexed twelve suffragan sees. In a let- 
 ter which Gregory addressed at the same time to ^Ethelberht, 
 the Kentish overlord was exhorted to spread the gospel 
 among all peoples subject to his sway j 1 and in 604 ^thel- 
 berht entered upon the task of extending the new faith 
 across the borders of Kent into the dependent kingdoms of 
 which he was overlord. In this year Justus was set as bishop 
 in Rochester to rule a diocese whose limits mark what is sup- 
 posed to have been a dependent realm of West Kent. In 
 the same year Mellitus went to preach to the East Saxons, 
 whose king Saeberct was closely allied to ^Ethelberht ; and 
 so great was the success of the mission that Saeberct and his 
 people were at once received into the fold of Christ. 2 And, 
 after the conversion of Essex, Rasdwald, the king of the East 
 Anglians, was induced by his overlord ^Ethelberht to become 
 a Christian. Before the death of ./Ethelberht, however, in 
 616 the overlordship of Mid-Britain had passed to Raedwald 
 himself, who at once threw off the new faith which his own 
 people had steadily refused to accept. 3 In the year in which 
 Raedwald died (617), the kingdom of Northumbria, which the 
 fall of ^Ethelfrith had for a moment dismembered, was re- 
 united under the Deiran house of JElla in the person of Ead- 
 wine. 4 In the nine years which followed his accession, Ead- 
 wine extended his overlordship over every English kingdom 
 except Kent, to whose king he was already bound by ties of 
 the closest character. In 625 Eadwine was married to the 
 Kentish princess ^Ethelburh, who came to the court of her 
 Northumbrian lord attended by the priest Paulinus as her 
 chaplain. After two years of hesitation Eadwine consented 
 to accept the faith that Paulinus and ^Ethelburh pressed upon 
 him, and the people of his own kingdom of Deira followed 
 the example of their king. 6 The zeal of Eadwine failed, how- 
 ever, to bring about the conversion of the East Anglians, who 
 were not Christianized until several years afterwards, through 
 the efforts of the Burgundian Felix. 6 But even in Northum- 
 bria the work of Paulinus was destined to end in sudden dis- 
 
 1 Baeda, Hist. Ecd., i. 32. * E. Ckron., a. 617. 
 
 Ibid., ii. 3. 6 Baeda, Hist. Ecd., ii. 9, 10, 12, 13; 
 
 8 Ibid., ii. 15; Green, Making of Making of Eng., pp. 251-257. 
 
 Eng., p. 229, note 2. 6 Baeda, Hist. Eccl., ii. 15.
 
 IV.] THE GROWTH OF NATIONAL UNITY. 157 
 
 aster. Six years after the Northumbrian witan had accepted 
 the creed of Christ, Eadwine was slain at Hatfield by Penda, Pendaand 
 the heathen king of the Mercians. Upon Eadwin's fall Pau- reaction. er 
 linus fled with vEthelburh and her two younger children back 
 to Kent ; l and with their flight the effort of the Kentish 
 church to Christianize the north came to an end. Its imper- 
 fect work soon disappeared before the heathen reaction which 
 at once set in. Latin Christianity had so far accomplished 
 nothing permanent outside of Kent. 2 The spiritual conquest 
 of the north was yet to be achieved by preachers who were 
 to come from a missionary outpost of the Celtic church. 
 
 During the Roman occupation of Britain, Ireland escaped Celtic 
 invasion ; it was never drawn within the limits of the em- 
 pire. Agricola expressed the opinion that a single legion <i uests - 
 with a band of auxiliaries would be sufficient to reduce it to 
 subjection, but his opinion was never put to the test of a 
 practical experiment. 3 And so the primitive tribal life which Tribal life 
 the Celts of Ireland had brought with them from the cradle ol 
 of the Aryan race went on untouched by the influence either 
 of Roman law or Roman municipal institutions. The Irish 
 nation consisted of groups of tribes, connected by the ties of 
 kinship, and loosely bound together under a graduated sys- 
 tem of tribal government. Traces of anything like a perma- 
 nent national sovereignty are of the faintest kind. 4 The 
 church which Patrick founded in the midst of this primitive St. Patrick, 
 tribal society naturally moulded its organization upon the 
 peculiar forms of social and political life about it. 6 In those Elsewhere 
 countries in which Roman law and municipal institutions had 
 preceded its coming the church, modelling its organization 
 upon the basis of the civil divisions, assumed a form at once pal ; 
 national and episcopal. Through the same process the Irish in Ireland 
 church became tribal and monastic. 6 But what the Irish Iribau'nd 
 church lacked in compact organization it made up in a fiery monastlc - 
 missionary zeal which made it famous throughout the world. 
 In the last half of the sixth century the Irish missionary 
 Columba established in the Isle of Hii or lona, off the west 
 
 1 E. Ckron., a. 633; Baeda, Hist. * See Maine, Early Hist. o/fnst.,pp. 
 Eccl., ii. 20. ii, 132. 
 
 2 Green, Making of Eng., pp. 265, 5 Todd, Life of St. Patrick, Introd. ; 
 269. Green, Making of Eng., p. 276. 
 
 Tac., Agric^ 24. 6 Ibid., p. 278.
 
 158 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 coast of Scotland, one of those monastic and tribal commu- 
 nities peculiar to the Celtic church as a mission station for 
 Celtic mon- the conversion of the northern Picts. 1 In this monastery at 
 HiT 7 Hii the children of ^Ethelfrith found a shelter in the dark 
 days which followed their father's fall. 2 Eadwine, who suc- 
 ceeded ^Ethelfrith upon the throne of Northumbria, after a 
 reign of fifteen years, fell before Penda at Hatfield in 633 ; 
 and upon his fall the realm of Northumbria was for a time 
 broken up. 3 After two years of confusion had passed by, 
 Oswald Oswald, the second son of ^Ethelfrith, returned from Hii, 
 and, placing himself at the head of his people, reestablished 
 the kingdom under the sway of his own royal house. As 
 soon as Oswald was secure upon the throne, he was followed 
 Missiona- by missionaries from Hii who came full of zeal for the con- 
 HH concert version of his realm. In 635 Aidan fixed his bishop's stool 
 Northum- j n fa Q j s j e o f Lindisfarne, 4 on the coast of Northumbria, 
 where a famous monastery was soon established. Through 
 the efforts of the Irish missionaries Northumbria became per- 
 manently Christian. 6 And in the very year in which the 
 Conversion Celtic Aidan fixed his see at Lindisfarne the conversion of 
 Saxons. the West Saxons was brought about by the preaching of 
 Birinus, 6 a missionary who had found his way into Wessex 
 from Northern Italy. When, in 642, Oswald was slain in the 
 battle of the Maserfeld by Penda, his brother Oswiu came 
 from Hii to succeed him upon the throne, 7 and to unite the 
 two states of Northumbria in a union that was never after- 
 wards to be broken up. Ten years after the accession of 
 Oswiu the Christian house of Northumbria became allied with 
 the Pagan house of Mercia by the marriage of Penda's son 
 Peada to Oswiu's daughter. Peada was at once baptized by 
 Aidan's successor, and the priests who returned with him 
 preached, not only among his own people, but, by Penda's 
 P errniss ion, among the Mercians themselves. 8 In the follow- 
 dansand i n g year the East Saxons, who had thrown off Christianity 
 ons. in the days of Mellitus, received the faith anew through the 
 
 1 Adamnan, Life of Columba, ed. * Baeda, Hist. Eccl., iii. 3. 
 
 Reeves, p. 434. As to the nature of 6 Green, Making of Eng., p. 269. 
 
 these communities see Sir Henry 8 Baeda, Hist. Eccl,, iii. 7. 
 
 Maine, Early Hist, of Inst., p. 226. 7 Ibid., iii. 14. 
 
 a Baeda, Hist. Eccl., iii. 3. 8 ibid., iii. ai. 
 
 8 E. Chron., a. 633; Baeda, Hist. 
 Eccl., ii. 20.
 
 IV.] THE GROWTH OF NATIONAL UNITY. 159 
 
 preaching of Cedd, a missionary sent among them from Oswiu 
 
 at the request of their king Sigeberht. 1 At the battle of the Battle of 
 
 Winwsed in 655, between the forces of Mercia and Northum- 
 
 bria, Penda was slain, 2 and his kingdom for a time broken up. 
 
 By the result of that battle Oswiu became supreme in Brit- English 
 
 ain as no English king had been since the days of Eadwine ; 
 
 and with that event the broken power of English heathenism 
 
 passed forever away. 3 The worship of Woden and Thunder 
 
 was now everywhere extinct, except in the petty and isolated 
 
 kingdom of the South Saxons, who accepted the faith some 
 
 years afterwards at the hands of Wilfrid. 4 
 
 With the completion of the work of the conversion, the Synod of 
 serious question at once arose whether the English nation, as 664. 1 ' 
 a whole, should accept Christianity in its Celtic or its Latin 
 form. Should the infant church throw itself into a state 
 of isolation by an alliance with the Celtic communions, which 
 in certain particulars were considered heretical, or should it 
 bring itself into relations with the rest of Western Christen- 
 dom by an acceptance of the thoughts and forms of Rome ? 
 In the Synod of Whitby called by Oswiu in 664 for the set- English 
 tlement of this controversy, it was determined that the nas- cepts Chris- 
 
 cent English church should not attempt by opposing Rome 
 
 to fight against the world. 6 form - 
 
 Although each one of the heptarchic kingdoms was Chris- Organiza- 
 tianized from a distinct source, the general aspects of the English* 16 
 missionary work were everywhere the same. The conver- Theodore. 
 sion of the king generally preceded the acceptance of the 
 faith upon the part of his people, whereupon the missionary 
 bishop became the royal chaplain and the kingdom itself his 
 diocese. 6 In this way the heptarchic divisions of the coun- 
 try reappeared in the earliest forms of organization which the 
 church assumed. 7 But it was no part of the plan of Rome to 
 
 1 Basda, Hist. Eccl., iii. 22. 6 " Accordingly the conversion of 
 
 2 Ibid., ii. 24 ; E. Chron., a. 6515. a king was generally followed by the 
 8 " The battle of the Winwaed had establishment of a see, the princes be- 
 
 proved a delusive triumph for North- ing apparently desirous of attaching a 
 
 umbria ; but it was a decisive victory Christian prelate to their comitatus, 
 
 for the cross. With it all active re- in place of the Pagan high-priest who 
 
 sistance on the part of the older hea- had probably occupied a similar posi- 
 
 thendom came to an end." Green, tion. Saxons in England^ vol. ii. p. 
 
 Making of Eng., p. 301. 360. 
 
 * Baada, Hist. Etcl. t iv. 13. 7 " It might have seemed by the 
 
 * Ibid., iii. 25, 26 , Green, Making of middle of the century that the hep- 
 Eng., p. 313. " tarchic divisions were to be reproduced
 
 i6o 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 He arrives 
 in Kent in 
 669. 
 
 " He was 
 the first 
 of the 
 
 archbishops 
 whom the 
 whole Eng- 
 lish church 
 consented 
 to obey." 
 
 Annual 
 councils at 
 Clovesho. 
 
 Theodore 
 breaks up 
 the great 
 dioceses. 
 
 permit the bishoprics thus established to remain long in a 
 state of isolation. In 669 Theodore of Tarsus, appointed by 
 Pope Vitalian to the vacant see of Canterbury, arrived in 
 Kent 1 with the specific purpose of organizing the English 
 church so that it could be brought into definite relations with 
 the see of Rome. At the coming of Augustine, seventy-two 
 years before, the division of the heathen English into the three 
 kingdoms of Northern, Central, and Southern Britain was al- 
 ready clearly defined. Theodore upon his arrival found the 
 political condition of the country substantially unchanged. 
 But spiritually a great change had taken place, the heathen 
 English had become Christian. It was possible, therefore, 
 for Theodore, as primate, to deal with the English nation as 
 a whole. The first three years which followed his coming 
 he passed in visiting all parts of the island, and he was every- 
 where received with welcome and reverence. " He was the 
 first of the archbishops whom the whole English church con- 
 sented to obey." 2 After settling all personal disputes among 
 the bishops, Theodore assembled them, together with their 
 leading clergy, in a council which was held at Hertford in 
 673. 3 By the decrees of this council each bishop with his 
 clergy was restricted to his own diocese, and, what was far 
 more important, it was ordained that the episcopate should 
 meet annually in council at Clovesho. 4 Soon after the meet- 
 ing of the council of Hertford, Theodore entered upon the 
 execution of his plans for the permanent organization of the 
 church, which involved an increase in the episcopate, and a 
 breaking up of the great dioceses into smaller sees. 6 The 
 last part of the work was carried out by a falling back upon 
 the older tribal boundaries which the English settlers were 
 so careful to preserve. The see of East Anglia was broken 
 up into the dioceses of the North-folk and the South-folk, 6 
 while Mercia and Northumbria were divided in the same 
 
 in the ecclesiastical ones." Stubbs, 
 Const, Hist., vol. i. p. 217. 
 
 1 Baeda, Hist. Eccl., iv. i. 
 
 2 " Isque primus erat in archiepis- 
 copis, cui omnis Anglorum Ecclesia 
 manus dare consentiret." Baeda, Hist. 
 Eccl., iv. 2. Kemble, Saxons in Eng- 
 land, vol. ii. p. 364. 
 
 8 Baeda, Hist. EccL, iv. 5. 
 
 * Haddan and Stubbs, Councils, vol. 
 
 iii. pp. 118-122; Stubbs, Const, Hist., 
 vol. i. p. 218. 
 
 6 " It was characteristic of the care 
 with which Theodore sought an his- 
 torical foundation for his work that 
 even in their division he only fell 
 back on the tribal demarcations which 
 lay within the limits of each kingdom." 
 Green, Making of England, p. 332. 
 
 6 Baeda, Hist. Eccl., iv. 5.
 
 IV.] THE GROWTH OF NATIONAL UNITY. l6l 
 
 way. 1 Wessex alone of the larger kingdoms resisted ; but 
 a few years after Theodore's death it yielded, and the whole 
 nation was then grouped in sixteen sees subject to the met- Primacy of 
 ropolitan primacy of Canterbury. Within a short time af- 
 terwards, this arrangement was so modified as to allow to 
 York the position of an archbishopric, with three suffragan York, 
 sees. By the final subdivision of Wessex, under Eadward Theodore's 
 the Elder, the plan of Theodore was at last carried out, p^d 00 " 1 " 
 and the territorial organization of the dioceses as then fixed under Ead- 
 
 , . ward the 
 
 has remained, with a few minor changes, to the present Eider. 
 day. 2 
 
 Through the results of the work of Theodore the disunited The unity 
 English people found it possible, for the first time, to draw church fore- 
 together in obedience to a recognized central authority. A thelmUy 
 people who had never yet been able to realize a sense of po- 
 litical unity under the sway of a single overlord were now 
 able to realize a sense of ecclesiastical unity under the met- 
 ropolitan primacy of a truly national church. Representa- 
 tive men from every part of the English nation had never 
 yet assembled in a single witenagemot for the purpose of 
 political legislation. But the existence of such an assembly 
 was now clearly foreshadowed in the annual meetings of the 
 episcopate for the purpose of ecclesiastical legislation. The 
 early councils of the church were the first national gather- The church 
 ings in which the English nation was ever represented as a the first 
 whole. The infant church thus became the nursery of a na- ^ther 
 tional spirit which finally ripened into a complete sense of 
 national consciousness. The unity of the church led the 
 way to the unity of the state, as the national councils of the 
 church led the way to national witenagemotes. 8 
 
 5. After the heptarchic states had grouped themselves in 
 the three great kingdoms of Northern, Central, and South- 
 ern Britain, each kingdom attempted in turn to work out 
 the problem of national unity by so extending its supremacy 
 
 1 As to the division of Mercia, see 8 " The unity of the church in Eng- 
 
 Haddan and Stubbs, Councils, vol. iii. land was the pattern of the unity of 
 
 pp. 127-130. As to the work in North- the state; the cohesion of the church 
 
 umbria, see Eddi, Life of Wilfrid, c. was for ages the substitute for the co- 
 
 24 ; Green, Making of England, pp. hesion which the divided nation was 
 
 333, 347, 366. unable otherwise to realize." Stubbs, 
 
 * Stubbs, Const. Hist., vol. i. p. 218, Const. Hist., vol. i. p. 245. See, also, 
 
 219. Green, Making of England, p. 371.
 
 1 62 
 
 THE OLD-ENGLISH COMMONWEALTH 
 
 [CH. 
 
 The strug- 
 gle for po- 
 litical su- 
 premacy 
 between 
 Northum- 
 bria, Mer- 
 cia, and 
 Wessex. 
 
 Eadwine 
 the first 
 Northum- 
 brian bret- 
 walda. 
 
 Over- 
 thrown at 
 Hatfield 
 in 633. 
 
 Oswald re- 
 establishes 
 Northum- 
 brian su- 
 premacy. 
 
 over all the rest as to bring the whole English nation under 
 the sway of its own royal house. The history of this strug- 
 gle for supremacy occupies a period of more than two hun- 
 dred years. The first effort in the struggle was made by 
 Northumbria, a realm which arose at the end of the sixth 
 century out of the union of Bernicia and Deira. 1 Upon the 
 fall of ^Ethelfrith at the battle of the Idle in 617, the Ber- 
 nician house of Ida gave way for a time to the Deiran house 
 of ^Ella, whose representative, Eadwine, at that time as- 
 cended the Northumbrian throne. 2 In the nine years which 
 followed his accession, Eadwine, the first Northumbrian bret- 
 walda, extended his supremacy over all the English king- 
 doms except Kent, to whose royal house he became allied in 
 625 by a marriage with the Christian princess yEthelburh. 3 
 During the overlordship of Eadwine the power of Northum- 
 bria reached its height ; and through the efforts of Paulinus 
 and yEthelburh, Deira became Christian. 4 But the fabric 
 which Eadwine had built up broke down in 633 at the battle 
 of Hatfield. where Eadwine was defeated and slain by Penda, 
 the heathen king of the Mercians. 5 Upon Eadwine's fall 
 Northumbria was broken up, and so remained until Oswald, 
 the second son of ^Ethelfrith, returned from Hii to reestab- 
 lish the kingdom under the line of Ida. During the short 
 reign of Oswald the Northumbian supremacy was reestab- 
 lished, and the whole realm became permanently Christian 
 under the teaching of missionaries from the Celtic church. 6 
 The power of the Christian Oswald went down at the 
 Maserfeld in 642 before the heathen Penda, as the power 
 of Eadwine had gone down at Hatfield nine years before. 7 
 After this overthrow Northumbria was again broken up, and 
 for a time Penda's power in Britain was supreme. Upon 
 the fall of Oswald his brother Oswiu succeeded him as king 
 of the Bernicians, over whom he ruled for the first nine 
 years of his reign. 8 But in due time, by an alliance between 
 
 1 Green, Making of Eng. t p. 211. 
 
 a E. Chron., a. 617. 
 
 8 Baeda, Hist. Eccl., ii. 9. 
 
 * " Though Paulinus baptized among 
 the Cheviots as on the Swale, it was 
 only in Deira that the Northumbrians 
 really followed the bidding of their Eccl., Hi. 9. 
 
 8 Green, Making of Eng. t p. 288. 
 
 king." Green, Making of Eng., p. 
 257. 
 
 * Baeda, Hist. Eccl., ii. 20 ; E. CAron., 
 a. 633. 
 
 Baeda, Hist. Eccl., iii. i, 3. 
 
 7 E. Chron., a. 642; Baeda ; Hist.
 
 IV.] THE GROWTH OF NATIONAL UNITY. 163 
 
 Oswiu and the daughter of Eadwine, Deira and Bernicia were 
 joined in a union never henceforth to be dissolved. 1 At the unites 
 head of the united people of Northumbria, Oswiu at last grew 
 strong enough to break the power of Penda, who was de- 
 feated and slain at the battle of the Winwaed in 655.2 With 
 the fall of Penda, English heathenism came to an end, and 
 Oswiu became one of the greatest of the bretwaldas. Under 
 Oswiu and his son Ecgfrith, Northumbria continued to be a 
 great state, but its claim to predominance really ends in 659 Northum . 
 with the revival of the Mercian power under the leadership brfa gives 
 of Wulfhere. After that event Northumbria abandoned the Mercia! 
 struggle for supremacy to Mercia and Wessex. 3 
 
 6. Just a century after the beginning of the overlordship supremacy 
 of Northumbria, the Christian Mercians appear as a great of Merci * 
 power in Mid-Britain under the leadership of their aggres- 
 sive king ^Ethelbald, who ascended the Mercian throne in ^theibaid. 
 718.* As long as the victorious Ine remained king of the 
 West Saxons, his realm remained free from Mercian aggres- 
 sion ; but, in the confusion which followed Ine's voluntary 
 abandonment of the crown, ^Ethelbald overran the whole 
 of Wessex during a war which seems to have terminated in 
 733. 6 For twenty years after that event, the overlordship 
 of Mercia was recognized by all the English south of the 
 Humber. But the Mercian supremacy was broken at last by Mercian 
 the West Saxons in 754,8 upon the field of B urford, where 3^$ 
 ^Ethelbald and his subject hosts were put to flight. In 758 wessexin 
 ^Ethelbald was succeeded by his great kinsman Offa, who 
 entered with zeal upon the task of rebuilding the Mercian Offa re- 
 power. He more than once invaded Wessex; and Kent, Mercian 6 
 East Anglia, Essex, and Sussex were brought more or less P wer - 
 under his sway. 7 Although the power of Offa, as king of 
 
 1 Green, Making of England, p. 289. 6 E. Chron., a. 752. From 752 to 
 
 a Baeda, Hist. Eccl., iii. 24. "The 849 (from the death of Baeda to the 
 
 strife between the creeds of Christ and reign of Ethelwulf), the entries of the 
 
 Woden was there finally decided ; the English Chronicle are wrong by two 
 
 Mercians embraced the religion of their years. See Stubbs, Roger of Hoveden, 
 
 neighbors, and Northumberland again preface to vol. i. p. Ixxxix. ; Freeman, 
 
 became the leading power of Britain." Norm. Cong., vol. i. p. 76, note 3 ; 
 
 Freeman, Norm. Cong., vol. i. p. 25. Green, Making of England, p. 184, 
 
 8 Green, Making of England, p. 298. note 4; Huntington, Hist. Angl. (Ar- 
 
 4 Cf. Freeman, Norm. Cong., vol. i. nold), p. 121. 
 
 p. 25. 7 Freeman, Norm. Cong., vol. i p. 
 
 5 E. Chron., a. 733 ; Green, Making 26. 
 of Eng., p. 384.
 
 164 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 the Mercians, rose high enough to tempt him to aspire to a 
 correspondence upon equal terms with Charles the Great, 
 he was never able to establish an overlordship over either 
 of the rival kingdoms of Northumbria and Wessex. Upon 
 
 Cenwuif. Offa's death in 796,* he was succeeded by Cenwulf, who 
 during a reign of twenty-five years managed to hold the 
 Mercian realm together, without being able to extend its 
 supremacy. 2 
 
 Final 7- The kingdom of the Gewissas, who became more widely 
 
 of P Wessex. known as the West Saxons, grew by degrees out of a small 
 settlement established on the coast of Hampshire by an 
 invading host led by the ealdormen, Cerdic and Cynric. 
 We learn from the Chronicle, which records every step 
 in the conquest of Wessex, that the first attack upon the 
 coast was made in 495, and that this was followed by 
 what seem to have been mere plundering raids in 501 and 
 508. Not until 5 14 was a landing made for the purpose of 
 permanent conquest. 3 After five years of successful warfare, 
 political organization took place, whereupon the ealdormen, 
 
 Cerdic and Cerdic and Cynric, were advanced to the dignity of kings of 
 
 Cynrk first ^ Q West Saxons. 4 A long pause then followed in the ad- 
 
 kings of or 
 
 the West vance of the invaders; for thirty years (520-552) they re- 
 mained within the limits of Hampshire. At the end of that 
 period the work of invasion was vigorously renewed, and 
 within the next twenty years the Gewissas overran an area 
 which roughly corresponds with that now embraced within 
 the shires of Wilts, Berks, Surrey, Oxford, Bedford, and 
 Bucks. 6 Wheeling then to the west, the invaders advanced 
 from the Wiltshire Downs to the conquest of the lower 
 
 Battle of Severn valley, which was won by the battle of Deorham in 
 577- 6 The conquerors, who then settled down on either side 
 
 cures the of the Severn in what is now Gloucestershire and Worcester- 
 
 Severn 
 
 valley. shire, took to themselves the local name of Hwiccas. But 
 the West Saxon advance soon received a terrible check 
 
 1 E. Chron., a 794 (6). 4 E. Chron., a. 519. 
 
 2 Green, Making of Eng., pp. 413- 6 Freeman, Norm. Cong., vol. i. p. 
 418. 17 ; Green, Making of Eng., p. 120. 
 
 8 E. Chron., a. 495, a. 501, a. 508, a. 6 E. Chron., a. 577; Guest, "Con- 
 
 514; Green, Making of Eng., p. 84; quest of Severn Valley," ArchaoJogical 
 
 Guest, E. E. Settlements in Britain Journal, xix. 194; Green, Making of 
 
 (Salisbury volume of Archaeological In- Eng., p. 124.. 
 stitute).
 
 IV.] THE GROWTH OF NATIONAL UNITY. 165 
 
 upon the upper Severn at a spot called Faddiley, where Defeated 
 Ceawlin must have suffered a crushing defeat at the hands of vvekh in 
 the Welsh. 1 This defeat, which was most disastrous to the 5 8 4- 
 power of Wessex, was followed in a few years by a still 
 greater misfortune in the form of a violent dissension in the 
 royal house. Not long after the defeat at Faddiley the 
 Hwiccas rose in revolt and took as their king Ceol or Ceolric, 
 the son of Ceawlin's dead brother Cutha. The struggle internal 
 for the throne which now arose between these rival lines weaken n 
 continued to divide and weaken the power of Wessex for Wessex 
 
 r . for two 
 
 more than two hundred years. And during this whole period centuries. 
 of internal dissension, the advance of Wessex to a position of 
 supremacy was further embarrassed by a constant dread of 
 attack in the rear from the Welsh, who still remained uncon- welsh in 
 quered in the southwestern peninsula. 3 Not until early in reSafcun- 
 the ninth century did the last of the Britons in Cornwall conquered 
 
 J until 815. 
 
 bend to the West Saxon supremacy.* During this long 
 interval of internal distraction, and war against the Welsh, 
 the real power of Wessex only asserted itself at intervals, 
 when some great king like Ine arose strong enough to gather 
 for a time all the Gewissas under his sway. Near the close 
 of the eighth century Ecgberht, a descendant of Ceawlin, Ecgberht, 
 made an unsuccessful attempt to wrest the West Saxon 
 crown from the rival branch of the house of Cerdic, and, 
 when driven into exile, found shelter for a time at Offa's 
 court. 6 Expelled at last through West Saxon intrigue from 
 the Mercian realm, Ecgberht sought a refuge (787) at the 
 court of Charles the Great, where he witnessed the momen- visits the 
 tous events which transpired during the thirteen years that c^ies the 
 preceded the elevation of the mighty Frank to the throne of Great; 
 the Caesars. 6 Two years after Charles had been crowned 
 Emperor of the Romans, Ecgberht returned to Wessex (802) ascen d s the 
 to mount the throne made vacant by the death of his rival, *'" rone * 
 
 i ' Wessex in 
 
 Beorhtric." The first serious enterprise to which Ecgberht 802. 
 
 1 E. Chron., a. 584 ; Guest, " Con- of Britain." Freeman, Norm. Cong., 
 quest of Severn Valley," pp. 196-199 ; vol. i. p. 25. 
 
 Green, Making of Eng., p. 200. 4 Ibid., vol. i. p. 28. 
 
 2 Making of Eng., p. 201. 6 E. Ckron., a. 784 (6), a. 787 (9); 
 8 "Wessex was still engaged in its Green, Making of Eng., p. 409. 
 
 long struggle with the Welsh, and was 6 Freeman, Norm. Conq., vol. i. pp. 
 in no position to aspire to the dominion 26, 27 ; Green, Making of Eng., p. 415. 
 
 7 E< Chron., 800 (802).
 
 i66 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Final con- 
 quest of 
 Cornwall, 
 815. 
 
 Overthrow 
 of Mercia 
 and North- 
 
 umbria. 
 
 Ecgberht 
 unites all 
 the king- 
 doms under 
 the sway of 
 the house 
 of Cerdic. 
 
 From 
 Ecgberht 
 to Eadgar 
 (829-958). 
 
 devoted himself after his accession was the final subjugation 
 of the West Welsh. In 815 he marched into the heart of 
 Cornwall, and after a struggle of eight years the power of the 
 Cornish Britons was finally broken and the supremacy of 
 Wessex extended to the Land's End. 1 With all internal 
 dissensions crushed beneath the power of Ecgberht, and with 
 all fear of attack from the Welsh finally dispelled, the West 
 Saxons, whose unity as a people had never been broken, were 
 now ready to assume the leadership of the English nation. 
 The first great conflict naturally arose with Mercia, whose 
 king, Beornwulf, invaded Wessex in 825. After the battle at 
 Ellandun, in which Beornwulf was overthrown, the Mercian 
 realm was deprived of all external dominion, and all of the 
 English south of the Thames submitted to Ecgberht. 2 Four 
 years later (829) Mercia herself was forced to yield to the 
 victor of Ellandun, and in the same year the once great 
 kingdom of Northumbria, now weakened by civil divisions, 
 voluntarily accepted the West Saxon supremacy. 3 Thus, 
 after two centuries of struggle, in which the greatest kings 
 of Northumbria and Mercia had failed, Ecgberht, the eighth 
 and last in the list of bretwaldas, brought about a forced union 
 of all the English kingdoms under the sway of the house 
 of Cerdic. In the hour of victory the king of the West 
 Saxons ventured, for once at least, to style himself king of 
 the English. 4 
 
 8. Through the conquests of Ecgberht all the Teutonic 
 states in Britain became mere dependencies of Wessex, as 
 under-kingdoms, ruled either by their own royal lines or by 
 some prince of the house of Cerdic. Each conquered state as 
 it was annexed entered into dependent relations with Wessex, 
 without a sacrifice of its autonomy. 5 But a century and a 
 half had yet to pass by before these loosely united states be- 
 came incorporated as integral parts of one consolidated king- 
 
 1 E. Chron., a. 813 (815), 823 (825) ; 
 Freeman, Norm. Conq., vol. i. p, 28. 
 
 2 E. Chron., a. 823 (825). 
 8 E. Chron., a. 827 (829). 
 
 * " Ecgberhtus gratiS Dei Rex Anglo- 
 rum." Cod. Dip., i. 287 ; Freeman, 
 Norm. Cong., vol. i. p. 26, note 4. 
 
 8 " In his reign of thirty-six years 
 (802-837) he reduced all the English 
 
 kingdoms to a greater or less degree of 
 subjection. The smaller states seem 
 to have willingly submitted to him as a 
 deliverer from the power of Mercia. 
 East Anglia became a dependent ally,- 
 Kent and the smaller Saxon kingdoms 
 were more closely incorporated with 
 the ruling state (825)." Freeman, 
 Norm, Conq., vol. i. p. 27.
 
 IV.] THE GROWTH OF NATIONAL UNITY. 1 67 
 
 dom. The history of this process of consolidation is insepa- 
 rably connected with the history of the Danish invasions, 
 whose pressure had begun to be felt, even before the work of 
 union had been finally accomplished. The Northmen from The Dan- 
 the isles of the Baltic and from either side of the Scandina- slon" 
 vian peninsula, who began about the end of the eighth cen- 
 tury to harry and plunder the coasts of Britain and of north- 
 ern Gaul, were men of the purest Teutonic blood and speech, 
 genuine kinsmen of the founders of the English kingdoms, 
 kinsmen who had not yet emerged from the barbaric life and 
 from the primitive heathenism of their forefathers. For more 
 than half a century after the keels of these marauders first at first 
 touched the shores of Britain (789-855), they confined them- 
 selves to mere plundering raids in which they would secure raids - 
 their booty and then sail away again. 1 The Chronicler tells 
 us that in 855 the heathen men wintered for the first time in 
 the isle of Sheppy. 2 From that time to the end of the ninth period of 
 century, the Danes, who now came in larger bodies, seriously and q per 
 engaged in the work of conquest and permanent settlement, j^ 1 
 In the reign of ^Ethelred the First (866-871) the full force of 
 Danish invasion broke upon the loosely united realm which 
 his grandfather Ecgberht had built up. Northumbria, still 
 rent by internal divisions, was the first to yield to the invad- 
 ers, 3 who soon completely conquered East Anglia and a part 
 of Mercia. 4 The national cause now depended alone upon 
 
 the hosts of Wessex, led by king ^thelred and by his brother Danes.* 
 Alfred. In the midst of the conflict ^thelred died, and the 
 defence of the realm passed into the hands of one who 
 divides with Washington alone the honor of being the most 
 perfect outcome of the English nation. In 878 so over- 
 whelming was the force of the invasion that Alfred was 
 obliged to hide as a fugitive in the marshes of Somerset; 
 and for a time it seemed as if the standard of Woden had 
 triumphed alike over the Dragon of Wessex and over the 
 standard of Christ. But, after a great victory won by Alfred Pea ce of 
 
 . 1.1 Wedmore 
 
 in the same year, the invaders entered into a solemn peace at in 878. 
 
 1 Freeman, Norm. Cong., vol. i. p. Early Kings, vol. ii. p. 430 ; Freeman's 
 29. Norm. Conq. t Apendix KK, vol. i. p. 
 
 2 E. Chron., a. 855. 436. 
 
 8 As to the conquest of Northum- * Green, Hist, of the English People, 
 bria, see Robertson's Scotland under vol. L pp. 72, 73.
 
 i68 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 All Eng- 
 land out- 
 side of the 
 Danelagh 
 grew into a 
 compact 
 kingdom. 
 
 Eadward 
 the Elder 
 begins and 
 
 jEthelstan 
 completes 
 the con- 
 quest of the 
 Danelagh. 
 
 Wedmore, whereby " all Northumbria, all East Anglia, all 
 Central England east of a line which stretched from Thames' 
 mouth along the Lea to Bedford, thence along the Ouse to 
 Watling Street, and by Watling Street to Chester, was left 
 subject to the Northmen." 1 Within this Danelagh, which 
 embraced more than one half of the empire of Ecgberht, the 
 Danes settled down among the conquered English as lords of 
 the soil. The customary law which grew up within the 
 Danelagh, the name applied to the region in which Danish 
 law prevailed, varied only in small particulars 'from English 
 customary law ; new names rather than new customs date 
 from the Danish occupation. 2 The settlement of a foreign 
 foe in the land inevitably tended to consolidate, for the pur- 
 pose of common defence, all that part of the English nation 
 that remained within the limits of West Saxon dominion. 
 Under the pressure of this influence, all England southwest 
 of Watling Street fast grew into a compact and homogeneous 
 kingdom. yElfred, at his death in 90 1, 3 left the Danes in quiet 
 possession of the whole district ceded to them by the Peace 
 of Wedmore ; the task of reconquering the Danelagh he 
 transmitted to his children. Eadward the Elder, who suc- 
 ceeded Alfred, did not enter, however, upon the execution of 
 this task, until driven into war by a great rising of the North- 
 men in the tenth year after his father's death. 4 Before the 
 end of his reign Eadward had recovered from the Danes the 
 whole of Mercia, Essex, and East Anglia ; and, by their an- 
 nexation to his own kingdom, he became the immediate sov- 
 ereign of all the English south of the H umber. 5 After the 
 death of Eadward, his son ^Ethelstan completed the conquest 
 of the Danelagh by incorporating Northumbria as an integral 
 part of the realm. But the reigns of ^Ethelstan's successors, 
 Eadmund and Eadred (940-955), continued to be disturbed 
 by revolts in the north, until the final extinction of the North- 
 umbrian kings. 6 Not until the death of the last Danish 
 
 1 See Alfred and Guthrum's Peace, 
 Thorpe's Laws and Institutes, vol. i. p. 
 152 ; Green, Hist, of English People, 
 vol. i. p. 75. 
 
 2 Cf. Freeman, Norm. Conq., vol. i. 
 p. 12, and Appendix E. 
 
 * E. Chron., a. 901. 
 
 * E. Chron., a. 910. 
 
 8 Eadward also extended the su- 
 premacy of Wessex over the whole 
 island of Britain. The princes of 
 Wales, Northumbria, Scotland, and 
 Strathclyde " chose him to father and 
 to lord/' E. Ckron., a. 924. 
 
 6 " Dogged as his fight had been, the 
 Northman at last owned himself beaten.
 
 IV.] THE GROWTH OF NATIONAL UNITY. 169 
 
 king of Northumbria in 954 did the phantom of provincial 
 royalty pass forever away. From that time forth the great 
 realm of the north was governed by an earl or ealdorman 
 appointed by the national king. 1 For a time after the death 
 of Eadred (955) the kingdom was divided between his 
 nephews, Eadwig and Edgar. Eadwig died in 95 8, 2 and the 
 realm was then reunited under Eadgar the Peaceful, whose Eadgar the 
 tranquil reign of seventeen years constitutes the most glori- unites" 
 ous period in the history of the West Saxon Empire. The |^*' 
 death of Eadwig and the final extinction of all provincial roy- and Dane 
 
 , -_,, . 111-11 under his 
 
 alty paved the way for Eadgar s accession to the threefold sway, 
 sovereignty of the West Saxons, Mercians, and Northum- 
 brians. 3 Engle, Saxon, and Dane were united under his 
 sway ; he became the sole and immediate king of all the Eng- 
 lish ; and in his time the name of Britain passed into that Britain 
 of Englaland, the land of Englishmen. 4 The growth of a real Engiaiand. 
 national unity was now complete ; the consolidated kingdom 
 of England was made not only in fact but in name. " Wes- 
 sex has grown into England, England into Great Britain, 
 Great Britain into the United Kingdom, the United King- 
 dom into the British Empire. Every prince who has ruled 
 England before and since the eleventh century has had the 
 blood of Cerdic the West Saxon in his veins." 6 
 
 From the moment of Eadred's final p. 173, note 4. See, also, Robertson's 
 
 triumph, all resistance came to an end." Hist. Essays, pp. 203-216. 
 Green, Hist, of the English People, * " It was not till Eadgar's day that 
 
 vol. i. p. 86. the name of Britain passed into the 
 
 1 Freeman, Norm. Cong., vol. i. p. name of Engla-land, the land of Eng- 
 41. lishmen, England." Green, Hist, of 
 
 2 E. Chron., a. 958. the Eng. People, vol. i. p. 96. Upon 
 8 " The last Danish king of North- the use of the word " English," see 
 
 umbria was killed in 954. In 959 Ed- Freeman, Norm. Conq., vol. i., Appen- 
 
 gar succeeded to the kingdom of the dix A. 
 
 West Saxons, Mercians, and Northum- 6 Freeman, Norm. Conq., vol. i. p. 
 
 brians." Stubbs, Const. Hist,, vol. L 16.
 
 CHAPTER V. 
 
 The shire 
 system, 
 its growth 
 a vital ele- 
 ment in 
 process of 
 national 
 develop- 
 ment. 
 
 The early 
 shire 
 
 formed by 
 a union of 
 townships. 
 
 The mod- 
 ern shire 
 identical 
 with the 
 primitive 
 state. 
 
 THE CONSTITUTION OF THE CONSOLIDATED KINGDOM. 
 
 I. THE growth of the consolidated kingdom, outlined in 
 the preceding chapter, embraces three distinct periods of de- 
 velopment : the union of the early settlements or primitive 
 states in heptarchic kingdoms ; the forced union of the hep- 
 tarchic kingdoms under the supremacy of Wessex ; the pe- 
 riod of consolidation which, beginning with Ecgberht, ends 
 with Eadgar. With the history of this process of national 
 development the growth of the shire system is inseparably 
 interlaced. It has been heretofore maintained that the primi- 
 tive states in which the settlers originally grouped them- 
 selves in Britain were reproductions in every material partic- 
 ular of the continental Teutonic states as described by Caesar 
 and Tacitus. The unit of organization in the primitive state 
 was the village-community, which appears in Britain as the 
 tun or township. 1 By a union of townships was formed the 
 district generally known in Germany as a gau or gd, a name 
 which yielded in England to that of scir or shire. By a 
 union of gas or shires was formed the primitive state. 2 The 
 scir or shire was simply what the word itself implies, a divi- 
 sion of a larger whole ; and it is now maintained, with greater 
 or less emphasis, by the highest authorities, that scir or shire 
 was the term originally employed in Britain to describe the 
 district which arose out of a union of townships. 3 But the 
 early shire, which thus represented the largest division of 
 the primitive state, must not be confounded with the modern 
 shire, which represents the largest division of the consoli. 
 dated kingdom. The primitive states, advancing in the path 
 of political confederation, united in forming the seven or 
 eight aggregates generally known as the heptarchic king- 
 doms. Mercia seems to have grown up through the joining 
 
 1 See above, p. 143. 
 
 2 See above, pp. 119, 123. 
 
 8 Essays in A. S. Law, p. 18 ; Stubbs, 
 Const. Hist., vol. 5. pp. 96-101.
 
 CONSTITUTION OF CONSOLIDATED KINGDOM. IJl 
 
 together of a number of smaller states in which the prevailing 
 blood was Anglian. Wessex simply represented a union of 
 kindred principalities, each one of which retained its own 
 under-king. Out of the union of the North and South Folk 
 arose East Anglia ; Kent was probably formed by a double 
 settlement in the same way ; while Northumbria arose out of 
 the union of Bernicia and Deira. 1 By the final triumph of 
 Ecgberht the several heptarchic unions were forced to unite 
 in a single comprehensive union under the sway of the house 
 of Cerdic. In this new union the conquered states preserved 
 their existence as such, during a long period of time, to the 
 greatest practicable extent. Each state, while still retaining 
 its ancient boundaries and its tribal king, simply entered, at 
 first, into more or less dependent relations with Wessex. 
 But with the triumph of Ecgberht begins the work of con- with the 
 solidation which occupies nearly a century and a half in its Ecgbe P rht 
 completion. 2 In the process of consolidation local kingship cons^Hda- f 
 becomes extinct, and the primitive states are finally incor- tion begins. 
 porated with Wessex, they cease to exist as states and be- 
 come shires. And as the primitive states thus descend in 
 status, their own shires necessarily descend in the same way, 
 they cease to be shires and become hundreds. Thus it 
 may be assumed, as a general principle, " that the state of "The state 
 the seventh century became the shire of the tenth, while the seventh 
 shire of the seventh century became the hundred of the 
 tenth."* The use of the word "shire "in its enlarged and 
 modern sense seems to have been introduced during or shortly while' the 
 after the reign of Ecgberht; 4 but the name of the hundred seventh 
 does not occur until the laws of Eadgar, 5 in whose time the 
 arrangement of the whole kingdom in shires was probably 
 completed. 6 The map of the England of to-day clearly dis- tenth. 
 closes the origin of the modern shire in what has been called 
 the primitive state. Out of the principalities founded by the 
 Somersaetas, the Dorsaetas, the Wilsastas, the Middle Sax- 
 
 1 See above, pp. 146, 147. kingdom in shires is of course a work 
 
 2 See above, p. 154. which could not be completed until it 
 8 See Essay upon the " Anglo-Saxon was permanently united under Edgar ; 
 
 Courts of Law," by Mr. Henry Adams, and the existing subdivisions of South- 
 in Essays in A. S. Law, p. 19. ern England are traceable back to his 
 
 4 Ibid., p. 20. day at the latest." Stubbs, Const. 
 
 6 Eadgar, i. Constitutio de hundredis. Hist., vol. i. p. no. 
 
 6 "The arrangement of the whole
 
 172 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [Cn. 
 
 Historical 
 certahiof 
 shireT dem 
 
 An outline 
 
 the state 
 the king 
 
 tion, in the 
 
 shires. 
 
 ons, the East Saxons, the South Folk, and the North Folk, 
 have grown the shires of Somerset, Dorset, Wilts, Middle- 
 sex > Essex, Suffolk, and Norfolk. Hampshire, Berkshire, 
 and Devonshire are equally ancient, being mentioned in the 
 Chronicle as shires as far back as the reign of ^Ethelwulf. 1 
 Kent and Sussex are two of the heptarchic kingdoms, whose 
 original shires are perhaps represented by their lathes and 
 rapes. 2 In Wessex the shire system attained its earliest and 
 purest devolopment. The West Saxon shires retain to this 
 day the names and boundaries of the early settlements 
 founded by the successors of Cerdic. It is more than likely, 
 however, from the evidence of local nomenclature, that Mer- 
 cia was artificially divided into shires by the English kings 
 after its reconquest from the Danish invaders. 3 
 
 2. As the history of the Old-English commonwealth is in- 
 complete and fragmentary, it is impossible to do more than 
 define with approximate correctness the broader outlines of 
 the several stages of growth through which it passed in the 
 course of its constitutional development. By the end of the 
 sixth century, the primitive states have become bound up in 
 the seven or eight aggregates generally known as the hep- 
 tarchic kingdoms. After two centuries of struggle (600-829), 
 the heptarchic kingdoms are united under the supremacy of 
 Wessex. A period of a century and a quarter (829-958) 
 then ensues, during which the united kingdom of Ecgberht 
 becomes finally consolidated under Eadgar. During the 
 tenth century three facts stand out prominently in the gen- 
 eral result : the incorporation of the primitive states in a 
 single consolidated kingdom ; the transformation of the prim- 
 itive state into the modern shire ; the progressive consolida- 
 tion and growth of the kingly power. The central and na- 
 tional powers of the consolidated kingdom are vested in the 
 witenagemot and the king, while the whole system of local 
 administration is vested in the shires. The consolidated 
 
 . 
 
 kingdom is, in fact, a mere aggregation of shires, whose gov- 
 
 1 E. Chron., a. 851, 860. 
 
 2 " Kent, however, appears as ' Cante- 
 scyre ' as early as the reign of Athel- 
 stan. Essex, Middlesex, and Surrey 
 are also ancient kingdoms." Stubbs, 
 Const. Hist. t vol. i. p. 109. 
 
 8 "In short, the local divisions of 
 Wessex were not made but grew. 
 Mercia, on the other hand, has every 
 appearance of having been artificially 
 mapped out." Freeman, Norm. Cong., 
 vol. i. p. 32, and Appendix, note E.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 173 
 
 ernments represent the entire local machinery of the consti- 
 tution. 1 Or, to state the matter in another form, " now the 
 kingdom forms a new whole, of which the shires have sunk 
 to be mere administrative divisions." 2 The primitive state, 
 in descending to the status of a shire, preserves substantially 
 all of its powers as a local self-governing community. The 
 tribal king has passed away, it is true, and his place has been 
 filled by the ealdorman, who stands in the government of the 
 shire as the deputy of the national king ; 3 but the popular 
 assemblies of the primitive state all survive as parts of the 
 shire system. The primitive state assembly is the folk-moot, The 
 the highest popular court of the shire, and as such it retains 
 some traces of the ancient nationality. 4 The primitive shire 
 court survives as the hundred-court of the consolidated king- early shire- 
 dom ; the ordinary law court in which all causes are heard in hundred- 
 the first instance. Beneath the hundred-courts stand the " 
 tun-moots, the governing bodies of the village-communities 
 or townships. In the organization of these local courts, the 
 fundamental Teutonic principle is preserved intact ; the ad- 
 ministration of law, as well as local political administration, 
 is vested in an expanding series of popular assemblies com- 
 posed of the qualified freemen whose interests are directly 
 involved. If the constitutional powers of the consolidated ciassifica- 
 kingdom be classified in accordance with modern ideas, the central * 
 executive power was vested in the king ; the legislative, in j!^ 1 !;^"^. 
 the king and the witan ; the judicial, in the witan and the ing to mod- 
 local courts. In accordance with this classification the at- 
 tempt will be made to present an approximately correct idea 
 of the form in which the constitution appeared in the tenth 
 and eleventh centuries, after the work of consolidation had 
 been finally accomplished. 
 
 1 Speaking of the local institutions thegns, eorl and ceorl, of Kentshire, 
 of the Old - English commonwealth, declare to ^Ethelstan in their gemot at 
 Guizot says : " Vigorous institutions Faversham their acceptance of meas- 
 were they, which feudalism could not ures taken in the recent witenagemot 
 overthrow, and which produced, at a of Greatley. For the document con- 
 later period, representative govern- taining this popular acceptance of a 
 ment in England." Hist. Rep. Gov., law, see Thorpe, vol. i. p. 216: for 
 p. 45. comments upon it, see Kemble, Sax- 
 
 2 Freeman, Norm. Conq., vol. i. p. ons in England, vol. ii. p. 233, 234 ; 
 67. Hallam, M. A., vol. ii. p. 376; Pal- 
 
 8 Sohm, Altd. R.- u. G. Verf. i. 25, grave, Commonwealth, p. 637 ; Stubbs, 
 26. Const. Hist., vol. i. p. 115. 
 
 * The bishops of Kent and all the
 
 174 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 The execu- 
 tive power 
 the king. 
 
 Saxons 
 non- 
 monar- 
 chical, 
 
 as were all 
 the other 
 tribes that 
 engaged in 
 the con- 
 quest. 
 
 3. The early history of Teutonic kingship has already been 
 briefly reviewed. The fact was then ascertained that, in the 
 home-land, kingship prevailed in some of the tribes, and in 
 others it did not. 1 From Caesar's sketch the conclusion has 
 been drawn that kingship was the exception and not the rule. 2 
 Tacitus clearly distinguishes the monarchical tribes from the 
 non-monarchical, without intimating the extent to which roy- 
 alty prevailed. 3 Baeda affirmatively states the fact that king- 
 ship did not prevail among the Saxons, who were governed 
 by many satraps, from whom one was chosen by lot as a 
 leader whenever war was imminent. When the war ended, 
 the satraps resumed their coequal powers. 4 The satrap of 
 Baeda, who corresponds in every material particular with the 
 princeps of Caesar and Tacitus, is recognized by the great 
 Alfred, in his translation of Baeda, as the ealdorman. 5 The 
 highest authorities agree in the conclusion that the chiefs who 
 led the war-bands to the conquest of Britain bore no higher 
 title than that of ealdorman or heretoga? In A. D. 449 the 
 Jutish war-bands landed under the command of two hereto- 
 gans, Hengest and Horsa, 7 and in 455 Horsa was slain, and 
 Hengest and JEsc, his son, obtained the kingdom. 8 In A. D. 
 495 two ealdormen came to Britain, Cerdic and Cynric his 
 son; 9 and in 519 they became kings of the West Saxons. 10 
 As the conquest advanced, and as definite districts of country 
 were permanently secured, and as the various groups of con- 
 querors within such districts felt the need of drawing to- 
 gether under a permanent instead of a temporary leadership, 
 the ealdorman or heretoga was advanced to the dignity of a 
 
 1 See above, pp. 128, 129. 
 
 2 " In pace, nullus est communis 
 magistratus ; sed principes regionum 
 atque pagorum inter suos jus dicunt." 
 Bell. Gall., vi. 23. 
 
 8 Tac., Germ., cc. 25, 44. 
 
 4 " Non ertim habent regem iidem An* 
 tiqui Saxones, sed satrapas plurimos 
 suae genti praepositos, qui ingruente 
 belli articulo mittunt aequaliter sortes, 
 et quemcunque sors ostenderit, hunc 
 tempore belli ducem omnes sequuntur, 
 huic obtemperant ; peracto autem bello 
 rursum aequalis potential omnes fiunt 
 satraps." Hist. Eccl., v. 10. 
 
 6 Smith's Baeda, p. 674 ; Stubbs, 
 Const. Hist.) vol, i. p. 4?, 
 
 6 Kemble, Saxons in Eng., vol. ii. pp. 
 2, 125 ; Freeman, Norm. Conq., vol. i. 
 p. 51, and Appendix K ; Stubbs, Const. 
 Hist., vol. i. p. 66 ; Green, Making of 
 Eng., p. 171. 
 
 T " Heora heretogan waeron twegen 
 gebroBra, Hengest and Horsa." E. 
 Chron., a. 449. 
 
 8 E. Chron., a. 455. 
 
 9 " Her comen twegen ealdormen on 
 Brytene Cerdic and Cynric his sunu." 
 E. Chron., a. 495. 
 
 10 " Her Cerdic and Cynric West- 
 seaxena rice onfengon." E. Chron.,
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 1/5 
 
 king, 1 who could represent in his person the unity of a new Kingship in 
 national life. In order to attach the idea of permanency to outgr'oVth 
 the new kingship, the name of the son was associated with that ol 
 of the father as a recognition of the hereditary principle ; 2 and, 
 in order to impart sanctity to the person of the new king, 
 fable at once traced his descent in an unbroken line from 
 Woden. 3 But the recognition of the hereditary principle was Hereditary 
 attended and modified by the older principle of election. 4 nmU C edby 
 The right to the throne might be vested by the original JJ^jf J l of 
 choice in a single royal house, but the question as to which 
 member of that house should receive the succession when 
 a vacancy occurred was one which the national assembly 
 alone could determine. Just how far the power and dignity 
 of a king exceeded that of an ealdorman it is difficult to as- 
 certain, but it is quite clear that the title of king did imply 
 an advance in both respects. It is probable that the king 
 was not chosen until a group of war-bands, each under its 
 own ealdorman, had united in the formation of a kingdom. 
 In that way the king was advanced to the supreme command, 
 and to national authority, while the ealdorman descended to 
 the status of a subordinate who still possessed the highest 
 command in his own district. 5 Out of the Teutonic conquest 
 of Britain thus arose a brood of petty tribal kings whose pres- 
 ence in every principality retarded the growth of national 
 unity for centuries. 
 
 The new king who thus arose out of the conquest was the Growth of 
 king of a nation, the leader of his people, the head of the race, 
 and not the king of a country and lord of the soil. The idea 
 of a territorial as distinguished from a tribal sovereignty was 
 the growth of later times. 6 In war the king, as leader of the 
 host, possessed supreme command, while in peace his powers 
 were coordinate with the national assembly, with whose con- 
 currence he performed all important acts. He maintained, 
 
 1 " The word rice I take to mark the 4 " The elective principle is the safe- 
 change from ealdormanship to king- guard of their freedom ; the monar- 
 ship." Freeman, Norm. Cong,, vol. i. chical principle is the condition of their 
 p. 392, Appendix K. nationality." Ibid., p. 137. 
 
 *Stubbs, Const. Hist., vol. i. p. 67. 6 Upon the change from ealdormen 
 
 8 " And the possession of Woden's to kings, see Freeman, Norm. Cong., 
 
 blood was the indispensable condi- vol. i. pp. 51, 52; Green, Making of 
 
 tion of kingship." Kerable, Saxons ng.,p. 171. 
 
 in Eng., vol. i. p. 329. See above, p. 130.
 
 7 6 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Peace and 
 justice be- 
 long at first 
 not to the 
 king, but to 
 the folk. 
 
 In the 
 growth of 
 kingship is 
 involved all 
 the ele- 
 ments of 
 constitu- 
 tional life. 
 
 The comi- 
 
 t at its. 
 
 not his own peace, but the national peace, and executed jus- 
 tice on the breakers of it : but justice was not yet the king's 
 justice; it was the justice of the village, the shire, and the 
 folk, in whose moots was vested jurisdiction. 1 As the process 
 of aggregation advanced, as the primitive states became 
 bound up in the seven or eight heptarchic kingdoms which 
 were finally united under the rule of a single royal house, the 
 institution of kingship grew with each extension of territory. 
 As an heptarchic king rose in power and importance above 
 the petty royal head of a primitive state, so did the king of all 
 the English rise in power and importance above the heptar- 
 chic king. In the process of aggregation was thus involved 
 the growth of kingship, and in the growth of kingship were 
 involved all the elements of constitutional life. 2 At the time 
 Ecgberht united the heptarchic kingdoms under the suprem- 
 acy of Wessex, local kingship was far from extinct. But in 
 the process of consolidation which then set in, the smaller 
 royalties gradually died out. Provincial royalty lingered, 
 however, in Northumbria until the death of the last Danish 
 king in 954. A few years after that event, Eadgar succeeded 
 to the threefold sovereignty of the West Saxons, Mercians 
 and Northumbrians, and thus became the first sole and imme- 
 diate king of all the English. Every royal house to which 
 conquest had given birth was now extinct except the West 
 Saxon house of Cerdic : as the fittest it survived. 3 
 
 The chieftains, ealdormen or heretogan, who led the war- 
 bands to the conquest of Britain, came attended with their 
 comites, and their fortunes advanced together. In return for 
 their fidelity and service the comites expected to receive from 
 their chief whatever of bounty lay in his power to bestow, but 
 it was a part of his absolute duty to supply them from his 
 own board with their daily bread. The princeps, therefore, 
 becomes in Old-English the hlaford, the loaf-giver, a term 
 which, by an entire departure from its original meaning, 
 finally softened down into the modern form of lord. As 
 
 1 Stubbs, Const. Hist., vol. i. p. 68 ; the Northumbrian royalty and made up 
 Green, Making of England, p. 172. his mind to consolidate Dane, Angle, 
 
 2 Upon the growth of kingship see and Saxon, receives the crown as King 
 Kemble's chapter i. (vol. ii.) on the of all England and transmits it to his 
 " Growth of the Kingly Power ;" Free- son." Stubbs, Const. Hist., vol. i. p. 
 man, Norm. Conq., vol. i. p. 53. 173. See, also, Robertson's Hist. Ls- 
 
 8 "At last Edgar, having outlived says, pp. 203-216.
 
 V.] CONSTITUTION OF CONSOLIDATED KJNGDOM. 177 
 
 heretofore explained, the most important outcome of the 
 comitatus was the relation of lord and man, a relation at 
 first purely personal, and not necessarily connected with the 
 holding of land. As the smaller kingdoms grew into a sin- The king 
 gle kingdom, and as the king of the one united kingdom ^aThis 16 
 became the king of the whole nation, the relation of lord and people, 
 man widened into the principle that the king was the lord or 
 patron of his people. 1 In the legislation of yElfred the rela- so recog- 
 tion existing between the king and his subjects is distinctly 
 recognized as that between lord and man : " If any one plot laws> 
 against the king's life, of himself or by harboring of exiles, or 
 of his men, let him be liable in his life and in all that he has. 
 If he desire to prove himself true, let him do so according to 
 the king's wergild. So also we ordain for all degrees, whether 
 eorl or ceorl. He who plots against his lord's life, let him be 
 liable in his life to him and in all that he has, or let him prove 
 himself true according to his lord's wer." 2 The same prin- 
 ciple is restated in the laws of Eadward the Elder, 3 and with 
 greater emphasis in those of his son Eadmund. 4 These 
 enactments fix the time of the transition from the old to the 
 new relation. 5 And as the king of the nation becomes the The nation- 
 lord and patron of his people, the national peace, which from 
 the beginning was under his protection, becomes the king's 
 peace, enforcible by his personal servants. 6 By impercep- 
 tible degrees the nation is merged in the person of the king, 
 who is finally regarded as the source of all peace and law, 
 which are supposed to die with him, and to rise again with 
 the advent of his successor. " The sovereign was the foun- The king 
 tain of justice ; therefore the stream ceased to flow when the thesource 
 well-spring was covered by the tomb. The judicial bench of J ustice - 
 vacant, all tribunals closed. Such was the ancient doctrine, 
 a doctrine still recognized in Anglo-Norman England." 1 
 
 1 Stubbs, Const. Hist., vol. i. p. 176. peace became king's peace, without 
 See, also, on the " Relation of Lord and materially changing its meaning." 
 Man," Kenelm Digby, Law of Real Essays in A. S. Law, p. 271. 
 Property, pp. 20-26. 7 Palgrave, Normandy and England, 
 
 2 Alfred, 4. vol. iii. p. 193 ; Stubbs, Const. Hist., 
 8 Eadward, ii. i, I. vol. i. p. 182. There is, however, an- 
 
 4 Eadmund, iii. i. other view of this question : " Neither 
 
 5 Stubbs, Const. Hist., vol. i. p. 176. at the beginning nor at the end of the 
 
 6 " The old folk-community, as a con- Anglo-Saxon time was the king con- 
 federacy bound to peace, was among sidered in law as the fountain of jus- 
 the Anglo-Saxons held together by the tice. The law was administered in the 
 king ; and what was originally folk- popular courts, theoretically, as the act
 
 178 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 And as the idea gained ground that the king of the whole 
 nation was the lord of the whole people, the correlative idea 
 developed that the folkland, which originally belonged to the 
 people in their collective capacity, was the property of the 
 
 The folk- king. 1 It has been said by a great German writer that "folc- 
 land rests on the principle in the constitution that royal and 
 public are not the same thing ; that the king, not alone, but 
 only at the head of the whole body of the people, represents 
 the public power; that, therefore, the public objects are the 
 objects of all, and the public property the property of all." 2 
 In primitive times the distinction was plainly drawn between 
 the lands which the king owned as a private individual the 
 lands which were annexed to the crown, the royal demesne 
 and the folklands, the land of the people. 3 The king was 
 first permitted to make grants out of the folkland to his 
 followers and friends, with the counsel and consent of the 
 witan. 4 But after the time of Alfred the charters contain 
 less and less frequently the clause expressing the consent of 
 the witan, who gradually sink into the position of mere 
 witnesses of the grant. 5 In this way the people's land begins 
 to be spoken of as the king's folkland ; 6 and it finally be- 
 comes virtually the land of the king, undistinguishable from 
 the royal demesne. In this way the actual ownership of the 
 folkland, and a sort of suzerainty over the rest of the land of 
 the country, becomes vested in the king. 7 
 
 Growth of By the force of the same principle through which the king 
 changed his relation to the folkland, the king's thegns and 
 the great ecclesiastical persons and bodies changed their 
 relations to the waste lands which had origininally belonged 
 to the cultivating groups composing the village-communities 
 
 of the freemen." Essays in A. S. b6c!and, and vice versa." Kemble, 
 
 Law, p. 26. Saxons in Eng., vol. ii. p. 225. 
 
 1 Digby, Law of Real Property, pp. 6 " It would seem to follow from 
 18,25,59; Allen, On the Royal Prerog- this that the folkland was becoming 
 ative, p. 150. virtually king's land, from the moment 
 
 2 Sohm, in the Verfassungsgeschichte, that the West Saxon monarch became 
 vol. i. p. 34 ; Essays in A. S. Law, p. sole ruler of the English," etc. 
 91. Stubbs, Const. Hist., vol. i. p. 193. 
 
 8 Digby, Law of Real Property, pp. 6 See Nasse, On the Agricultural 
 
 7, 8 ; Essays in A. S. Law, p. 92. Community of the Middle Ages (Ouvry's 
 
 4 "The witan possessed the power of translation), p. 28. 
 
 recommending, assenting to, and guar- 7 Digby, Law of Real Property, p. 
 
 anteeing, grants of lands, and of permit- 19. 
 ting the converaion of folcland into
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 179 
 
 or townships. 1 The history of this "process of feudalization " 
 has already been drawn out. 2 As population increased, and 
 as the primitive communal system became inadequate to its 
 necessities, landless men settled down upon the estates of all 
 the great proprietors, and organized thereon village-commu- 
 nities, whose general character was identical with that of the 
 free communities, with one serious exception, the title to 
 the land occupied by the dependent community was vested 
 not in itself, but in the lord. 3 As the principle of lord and The de- 
 man grew and widened, the free communities were gradually 
 reduced to a dependent condition. 4 Through various pro- mumt y 
 cesses the houselands and the arable of the once free towns- 
 men became vested in a single lord, and in that event the 
 waste or common lands passed as an incident. In this way 
 the waste of the once free townsmen became the lord's waste, 
 while the townsmen became his tenants. 6 After the Con- becomes 
 quest, the dependent township appears as the manor of the aft^rthe* 
 lord; 6 the thegns represent all those who appear as tenants in Con< i uest 
 capite; 1 the free holders of the tenemental lands correspond 
 in the main to the free heads of households composing the 
 old village-communities ; 8 while those who originally occu- 
 pied the lord's domain constitute the class of tenants whose 
 tenures were in their origin servile. 9 Both classes of tenants, 
 the free and the servile, were necessary to the existence of 
 the manorial group, 10 which the lord held together through 
 the agency of the court baron. Out of the relation of prin- 
 ceps and comes, originally embodied in the cdmitatus, thus grew 
 the relation of lord and man, a relation which at first was 
 
 1 " What has been said of the king nerios vulgo vocamus," Ordericus Vi- 
 applies also, though in a less degree, talis, lib. iv. c. 7 ; Stubbs, Const. Hist., 
 to the great men of the nation, the vol. i. p. 89 ; Digby, Law of Real Prop- 
 king's thegns and the great ecclesias- erty, pp. 43, 53- The word manerium 
 tical persons and bodies." Digby, or manor appears, however, as early as 
 Law of Real Property, p. 19. the reign of Eadward the Confessor. 
 
 2 See above, p. 134, on the origin and See Ellis, General Introduction to 
 growth of great estates. Domesday, p. 225. 
 
 8 Essays in A. S. Law, pp. 84, 89. 7 Digby, p. 30; Stubbs, Const. Hist., 
 
 * Upon the " Rise of the Manor out voL i. p. 156. 
 
 of the Mark," see Maine, Village-Corn- * Maine, Village~Com., p. 137. 
 
 munities, p. 143; Digby, Law of Real * Village-Corn., pp. 134, 138; Digby, 
 
 Property, p. 23. p. 50. 
 
 6 " In this way were the lands of the Ibid., p. 134. If all the lands were 
 
 manor substituted for those of the com- held by free tenants the lord's authority 
 
 munity." Essays in A. S. Law, p. 90. ceased to be manorial, and became a 
 
 6 Maine, Village- Communities, pp. seignory in gross, or mere lordship. 
 
 Io 133> " villas quas a manendo ma- Digby, p. 50, note 3.
 
 l8o 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [Cn. 
 
 AH the ele- 
 
 exist before 
 quest. 
 The move- 
 
 territorial 
 
 organiza- 
 
 tion. 
 
 The free 
 passes"" 1 y 
 
 " h thepro- 
 cess of feu- 
 
 dalization." 
 
 not necessarily connected with the holding of land. But this 
 relation of lord and man, of king and his thegns, became 
 intimately connected with the holding of land when the 
 thegnhood developed in England into a territorial nobility. 
 And the new relation which thus grew up between the king 
 and his thegns was naturally reproduced on a smaller scale 
 between the thegns and the great ecclesiastical persons and 
 their dependents. 1 As yet there is no organized feudalism ; 
 as yet there is no distinct conception of the relation of 
 superior lord, mesne lord, and tenant ; but the elements of 
 a ^ these relations exist, ready to be worked into that syste- 
 m atic feudal jurisprudence for which the Norman conquest 
 prepared the way. 2 
 
 In the foregoing account of the growth of kingship is out- 
 l me d the transition through which the primitive Teutonic 
 S y S tem passed while the tribal communities, in which the 
 
 J r > 
 
 settlers originally grouped themselves in Britain, were being 
 welded into a single consolidated kingdom. The general 
 nature of the transition has been described as a movement 
 from personal to territorial organization, 3 from a state of 
 things in which personal freedom and political right were the 
 dominant ideas, to a state of things in which these ideas have 
 become bound up with and subservient to the relations aris- 
 ing out of the possession of land. 4 In the primitive system 
 the two hostile elements are present from the very begin- 
 ning; the free, self-governing community, and the king or 
 other lord, and his personal following. 6 In the "process of 
 feudalization " through which the free Teutonic communities 
 P ass t ^ ie king ar >d the thegnhood gain the mastery and 
 become the dominant powers in the constitution. The 
 
 .... ,. / . .... 
 
 primitive conception of sovereign power, as originally em- 
 bodied in the nation, in a great measure passes out of view, 
 the sovereignty of the nation becomes merged in its chief. 
 
 23 
 
 1 Digby, Law of Real Property, p. 
 . 
 
 2 Freeman, Norm. Cong., vol. i. p. 
 63. 
 
 8 Palgrave, English Commonwealth, 
 p. 62. 
 
 4 " The Angel-cynn of Alfred be- 
 comes the Engla-lande of Canute." 
 Stubbs, Const. Hist., vol. i. p. 166. 
 
 6 " No wonder then if at a very early 
 period the mark-organization, which 
 contained within itself the seeds of its 
 own decay, had begun to give way, and 
 that a systematic commendation, as it 
 was called, to the adjacent lords, was 
 beginning to take place." Kemble, 
 Saxons in Eng., vol. li. p. 24 ; Freeman, 
 Norm. Cong., vol. i. p. 54.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. l8l 
 
 The king becomes the lord and patron of his people ; the 
 folkland becomes virtually the king's land ; the national peace 
 becomes the king's peace ; the justice of the hundred and the 
 folk becomes the king's justice; the national officers become 
 the king's officers ; and the national assembly the witan 
 becomes more and more the king's council. 1 Every stage 
 in the transition from the old to the new system is marked by 
 an advance in the kingly power, and by a decrease of inde- 
 pendence upon the part of local communities. 2 
 
 It is now possible to estimate, in a general way, the nature Nature and 
 and extent of the advance made by the royal power during theToyai 
 the centuries in which the primitive tribal settlements were authority, 
 gradually consolidated in a single state. The growth of Old- 
 English royalty reached its highest point in the person of 
 Eadgar, who was not only the sole and immediate king of all Eadgar. 
 the English, but also the suzerain lord of all the neighboring 
 Celtic princes, the emperor of the whole isle of Britain. 3 A 
 king of the consolidated kingdom, although hedged in by 
 many constitutional restrictions, certainly occupied a position 
 of great power and privilege. Although he could perform no 
 important act of government without the consent of the na- 
 tional assembly, still he was no mere puppet in their hands, 
 for the assembly was equally powerless to perform any act 
 without his concurrence. 4 Although in strict theory the king 
 was only one of the people, and as his title implied their 
 child and not their father, 6 and dependent upon their election 
 for his royalty, still he was the noblest of the people, and at 
 the head of the state. The person of the king was guarded The king's 
 not only by the high price set upon his life as a person of wergi ' 
 royal blood, the wergild payable to his family in the event of 
 his violent death, but it was also guarded by an equal amount, 
 which was the price of his royalty, the cynebot, the fine due 
 at the same time to his people. 6 The king's revenues which 
 
 1 See above, p. 147. king in everything that is done, and 
 
 2 " Each stage of amalgamation in- the unspeakable difference between a 
 creased the kingly power ; each stage good and a bad king." Norm. Conq., 
 lessened the independence of local vol. i. p. 77. 
 
 communities, and lessened the impor- 6 On the origin of the word king, 
 
 tance of their individual members. see Norm. Conq., vol. i. p. 53, and Ap- 
 
 Freeman, Norm. Conq., vol. i. p. 67. pendix L; Max Miiller's Lectures on 
 
 8 Ibid., vol. i. pp. 44, 89. the Science of Language, vol. ii. pp. 282, 
 
 * " Nothing is clearer in our early 284 ; Grimm, R. A., p. 230. 
 
 history than the personal agency of the * Kemble, Saxons in Eng., vol. ii. p.
 
 lS2 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 Royal rev- were not contingent upon legislative grants, 1 must have bsen 
 contingent amply sufficient to maintain the royal state and dignity. In 
 halve legis ~ Edition to the private estates which he possessed as an indi- 
 grants. vidual, and which he could dispose of by will, the king en- 
 joyed the use of the royal demesne, which belonged to him 
 as king, and which he could neither burden nor alienate 
 Dues in the without the consent of the witan. 2 The king also received 
 rents. certain dues (cyninges-gafol} in the nature of rents, which 
 were in their origin voluntary contributions, 3 but which finally 
 became compulsory charges certainly upon all holders of 
 folkland. 4 And in addition to the sums which thus accrued 
 to the king from his private estates, the royal demesne, and 
 the folkland, he received revenue from the following sources : 
 Receipts from the fines which were levied in the courts of law to 
 treasure^ 5 ' the king's use, as conservator of the public peace ; b from 
 the'iike"* tr easure-trove, wreck, mines, salt-works, and the mint ; 6 from 
 tolls, from markets and ports, and from transport by roads 
 and navigable streams ; 7 from the heriots which were as- 
 sessed upon the estates of the king's special dependents ac- 
 cording to their rank ; 8 and from escheats and forfeitures. 9 
 The king had the right of maintenance for himself and suite 
 when in public progress ; and he had also the right to license 
 the building of bridges and fortresses. 10 Thus supported and 
 maintained by an independent revenue, the king was able to 
 deal upon equal terms with the witan, with whose advice and 
 consent he performed all important acts. 
 Theiegisia- 4. The supreme powers of the continental Teutonic state, 
 
 tive power : , , i i 
 
 thekingand whether monarchical or non-monarchical, were vested m a 
 *" national assembly in which every freeman had his place. 
 
 29; Allen, On the Prerogative, pp. 36, 1 12; Kemble, Saxons in Eng., vol. ii. 
 
 40. pp. 30, 223, 224. Kemble considers 
 
 1 Essays in A. S. Law, p. 64. it a tax levied by the king and the 
 
 2 In a grant made about 980 by witan, a view which can hardly be 
 /Ethelred to Abingdon he draws the correct. 
 
 distinction between his propria heredi- 5 Kemble, Saxons in Eng., vol. i. p. 
 
 fas which he could alienate, and the 151 ; vol. ii. pp. 54, 55. 
 
 terra regales et ad regios filios perti- 6 Ibid., vol. ii. pp. 55~73- 
 
 mntes, whose alienation the witan had 7 Kemble, Saxons in Eng., vol. ii. 
 
 refused to sanction. Cod. Difl., No. pp. 73-78, 94. 
 
 1312; Kemble, Saxons in England, 8 Ibid., vol. ii. pp. 98-102. 
 
 vol. ii. p. 30. 9 Ibid., vol ii. p. 50; Essays in A. 
 
 Tac., Germ., C. 15. S. Law, p. 64 seq. 
 
 4 Essays in A. S. Law, 64. See, ll} Kemble, Saxons in Eng. % vol. ii. 
 
 also, Robertson, Hist. Essays, pp. 102, pp. 58, 91.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 1 8^ 
 
 While all ordinary business was disposed of by a council 
 composed of the principes, great matters were submitted by 
 \^& principes to the general assembly of the people. 1 In the 
 primitive kingdoms, in which the Teutonic settlers originally 
 grouped themselves in Britain, the state assembly appears as 
 the folk-moot, the meeting of the whole people in arms. In 
 the structure of the folk-moot there is no departure from The folk- 
 primitive traditions. By the time of the conversion, however, n 
 when for the first time it is possible to ascertain the form 
 which Teutonic society in Britain had assumed, the primitive 
 states have ceased to exist as independent communities, 
 they have become bound up in the seven or eight aggregates 
 generally known as the heptarchic kingdoms. The national The witen- 
 assemblies of these heptarchic kingdoms are not folk-moots agem 
 but witenagemots ; they are not great popular assemblies of 
 an entire nation, but small, aristocratic assemblies composed 
 only of the great and wise men of the land. 2 In the absence 
 of the principle of representation, it is quite possible to un- 
 derstand how an originally democratic assembly, into which 
 the magnates of the land entered as the great factors, would 
 naturally shrink up into a narrow aristocratic body composed 
 of the magnates only, wherever the extent of territory to be 
 traversed rendered it difficult for the mass of the people to 
 attend. The results of this principle are practically the same, Likeness 
 whether worked out in England or Achaia. 3 In the narrow 
 districts of country occupied by the primitive states, it was f 
 possible for the folk-moots to preserve a continuous existence, blies - 
 for the reason that it was not inconvenient for the people to 
 attend the meetings of a local assembly in which their interests 
 were directly involved. 4 But as the process of aggregation 
 
 1 " De minoribus rebus principes con- Those citizens came together who were 
 sultant, de majoribus omnes ; ita tamen at once wealthy enough to bear the 
 ut ea quoque quorum penes plebem ar- cost of the journey and zealous enough 
 bitrium est apud principes pertracten- to bear the trouble of it. ... The 
 tur." Tac., Germ., c. II. congress, democratic in theory, was 
 
 2 See Kemble's chapter on the Wi- aristocratic in practice." Freeman, 
 tenagemot, Saxons in England, vol. ii. Hist, of Federal Government, pp. 266, 
 pp. 182-240 ; Freeman, Norm. Cong., 267. 
 
 vol. i. p. 67, and Appendix Q ; Stubbs, * " While the district whose mem- 
 
 Const. Hist., vol. i. p. 1 19. bers attend the folk-moot is still small, 
 
 8 "The Achaian assembly practically there is no great inconvenience in this 
 
 consisted of those among the inhab- method of proceeding." Saxons in 
 
 itants of each city who were at once Eng., vol. ii. p. 191. 
 wealthy men and eager politicians.
 
 1 84 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH, 
 
 The folk- 
 moot 
 
 shrinks up 
 into the 
 witenage- 
 mot. 
 
 Composi- 
 tion of the 
 witan. 
 
 Every free- 
 man re- 
 tained the 
 abstract 
 right to be 
 present in 
 the national 
 assembly. 
 
 advanced, the extent of territory to be traversed widened ; 
 and it thus became more and more difficult for each individ- 
 ual freeman to attend the meetings of a national assembly 
 in whose proceedings he was only remotely concerned. 1 Fur- 
 thermore, each advance in the process of aggregation was 
 attended by a corresponding increase in the power of the king 
 and thegnhood, and with a consequent depression of the popu- 
 lar power. By the combined force of these causes the mass 
 of the people, without the formal exclusion of any class, simply 
 ceased to attend assemblies in whose deliberations they could 
 take but a subordinate part. Thus, through a perfectly natu- 
 ral process, the folk-moot, the meeting of the people, was con- 
 verted into a witenagemot, the meeting of the wise, in which 
 were considered all matters involving the general good. 3 
 Such is the history of the witenagemot, whether considered 
 as the supreme council of an heptarchic state, or as the su- 
 preme council of the whole English nation when finally 
 united in a single consolidated kingdom. 3 
 
 It is impossible to ascertain at what exact period the change 
 was brought about through which the primary Teutonic as- 
 sembly was converted into a narrow aristocratic body. The 
 change was no doubt a gradual one, which probably advanced, 
 part passuy with the aggregation of the local communities. 4 
 That such a change did take place, and that the whole body 
 of the people did retain for a long period of time the abstract 
 right to be present in the national gemot, may be implied 
 from a series of vestiges which, beginning with the Dooms of 
 ^Ethelberht, extend beyond the Norman conquest. 5 If it be 
 true, then, that every freeman did possess the abstract right 
 to be present in the national assembly, there is no reason for 
 the attempt to explain the presence of the great men who did 
 
 . l Kemble, Saxons in England, vol. 
 ii. p. 193. 
 
 2 "The idea of representation had 
 not yet arisen ; those who did not ap- 
 pear in person had no means of ap- 
 pearing by deputy. ... By this pro- 
 cess an originally democratic assem- 
 bly, without any formal exclusion of 
 any class of its members, gradually 
 shrank up into an aristocratic assem- 
 bly." Norm. Conq., vol. i. p. 68. 
 
 8 Stubbs, Const, Hist., vol. i. p. 119. 
 
 < " At what exact period the change 
 
 I have attempted to describe was ef- 
 fected is neither very easy to determine 
 nor very material. It was probably 
 very gradual and very partial ; indeed, 
 it may never have been formally recog- 
 nized, for here and there we find evi- 
 dent traces of the people's being present 
 at, and ratifying the decisions of, the 
 witan." Saxons in England, vol. ii. 
 
 P- 195- 
 
 6 For a collection of these vestiges 
 see Freeman's Norm. Conq., vol. i. 
 Appendix Q.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 185 
 
 in fact attend upon the theory of representation. The com- 
 position of the witenagemot is a subject which is involved in 
 the greatest obscurity ; in no one of the ancient laws can be 
 found any positive enactment defining its constitution. From 
 the documents attested by the witan the name by which 
 the members of the assembly are usually described it ap- 
 pears that the great council was attended by the king, who witans 
 was sometimes accompanied by his wife and princes of the 
 
 blood ; by the archbishops, and all or some of the bishops and an 
 abbots, and sometimes by priests and deacons ; by all or some 
 of the ealdormen ; and by a large number of minis tri or king's 
 thegns, amongst whom were no doubt embraced the chief 
 officers of the royal household, as well as the most consider- 
 able of the king's personal dependents. 1 As the work of 
 consolidation advanced, the magnates of the conquered king- 
 doms became entitled to seats in the Witan of Wessex, which witan of 
 
 finally became the Great Council of the Empire. 2 The num- camTthe 
 
 ber of the witan thus increased with the expansion of the councilor 
 
 realm. In a witenagemot held at Winchester in 934, in the the Empire, 
 
 reign of yEthelstan, there were present the king, four Welsh 
 
 princes, two archbishops, seventeen bishops, four abbots, 
 
 twelve ealdormen, and fifty-two king's thegns, in all ninety- 
 
 two persons. 3 In another, held in 966, in the reign of Eadgar, 
 
 were present the king's mother, two archbishops, seven bish- 
 
 ops, five ealdormen, and fifteen thegns, which is considered a 
 
 fair specimen of the usual proportion. 4 The highest number and usually 
 
 given is one hundred and six ; and it seems that from ninety 
 
 to a hundred was not an unusual attendance, after the consol- hun dred 
 
 members. 
 
 idation of the monarchy. 6 The great council thus constituted 
 was generally known as the witenagemot, literally the meet- 
 ing of the wise ; but it was also called mycel gemot, the great 
 meeting, and sometimes mycel getheaht, the great thought. 6 
 
 1 Kemble, Saxons in England, vol. tions of the central body." Ibid., p. 
 ii. p. 195 ; Stubbs, Const. Hist. t vol. i. 70. 
 
 p. 124. 8 Cod. Dipl., No. 364. An act of 
 
 2 Freeman, Norm. Cong., vol. i. p. this witan is described as having been 
 70. "But just as in the case of the executed " tota populi generalitate." 
 assemblies of the mark and the shire, Saxons in England, vol. ii. p. 200. 
 
 so the gemots of the other kingdoms * Cod. Dipl., No. 518; Stubbs, Const. 
 seem to have gone on as local bodies, Hist., vol. i. p. 1 26. 
 dealing with local affairs, and perhaps 6 Cod. Dipt., Nos. 353, 364, 1107; 
 giving a formal assent to the resolu- Saxons in England, vol. ii. p. 200. 
 
 8 Norm, Conq., vol. i. p. 70.
 
 1 86 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Powers of 
 the witan. 
 
 King legis- 
 lates with 
 the counsel 
 and consent 
 of the 
 witan. 
 
 Character 
 of the early 
 laws. 
 
 Taxation. 
 
 The meeting of the witan was generally proclaimed in ad- 
 vance, at some one of the royal residences. 1 
 
 The supreme powers of the consolidated kingdom were 
 vested in the king and the witan, who possessed the right to 
 consider all public acts which the king could authorize, 2 in- 
 cluding many acts which, according to modern theories, would 
 be considered as purely executive. 3 In every act of legisla- 
 tion the right of the witan to advise and consent was invari- 
 ably recognized. 4 The earliest of the old English enactments 
 conform to this principle, which pervades all Teutonic legisla- 
 tion. 6 The king enacts all laws, which are added to the exist- 
 ing customary law, with the counsel and consent of the witan, 
 by whose concurrent authority they are promulgated. The 
 laws of the Wihtraed are decreed " by the great men with the 
 suffrages of all, as an addition to the lawful customs of the 
 Kentish peoples." 6 Hlothaere and Eadric, kings of the men 
 of Kent, augmented the laws which their forefathers had 
 made before them, by these dooms. 7 The laws of Ine are 
 enacted " with the counsel and teaching of the bishops, with 
 all the ealdormen and the most distinguished witan of the 
 nation, and with a large gathering of God's servants." 8 
 Alfred promulgated his code with the counsel and consent 
 of his witan, 9 and Eadgar ordains with the counsel of his 
 witan in praise of God, and in honor of himself and for the 
 behoof of all the people. 10 Of the old English laws, those of 
 ^Ethelberht, Hlothaere and Eadric, Wihtraed, Ine, Eadward 
 the Elder, ^Ethelstan, Eadmund, and Eadgar, are mainly in 
 the nature of amendments of custom. Those of yElfred, 
 ^Ethelred, Cnut, and those described as Eadward the Confes- 
 sor's, aspire to the character of codes. 11 Taxation, in the 
 modern sense of the term, can hardly be said to exist until 
 a very late period in the history of the Old-English common- 
 
 1 E. Chron., a. 1010. 
 
 2 " First, and in general, they pos- 
 sessed a consultative voice, and a right 
 to consider every public act which could 
 be authorized by the king." Saxons 
 in England, vol. ii. p. 204. 
 
 8 Norm. Conq., vol. i. p. 74. 
 
 4 " The witan deliberated upon the 
 making of new laws which were to be 
 added to the existing folcright, and 
 which were then promulgated by their 
 
 own and the king's authority." Sax- 
 ons in England, vol. ii. p. 205. 
 6 Ibid., vol. ii. p. 206, note I. 
 
 6 Schmid, Gesetze, p. 15. 
 
 7 Thorpe, vol. i. p. 26. 
 
 8 Schmid, Gesetze, p. 21. 
 
 9 Ibid., p*. 69. 
 
 10 Ibid., pp. 184 187 ; Stubbs, Const. 
 Hist., 127 ; Saxons in England, vol. ii. 
 pp. 206-213. 
 
 11 Select Charters, pp. 60, 61.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 187 
 
 wealth. As the king's revenue from the public or demesne 
 lands, from his private estates, and from other sources, was 
 sufficient to maintain the royal state, it was not necessary to 
 provide a royal revenue by taxation. Not until the period of 
 the last Danish invasion did circumstances arise which re- 
 quired the imposition of a general tax for the public service, 
 with the imposition of the Danegeld the history of English Danegeld. 
 taxation really begins. This extraordinary tax, which was 
 levied by the king and the witan, 1 was imposed not only for 
 the purpose of buying off the invaders, but for the raising of 
 fleets. 2 The legislative powers of the king and the witan 
 were not confined, however, to secular matters only ; they 
 embraced such subjects of ecclesiastical legislation as the ap- Ecciesjasti- 
 pointment of fasts and festivals, and the levy and expenditure 
 of ecclesiastical revenue. The laws abound in articles regu- 
 lating the keeping of Sunday and festival holidays, the pay- 
 ment of tithes and other church imposts, the marrying of 
 persons within the prohibited degrees, and the life and con- 
 versation of the clergy. 3 The great influence of the spiritual 
 witan seems to have prevented any jealousy as to that kind of 
 legislative interference with the government of the church. 
 The king and the witan even possessed the power to elect 
 bishops to vacant sees. 4 The witan, by virtue of their general Treaties 
 power to consider every act which the king could authorize, ances. " 
 had the right, conjointly with the king, of making alliances 
 and treaties of peace, and of settling their terms ; 6 and 
 
 1 " The king and the witan had 439, Appendix LL. " It may be in- 
 power to levy taxes for the public ser- ferred then that every three hundreds 
 vice." Saxons in England, vol. ii. p. were liable to be called on to furnish 
 223. For the imposition of Danegeld one ship, whilst every ten hides were ac- 
 see E. Chron., a. 991, 1002, 1007, and countable for a boat, and every eight 
 ion. hides for a helm and breastplate." 
 
 2 The assessment of 1008, in which Stubbs, Const, Hist., vol. i. p. 106. 
 
 we find the origin of ship-money, is thus 8 Saxons in England, vol. ii. p. 222. 
 
 recorded in the Abingdon and Peter- * " The king and the witan had 
 
 borough Chronicles for 1808 : " He"r power t6 appoint prelates to vacant 
 
 bebead se Cyng paet man sceolde ofer sees." Saxons in England, vol. ii. p. 
 
 call Angelcyn scypu faestlice wyrcan; 221. This was the truory ; as to the 
 
 p aet is tSonne ; of prim hund hidum and practice see Stubbs, Const. Hist., vol. L 
 
 of tynum aenne scego", and of viii hi- p. 134. 
 
 dum helm and byrnan." " The govern- 6 " The witan had the power of mak- 
 
 ment did not levy ship-money, but re- ing alliances and treaties of peace, and 
 
 quired each county to find its quota of of settling their terms." Saxons in 
 
 snips. This would apply as well to England, vol. ii. p. 213. See Alfred 
 
 the inland districts as to those on the and Guthrum's Peace, Thorpe's Laws 
 
 seaboard." Mr. Earle's note, quoted and Institutes, vol. i. p. 152. 
 in Freeman's Norm. Cong., vol. i. p.
 
 iSS 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Alienation 
 of folkland. 
 
 Bookland 
 converted 
 into folk- 
 land. 
 
 The folk- 
 land be- 
 comes 
 terra regis. 
 
 also of raising land and sea forces, whenever extraordinary 
 circumstances required that the authority of the great coun- 
 cil should be added to that of the king. 1 The folkland, the 
 national fund, was administered and conveyed conjointly by 
 the king and the witan. Nearly every grant professes to 
 have been made by the king cum consilio, consensu et licentia 
 procerum, or in some like formula expressing the same idea. 2 
 With the consent of the witan the king could carve an estate 
 out of the folkland and vest it in a private individual or corpo- 
 ration, and thus convert the portion severed from the public 
 domain into an alodial estate, heritable forever. 3 When such 
 a grant was made, it was usual for the land to be freed by 
 the terms of the book or charter from all burdens except 
 the trinoda necessitas, to which all lands were subject. 4 In the 
 same way an estate could be carved out of the folkland and 
 vested in the king as an individual, to be held by him as a 
 private estate of inheritance. 6 The king and the witan could 
 also convert bookland into folkland, and impose upon it all 
 the burdens to which that kind of land was subject. 6 And 
 before the influence of the principle, which rendered family 
 land inalienable without family consent, had fallen into decay, 
 the king and the witan were sometimes called upon to con- 
 firm and guarantee grants of large private estates, so as to 
 effectually bar the right of any heirs that might be cut off by 
 the alienation. 7 As the royal power grew, and as the mon- 
 archy became more and more consolidated, the folkland passed 
 under the control of the king alone ; the witan finally became 
 mere witnesses of the royal grants. In William's time the 
 folkland had become terra regis? 
 
 That the inherent power of the witan was, in the last re- 
 
 1 " The king and his witan had 
 power to raise land and sea forces 
 when occasion demanded." Saxons 
 in England, vol. ii. p. 224 ; E. Chron., 
 a. 099, 1047, 1048. 
 
 * Saxons in England, vol. ii. p. 226. 
 
 8 "The witan possessed the power 
 of recommending, assenting to, and 
 guaranteeing grants of lands, and of 
 permitting the conversion of folcland 
 into b6cland, and vice versa" Saxons 
 in England, vol. ii. p. 225. 
 
 4 The three duties which arose out 
 of the trinoda necessitas, although dis- 
 tinct from the feudal services of later 
 
 times, tended " more and more to be- 
 come duties attaching to the posses- 
 sion of the land owed to, and capable 
 'of being enforced by, the king or the 
 great man of the district." Digby, 
 Law of Real Property, p. 14; Cod. 
 Dipl., No. 52. 
 
 * Cod. Dipl., No. 260. 
 
 6 Cod. Dipl., No. 281 ; Saxons in 
 England, vol. ii. pp. 226-227. 
 
 7 See grant made by Abbot Ceol- 
 frith, Cod. Dipl., No. 127 ; Essays in 
 A. S. Law, pp. 75-77. 
 
 8 Essays in A. S. Law, pp. 99-100 \ 
 Stubbs, Const. Hist., vol. i. p. 193.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 189 
 
 sort, higher than that of the king is demonstrated by the fact The witan 
 that the witan had the power not only to elect 1 but to de- the king, 
 pose the king. Teutonic kingship was elective from the 
 earliest period in its history, but the right of election was 
 attended and modified from the very beginning by the he- 
 reditary principle. In the home-land, the king was chosen 
 by the state assembly, but the choice was limited to those 
 who possessed the indispensable prerequisite of noble blood. 2 
 In the character of the new kingship which grew out of the 
 Teutonic conquest of Britain, there was no departure from 
 the primitive tradition. In every kingdom there was some 
 one royal house whose members were considered, under 
 all ordinary circumstances, entitled to the succession ; but 
 within the limits of that house the witan possessed the power 
 to elect the person most competent to govern. 3 It was usual oldest son 
 to give the preference to the oldest son of the last king, if tlng^su* 
 he were not too young or otherwise incompetent to rule ; in a"y chosen 
 that event, the witan generally elected the brother of the 
 king, or some other kindred prince more capable of ruling. 4 
 But no matter who succeeded to the throne, the theory was 
 that he succeeded by virtue of an election ; he was " gecoren 
 and dhafen to cyninge" elected and raised to be king. 5 Ex- 
 press mention is made of the act of election in the chronicles 
 and memorials touching the accessions of the following 
 kings : Alfred, Eadward the Elder, ^thelstan, Eadred, Ead- 
 gar, Eadward, ^thelred, Eadmund, Cnut, Harol I., Eadward 
 the Confessor, and Harold. 6 
 
 The witan, who possessed the power to elect the king, pos- The witan 
 sessed also the correlative right to depose him whenever his pose thf 
 government was not conducted for the good of his people. 7 g- 
 
 1 " The witan had the power of elect- * Norm. Conq., vol. i. pp. 72, 73, and 
 ing the king." Saxons in England, Appendix S. 
 
 vol. ii. p. 214. 6 Saxons in Eng., vol. ii. p. 215. 
 
 2 " Reges ex nobilitate, duces ex vir- 6 These instances in which express 
 tute sumunt." Tac., Germ., c. 7. mention is made of the act of election 
 
 8 " The kingly dignity among the have been collected by Kemble (Sax- 
 Anglo-Saxons was partly hereditary, ons in Eng., vol. ii. pp. 215-219), Free- 
 partly elective; that is to say, the man (Norm. Conq., vol. i. p. 591), and 
 kings were usually taken from certain Stubbs (Const. Hist., vol. i. p. 136, 
 qualified families, but the witan claimed note i ). 
 
 the right of choosing the person whom 7 " The witan had the power to de- 
 
 they would have to reign." Saxons pose the king, if his government was 
 
 in England, vol. ii. p. 214 ; Stubbs, not conducted for the good of his peo- 
 
 Const. Hist., vol. i. p. 135. pie." Saxons in England, vol. ii. p. 
 
 219,
 
 190 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Deposi- 
 tions of 
 Alchred; 
 
 of Sige- 
 berht; 
 
 of Eadwig 
 
 of ^Ethel- 
 red. 
 
 The judi- 
 cial power : 
 the witan 
 and the 
 local courts. 
 
 All primi- 
 tive Teu- 
 tonic courts 
 popular 
 assemblies. 
 
 The greater number of cases in which this power was exer- 
 cised by the witan belong to the period which precedes the 
 union of the heptarchic kingdoms under the house of Cerdic. 
 In the eighth century, out of fifteen kings duly elected in 
 Northumbria, at least thirteen are said to have ended their 
 reigns by extraordinary means. 1 In this confused history, at 
 least one case, that of Alchred, stands out as a regular and 
 formal act of deposition. 2 In 755 the witan of Wessex de- 
 posed Sigeberht from the royal dignity and elected his rela- 
 tive Cynewulf in his stead. The Chronicle says: "This 
 year, Cynewulf and the West Saxon witan deprived his kins- 
 man Sigeberht of his kingdom, except Hampshire, for his 
 unjust doings." 3 Among the descendants of Ecgberht, at 
 least two cases of deposition appear to have occurred. The 
 Mercians reject Eadwig, sever their kingdom from his, and 
 then elect Eadgar as their king. 4 yEthelred the Second was 
 deposed in favor of his conqueror, and afterwards restored by 
 the action of the witan. 5 In many of the cases it is difficult 
 to determine whether the throne was made vacant by a legal 
 act of deposition, or through the results of conspiracy and 
 civil war. 
 
 5. The German scholars have firmly established the funda- 
 mental historical principle, that the Teutonic race, in the 
 earliest known period of its development, vested not only the 
 political administration, but the administration of law, in an 
 expanding series of popular assemblies, composed of the free- 
 men whose interests were directly involved. 6 In the conti- 
 nental Teutonic state, the narrowest form of organization 
 was represented by the mark, in whose assembly or mark- 
 moot the markmen met together to regulate all matters aris- 
 ing out of their peculiar system of village and agricultural 
 life. If the markmen ever administered justice among them- 
 
 1 Stubbs, Const. Hist., vol. i. p. 137. 
 
 2 " Eodem tempore, Alcredus rex, 
 consilio et consensu omnium suorum, 
 regiae familiae principum destitutes so- 
 cietate, exilio imperil mutavit majesta- 
 tem." Sim. Dun., a. 774. 
 
 8 E. Chron., a. 755; Flor. Wig., a. 
 755. The fullest account of this trans- 
 action is given by Henry of Hunting- 
 don, Hist. Ang., lib. iv. 
 
 4 Flor. Wig., a. 957 ; Saxons in Eng., 
 vol. ii. p. 221. 
 
 6 Freeman, Norm- Cong., vol. i. pp. 
 242-247. The action of the witan re- 
 lates more clearly to ^Ethelred's res- 
 toration than to his expulsion. V. S. 
 Dunstani, p. 35 ; Flor. Wig., a. 1014; 
 Stubbs, Const. Hist., vol. i. p. 139. 
 
 6 Cf. Essay on "The Anglo-Saxon 
 Courts of Law," in Essays in A. S. 
 Law, p. I.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. I9 1 
 
 selves it was in some period preceding the union of the vil- 
 lage-communities in larger aggregates. 1 In historical times 
 the marks appear as members of the pagi or gds, the dis- 
 tricts known in later times as hundreds. 2 The hundred court 
 of the Continent consisted of the regular and frequent meet- 
 ing of all the freemen resident in the district ; it was the 
 court of law in which justice was ordinarily administered. 3 
 The state assembly possessed the judicial power to hear and 
 determine grave public offences. 4 In the home-land, the or- in the home 
 dinary administration of law was vested in the court of the itce'ad'min- 
 pagus, gd, or hundred, the extraordinary, in the state as- ];f t; d h 
 
 sembly. The numberless petty states, in which the Teutonic dred court 
 settlers originally grouped themselves in Britain, were exact assembly. 
 reproductions, in every material particular, of the civitas of 
 Caesar and Tacitus. 6 
 
 The mark appears in English history as the tun or town- The tun- 
 ship, a corporate unity in whose members were vested the m 
 power of ordering their own local and domestic concerns. 
 This power was exercised by the village assembly or tun- 
 moot, which, in an independent township, consisted of all the 
 alodial owners residing within it, in a dependent one, of the 
 body of tenants who had united in the formation of a village- 
 community upon the land of a lord. In the village assembly, possessed 
 which could not have possessed more than quasi judicial judklaj'"' 
 functions, resided the power to regulate all the internal affairs functions - 
 of the township by the making of by-laws, a term which is 
 said to mean laws enacted by a " by," as the township was 
 called in the northern shires. The tun-moot elected its own 
 officers, and also provided for the representation of its inter- 
 ests in the courts of the hundred and the shire, where the 
 gerefa and four selectmen appeared for the township. 6 In 
 the " process of feudalization " the township finally becomes 
 the manor of the lord ; and the ancient jurisdiction of the 
 tun-moot survives to this day in the parish vestry and in the 
 manorial courts. 7 
 
 1 See above, p. 104. 8 See above, p. 124. 
 
 9 Essays in A. S. Law, p. 5. * See above, p. 143. 
 
 8 Sohm, Altd. R.~ u. G. Verf., i. 1 Maine, Village Communities, lee- 
 
 541. ture v. ; Digby, Law of Real Property, 
 
 * " Licet apud concilium accusare p. 43. 
 quoque et discrimen capitis intendere." 
 Tac., Germ., c. 12.
 
 192 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 The burg- 
 gemot 
 
 identical 
 with the 
 hundred 
 court. 
 
 The Old-English burg or borough was nothing but a town- 
 ship, or a group of townships, in a higher state of organiza- 
 tion, and with defences of a more formidable character than 
 those of the ordinary township. 1 " It was not like an ancient 
 Greek or Roman, like a mediaeval Italian or Proven9al city, 
 the centre of the whole civil life of its district. It was sim- 
 ply one part of the district in which men lived closer together 
 than elsewhere ; it was simply several townships packed 
 tightly together, a hundred smaller in extent and thicker in 
 population than other hundreds." 2 The " burg " like the 
 " tun " possessed its common lands, its own court or burg- 
 gemot, and its head officer or gerefa, who was known as the 
 tun or wic-gerefa, and in commercial places like London, 
 Bath, and Canterbury, as port gerefa : 3 the burg-gerefa does 
 not occur. 4 The early history of the borough constitution is 
 very obscure, but in it was undoubtedly embodied the system 
 originally represented by the free township, which system 
 survived as the basis of municipal authority. 5 As the greater 
 burgs generally represented a group of townships that had 
 coalesced, their organization naturally resembled the constitu- 
 tion of the hundred more closely than that of the township. 
 The burg-gemot, hustings 6 or law court of the Old-English 
 city, was nothing but the hundred court in a slightly differ- 
 ent form ; its origin was the same and its procedure sub- 
 stantially the same. 7 
 
 The pagus, or hundred of the continental Teutonic state 
 
 1 Stubbs, Const. Hist., vol. i. pp. 92, 
 403- 
 
 * Freeman, Norm. Cong., vol. v. p. 
 312. " The collection of geographically 
 continuous parishes covered with build- 
 ings, in the counties of Middlesex, Sur- 
 rey, and Kent, which is called London 
 in popular language, would have been a 
 hopelessly bewildering object to an old 
 Greek; but of one thing he would 
 have been sure, and rightly, that noth- 
 ing could well be less like a polis." 
 Sir Fredrick Pollock's Hist, of the 
 Science of Politics,^, n (Humboldt Li- 
 brary). 
 
 8 Kemble, Saxons in England, vol. 
 ii. pp. 174-176; Stubbs, Const. Hist., 
 vol. i. p. 93. 
 
 4 Schmid, Gesetze, p. 598. 
 
 5 It is now perfectly well understood 
 that the origin of English municipali- 
 
 ties cannot be traced to a Roman 
 source. For authorities upon this sub- 
 ject see above, pp. 124, 125. 
 
 6 "This name is still preserved in 
 the United States in the Court of Hust- 
 ings of Richmond, Virginia." Bige- 
 low, Hist, of Procedure in Eng., p. 141, 
 note 2. 
 
 7 Essays in A. S. Law, p. 22. " Of the 
 influence of guilds, as a subsidiary part 
 of town organization, there are some 
 traces which at a later period assume 
 great historical importance ; but there 
 is nothing to justify the notion that 
 they were the basis on which the cor- 
 porate constitution of the burh was 
 founded." Stubbs, Const. Hist., vol. 
 i. p. 94. " The various guilds were also 
 without authority as courts of the com. 
 mon law." Essays in A. S. Law, p. 
 22.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 193 
 
 is reproduced in Britain by a union of townships in the dis- The hun- 
 trict originally known as the gd or shire, a term of various dredcourt 
 application. This district, which is usually described in the 
 earlier documents as regio, pagus, or provincia, represents, 
 no doubt, either the pagus or district in which the hundred 
 warriors originally grouped themselves, or a union of town- 
 ships originally isolated and independent. The early gds 
 or shires were not at all uniform in size, their boundaries 
 depending upon the physical conformation of the country 
 in which the settlements were made. By a union of early 
 shires was formed the primitive state, whose national assem- 
 bly was the folk-moot, the meeting of the whole people in 
 arms. 1 In the process of consolidation the primitive state 
 descends in status one degree ; it becomes a mere division of 
 the greater whole, that is to say, a scir or shire. And as a identity of 
 necessary consequence the early shires 2 of which the primi- hunted e " 
 tive state was composed descend to the status of subdivisions, 
 known in later times as hundreds. In this way the conclu- 
 sion is attained, which may be accepted as a general law, that 
 "the state of the seventh century became the shire of the 
 tenth, while the shire of the seventh century became the hun- 
 dred of the tenth."* The name of hundred, which first occurs The name 
 in Old-English law in a police regulation of Eadgar's, 4 seems 
 to have been definitely applied, during the ninth or tenth 
 century, to the territorial district representing a union of 
 townships, which may have been originally known as a shire. 
 The hundred court of the consolidated kingdom and the 
 hundred court of the Continent were, therefore, identical in 
 fact and in name ; they were the ordinary courts of law in 
 which justice was administered in the first instance. 6 The Constitu- 
 English hundred-moot consisted of the regular assembly of all 
 the freemen resident within the district, together with the court - 
 parish priest, the reeve, and four best men, who came as 
 
 1 See above, pp. 123, 124. statement has been repeated in the 
 
 3 That scir or shire was the term hope of emphasizing the vitally im- 
 
 originally employed in Britain to de- portant conclusion which it embodies, 
 
 scribe the district, which arose out of a * Eadgar i. Constitutio de hun- 
 
 union of townships, is maintained by dredis. 
 
 very high authority. See Essays in A. 6 As to the importance of this fact 
 
 S. Law, p. 18; Stubbs, Const. Hist., in establishing the historical connec- 
 
 vol. i. pp. 96-101 ; Select Charters, p. tion between English and German in- 
 
 68. stitutions, see Essays in A. S. Law, pp. 
 
 8 Essays in A. S. Law, p. 19. This 6, 7.
 
 194 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [Cft 
 
 It met 
 monthly. 
 
 Head offi- 
 cers of the 
 hundred. 
 
 Police or- 
 ganization 
 the frith- 
 borh, or 
 peace- 
 pledge. 
 
 Self-help. 
 
 Right of 
 feud. 
 
 representatives from every township embraced within the 
 hundred. 1 The judges were the whole body of suitors, 2 who, 
 while on their way to and from the court, were under the 
 special protection of the law. The hundred court, which 
 met every month, 3 could declare folk-right in every suit ; its 
 jurisdiction was both civil and criminal ; it witnessed the 
 transfers of land ; and no suit could be carried to a higher 
 court until it had first been heard in the court of the hun- 
 dred. 4 The headship of the hundred seems to have been 
 divided between two officers, the one the representative 
 of the people, the other of the king. The hundred-man or 
 hundreds-ealdor, who was the elected officer of the freemen 
 of the hundred, convened the hundred court and probably 
 presided over it. This officer survives the Conquest, and in 
 the thirteenth century appears as the elected representative 
 of the hundred in the shire-moot. 6 The representative of 
 the king was the gerefa, who becomes after the Conquest 
 the bailiff of the hundred. 6 
 
 Having now arrived at a definite conclusion as to the ori- 
 gin and structure of the township, the burg, and the hundred, 
 it will be possible to indicate, in general terms, the relation 
 which existed between these territorial districts and the sys- 
 tem of police organization with which they became closely 
 interlaced. In the most primitive periods of Teutonic soci- 
 ety, the doctrine of self-help, the right of the individual free- 
 man to redress his own wrongs without the aid of the judicial 
 power, was the basis of all archaic procedure. " The Ger- 
 man was himself judge and warrior ; he levied execution and 
 exacted blood for blood by the sovereign powers vested in 
 himself by that most democratic of all constitutions." 7 The 
 right of feud, or private war, was a right which every Teu- 
 
 1 " It was attended by the lords of 
 lands within the hundred, or their 
 stewards representing them, and by the 
 parish priest, the reeve, and four best 
 men of each township." Stubbs, 
 Const. Hist,, vol. i. p. 103, and note I, 
 in which is cited Hen. I., vii. 4, 
 7 ; li. 2. See, also, Select Charters, 
 pp. 104, 105 ; Bigelow, Hist, of Pro- 
 cedure, p. 141. 
 
 2 Stubbs, Const. Hist., vol. i. pp. 103, 
 104, 114, note 6; Essays in A. S. Law, 
 P- 5- 
 
 8 "I will that each reeve have a 
 'gemot' always once in four weeks, 
 and so do that every man be worthy of 
 folk -right," etc. Eadward, ii. 8; 
 Eadgar, i. i ; iii. 5. 
 
 * ^Ethelstan, iii. 3 ; Eadgar, iii. 2 ; 
 Cnut, ii. 17, 19. 
 
 6 Hen. I., viii. i ; Palgrave, Com- 
 monwealth, pp. 635, cccli. 
 
 6 Stubbs, Const. Hist., vol. i. pp. 101, 
 102. 
 
 7 Essays in A. S. Law, p. 262.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 195 
 
 tonic freeman considered inalienable, a right which entered 
 with him into every political or social organization of which 
 he was a part. The first duty then which presented itself to 
 every organized society that aspired to preserve the public 
 peace was, to devise some means through which the right of 
 every man to redress his wrongs, according to his own esti- 
 mate of his injuries, might be modified and restrained. 1 As 
 the family in all branches of the Aryan race represented the Agency of 
 strongest form of organization through which the individual mlhe'pr* 
 could be governed, the state naturally invoked its aid for the l n of 
 maintenance of the peace and for the prevention of crime. 2 
 Tacitus explains the earliest attempt made by the Teutonic 
 states to mitigate the evils of private warfare, through the 
 agency of the family, when he says : " They are bound to 
 take up both the enmities and the friendships of a father or 
 relative. Nor are their enmities implacable ; for even homi- 
 cide is atoned for by a fixed number of flocks or cattle, and 
 the whole house receives satisfaction, a useful thing for the 
 state, for feuds are dangerous in exact proportion to free- 
 dom." 3 Treason and effeminacy were punished capitally ; 
 all other offences (including homicide) could be atoned for 
 by fines. 4 " A portion of the fine went to the king or state, AH fines 
 a part to the injured person or his relations." 5 The state t 
 thus acted as mediator by guaranteeing to the person in- 
 jured, or to his household, satisfaction for the injury received, pe 
 
 , _ ., , " , his 
 
 and to the person paying the fine immunity from the conse- tives. 
 quences of the feud. In this way the individual received 
 indemnity, and the state compensation for the breach of the 
 public peace. As the right of feud was too deeply rooted 
 to be eradicated by legislation, the Teutonic nations only 
 
 1 " The Teutonic nations set them- 2 " Saxon England formed no excep- 
 
 selves the task of regulating the Right tion to the rule. The family was not 
 
 of Feud. They could not entirely ab- only the most important institution of 
 
 rogate it, ... but they defined, and as private law : it stood also at the hot- 
 
 far as possible limited, its sphere and torn of the whole police and criminal 
 
 the extent of its action." Kemble, system." Essay upon " The Anglo- 
 
 Saxons in England, vol. i. p. 269. Saxon Family Law," Essays in A. S. 
 
 Kemble's tenth chapter, from which Law, p. 122. 
 
 this extract is taken, has been criti- 8 Tac., Germ., c. 21 ; Saxons in Eng., 
 
 cised by Konrad Maurer, Kritische vol. i. p. 271. 
 
 Ueberschau, iii. pp. 26-62, 1858. For * Tac., Germ., c. 12. 
 
 a full and authoritative view of the 6 " Pars multae regi vel civitati, pars 
 
 whole subject, see Wilda's Das Stra- ipsi qui vindicatur vel propinquis ejus 
 
 frecht der Germanen, 1842. exsolvitur." Ibid., c. 12. 
 
 erson or 
 
 s rela-
 
 196 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Wergild or 
 life-price, 
 unit in the 
 system of 
 compensa- 
 tion. 
 
 The family 
 or maegth 
 as a police 
 organiza- 
 tion; 
 
 decline of 
 its influ- 
 ence. 
 
 attempted to modify its exercise by prescribing a graduated 
 system of compensation which embraced nearly every offence 
 that could be committed against a man's person, honor, or 
 domestic peace. The unit in this system was the wergild, 1 
 or price set upon the life of every freeman according to his 
 rank, his birth, or his office. Every freeman had his wergild, 
 from the humblest peasant to the king : its varying amount 
 was the principal distinction between the classes ; it denned 
 the value of each man's oath, his mund or protection, and 
 the amount of his fines or exactions. And after the princi- 
 ple was settled that the life-price could be fixed at a definite 
 sum, the compensations for all less offences were adjusted in 
 a corresponding ratio. In the earliest forms of Old-English 
 law we find every injury that a man could suffer in his per- 
 son, his property, or his honor minutely assessed ; 2 and we 
 also find the right of feud limited to the single case of guilty 
 homicide. 3 In the event of a man's violent death the obliga- 
 tion devolved upon his kindred to prosecute the blood-feud, 
 and his wer, or life-price, was payable to them, 4 his 'maegth 
 or maegburk. In addition, however, to the prosecution of 
 the blood-feud, a man's maegth were bound to defend their 
 kinsman before the courts, and to become responsible for 
 him to the state. 6 In this way the family association or 
 maegth naturally supplied a system of mutual guaranty, 
 which the state was able to employ in early times as a police 
 organization through which it could hold lawless men to 
 right. In the earliest of the Old-English laws this system 
 appears in its purity ; in the legislation of yEthelberht, Wiht- 
 rsed, and Hlothaere the maegth is still wholly responsible. 6 
 But the primitive system becomes greatly weakened, under 
 the later kings, by the increasing force of public law, and 
 by the growth of the quasi feudal relation of lord and 
 
 1 "The wergyld, then, or life-price, 
 was the basis upon which all peaceful 
 settlement of feud was established." 
 Saxons in Eng. t vol. i. pp. 276, and 
 277-288. 
 
 2 See the Laws of ^Ethelbert and 
 Alfred, Thorpe's Laws and Institutes. 
 
 8 "Unlike some of the continental 
 tribes, the Anglo-Saxons did not per- 
 mit the exercise of the right of feud for 
 simply corporeal injuries, but limited it 
 
 to the single case of guilty homicide. 
 When a man was slain, his kindred 
 must avenge the murder by slaying an 
 enemy or enemies of equal value." 
 Essays in A. S. Law, p. 143. See 
 ^Ethelred, ii. 6; Cnut, ii. 56; Schmid, 
 Gesetze, viiL c. I. 
 
 * Schmid, Gesetze, vii. 3, 4. 
 
 6 Essays in A. S. Law, p. 146. 
 
 6 Kemble, Saxons in England, vol. 
 i- p. 259.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 197 
 
 man. 1 By the time of Alfred the right of feud had been so 
 far modified that a man could not fight, except in a certain 
 serious case, until he had first appealed to all the recognized 
 authorities for redress. 2 But if the offender failed to make 
 lawful amends after demand upon him, then the injured par- 
 ties could make war upon him with the aid of the state ; 
 whence the Old-English proverb, " Bicge spere of sfde 6Ser 
 bere," buy off the spear or bear it. 3 This primitive sys- 
 tem of police, based alone upon the family tie, which origi- 
 nally implied the fact of neighborhood, contained within it- 
 self the seeds of its own dissolution. As the force of family 
 association weakened, and as the family itself became dis- 
 persed, a time came when neighbors were not necessarily 
 kinsmen. When that point was reached, the deficiencies in 
 the old system had to be supplied by a more definite form 
 of organization, in which the power of the family survived 
 as a potent influence. In the new arrangement neighbors, New police 
 whether related or not, were bound together in tens and hun- t^ied in" 
 dreds, a tithing-man for each tithing, a hundred-man for 
 
 each hundred. 4 The frithborh 6 (peace-pledge) was the mu- as numeri- 
 tual guaranty by which every member of a tithing as well as sTons. n 
 of a maegth became a pledge or surety (borh) to the other 
 members, as well as to the state, for the maintenance of the 
 public peace. From the time of Eadgar 6 the maegth, as a 
 police organization, no longer existed. The primitive family 
 system had become merged in an artificial one which was 
 purely political ; the police duties which at first devolved 
 upon the kindred passed to the members of the tithings 
 and hundreds. But the most difficult question yet remains : 
 When and in what way did these numerical and personal 
 
 1 Essays in A. S. Law, p. 142. 6 Forsyth, Trial by Jury, p. 50. 
 
 3 Saxons in England, vol. i. p. 271; 6 "From the time of Eadgar, the 
 
 Essays in A. S. Law, p. 268. maegth, as a police organization, no 
 
 8 This right is thus expressed in a longer existed. It had been super- 
 
 formula contained in the law of Ead- seded by a system of police organiza- 
 
 ward the Confessor : " Emendationem tions of a purely politcial nature ; and 
 
 faciat parentibus, aut guerram patiatur, the police duties hitherto exercised by 
 
 unde Angli proverbium habebant : the kindred had passed to the mem- 
 
 Bicge spere of side other bere, quod bers of these political organizations." 
 
 est dicere, lanceam eme de latere aut Essays in A. S. Law, p. 147, citing 
 
 fer earn." Leg. Eadw. Conf., xii., Eadg. iii. 6, iv. 3; ^thelr. L i, Pr. ; 
 
 6; Thorpe, vol. i. p. 447. Cnut, il 20, Pr. ; WU. i. 25. 
 
 * Kemble, Saxons in England^ vol. i. 
 pp. 237, 238.
 
 198 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Numerical 
 divisions 
 merge their 
 functions in 
 townships 
 and territo- 
 rial hun- 
 dreds. 
 
 Frithborh 
 
 (peace- 
 pledge) 
 incorrectly 
 translated 
 by the 
 Norman 
 lawyers. 
 
 The shire- 
 moot. 
 
 divisions merge their functions in the already existing terri- 
 torial districts, which have been described as townships and 
 hundreds ? That such a merger did take place is clearly in- 
 dicated by the later laws. 1 The functions of the tithing sink 
 into those of the township ; and, except in some of the west- 
 ern counties, even the name of the tithing is lost in that of 
 the township. 2 The name of "hundred" may have extended 
 itself, by a perfectly natural process, to the territorial district 
 which the peace association protected. 3 It is more than 
 probable that the development which took place in the police 
 system was but a part of the general process of change 
 through which the primitive constitution passed in the tran- 
 sition from the personal to the territorial system. After the 
 Conquest the name frithborh was incorrectly translated by 
 the Norman lawyers into liberum plegium (frank - pledge) 
 instead of pads plegium* The "view of frank-pledge," the 
 right to see that these peace associations were kept in perfect 
 order, ultimately became a part of the petty criminal juris- 
 diction of the courts leet, where it still survives. 
 
 In the process of consolidation the ancient shire becomes 
 the modern hundred, and the primitive state becomes the 
 modern shire. The folk-moot, the national assembly of the 
 ancient kingdom, survives as the shire-moot, an institution 
 distinctly peculiar to England as compared with Germany. 6 
 In descending to the rank of a shire the primitive state pre- 
 serves its autonomy to the greatest practicable extent ; even 
 as late as the time of ^Ethelstan a trace of the ancient legis- 
 lative authority lingers in the proceedings of the shire-moot. 6 
 The government of the shire is divided between the ealdor- 
 
 1 " It is well known that in the later 
 Anglo-Saxon law, and even to this day, 
 the tithing and hundred appear as lo- 
 cal and territorial, not as numerical, 
 divisions. ... I do not deny that in 
 process of time these divisions had be- 
 come territorial," etc. Saxons in Eng- 
 land, vol. i. p. 240. 
 
 2 " Tithings at present exist in Som- 
 ersetshire and Wiltshire, and accord- 
 ing to Pearson (maps, 52) in Glouces- 
 tershire and Worcestershire, and in all 
 counties south of the Thames (except 
 Kent and Cornwall), where they an- 
 swer to the townships of other coun- 
 
 ties." Stubbs, Const. Hist., vol. i. p. 
 86, note 2. 
 
 8 Select Charters, p. 68. 
 
 4 "An early confusion gave rise to 
 the reading of Freoborh, liberum ple- 
 gium, free-pledge, frank-pledge, for 
 FriSborh, the pledge or guaranty of 
 peace, pads plegium. The distinction 
 is essential to the comprehension of 
 this institution." Saxons in England, 
 vol. i. p. 249, note i ; Forsyth, Trial 
 by Jury, p. 50. 
 
 6 Essays in A. S. Law, p. 2 r ; Waitz, 
 D. V. G., ii. p. 494; Stubbs, Const. 
 Hist., vol. i. p. 116. 
 
 8 See above, p. 173.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 199 
 
 man and the scir-gerefa or sheriff, the one the representa- Headship 
 tive of the nation, the other of the king. As the work of divided 5 *"" 5 
 consolidation advances, and as the tribal kings pass away, between 
 their places are rilled in the subject kingdoms by ealdormen , 
 
 . . . , , . . J theealdor- 
 
 or viceroys, appointed by the king and his witan, by whom man and 
 they are removable, and to whom they are responsible for the 
 exercise of their authority. 1 In some instances the under- 
 kings continue to rule as ealdormen by virtue of a delegated 
 authority. 2 "The ealdorman is a vice-king, with an independ 
 ent power as opposed to the king. Not the king's pleasure, 
 but a principle of the public constitution, determines the 
 completeness of the ealdorman's authority. Not the king's 
 pleasure, but only a lawful judgment, can strip the ealdorman 
 of his office. The ealdorman excludes the king from the im- 
 mediate government of the shire. The shire government is 
 not royal but ducal." 3 The ealdorman was the leader of the 
 military force of the shire, and, as such, he is sometimes 
 called in the charters heretoga* He sat in the shire-moot 
 with the sheriff and the bishop, and received a part of the 
 profits of jurisdiction. 6 The direct representative of the the sheriff, 
 king in the government of the shire was the scir-man, scir- 
 gerefa, 6 or sheriff, who was the administrator of the royal 
 demesne, the judicial president of the shire-moot, and the ex- 
 ecutor of the law. 7 The most general name for every fiscal, 
 administrative, and executive officer among the English in 
 early times was gerefa, a term which was usually limited by The term 
 a prefix which indicated in each case the scope of the offi- 's erea -" 
 cer's jurisdiction ; as tun-gerefa, wic-gerefa, port-gerefa, and 
 scir-gerefa. The gerefa or reeve always appears, however, in 
 connection with judicial functions, he is always the holder 
 of a court of justice. 8 The scir-gerefa, who, as a judicial 
 
 1 Freeman, Norm. Conq., vol. i. p. iv. 9. The word generally used in 
 52. the laws is gerefa ; scir-gerefa is found 
 
 2 " The under-kings of Hwiccia thus however, in charters. Cod. Dipl., iv. 
 continued to act as ealdormen under 10, 54, 201 ; Saxons in England, 
 Mercia for a century," etc. Stubbs, vol. ii. p. 158. 
 
 Const. Hist., vol. i. p. 112. 7 Stubbs, Const. Hist., vol. i. p. 
 
 Sohm, Altd. R.- u. G. Verf., i. pp. 113. 
 
 25, 26; Essays in A. S. Law, p. 21. * See Saxons in England, vol. ii. ch. 
 
 4 Cod. Dipl., ii. 383 ; iii. pp. 5, 49, 1 59, v., " The Gerefa." " I will that each 
 
 259,260, 262; Freeman, Norm. Conq., reeve have a ' gemot ' always once in 
 
 vol. i., Appendix K. four weeks, and so do that every man 
 
 6 Stubbs, Const. Htst.,\o\. i. p. 113. be worthy of folk -right," etc. Leg. 
 
 6 Scir-man, Ine, 8 ; Cod. Dipl., Eadw., L 2.
 
 200 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Sheriff the 
 nominee 
 and steward 
 of the king. 
 
 The consti- 
 tution of 
 the shire- 
 moot. 
 
 The bishop 
 sat in the 
 shire-moot. 
 
 Ancient 
 system of 
 appeal. 
 
 officer, was the executor of the law and president of the shire- 
 moot, may have been originally its elected chief. But in his- 
 torical times he is the nominee and steward of the king. 1 
 As a fiscal officer the scir-gerefa was the administrator of the 
 royal demesne within his shire, and the collector of all fines 
 that accrued to the king ; and, like the ealdorman, he par- 
 ticipated in the profits of jurisdiction. While the authority 
 of the ealdorman might extend to several shires, the author- 
 ity of a sheriff was distinctly limited to a single shire. The 
 shire-moot was simply the ancient folk-moot, the assembly of 
 all the freemen resident within the shire ; and, like the hun- 
 dred-moot, it was attended by all lords of lands (called in this 
 aspect scir-thegns), 2 by the parish priest, the reeve, and four 
 selectmen from each township, 3 and by the twelve senior 
 thegns from each hundred. 4 The shire-moot was, therefore, 
 not only a popular but a representative assembly, each town- 
 ship and each hundred within the shire being present in the 
 persons of its representatives. The presiding officer of the 
 shire-moot was the scir-gerefa, and with him sat the ealdor- 
 man and the bishop ; the one to declare the law temporal, the 
 other the law spiritual. 5 The shire-moot could declare folk- 
 right in every suit ; and as no cause could be carried to the 
 shire until it had first been heard in the hundred, so no cause 
 could be carried to the king until it had first been heard in 
 the shire. 6 It must not be supposed, however, that this ar- 
 rangement embodied a system of appeal in the modern sense 
 of that term. The decision of each court was final. It was 
 
 1 The right of election was asserted, 
 however, by the constitutionalists of 
 the thirteenth century, and it was for a 
 few years conceded by the crown. 
 Stubbs, Const. Hist., vol. i. p. 113. 
 
 2 Saxons in England, vol. ii. pp. 234, 
 23; ; Cod. Dip!., vi. 198. 
 
 * This fact, "left questionable in the 
 laws, is proved by the later practice." 
 Stubbs, Const. ffist.,\o\. i. p. 115; 
 citing Henry I., vii. 4, 7 ; li. 2. 
 See, also, Bigelow, Hist, of Procedure, 
 p. 133. 
 
 4 Cod, Dipl.,\\. 137 ; Select Charters, 
 PP- 137, 251. 
 
 6 By the laws of Eadgar and Cnut 
 the shire-moot was to be held twice in 
 the year. " And let the hundred gemot 
 
 be attended as it was before fixed ; and 
 thrice in the year let a burg-gemot be 
 held ; and twice, a shire-gemot ; and 
 let there be present the bishop of the 
 shire and the ealdorman, and there 
 both expound as well the law of God 
 as the secular law." Eadg., ii. 5 ; 
 Cnut, ii. 18. " It may, then, be con- 
 cluded that the presence of the sheriff 
 was necessary in any case, while that 
 of the ealdorman might be dispensed 
 with." Saxons in England, vol. ii. p. 
 159; Hallam, Middle As^es, vol. ii. p. 
 283- 
 
 6 " And let no one apply to the king 
 in any suit unless he at home may not 
 be worthy of law, or cannot obtain 
 law." Eadg. ii. 2; Cnut, ii. 17, 19; 
 Hallam, M. A. t vol. ii. p. 269.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 2OI 
 
 only in the event that a court failed to decide within the 
 prescribed time that the cause could be taken to a higher 
 tribunal. 1 
 
 In the last resort, the witenagemot acted as a supreme witana 
 court of justice both in civil and criminal causes. 2 Numer- ^rt'of 6 
 ous illustrations of the exercise of civil jurisdiction upon the justice in 
 
 r i i r 1-11 both CIVll 
 
 part of the witan can be found in the charters contained in and crimi- 
 the Codex Diplomaticus, in which the proceedings in many n 
 important trials are set forth in great detail. 3 From the same 
 kind of evidence it is equally certain that the witan often 
 adjudged lands of offenders, intestates, and suicides to be 
 forfeit to the king. 4 The criminal jurisdiction of the witan 
 extended to all such grave public offences as were originally 
 punishable in the national assembly of the primitive Teutonic 
 state. This jurisdiction in the time of Eadward the Con- 
 fessor was substantially what it had been in the days of 
 Tacitus. 6 By a decree of the Northumbrian witan, Wilfred 
 was condemned to imprisonment and exile ; 6 by decrees of 
 the witan of the consolidated kingdom ^Ifric, ^Ethelweard, 
 ^Elfgar, and Godwine were outlawed. 7 Although in theory 
 the jurisdiction of the king and the witan might be said 
 to extend over all persons and over all causes, yet in prac- 
 tice the tendency was to discourage its exercise, in order 
 to confine litigation as strictly as possible to the local tri- 
 bunals. 8 
 
 6. As the judicial powers of the witan were exercised only 
 at long intervals and upon extraordinary occasions, and as the 
 
 1 Essays in A. S. Law, pp. 25, 26; and bearing date in the time of Ead- 
 Stubbs, Const. Hist., vol. i. p. 115, gar. 
 
 note 3. 6 Stubbs, Const. Hist., vol. i. p 
 
 2 " Lastly, the witan acted as a su- 132. 
 
 preme court of justice, both in civil 6 Eddius, V. Wilfr. 
 
 and criminal causes." Saxons in Eng- 7 Cod. Dipl., No. 1312; E. Chron., 
 
 land, vol. ii. p. 229. 1020, 1051, 1055 ; Saxons in England, 
 
 8 As illustrations see Cod. Dipl., vol. ii. pp. 230-232. 
 
 Nos. 143, 156, 164, 220, 245, 1034, 8 "Instead of enlarging their own 
 
 I2<;8. powers by encouraging suitors to seek 
 
 *" The witan possessed the power justice directly from the crown, the 
 
 of adjudging the lands of offenders king and the witan frowned upon every 
 
 and intestates to be forfeit to the king." symptom of popular discontent with 
 
 Saxons in England, vol. ii. p. 228. See the clumsy justice of popular tribunals, 
 
 Cod. Dipl., Nos. 1 1 12, 1295, 374, 1035. and forced suitors back upon the local 
 
 Kemble also refers to a case of forfeit- courts." Essays in A. S. Law, p. 25. 
 
 ure for suicide, contained in a charter As to the judicial powers of the witan 
 
 in the archives of Westminster Abbey, in the Norman period, see Bigelow's 
 
 Hist, of Procedure, pp. 20-25.
 
 202 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Germs of 
 jury and 
 representa- 
 tive sys- 
 tems im- 
 bedded in 
 the local 
 courts. 
 
 Local 
 courts sur- 
 vive the 
 Conquest. 
 
 Embryonic 
 forms of 
 representa- 
 tive princi- 
 ple. 
 
 courts of the townships did not possess contentious jurisdic- 
 tion, 1 it follows that the ordinary administration of law was 
 confined to the courts of the shire and hundred. The busi- 
 ness of these courts was not limited, however, to the exercise 
 of judicial functions only. In the Old-English common- 
 wealth, as in all other infant societies, the line of demarcation 
 between the different powers in the state was not at all well 
 defined ; the courts of the shire and hundred were not only 
 the judicial but the administrative workshops of the constitu- 
 tion. In addition to the administration of justice, these 
 courts transacted such business as the levying of military 
 forces, the adjustment of local assessments, and the regula- 
 tion of the system of police; 2 and in their presence were 
 performed all acts that required special publicity, such as the 
 making of sales and the execution of important documents. 3 
 These local courts, in which were discussed and settled nearly 
 every question in which the body of the people were directly 
 concerned, 4 survived the shock of the Norman conquest, pre- 
 serving in their organization and procedure the germs out of 
 which the greatest of English institutions were to spring. 
 Out of the representative principle imbedded in the courts 
 of the shire and hundred were developed, under the influence 
 of Norman administrative ideas, the jury system, 6 and the 
 system of representative government. 6 In order fully to 
 grasp the history of this development, which involves the 
 question of questions for students of English institutions, 
 it will be necessary to begin with an examination of the 
 germs of the representative principle as they appear in the 
 primitive constitution. Such an examination can only be 
 
 1 See above, pp. 104, 191. 
 
 2 Guizot, Hist. Rep. Gov., pp. 44, 49. 
 As to the obligation of each shire to 
 furnish its quota of ships, see the as- 
 sessment of 1008 (E. Chron., a. 1008), 
 which is explained by Mr. Freeman, 
 Norm. Cong., vol. i. p. 228, and Ap- 
 pendix LL. 
 
 8 Wills were often attested by the 
 shire-moot See Cod. Dipt., vi. 198. 
 For other acts done before the shire, 
 see ibid., iv. 117, 137, 138, 234. 
 
 * "The courts of those days sup- 
 plied the means by which every kind of 
 business was transacted, and had prob- 
 ably a greater resemblance to a public 
 
 meeting than to a court of justice in 
 the modern sense of the term. This 
 was true of all courts whatever, but es- 
 pecially of the county court, ... in 
 which were transacted all the more im- 
 portant branches of public business, 
 judicial, financial, and military." Sir 
 James Fitz- James Stephen, Hist. Crim. 
 Law, vol. i. p. 77. 
 
 6 Stubbs, Const. Hist., vol. i. p. 608. 
 " It is in the new system of recognition, 
 assizes, and presentments by jury that 
 we find the most distinct traces of the 
 growth of the principle of representa- 
 tion ; and this in three ways." 
 
 6 Guizot, Hist. Rep. Gov., p. 45.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 203 
 
 made through an analysis of the organization of the local 
 courts, and of the methods of their procedure. The court of 
 the hundred, like that of the shire, consisted of the meeting 
 of all the qualified freemen resident within the district over 
 which its jurisdiction extended. In the hundred court ap- 
 peared the reeve and four selectmen from each township 
 embraced within the hundred ; in the shire court, like repre- 
 sentatives appeared from each township embraced within the 
 shire. 1 Both courts were, therefore, not only popular but shireand 
 representative assemblies. In both courts the whole body of 
 "suitors" (attendants) were the judges, and in theory what- 
 ever judgment was rendered was the judgment of the whole biles. 
 assembly. 2 But in practice it became impossible for the 
 whole body to exercise judicial functions. The inconven- 
 iences which arose out of this state of things indicated the 
 obvious and natural remedy. Each assembly delegated its 
 powers to a judicial committee composed of its own members, 
 who acted in behalf of the whole court. 3 The representa- xh 
 tives, or "judices" so chosen, whose number seems to have ces 
 been always twelve or some multiple of twelve, probably 
 acted under the advice of the presiding officer, who was pre- 
 sumed to be familiar with all the old customs. 4 Illustrations 
 of this principle of delegation may be found in the twelve 
 judges elected in the shire court of Cambridge to confirm 
 with their oaths a decision previously rendered in the same 
 court in a case between the Bishop of Rochester and the 
 Sheriff of Cambridge ; 6 in the twelve senior thegns who ap- 
 pear as a representative body in the courts of both the shire 
 and hundred; 6 and in the twenty-four "judices" 7 or the 
 
 1 See above, pp. 194, 200. 213; Savigny, vol. i. pp. 192, 217, 239; 
 
 2 " Apart from the presiding officer Brunner, Die Entstehung der Schwur- 
 of the court, the judgment was theo- gerichte, pp. 20, 21. 
 
 retically given by the whole assembly ; * Essays in A. S. Law, p. 289, note 4. 
 
 but practically, and for convenience, 6 " Sed cum eis Bajocensis episco- 
 
 often by a chosen number of 'judices.'" pus qui placito illi praeerat, non bene 
 
 Essays in A. S. Law, p. 288. crederet, praecepit ut si verum esse, 
 
 8 " These twelve may have been in quod dicebant, scirent, ex seipsis duode- 
 
 some cases like the scabini or schof- dm eligerent, qui quod omnes dixerant 
 
 fen, a fixed body holding their appoint- jurejurando confirmarent." Hickes, 
 
 ment for life ; or like the lawmen of Dissertatio Epistolaris, etc., p. 33. 
 
 Lincoln, the hereditary owners of sac 6 ^Ethelred, iii. 3; Cod. Dipl., iv. 
 
 and soc in the territory; or chosen 137. 
 
 merely for the occasion." Stubbs, 7 " Tandem veniens ^Egelwinus Al- 
 
 Const. Hist., vol. i. p. 103. As to the derman ad Granteburge habuit ibi 
 
 scabini, see Hallam, M. A., vol. i. p. grande placitum civium et hundretano-
 
 2O4 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [Cn. 
 
 Probable 
 origin of 
 jury of pre- 
 sentment. 
 
 Origin of 
 the trial 
 jury- 
 
 Archaic 
 legal pro- 
 cedure. 
 
 thirty-six " barons " l who were chosen in the East Anglian 
 county courts to determine the suits of Ramsey and Ely. 
 
 The twelve senior thegns seem, however, to have repre- 
 sented the hundred or wapentake for a special purpose. 
 ^Ethelred's law provides "that a gemot be held in every 
 wapentake ; and the XII senior thegns go out, and the reeve 
 with them, and swear on the relic that is given them in hand 
 that they will accuse no innocent man, nor conceal any guilty 
 one." The most competent critics seem to regard the twelve 
 thegns, not as " judices," but as inquisitors of all crimes com- 
 mitted within the hundred to which they belong ; and, as 
 such, they probably represent the earliest form of the crimi- 
 nal jury of presentment. 2 
 
 But it must not be for one moment supposed that, in the 
 representative body of "judices " to whom the judicial powers 
 of the popular courts were sometimes delegated, there can be 
 discovered the beginning of the trial jury, which has its ori- 
 gin in an entirely different source. What that source is, can- 
 not be discovered without a brief examination of the archaic 
 forms of Old-English legal procedure. The modern suit 
 represents a syllogism in which the body of judicial rules are 
 the major, and the declaration of facts the minor, premise : 
 the primitive Teutonic suit was a simple demand made by 
 the actor on the defendant for compensation. 3 To such a 
 demand, which was made in a solemn traditional form, the 
 defendant opposed an equally solemn contradiction. 4 The 
 demand and denial, which made up the issue, were uuattended 
 by any allegations of fact in support of either. 5 The vitally 
 
 rum coram XXIV judicibus." Hist. 
 Ely, Gale, p. 471. 
 
 1 " XXXVI barones de amicis utri- 
 usque partis pari numero electos ipsi 
 judices constituerunt." Ibid., p. 471. 
 See Stubbs, Const. Hist., vol. i. p. 103, 
 and note 5 ; Forsyth, Trial by Jury, pp. 
 
 58 59- 
 
 2 Forsyth ( Trial by Jury, p. 57 ) holds 
 this view, and cites in support of it Pal- 
 grave, English Commonwealth, vol. i. 
 p. 213. Bishop Stubbs assents with 
 his usual caution. Const. Hist., vol. i. 
 pp. 103, 115, 396, 6n, 618. This prob- 
 able view is also adopted by Sir 
 James Fitz-James Stephen, Hist, of 
 Crim. Law (London, 1883), vol. i. pp. 
 
 68, 69. Konrad Maurer holds that 
 ./Ethelred's law only related to the 
 Danelagh, and that it is in full accord 
 with Scandinavian law. Krit. Ueber- 
 schau, v. p. 389, note 2. This inter- 
 pretation of the passage is disputed, 
 however, by Brunner, Die Entstehung 
 der Schwurgerickte, pp. 402, 404. 
 
 8 Essays in A. S. Law, p. 183. 
 
 * Brunner, Schwurg., p. 44. 
 
 6 " He (defendant) did not oppose 
 the facts on which the plaintiff rested 
 his claim, since the plaintiff brought 
 forward no such facts ; he only attacked 
 the assertion that he was indebted." 
 Essays in A. S. Law, p. 194.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 205 
 
 important point in the procedure, which was conducted 
 throughout with an iron rigorism of form, 1 was the question 
 of proof. How the proof should be given, and who should 
 give it, were matters settled by the judgment, which was not 
 only rendered before the taking of the proof, but in it was 
 declared what would happen after its completion. 2 The 
 strange inversion of ideas involved in the rendition of the 
 judgment before the taking of the proof can be explained, 
 however, by the fact that proof, as .understood by the Teu- Teutonic 
 tonic barbarian, was not a judicial means of bringing convic- of n proof. n 
 tion to the mind of the court ; it was simply a satisfaction due 
 and given by the party to his adversary in the form prescribed 
 by custom. 3 It was no part of the business of the court to 
 weigh the proof ; it simply declared who should give it, and 
 in what manner, and then what the judgment would be after 
 its completion. 4 Three independent means of proof were Three inde- 
 allowable, oath, ordeal, and documents. 5 The oath, which ^n"ot 
 the party having the right of proof swore in his own behalf, **'~ 
 could be accompanied or supported, (i) by the oaths of com- deal,' and 
 purgators, or oath-helpers ; (2) by the oaths of witnesses. 
 After the party making the proof had sworn to his demand, 
 his oath-helpers swore to their belief, not in their chief's as- 
 sertion, but in his credibility. 6 The witness-proof by which a 
 party could support his assertion was drawn either from 
 transaction or community witnesses. Transaction witnesses, Transac- 
 which existed in Old-English law as in all the folk laws, were nesses! " 
 official persons appointed to witness such business transac- 
 tions as sales, gifts, exchanges, and the like. 7 By Eadgar's 
 
 1 Brunner, Entstehung der Schwur- 4 " The proof was regarded as a 
 gerichle, p. 44. satisfaction to the claimant, and there- 
 
 2 Ibid., pp. 45, 46; Siegel, Gerichts- fore was not directed to the court, but 
 verfahren, p. 148. to the opponent," etc. Essays in A. S. 
 
 * " It follows that in the barbarian Law, p. 188. 
 
 form of proof by witnesses, which was 6 K. Maurer, Krit. Uebersch., v. p. 
 
 merely one particular kind of proof, as 185. 
 
 ordeal was another, the producer of Essays in A. S. Law, p. 186 ; 
 
 the witnesses proposed not in the least Brunner, Schwurg., p. 49. 
 
 to convince the tribunal of his own 7 ^Ethelstan, v. i, 5. "And let 
 
 good right, but simply to produce the there be named in every reeve's ' ma- 
 
 fixed number of witnesses according to nung ' as many men as are known to be 
 
 the customary form, and these wit r unlying, that they may be for witness 
 
 nesses were to corroborate by oath the in every suit. And be the oaths of these 
 
 theme or statement prescribed for them unlying men according to the worth of 
 
 in the previous judgment which had the property, without election." Se* 
 
 ordered the proof." North American lect Charters, p. 66. 
 Review, July, 1874, pp. 219, 220.
 
 206 THE OLD-ENGLISH COMMONWEALTH. [CH. 
 
 law, a given number of such witnesses were appointed in each 
 burg and hundred. 1 
 
 Community Community witnesses were such persons as could testify 
 ses ' concerning circumstances, long-continued relations, and oc- 
 currences known to them as neighbors, or members of the 
 community. This class of witnesses, who were chiefly em 
 ployed in actions relating to real estate and status, acted in 
 a representative capacity ; they declared the witness of the 
 community in support of the assertion of the party by whom 
 inquest of they were produced. 2 After the system of inquest by proof 
 duced by" (inquisitio per testes), which the Normans introduced into Eng- 
 the Nor- j an( j un( i er the name of assizes, became employed in legal con- 
 tests between private individuals as to the possession of land, 
 the community witnesses appear as the sworn recognitors 
 of the assize. 3 But they appear in a somewhat changed rela- 
 tion : they no longer depose to the single assertion of their 
 chief to which they were confined by the customary law ; 
 they declare the witness of the community as to the whole 
 truth within their knowledge, in response to questions pro- 
 pounded to them by the judge charged with the execution of 
 the inquiry. The conclusion is now firmly established, that 
 out of the inquest of proof, which was chiefly employed in 
 judicial matters in suits relating to rights in land, was devel- 
 oped by the lawyers of the Plantagenet period the jury of 
 judgment, the trial jury of modern times. 4 
 
 1 Eadgar, iv. 4, 5, 6 ; Forsyth, that the idea of the latter was derived 
 Trial by Jury, pp. 70-73. from the former. In both cases the 
 
 2 Brunner, SfAwurg., pp. 50-53 ; verdict was the testimony of witnesses 
 Essays in A. S. Law, pp. 186, 187. cognizant of the matter in dispute ; and 
 " From this class of proof arose the if we substitute a determinate number 
 ' inquisitio per testes ' in the Norman of knights for the probi homines of an 
 period, and the jury of English law," ordinary inquest, we have at once the 
 etc. Essays in A. S. Law, pp. 187, assize." Forsyth, Trial by Jury, p. 
 232, and note 4. 112. 
 
 8 " Soweit nach alterem Rechte ein 4 " Henry II. expanded and consoli- 
 
 Gemeindezeugniss, sei es in den Formen dated the system so much that he was 
 
 des frankish-normannischen oder des not unnaturally regarded as the founder 
 
 angelsachsischen Verfahrens in An- of it in its English character." Stubbs, 
 
 wendung war, hat dasselbe unter dem Const. Hist., vol. i. p. 614. The system 
 
 Einflusse der Recognitionen und der K6- of inquests by sworn recognitors has 
 
 nigsgerichtlichen Praxis allmahlich den been directly traced to the Prankish 
 
 Charakter einer Inquisitio ex jure ange- Capitularies, into which it may have 
 
 nommen." Brunner, Schwurg., p. 382. been adopted from the fiscal regula- 
 
 " There was no difference whatever in tions of the Theodosian Code. Ibid., 
 
 principle between those inquests ['Inqui- p. 613; Spence, The Equitable Juris- 
 
 sitio ex jure '] and the recognitions by the diction, vol. i. p. 178; Palgrave, Eng- 
 
 knights of assize ; and it seems to me lish Commonw., p. 271 ; Brunner, 
 
 to be almost as clear as demonstration Schwurg,, p. 87.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 2O/ 
 
 After the church had introduced the use of documents, Documents 
 they were employed as a means of proof of the same charac- deal. 
 ter as the proof of witnesses. 1 When no decision could be 
 reached by the use of ordinary means, a final appeal was 
 made through the ordeal to the judgment of God. 
 
 The law which was administered according to these clumsy Absence of 
 forms of procedure was strict law, whose severity went un- 
 tempered by any kind of equitable jurisdiction whatsoever. tion - 
 The only way in which the strictness of the common law 
 could be avoided was by compromise, which seems to have 
 been effected wherever it was possible. 2 Beyond these ar- 
 chaic forms legal procedure did not advance during the period 
 which precedes the Norman conquest. In this procedure, 
 and in the organization of the local courts, the representative 
 principle clearly appears. By the reeve and four selectmen Promi- 
 each township was distinctly represented in the courts of the e repre- 
 shire and hundred : by the judicial committees of twelve or sentative 
 
 * J principle. 
 
 some multiple of that number were represented the whole 
 body of the popular court whose powers they for the time 
 represented ; the twelve senior thegns appeared as a repre- 
 sentative body in the courts of both the shire and hundred ; 
 the community witnesses spake as the representatives of the 
 neighborhood as to the particular fact in question. Beyond 
 these embryonic forms the representative principle did not 
 advance until it developed and widened, under the influence 
 of Norman administrative ideas, first, into the jury system, 
 and then into the system of representative government. 
 The several stages in the history of this development will be 
 indicated hereafter. 
 
 7. In the preceding examination of the origin and struc- private ju- 
 ture of the courts of the shire and hundred, no reference has 
 been made to the growth of a feudal innovation through 3 cn - 
 which large sections of jurisdiction which had been national 
 or royal were withdrawn from the king or state and vested in 
 the hands of private individuals. Originally all jurisdiction 
 
 1 Essays in A. S. Law, p. 188. The ence on the fate of the whole judicial 
 document could be drawn up by a system. ... A compromise was always 
 notary, or before the court. K. Mau- effected where compromise was possi- 
 rer, Krit. Uebersch., v. p. 196. ble. Arbitration was, perhaps, the 
 
 2 " One result followed from this ab- habitual mode of settling disputes 
 sence of equitable powers, which was, among the Anglo-Saxons." Essays in 
 perhaps, not without an ultimate influ- A. S. Law, p. 26.
 
 208 
 
 THE OLD-ENGLISH COMMONWEALTH. 
 
 [CH. 
 
 Private 
 law courts 
 certainly 
 existed be- 
 fore the 
 Conquest ; 
 
 product of 
 the " pro- 
 cess of feu- 
 dalization.' 
 
 The profits 
 of jurisdic- 
 tion (socn) 
 first 
 granted ; 
 
 belonged to the people in their collective capacity ; the 
 peace was the national peace, and justice was the justice of 
 the shire and the folk in whose courts it was administered. 1 
 Such was the condition of things before the archaic judicial 
 constitution was torn in pieces by the growth of the aristo- 
 cratic and feudal element represented by the thegnhood, at 
 whose head stood the king. It is admitted on all hands 
 that, certainly before the Norman conquest, jurisdiction was 
 granted to private individuals without stint ; that private law 
 courts did exist by virtue of royal grants made with or with- 
 out the consent of the witan ; and that by virtue of such 
 grants jurisdiction ceased to be exclusively a public trust, 
 and often became a private right accompanying the possession 
 of land. In some instances these private jurisdictions em- 
 braced large districts, but usually only the jurisdiction of a 
 hundred. 2 As a general rule the law court created by royal 
 grant was simply a hundred court in private hands. How 
 this radical departure from primitive constitutional ideas was 
 brought about can only be explained by reference to that 
 "process of feudalization " through which the king becomes 
 the lord and patron of his people, through which the national 
 peace becomes the king's peace, the folkland the king's land, 
 the justice of the shire and the folk" the king's justice, the 
 national officers the king's officers, and the national assem- 
 bly the witan more and more the king's council. 3 As 
 this process advanced, the conception of sovereignty as orig- 
 inally embodied in the people passed out of view, the 
 sovereignty of the nation becomes merged in the king. The 
 theory that the justice of the shire and the hundred was the 
 king's justice must have preceded any attempt on the part 
 of the crown to bestow its administration upon private indi- 
 viduals. The earliest royal grants touching the adminis- 
 tration of justice seem to have been of a fiscal character 
 only, and were confined to the granting of such interest in 
 the profits of justice as were immemorially due to the 
 
 1 See above, p. 130. 
 
 2 " Some of these territories were 
 complete states themselves, like the 
 counties palatine of Durham and of 
 Chester. Some were completely or- 
 ganized as counties. Far the larger 
 number, however, had only the jurisdic- 
 
 tion of a hundred court." Essays in 
 A. S. Law, p. 54. " In all these the 
 machinery of the hundred or wapentake 
 was strictly preserved, and the law was 
 administered on the same principle." 
 Stubbs, Const. Hist., vol. i. p. 107. 
 8 See above, p. 177.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 209 
 
 crown. 1 The effect of such grants was to transfer from the 
 king to the landlord all the fines and profits of jurisdiction 
 which accrued to the royal fisc, or to the ealdorman, from per- 
 sons embraced within the exempted territory, without remov- 
 ing such persons from the jurisdiction of the hundred court. 
 The position of offenders within the immunity thus created 
 remained unchanged ; the amount of their fines remained the 
 same ; but that portion of the fine now passed to the lord 
 which had previously accrued to the king. 2 The word used 
 in the charters to convey fiscal rights of this character was 
 sdcn, a term which in its early technical meaning seems to 
 have expressed the right only to the profits of jurisdiction, 
 and not to jurisdiction itself. 3 The technical word which next, juris- 
 expressed the idea of jurisdiction was sacu or saca, meaning (sac 
 lawsuit, litigation. 4 When these terms sacu and sdcn (abbre- ltsdf- 
 viated into sac and soc] were used together in a royal grant, 
 the intention to convey to the grantee, not only the profits 
 of jurisdiction but jurisdiction itself, was clearly expressed. 6 
 At what period private law courts were first established in 
 England is a matter difficult to determine from the existing 
 evidence. It is maintained by some very eminent authori- Contro- 
 ties that these private jurisdictions existed in law from a very 
 early period, earlier in fact than that to which they can be 
 traced in laws and charters ; " that they were so inherent in 
 the land as not to require particularization " 6 in legal docu- 
 
 1 As examples, see Cod. DipL, Nos. 2. But Mr. Henry Adams, after an 
 116, 227, 236, 250, 313, 1084. "The exhaustive examination of the original 
 royal grants, so far as they affected the authorities, concludes that, as used in 
 ordinary course of justice, seem to the Old-English period, "there is no 
 have been double in their nature. They reason for supposing that jurisdiction 
 were, in the first place, grants of the is implied in the word sdcn. The idea 
 fines and pecuniary profits of jurisdic- expressed is always that of the charters, 
 tion, which, by the old system, fell to It is the profits of justice, and not the 
 the crown. This is entirely a fiscal justice itself. ... In point of fact, no 
 arrangement, which only indirectly con- instance can be found, before Norman 
 cerns the subject of jurisdiction." times, in which sdctt means jurisdic- 
 Essays in A. S. Law, p. 29. Professor tion." Essays in A. S. Law, pp. 43, 
 Stubbs seems to think that in early 44. 
 
 times the proprietor would " as a rule * " Sac, or sacu, seems to mean litiga- 
 
 satisfy himself with the profits of juris- tion." Stubbs, Const. Hist., vol. i. p. 
 
 diction, and transact the business of it 184, note 2. 
 
 through the ordinary courts." Const. 6 " When joined with s$cn in a royal 
 
 Hist., vol. i. p. 185. grant, the intention is to convey to the 
 
 2 Essays in A. S. Law, p. 31. grantee placita et forisfacturas, pleas 
 8 " Socn " has generally been held to and forfeitures, justice and the profits of 
 
 mean "jurisdiction." See Schmid, justice." Essays in A. S. Law, p. 44. 
 Gesetze, p. 654 ; Ellis, Introd., p. 273 ; 6 These are Kemble's words. Cod. 
 Stubbs, Const. Hist., vol. i. p. 184, note DipL, i. Introd. xliv.
 
 210 THE OLD-ENGLISH COMMONWEALTH. [CH. 
 
 ments. It has generally been conceded, however, that there 
 is no conclusive evidence of their existence before the reign 
 of Cnut. 1 But this conclusion has been assailed by a brilliant 
 critic, who maintains that the earliest positive evidence of 
 the existence of a private law court is contained in the char- 
 ters of Eadward the Confessor, by whose sweeping grants of 
 jurisdiction to the church they became a recognized and 
 potent element in English judicature. 2 However revolution- 
 ary the existence of these private jurisdictions, which could 
 hardly have been established before the latter part of the 
 Old-English period, may appear to be, it seems to be certain 
 that they did not represent any serious departure from primi- 
 tive ideas in respect either to their organization or procedure. 
 A grant of The usual effect of a grant of sac and soc was to confer upon 
 - the lord the right to hold a private hundred court within his 
 own terr i torv > m which hundred law was administered accord- 
 
 hold a pri- ing to the usual forms of archaic procedure, and subject, like 
 
 dred court, all other hundred courts, to the controlling jurisdiction of the 
 
 shire. 3 The leading difference in practice between a royal 
 
 or national and a private hundred court was, that in the one 
 
 the freemen met together to declare the law under the presi- 
 
 dency of a royal official ; in the other, under the presidency 
 
 of the lord or his representative. 4 In either event justice 
 
 was administered according to the custom of the manor, and 
 
 not according to the arbitrary will of the presiding officer. 5 
 
 Origin of All the elements have now been examined which enter 
 
 the mano- . . .... 
 
 rial system, into the constitution of the manorial system which originates 
 
 1 This is the view of Kemble and exemptions from the hundred courts 
 Maurer. Saxons in Eng., vol. ii. p. 397. only, and not from those of the shire, 
 Dr. K. Maurer says : " But all the and that thus they are the basis of the 
 more certain is it that, from the reign manorial court leet, as the mark system 
 of Cnut, the manorial jurisdiction ap- is that of the court baron." Stubbs, 
 pears in its most complete develop- Const. Hist., vol. i. p. 185. 
 
 ment ; innumerable charters, from his * " The machinery of the hundred 
 
 and his successors' hands, grant or con- court would, however, be preserved, ex- 
 
 firm the same," etc. Krit. Ueber., ii. cept that the territorial court would be 
 
 P- 58- by the great man or his representa- 
 
 2 This is the conclusion reached by tive." Digby, Law of Real Property, 
 Mr. Henry Adams in his invaluable p. 15. 
 
 essays upon " Anglo-Saxon Courts of 6 " It mattered not so much to them 
 
 Law," to which reference has so often whether the king's, the abbot's, or the 
 
 been made already. Essays in A. S. lord's reeve presided over their court, 
 
 Law, pp. 27-54. as it did that whoever presided should 
 
 " It is probable that, except in a not abuse his power." Essays in A. 
 
 very few special cases, the sat and soc S. Law, p. 54. 
 thus granted were before the Conquest
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 211 
 
 in Old-English and not in Norman law. The word " manor " J 
 is of Norman introduction, but the relation of the lord of a 
 manor and his tenants substantially existed from the time 
 the title to the lands of the once free community passed 
 from the community itself and became vested in a lord. 2 
 The tie which bound the manorial group together was the 
 manorial court (a general name which embraced the court 
 baron and customary court) and the court leet, which in legal 
 theory are separate and distinct. 8 In these courts of the 
 manor were blended two kinds of jurisdiction. As the 
 manor was only a dependent township under a new name, 
 the court baron, which was the principal court of the manor, court 
 inherited from the old tun-moot all of its functions, with the baron * 
 exception of those that had passed to the parish vestry. 4 To 
 the administrative functions, thus inherited by the manorial 
 court from the tun-moot, was added the jurisdiction of a 
 private hundred court, received by the lord of the manor 
 through the usual royal grant of sac and sec. 6 The civil hun- 
 dred-jurisdiction passed to the court baron, the criminal 
 hundred-jurisdiction to the court leet. 6 After the copyhold Court leet 
 or customary tenure had become established, the court baron 
 assumes a new form in dealing with tenants of that class, 
 and in this new relation is called the customary court baron, customary 
 
 , T court. 
 
 or customary court. 7 
 
 1 The word manerium, or manor, hundred comes to be exercised in the 
 first appears in England in the reign of manorial courts." Digby, Real Prof- 
 Eadward the Confessor. Ellis, Gen- erty, p. 53. Mr. Digby has thus ex- 
 eral Introd. to Domesday, p. 225. pressed with admirable clearness the 
 
 2 " It has already been seen that, al- important fact that not only the crimi- 
 though the word ' manor ' is of Nor- nal but the civil jurisdiction of the 
 man introduction, substantially the rela- manorial court was derived from the 
 tion of lord of a manor and his tenants hundred. Bishop Stubbs has been 
 existed before the Conquest." Digby, criticised for his vagueness on this 
 Real Property, p. 45. See also as to point. See North Am. Review, July, 
 the substitution of the lord for the 1874, p. 242. The critic concludes 
 community, Essays in A. S. Law, pp. that " undoubtedly both civil and 
 88-91 and 54. criminal jurisdiction came from the 
 
 8 Maine, Village-Communities. hundred, for the simple reason that 
 
 4 " The court baron is primarily the there was no other source from which 
 
 successor of the ancient assembly of it could have come." 
 
 the village or township." Digby, Real ' "The court baron exercised civil 
 
 Property, p. 53; Stubbs, Const. Hist., jurisdiction especially in matters re- 
 
 vol. i. p. 91. lating to the freehold lands within 
 
 6 " Thus, either by the creation of a the manor. Criminal jurisdiction was 
 
 franchise exempt from the jurisdiction amongst the functions of the court 
 
 of the hundred court, or by the amal- leet, and depended on a real or sup- 
 
 gamation of the hundred with the ma- posed grant from the crown." Digby, 
 
 norial courts, the jurisdiction civil and pp. 53, 54. 
 
 criminal exercised by the court of the 7 Digby, Real Property, p. 256.
 
 212 THE OLD-ENGLISH COMMONWEALTH. [Cn. 
 
 From Ead- 8. The attempt has now been made to define with approxi- 
 fom^s-" mate correctness the form which the constitution of the cf>n- 
 Natkmai solidated kingdom assumed during the century that inter- 
 unity and venes between the accession of Eadgar the Peaceful and the 
 tendency to beginning of the Norman conquest. With the accession of 
 troy it. j7 ac jg ar) anc i w j tn the final extinction of the provincial kings, 1 
 it seemed as if the work of consolidating the incoherent mass 
 of petty states, which the victories of Ecgberht had but loosely 
 united, had been fully and finally accomplished. As the 
 work of consolidation advanced, the royal power grew until it 
 reached its highest point in the person of Eadgar. 2 Each 
 step in this advance was attended by a corresponding de- 
 crease in the power and independence of the local communi- 
 ties. 3 The ancient states were reduced to the rank of shires, 
 the ancient shires to the rank of hundreds. But the local 
 organizations, which thus descended in status, preserved their 
 autonomy to the greatest practicable extent ; their ancient 
 boundaries remained unchanged ; in their local assemblies was 
 still carried on all forms of administrative and judicial busi- 
 ness in which the mass of the people were directly concerned. 4 
 Royal The national unity which thus grew up through a premature 
 prema nty ' and imperfect concentration of powers around a single throne 
 veioped 6 " was constantly strained and weakened by the counter-force 
 weakened o f the provincial spirit. 5 The greatest defect in the system 
 counter- arose out of the weakness of the tie which bound the central 
 provincial * powers of the state to the local machinery of the constitu- 
 spint. t j on There was a want of strong organic connection be- 
 tween the king and the witan, as the representatives of the 
 nation, and the system of provincial organization embodied 
 in the shires, a want which was never to be supplied until 
 representatives from the local communities finally drew to- 
 gether in an assembly which became coordinate with the 
 
 1 See above, p. 169. 6 "The national unity was weak- 
 
 2 " But with Eadgar the glory of ened by the sense of provincial unity, 
 England sank. The reign of his elder and individual liberty was strengthened 
 son Ead ward (975-979) was short and against the time when the national 
 troubled, and the young prince him- unity should be, not the centralization 
 self died by violence, most probably of powers, but the concentration of all 
 through the intrigues of an ambitious organization ; a period long distant and 
 step-mother." Freeman, Norm. Conq., to be reached through strange vicissi- 
 yol. i. p. 45 ; Stubbs, Const. Hist., vol. tudes. In the maintenance of provin- 
 i. p. 207. cial courts and armies -was inherent 
 
 8 Norm. Conq., vol. i. p. 67. the maintenance of ancient liberty." * 
 
 4 See above, p. 171. Stubbs, Const. Jfist., vol. i. p. 209.
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 21 Z 
 
 king's council. While this want of organic connection con- 
 tinued to exist, the cohesive power of national unity, which influence of 
 the crown embodied, necessarily depended in a great degree 
 upon the personal character of the national chief. Under 
 such rulers as Alfred, yEthelstan, Eadred, and Eadgar the 
 royal power was strong and effective ; under such a ruler as 
 ./Ethelred it became in a moment nerveless and inefficient. 1 
 Whenever the moment of weakness came, whenever the 
 throne was filled by an irresolute ruler or a child, the pro- 
 vincial spirit asserted itself through the revolts of the ealdor- 
 men, the viceroys who were ever ready to win back from the 
 king a part of the sovereign power which the local communi- 
 ties had lost. In this form appeared in England that feudal 
 movement which was everywhere dissolving the continental 
 nations into a mass of loosely united states with nobles at 
 their head, who owned but little more than a nominal alle- 
 giance to their sovereign. 2 The political history of the cen- struggle 
 tury that intervenes between Eadgar and William is the uncrown 
 history of the struggle between the power of the nation as and the 
 
 * r local mag- 
 
 embodied in the crown, and the provincial power asserted by nates, 
 the great ealdormen, who were ever striving in the direction 
 of feudal isolation. But the ealdorman never succeeded in 
 becoming completely independent, and his office never be- 
 came hereditary. The weakest of the successors of ^Elfred 
 were strong enough to drive the greatest ealdorman into 
 exile, and to supply his place with another. 3 In England the 
 crown proved mighty enough to preserve the national unity 
 which it embodied against the feudal and provincial ten- 
 dency to destroy it. But in the struggle the defensive power - m which 
 of the nation was broken ; the spirit of disunion and disorder s^power 
 which was ever assailing the foundations of the throne was ofthe 
 
 . nation was 
 
 equally ready to paralyze the national arm in the presence of broken, 
 the invader. 4 At the death of Eadred in 955 the tendency 
 
 * 
 
 1 Norm. Conq., vol. i. p. 78. English ealdorman never succeeded in 
 
 2 " The feudal movement, which in becoming really hereditary, or inde- 
 other lands was breaking up every na- pendent of the crown." Green, Hist. 
 tion into a mass of loosely-knit states ng. People, vol. i. p. 94 ; Freeman, 
 with nobles at their head who owned Norm. Conq., vol. i. p. 52. 
 
 little save a nominal allegiance to their * " In the witan the king and the 
 
 king, threatened to break up England church alone represented the principle 
 
 itself." Green, Hist, of the English of national unity and the tendency to 
 
 People, vol. i. p. 94. centralization. The ealdormen repre- 
 
 8 " Powerful as he might be, the sented an antagonistic force, the an-
 
 214 THE OLD-ENGLISH COMMONWEALTH. [CH. 
 
 towards national disintegration proved strong enough to di- 
 vide the realm for a time between his young nephews, Ead- 
 wig and Eadgar. And upon the death of Eadgar the struggle 
 between the great nobles, which his firm and peaceful reign 
 had for a time suspended, broke out afresh over the succes- 
 sion of his son Eadward, whom he had designated as his suc- 
 cessor. Eadward, whose claims were disputed by his younger 
 brother ^Ethelred, was elected by the witan, but in the fourth 
 year of his reign he was removed by a cruel murder from the 
 path of his opponent. 1 
 
 The last In the unhappy reign of ^Ethelred whose indifference to 
 vasioru" the " rede " or counsel of the great nobles by whom he was 
 overshadowed obtained for him the name of the " rede- 
 less " 2 the full force of the last and fiercest of the Danish 
 invasions burst upon the realm which a line of hero kings had 
 built up. Under the persistent blows of Olaf, Swegen, and 
 Cnut, the unity of the nation was for a time dissolved ; every- 
 thing like organized national resistance came completely to 
 an end ; the concern of each district became confined at 
 last to its own safety. So hopeless had the condition of the 
 Swegen. kingdom 3 become, about the time Swegen returned for his 
 final attack in 1013, that there was "no headman who would 
 gather forces, but each fled as best he might, and next no 
 shire would so much as help other." 4 Driven out by Swe- 
 gen, ^Ethelred sought a refuge at the court of Duke Richard 
 of Normandy, where he was preceded by the ^Ethelings Ead- 
 ward and ^Elfred, and their mother Emma, the sister of 
 Richard, to whom ^Ethelred had been married eleven years 
 before. 6 The triumph of Swegen was, however, only momen- 
 tary. Upon his sudden death in 1014 the witan recalled 
 " their own born lord," who drove Cnut, the son of Swegen, 
 to his ships, in which he sailed away to Denmark. Upon 
 
 cient constitutional rights of local in- * Green, Hist. Eng. People, vol. i. n. 
 
 dependence. How strong this principle 97. 
 
 was, can best be seen in the lives of 8 The very best account of the 
 
 y^lfric and Eadric Streona. It made Danish conquest of England, and of 
 
 the kingdom a prey to internal treach- the Danish kings in England, can be 
 
 ery and foreign conquest." See re- found in Freeman's Norm. Conq. t vol 
 
 view of Stubbs's Const. Hist, in North i. pp. 175-356. 
 
 Am. Review, July, 1870, p. 238. * E. Ckron,, a. 1010. 
 
 1 For the details of these struggles, 6 Freeman, Norm. Conq. t vol. i. pp. 
 
 see Freeman, Norm. Cony., vol. i. pp. 204-207, 243, 244. 
 42, 177. 179-
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 21$ 
 
 Cnut's return in the following year to complete the work which Cnut. 
 his father had begun, he found the yEtheling Eadmund levy- 
 ing an army to resist him. But the power of the realm was 
 still broken by internal dissensions. By the side of Eadmund 
 stood the arch-traitor Eadric, Ealdorman of Mercia, whose 
 desertion at a critical moment opened the way to the invader. 
 After Wessex and Mercia had been overrun, Cnut sailed 
 towards London, the last stronghold of the national cause. 
 The death of yEthelred, which now occurred (1016), was fol- 
 lowed by a double election. All the witan outside of the 
 faithful city joined in the election of Cnut to the vacant 
 throne, while the citizens of London, with such of the witan 
 as were within the walls, united in the election of Eadmund. 1 
 The brilliant fight which the English king now waged for a 
 few months against Cnut was terminated by his overthrow 
 at the battle of Assandun, which was followed by a treaty 
 partitioning the kingdom. Upon the death of Eadmund, 
 which soon followed the making of this treaty, Cnut was mseiec- 
 elected king of all England by the witan of the whole realm, o^aifkng- 8 
 After the first period of cruelty which naturally attended the lan(L 
 conquest had passed by, Cnut suddenly rose in moderation 
 and wisdom to the height of the greatest of the native 
 kings. 2 His first important act of administration was the Divides the 
 division of the kingdom into the four great governments of inTcffo 
 Wessex, Mercia, Northumbria, and East Anglia, over each of earldoms - 
 which he appointed a great earl, with the exception of Wes- 
 sex, which he retained under his own supervision. 8 As soon 
 as the work of organization was done, Cnut sent home most 
 of his ships, retaining only a handful of household troops or 
 "hus-carls " as a body-guard, it being his purpose to reign, 
 
 1 " We now meet with, what is so men's minds the foreign character of 
 common in German and so rare in his rule, and the bloodshed in which it 
 English history, a double election to had begun." Green, Hist. Eng. Peo- 
 the crown. Cnut was chosen at South- pie, vol. i. p. 100. 
 
 ampton, but the citizens of London, 8 "Even the great mark of his 
 
 with such of the other witan as were policy, the division of England into 
 
 within the city, held a counter-gemot four great earldoms or duchies, maybe 
 
 no doubt the earlier of the two in paralleled with the state of things un. 
 
 date and with one voice elected der Eadgar and his sons." Stubbs, 
 
 the ^Etheling Eadmund." Freeman, Const. Hist., vol. i. p. 201. The four- 
 
 Norm. Conq.,\o\, i. p. 256, and Appen- fold division may be traced in a char- 
 
 dix TT. ter of ^Ethelred, Cod. DipL, iii. 314. 
 
 2 " His aim during twenty years See Norm. Cony., vol. i. p. 273, and 
 seems to have been to obliterate from note I.
 
 2l6 THE OLD-ENGLISH COMMONWEALTH. [CH. 
 
 not as a conqueror but as an English king, according to the 
 
 forms of the ancient constitution. He was therefore ready 
 
 The cry for to hearken to the cry, which soon arose from Dane and Eng- 
 
 iaw? >sar! lishman alike, for "Eadgar's law," not for a code of Ead- 
 
 gar's making, but for the law as it was administered in the 
 
 peaceful days of one of the greatest of the native kings. 1 
 
 Cnut had no new ideas of government to introduce ; his laws 
 
 are nothing more than reproductions of those of Eadgar and 
 
 ^Ethelred ; and his division of the kingdom into four great 
 
 earldoms simply represented the old ducal system under a more 
 
 definite form of organization. Upon the death of the great 
 
 Dane the vast empire which he had built up, and of which 
 
 England was only a part, fell to pieces, and the fragments 
 
 were divided amongst his children. In England his death 
 
 was followed by a disputed succession. For the settlement 
 
 Harold and of the contest which arose between his sons, Harold and 
 
 cm?- 1 *" Harthacnut, the witan of the whole realm met at Oxford, 
 
 and after great debate the national assembly decreed the 
 
 division of the kingdom between the contestants. Thus for 
 
 lastdivi- the last time was England divided between two acknowl- 
 
 radmbe- 6 edged kings. 2 Upon the death of Harold the crown passed 
 
 acknowu to Harthacnut, and upon his death the nation, wearied with 
 
 edged the brutality and misgovernment of Cnut's worthless sons, 
 
 reestablished the ancient line by the election of Eadward, 
 
 the son of ^Ethelred and Emma, to the kingdom of his 
 
 fathers. 
 
 Eadward The history of the reign of Eadward the Confessor is 
 
 theConfes- s i m p]y a continuation of the struggles of the great nobles, 
 
 whose authority completely overshadows that of the king. 
 
 The feudal tendency to disruption does not prevail, simply 
 
 Godwine. because the great Earl Godwine, who is striving to win the 
 
 crown for his own house, is strong enough to counteract it. 3 
 
 1 " The cry is really, as an ancient custodiam etiam Regis Edwardi jura- 
 writer explains it, not for the laws tur, non quod ille statuerit, sed quod 
 which such a king enacted, but for the observarit." ii. 183. 
 laws which such a king observed. It a " Once more, but now for the last 
 is in fact a demand for good govern- time in English history, the land had 
 ment in a time of past or expected two acknowledged kings. Harold 
 oppression or maladministration." reigned to the north of the Thames 
 Freeman, Norm. Cong., vol. i. p. 281. and Harthacnut to the south." Free- 
 The "ancient writer" referred to is man, Norm. Conq., vol. i. p. 326. 
 William of Malmesbury, who thus con- 8 " Policy led the earl, as it led his 
 eludes his explanation : " In quarum son, rather to aim at winning England
 
 V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 21? 
 
 Upon his death (1053) the earldom of the West Saxons passed 
 to his son Harold, who for twelve years stood forth as the real 
 master of the realm. When the death of the childless Ead- 
 ward had removed the last obstacle from his path, the mighty Harold 
 son of Godwine was elected by the witan to the vacant throne, king. 6 
 But it was impossible even for Harold to bind together the 
 broken power of the kingdom with the great earldoms of 
 Mercia and Northumbria in the hands of his two jealous 
 rivals, Eadwine and Morkere, whose treacherous policy really 
 opened the way to the Norman conquest. 1 With the fall of 
 Harold and with the triumph of William the royal power 
 passed into the hands of one of the wisest and sternest of 
 statesmen. By his inflexible policy the tendency to disrup- National 
 tion was checked, 2 the four great earldoms were abolished, tk com- 
 
 and a real national unity at last grew up as the old provincial $^** h the 
 jealousies were gradually crushed out beneath the yoke of the Norman 
 
 r m TT-I, i / iT^ii conquest. 
 
 foreign kings. Under the heel of the stranger the English 
 nation finally awoke to a full sense of its oneness. 
 
 itself than at breaking up England to the right arm of Harold." Stubbs, 
 
 win a mere fief in it." Green, Hist. Const. Hist., vol. i. p. 203. 
 
 Eng. People, vol. i. p. 105 ; Stubbs, 2 " When Harold, imitating the Ca- 
 
 Const. Hist., vol. L pp. 202, 203. Mr. petians, raised himself to the throne, 
 
 Freeman opposes this view (see Norm, the natural consequence would seem to 
 
 Conq., vol. ii. p. 32) as to the tendency have been that England should share 
 
 to separation. the fate of France. To have prevented 
 
 1 " But the policy of Leofric, fol- this was the one great service which 
 
 lowed out by the lukewarm patriotism William rendered to mankind." North 
 
 of Edwin and Morcar, opened the way American Review for July, 1874, p. 
 
 to the Norman conquest by disabling 238.
 
 BOOK II. 
 
 THE NORMAN CONQUEST. 
 
 The king- 
 dom of the 
 
 West 
 Franks. 
 
 Partition of 
 the empire 
 of Charles 
 the Great. 
 
 Inroads of 
 the North- 
 men. 
 
 CHAPTER I. 
 
 THE NORMAN DUCHY AND ITS DUKES. 
 
 I. THE imperial realm which Charles the Great had built up, 
 and whose division he had more than once in contemplation, 
 passed unbroken at his death into the nerveless hands of 
 Lewis the Pious, the only son who survived him. During 
 the irresolute reign of Lewis the dismemberment of the em- 
 pire really began ; but it was not until the third year after his 
 death that the work of partition was finally accomplished. 
 The death of Lewis in 840 was the signal for the final strug- 
 gle between his three sons, Lothar, Lewis, and Charles. Lo- 
 thar at once assumed the imperial title, and Lewis and 
 Charles combined against him. The war which ensued was 
 terminated in 843 by the famous Treaty of Verdun, 1 by whose 
 terms the empire was divided into three kingdoms, 
 the eastern, the western, and a narrow debatable land be- 
 tween the two, known as Lotharingia. In the partition 
 Charles received all of Gaul west of the Scheldt, the Meuse, 
 the Saone, and Rhone, an area of territory which roughly 
 corresponds in geographical extent with that now embraced 
 within the limits of modern France. 2 The kingdom of the 
 West Franks which thus passed to Charles, afterwards called 
 the Bald, had been for a long time subject to the ravages of 
 Scandinavian pirates, who had dared, even in the days of the 
 great Charles himself, to scourge the coasts of the empire. 
 As the awe inspired by his great name passed away, and as 
 the divided realm grew more and more incapable of united 
 
 1 Sime, Hist, of Germany, pp. 37, 2 See G. W. Kitchin's article on 
 38. France, Enc. Brit. t gth ed. vol. ix. p. 534.
 
 THE NORMAN DUCHY AND ITS DUKES. 2ig 
 
 resistance, the inroads of the Northmen grew more serious 
 
 and more frequent. As early as 841 Rouen had fallen into 
 
 the hands of the pirates, and thus the whole Seine valley as 
 
 far up as Paris was laid open to their assaults. In 86 1 
 
 Charles the Bald invested a brave adventurer, Robert the 
 
 Strong, with a large district of country between Paris and the 
 
 sea, which was intended to stand as the bulwark of Gaul The but 
 
 against the invader. 1 Of this march or border territory Paris GaS f 
 
 became the heart, and the descendants of Robert, as dukes ? gai " st the 
 
 invader. 
 
 of the French, grew famous as its defenders. In the ter- 
 rible siege which the pirates in 885-886 laid to Paris, Odo 
 (or Eudes), the son of Robert, maintained such a heroic and 
 successful defence that, upon the deposition of Charles the 
 Fat in 887, he was elected king of the French, "Rex 
 Francorum" 2 With this event began that prolonged strug- Hundred 
 gle between the descendants of Robert at Paris and the de- 
 
 scendants of Charles at Laon, which, at the end of a hun- t 6611 Par >s 
 dred years, terminated in the final overthrow of the Caroling 
 kings. Through the results of that struggle the Duke of 
 the French grew into a king, and his duchy into a king- 
 dom. 3 
 
 2. Early in the tenth century, while the great struggle be- The Dan- 
 tween Paris and Laon was still in its infancy, the inroads of ment'at 6 " 
 the Northmen passed from a stage of mere piratical incur- Rouen > 
 sion to one of conquest and settlement. But of the many 
 Scandinavian colonies which were then planted in Gaul, one 
 only was destined to preserve a distinctive character, and to 
 leave its impress upon the history of Europe. This was the planted by 
 Danish colony planted in 91 1 by Rolf or Rollo at Rouen. 4 R 
 At this moment, when the history of Rolf clearly emerges 
 from the legends which surround it, Duke Robert of Paris 
 stands as the vassal of Charles the Simple, who then repre- 
 
 1 " At last a new power was formed struggle, see Sir Francis Palgrave's 
 
 (861), chiefly with the object of defend- History of Normandy and England, 
 
 ing Gaul from their attack. A large vol. ii. 
 
 district was granted in fief by Charles 4 "This settlement, the kernel of the 
 
 the Bald to Robert the Strong, as a great Norman duchy, had, I need 
 
 march or border territory, to DC de- hardly say, results of its own and an 
 
 fended against the invading Northmen importance of its own which distin- 
 
 and the rebellious Breton." Free- guish it from every other Danish col- 
 
 man, Norm. Conq., vol. i. p. 106. ony in Gaul." Freeman, Norm. 
 
 3 Ibid., p. 106. Cony., vol. i. p. no. 
 
 8 For the history of this period of
 
 22O 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Origin of 
 the Norman 
 duchy. 
 
 First col- 
 lision be- 
 tween Nor- 
 mandy and 
 England. 
 
 Birth of 
 William the 
 Bastard in 
 1027 or 
 1028. 
 
 sented the royal house at La6n. It was with King Charles 
 that Rolf made the Peace of Clair-on-Epte in 912; and it 
 was from King Charles that Rolf received the grant of the 
 district of country on both sides of the Seine which he held 
 already by the sword. 1 Rolf was admitted to baptism to- 
 gether with his followers ; and he became the vassal of King 
 Charles, whose natural daughter was given him in marriage. 
 Thus the history of the Norman duchy begins. The orig- 
 inal grant to Rolf did not embrace, however, all of the later 
 Normandy. The Teutonic district of Bayeux 2 was not won 
 until a few years before Rolf's death ; and it was not until 
 the reign of his successor, William Longsword (927-943), 
 that the limits of the duchy were extended by the acquisi- 
 tion of the districts of Avranches, and Coutances. 3 The 
 troubled reign of William, which is involved in great confu- 
 sion, and which ended with his murder on an island in the 
 Somme in 943, was followed by that of his son Richard 
 the Fearless, in whose time we hear of the first direct col- 
 lision between Normandy and England. 4 At the end of the 
 important reign of Richard the Fearless, which lasted for 
 more than fifty years (943-996) the duchy passed to his son, 
 Richard the Good, who, as uncle of Eadward the Confessor 
 and as grandfather of William the Conqueror, is closely con- 
 nected with the causes which led directly to the Norman 
 conquest. Richard the Good, before his death in 1026, set- 
 tled the duchy upon his eldest son Richard, and the county 
 of Hiesmes on his second son Robert. 6 Upon the death 
 of Richard in 1028 the duchy itself passed to his brother, 
 Robert the Devil, the father of William the Bastard, who 
 first saw the light in 1027 or 1028 at Falaise, in Teutonic 
 Bayeux. 6 
 
 1 But " the grant to Rolf was made 
 at the cost, not of the Frankish king at 
 La6n, but of the French duke at 
 Paris." Freeman, Norm. Cony., vol. 
 i. p. 112. 
 
 3 As to the history of the Saxons of 
 Bayeux, see Lappenberg, Anglo-Nor- 
 man Kings, p. 2. 
 
 8 Freeman, Norm. Cony., vol. i. pp. 
 118-123. 
 
 * As to the disputes between ^Ethel- 
 red and the Norman dukes, see Wil- 
 
 liam of Malmesbury, ii. 165, 166; Wil- 
 liam of Jumieges, v. 4 ; Palgrave, Nor- 
 mandy and England, vol. iii. p. 103; 
 Freeman, Norm. Cony., vol. i. p. 193, 
 and Appendix EE. 
 
 6 Will. Gem., v. 17; Norm. Cony., 
 vol. i. p. 312. 
 
 6 In the Mtmoires de la SociM des 
 Antiquaires de Normandie (1837, vol. 
 xi. p. 179) M. Deville has attempted 
 to fix the exact date in June or July, 
 1027.
 
 I.] THE NORMAN DUCHY AND ITS DUKES. 221 
 
 3. During the centuries of Roman dominion in Gaul which Origin and 
 precede the conquest of Clovis, the subject nation thoroughly feudalism 
 assimilated the language, the laws, the political institutions, mGaul - 
 of the conquering race. That wonderful system of law 
 whose history has been so long, so unbroken, and so authen- 
 tic, and which next to the Christian religion has been the 
 most fruitful source of the rules which have governed actual 
 conduct throughout Western Europe, 1 Rome imposed with 
 a stern hand upon all the subjects of her empire. 2 Even the 
 Christian church, which firmly established itself in Gaul in 
 the early days of Roman dominion, moulded its whole eccle- 
 siastical organization on the political divisions of the civil 
 power. 3 Upon the social and political substructure which thus The RO- 
 grew up in Gaul, and which by the end of the fifth century 
 had become thoroughly Roman and Christian, was superim- 
 posed, as a whole, the scheme of Teutonic life which the Frank 
 conquerors of Gaul brought with them in their blood and 
 bone from the fatherland. The old theory that the Prankish 
 conquests in Gaul were accomplished by independent prin- 
 cipes each fighting with a powerful comitatus at his back, and 
 that the lands so conquered were immediately parcelled out 
 among the comites upon terms of military service and special 
 fidelity, seems to have passed out of view. 4 The sounder 
 conclusion now is, that such "conquests were the work of Reaichar- 
 the nations moving in entire order ; the comitatus was not Frank con- 
 the bond of cohesion ; the leudes were not comites ; all the ^ uests - 
 people were bound to be faithful to the king ; the gift of an 
 estate by the king involved no defined obligation of service ; 
 all the nation was alike bound to military service ; the only 
 comites were the antrustions, and these were few in number; 
 the basis of the Merovingian polity was not the relation of 
 lord and vassal, but that of the subject to the sovereign." 6 
 
 1 Sir Henry Maine, Early Hist, of rest upon the authority of Montes- 
 
 Inst., p. 9. quieu, is generally followed by the 
 
 a "The barbarous conquerors of French writers. See Guizot, Civilis. 
 
 Gaul and Italy were guided by notions France, vol. i. p. 311, etc. 
 
 very different from those of Rome, * This is the view of Waitz (Deutsche 
 
 who had imposed her own laws upon Verfassungsgeschichte, ii. pp. 226-262) 
 
 all subjects of her empire." Hallam, as restated by Bishop Stubbs, Const. 
 
 M. A., vol. i. p. 153. Hist., vol. i. p. 251, n. 2. "The work 
 
 8 Cf. Kitchin's " France " in Enc. of Sohm (Altdeutsche Reichs- und Ge- 
 
 Brit., Qth ed. vol. ix. p. 528. richtsverfassttng ) completes the over- 
 
 * This old theory, which seems to throw of the old theory by reconstruct-
 
 222 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Frank po- 
 litical or- 
 ganization. 
 
 The vill. 
 
 The 
 hundred. 
 
 The 
 province. 
 
 The king. 
 
 The 
 
 national 
 assembly. 
 
 Feudalism 
 par excel- 
 lence of 
 Frank 
 origin. 
 
 From the " Pactus Legis Salicae," a collection of the customs 
 of Frank law in the fifth century, can be obtained a reason- 
 ably clear idea of the system of political organization which 
 prevailed among the Franks when the conquest of Gaul be- 
 gan. 1 The unit of organization in the Frank system is the 
 vill, the successor of the mark, which is capable of holding 
 assemblies and making by-laws. 2 The next largest division, 
 and around which the whole system revolves, is that most im- 
 portant and enduring of all Teutonic institutions the hundred, 
 in whose court justice is administered with the right of ap- 
 peal to the king alone. 3 An aggregation of hundreds consti- 
 tutes a district or province, whose government is intrusted to a 
 graf, an administrative officer appointed by royal authority. 4 
 The kingly office, which is distinctly recognized, is elective, 
 with the right of election limited to a single royal house. 5 
 The king, who is surrounded by a comitatus of personal fol- 
 lowers, appoints not only the grafs to rule the provinces, but 
 the magistrates in the vills : he is the ruler of the nation, the 
 supreme judge of appeal. The supreme council of the na- 
 tion is the whole people in arms. 6 
 
 This simple system of political life and law, which the 
 Franks brought with them into Gaul, settled down by the 
 side of Roman life and law, and a struggle for the mastery 
 was the natural consequence. Under these circumstances 
 that peculiar system of legal and political ideas which is 
 generally known as feudalism, and which is distinctly of 
 Frank origin, finds its historical development upon the soil 
 of Gaul, where it matures, not unaffected by Roman influ- 
 ences. 7 This system can only be clearly understood when it 
 
 ing in a very remarkable manner the 
 old German system in Salian and Mero- 
 vingian times." Const. Hist., vol. i. p. 
 252. 
 
 1 In this law can be found no trace 
 of a feudal nobility or a " feudal sys- 
 tem " of any kind. Cf. Waitz (Das 
 alte Recht der Salischen Franken, p. 
 103), who says, "Das Salische Gesetz 
 keunt keinen Adel ; auch nicht die lei- 
 seste Spur desselben findet sich." 
 
 2 Waitz, D. V. G., ii. pp. 314, 353, 
 354; Das Alte Recht, pp. 124, 210, 228, 
 253 ; Stubbs, Const, ffist., vol. i. p. 
 54- 
 
 " The court consists of all the fully 
 
 qualified landowners, who bear, in their 
 name of Rachimburgi, a title that 
 shows their capacity for legal func- 
 tions." Stubbs, Const. Hist., vol. i. p. 
 54. Cf. Waitz, D. V. G., i. p. 334 ; 
 ii. pp. 493-495- 
 
 * Savigny, R. R., \. pp. 256, 265; 
 Sohm, Fr. R. G. Verf., i. p. 83. 
 
 6 Waitz, Das Alte Recht., pp. 203- 
 214. 
 
 6 Stubbs, Const. Hist., vol. i. p. 55. 
 
 7 " The feudal system par excellence 
 is always understood to mean that 
 special form of feudalism which was 
 developed on the soil of Gaul by the 
 conquering Franks." Sir J. H. Ram-
 
 I.] THE NORMAN DUCHY AND ITS DUKES. 22$ 
 
 is viewed in the two aspects in which it naturally presents 
 itself, as a system of land tenure, and as a system of 
 government. Feudalism was the result of the union of two Feudalism 
 great elements ; the feudal relation implied the union of two *f bnd Ste 
 other relations. One element consisted of the personal [^and" 
 relation which grew up between lord and vassal, lord and man; 
 man, a relation which involved mutual service, responsi- 
 bility, and protection, 1 but which at first was not necessarily 
 connected with the holding of land. 2 By the practice of commenda- 
 commendation the inferior put himself under the personal u 
 care of a lord, without altering his title or divesting himself of 
 his right to his estate. 3 Another element was represented 
 by the beneficium, which was partly of Roman, partly of 
 German, origin. A practice had arisen in the empire of 
 granting out frontier lands to soldiers upon condition of their 
 rendering military service in border warfare. 4 But the 
 holders of such lands stood in no personal relation to the 
 emperor : they were not his men ; their service was only due 
 to him as the representative of the commonwealth. This 
 Roman custom naturally suggested to the Teutonic kings 
 the plan of rewarding their followers out of their own estates 
 with grants of land, benefices or fiefs, with a special 
 undertaking to be faithful in consideration of the gift. 5 The 
 Frank beneficiary system 6 originated in gifts of this char- 
 acter, and in the surrender of allodial estates 7 made by the 
 owners to lay or ecclesiastical potentates, to be received back 
 and held by them as tenants by rent or service. Through 
 the union or interpenetration of the beneficiary system and 
 
 say's " Feudalism," in Enc. Brit., Qth Digby, Law of Real Property, p. 30. 
 
 ed. vol. ix. p. 1 20. " Emphyteusis (i^inevaa, literally an 
 
 1 "There is, in short, the old Teu- 'implanting'), is a perpetual right in a 
 tonic relation of the comitatus, the re- piece of land that is the property of 
 lation of the hlaford and his thegn." another," etc. Smith's Dictionary of 
 Freeman, Norm. Cong., vol. i. p. Greek and Roman Antiquities, p. 400. 
 62. See, also, Inst. 3, 25, 3, Cooper's 
 
 2 Digby, Hist. Law of Real Property ', notes. 
 
 p. 21. 5 Freeman, Norm. Cong., vol. i. p. 
 
 8 Stubbs, Const. History, vol. i. p. 62. " Not a promise of definite ser- 
 
 253. vice, but a pledge to continue faithful 
 
 * Palgrave, English Commonwealth, in the conduct in consideration of 
 
 vol. i. p. 354. "Probably the concep- which the reward is given." Stubbs, 
 
 tion of the tenure under which such Const. Hist., vol. i. p. 253, note I. 
 
 soldiers held their lands was borrowed 6 Waitz, D. V. G-, ii. pp. 226-258. 
 
 to some extent from the attributes of 7 Maine, Ancient Law, p. 224, " Al- 
 
 the interest in lands called emfhyteusis." lods and Fiefs."
 
 224 THE NORMAN CONQUEST. [Cn 
 
 Feudalism the system of commendation, the idea of feudal obligation 
 ofti^union became complete, both being fostered by the growth of 
 eficia eben immunities. 1 The system which thus originated spread 
 system with rapidly, and all other tenures were soon assimilated to it. The 
 mendation. beneficia finally receive the name of feuda, a word which does 
 not appear earlier than the close of the ninth century. 2 As 
 Benefices early as 877 Charles the Bald, by a clause in the Capitulary 
 hereditary. f Kiersi, recognized the hereditary character of all bene- 
 fices. 3 The hereditary usage, which for a long time had been 
 growing up, had by that time no doubt become general, but 
 by no means universal. With the Capitulary of Kiersi the 
 growth of strictly feudal jurisprudence really begins. 4 
 Feudalism The principle that benefices were hereditary was soon ex- 
 of govern tended to the framework of government itself. The provin- 
 ment. c j a j magistracies, originally received by the dukes and counts 
 through the king's appointment, and which tended from the 
 Provincial first to become hereditary, actually became so, as soon as the 
 def become hereditary character of benefices was firmly established. 5 
 hereditary, f^g ] oca i sovereignty of the official magistrate, who thus 
 grew into a ruler by hereditary right, was greatly enhanced 
 by grants of immunity, which were nothing less than sections 
 of the national or royal right of judicature bestowed upon 
 Growth of the receiver of a fief. Through grants of immunity the 
 s> dwellers upon feudal estates were withdrawn from the juris- 
 diction of the national or royal tribunals, and placed under 
 that of the lord upon whose land they dwelt. 6 To the right 
 of judicature the hereditary provincial ruler gradually added 
 all the other attributes of actual sovereignty. Each lord not 
 only judged, taxed, and commanded the class next below him, 
 but he exercised also the rights of private war and private 
 coinage. 7 So intense did the idea of sovereignty in the pro- 
 
 1 Waitz, D. V. G., ii. pp. 634-645; 8 See Baluze, ii. p. 179; Roth, Bene- 
 iv. pp. 243-273. The general state- ficialwesen, p. 420. 
 
 ments in the text as to the origin of the * Stubbs, Const. Hist., vol. i. p. 254, 
 
 feudal system embody the conclusions and note i. 
 
 of Waitz, which are accepted both by 6 " The official magistracy had in 
 
 Bishop Stubbs and Mr. Freeman. itself the tendency to become hered- 
 
 2 Digby, Law of Real Property, p. 32. itary, and when the benefice was recog- 
 " Oddly enough, in modern use the nized as heritable the provincial gov- 
 word benefice has come to be used only ernorship became so, too." Stubbs, 
 of ecclesiastical benefices." Freeman, Const. Hist., vol. i. p. 255. 
 
 Norm. Cony., vol. v. p. 87, note 3. See, 6 Waitz, D. V. G., ii. pp. 634-645. 
 also, Maine, Ancient Law, pp. 223, 7 Stubbs, Const. Hist. t vol. i. p. 
 224. 256.
 
 I.] THE NORMAN DUCHY AND ITS DUKES. 22$ 
 
 vincial lord become, that the doctrine was finally asserted, Sovereignty 
 that a man who pledged his faith to a lord, who was the man ciaf lords! 
 of the king, was the man of that lord only, and not the man 
 of the king himself. 1 The process through which the pro- 
 vincial potentates gradually drew to themselves all of the real 
 attributes of sovereignty ended at last in the only result 
 possible, the complete attenuation of the central power. 
 In theory the king remains the supreme lord, mediate or 
 immediate, of every landowner, and to him great duties are 
 due ; but the royal power is reduced in fact to a mere The central 
 shadow. 2 With the destructive effects of Frank feudalism See!? 
 upon all central or national authority, William, as Duke of t a mere 
 Normans, became thoroughly familiar. 3 And as we shall see 
 hereafter, he turned such knowledge to a good account. As 
 king of the English, William was careful to devise such anti- 
 feudal legislation as would render the disruptive tendencies 
 of feudalism in England impossible. 
 
 4. If any records ever existed touching the details of the internal or- 
 settlement made by Rolf and his followers at Rouen, or ^th^No". 
 touching the legal and political institutions which they man duch y- 
 planted in Gaul, they have utterly perished. There are no 
 chronicles, no charters, to guide us ; of the internal organi- 
 zation of the Norman duchy in the early days of its history 
 we know absolutely nothing. It seems, however, to be clear 
 that the express condition upon which the grant to Rolf was 
 made was, that the new settlers should become members of 
 the Christian and Prankish commonwealth of which Charles 
 
 Dulc&s 
 
 was overlord. 4 And it also seems to be clear that the Nor- probably 
 man dukes from the very beginning ruled, not as absolute 
 
 sovereigns, but with the advice of some kind of an assembly * -^council 
 or council of great men. 6 There is no reason to believe that nates. 
 
 1 Cf. Freeman, Norm. Cong., vol. iv. duchy. As to the battle of Val-es- 
 p. 472, and note I, in which reference dunes, see Freeman, Norm. Cony., vol. 
 is made to the refusal, at a somewhat ii. pp. 165, 166. 
 
 later time, of John of Joinville, as the * "The Peace of Clair-on-Epte (912) 
 
 man of the Count of Champagne, to was the duplicate of the Peace of Wed- 
 
 take any oath to St. Lewis ; citing Aft- more. ... A definite district was ceded 
 
 moires, p. 37, ed. Michel, Paris, 1858. to Rolf, for which he became the king's 
 
 2 For a summing up of the results of vassal ; he was admitted to baptism, 
 feudalism in France, see Stubbs, Const, and received the king's natural daugh- 
 ffist., vol. i. pp. 3, 4. ter in marriage. Freeman, Norm. 
 
 8 Not until William had crushed a Cony., vol. i. p. 112. 
 
 great revolt of his barons could he 6 Stubbs, Const. Hist., vol. i. p. 249, 
 
 consider himself master in his own citing Norm. Cony., vol. iii. p. 289 sey.
 
 226 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Duchy 
 becomes 
 French, 
 Christian, 
 and feudal. 
 
 Relations 
 between the 
 duke and 
 baronage. 
 
 Normandy 
 and Eng- 
 land. 
 
 there was any such systematic extermination or expulsion of 
 the native race as attended the English conquest of Britain. 
 Upon the contrary, it appears that the original Gallic popula- 
 tion, which was no doubt deeply intermixed with Roman and 
 Prankish elements, gradually sank down into a dependent 
 yet spirited peasantry, which sometimes dared to revolt 
 against their Norman masters. 1 In the reign of the third 
 duke, Richard the Fearless, the duchy, after fluctuating in 
 its allegiance between the king at Laon and the duke at 
 Paris, permanently attached itself to the latter ; and from 
 that time the duchy rapidly grew more French, more Chris- 
 tian, and more feudal. 2 It is in the reign of Richard that we 
 can first trace the beginnings of the Norman nobility whose 
 members derive their status as nobles either from ancient 
 Norse descent from the companions of Rolf, or through con- 
 nections, legitimate or illegitimate, with the ducal house. 3 
 The baronage which thus grew up held their lands of the 
 duke upon terms of feudal obligation, and by his strong hand 
 alone were they held in subjection. 4 Over this turbulent 
 baronage William the Bastard, while yet a minor, was called 
 to rule ; and his first important victory was won in crushing 
 a widespread revolt headed by some of the greatest nobles 
 in his own dukedom. 
 
 5. The first direct intercourse between Normandy and 
 England occurred in the reign of ^Ethelred, who became in- 
 volved in a quarrel with the third Norman duke, Richard the 
 Fearless, on account of the friendly reception given in Nor- 
 man ports to the Danish pirates who were then plundering 
 the coasts of England. 5 Through the mediation of the pope 
 the quarrel was amicably adjusted, and an agreement entered 
 
 Palgrave holds a contrary view ; he re- 
 gards William, the son of Rollo, as 
 absolute. " His was the law, his was 
 the state, his was the church." "He 
 spake the law, he gave the law, he made 
 the law, he executed the law." Nor- 
 mandy and England, vol. ii. pp. 258, 
 
 259- 
 
 1 As to the peasant revolt (997), see 
 Freeman, Norm. Conq., vol. i. pp. 115, 
 
 J 72f 173- 
 
 2 Ibid., pp. 149, 169. 
 
 8 " The Norman counts were at the 
 time of the Conquest, in most cases, 
 younger branches of the ducal house, or 
 
 closely connected with it by affinity. 
 Stubbs, Const, Hist., vol. i. p. 249, 
 note 3. 
 
 4 Richard the Fearless is regarded 
 as the founder of Norman feudalism. 
 Normandy and England, vol. ii. p. 534. 
 See, also, Waitz, Gottingische Gelehrte 
 Anzeigen, Nachrichten, February 14, 
 1866, pp. 95, 96. 
 
 5 Freeman, Norman Conq., vol. i. p. 
 192, and Appendix EE, in which is 
 cited William of Malmesbury, ii. 165, 
 1 66. Cf. Palgrave, Normandy and 
 England, vol. iii. p. 103 ; Lappenberg, 
 vol. ii. p. 1 54, Thorpe.
 
 I.] THE NORMAN DUCHY AND ITS DUKES. 22/ 
 
 into between the two princes that neither should receive the 
 enemies of the other. 1 Nine years later yEthelred became 
 involved in a dispute, probably in open war, with Richard the 
 Good, the successor of Richard the Fearless, and again the 
 quarrel ended in a friendly settlement. The peace which was 
 then made was confirmed by a marriage between ./Ethelred Marriage of 
 and Emma, 2 the duke's sister ; and out of that marriage grew S^E 
 the fatal kinship between the royal house of yElfred and the 
 ducal house of Rolf which led directly to the Norman con- 
 quest. " With that marriage began the settlement of Nor- 
 mans in England, their admission to English offices and 
 estates, their general influence in English affairs, everything 
 in short that paved the way for the actual Conquest." 3 
 When, in 1013-14, yEthelred was driven from the throne by 
 Swegen, he sought a refuge at the court of his Norman 
 brother-in-law, where he was preceded by Emma, who had 
 gone thither with the young ^Ethelings, Alfred and Ead- 
 ward. 4 After the death of ^Ethelred, Emma, at the solicita- After 
 tation of the youthful king Cnut, returned to England and death 8 
 
 became his wife, 5 and thus quietly resumed her old place as 
 Lady of the English. The issue of the marriage of Emma Harthacnut 
 with Cnut was Harthacnut, the last of the Danish kings of JJj; s a u r ? of 
 England. After the marriage of Emma with Cnut, her two ria s e - 
 sons by ^Ethelred still found an asylum at the court of their 
 Norman kinsman. Alfred perished miserably in an attempt 
 upon the English crown in 1036 ; while Eadward remained 
 in Normandy until 1041, when he was recalled to ^England 
 by his Danish half-brother Harthacnut. 6 Upon his death in Election of 
 the following year, the nation, wearied with the misgovern- ^Confes- 
 ment of Cnut's worthless sons, resolved to restore the line of ^> r > , 
 Cerdic in the person of Eadward : " Before the king buried son by 
 were, all folk chose Eadward to king at London." * With ^ thdre<L 
 the election of Eadward the Norman invasion really began. 
 The new king was a man of mature years ; he was the son 
 
 1 Will. Malmes., ii. 166. tion is distinctly asserted by the Enco- 
 
 2 E. Chron., a. 1002. miast, p. 39. William of Malmesbury, 
 8 Freeman, Norm. Cong., vol. i. p. however (ii. 188), seems to imply that 
 
 204. Eadward came uninvited." Norm. 
 
 * E. Chron., a. 1013. Cong., vol. i. p. 349, note 5. 
 
 5 Will. Malmes., ii. 180 ; Norm. 7 The coronation of Eadward is not 
 Cong., vol. i. p. 275, Appendix BBB. recorded until the next year. See E. 
 
 6 E. Chron., a. 1041. "The invita- Chron., a. 1043; Flor. Wig., 1043.
 
 228 THE NORMAN CONQUEST. [Cn. 
 
 of a Norman mother ; he had passed nearly his whole life in 
 Normandy ; his speech was French, and his heart was far 
 Growth of more French than English. Into his English realm Ead- 
 Cce in ward was followed by a host of friends from the land of his 
 England, exile ; they swarmed about his person ; they became domi- 
 nant in his councils ; and they were enriched with English 
 estates, upon which they soon began to rear frowning castles. 1 
 In the government of the church the strangers soon became 
 as dominant as in the government of the state ; bishopric 
 after bishopric passed into foreign hands, until at last a Nor- 
 man prelate was elevated to the primatial see of Augustine. 2 
 The alarming influence of the Norman party, which had now 
 reached its height, aroused a great national revolt, which was 
 led by Godwine, the mighty earl of the West Saxons. But 
 in the very midst of the struggle the national party dropped 
 away from Godwine, and he and his sons were declared out- 
 laws and banished from the kingdom. At this moment, 
 William's while the realm lay at the feet of the strangers, William the 
 England!* Bastard first set foot upon the shores of England. 3 He now 
 came (1052) with great pomp to visit his cousin Eadward, 
 and he went away loaded with gifts and honors. It is more 
 than likely that it was during this visit that Eadward made 
 to William the famous promise touching the succession. If 
 Eadward's such a promise was ever made, if Eadward ever pledged him- 
 promiseto self to make William his heir, such a promise could not have 
 hs'consti-"" Deen f an y great constitutional value. The right to dispose 
 tutionai o f the English crown was vested alone in the national assem- 
 
 value. 
 
 bly. 4 Any recommendation which Eadward might undertake 
 to make in favor of William, the witan were only bound to 
 consider ; they were then at perfect liberty either to accept 
 or reject it. But slight as the value of such a promise may 
 have been, it was sufficient, in connection with his kinship 
 with Eadward, to enable William to construct out of it at 
 least a plausible claim to the succession. He was ingenious 
 
 1 "In all this the seeds of the Con- 2 In 1051 Robert of Jumieges was 
 
 quest were sowing, or rather, as I once appointed archbishop of Canterbury. 
 
 before put it, it is now that the Con- E. Chron., a. 1051. 
 
 quest actually begins. The reign of 8 Chron. Wig., 1052 ; Norman Con- 
 
 Eadward is a period of struggle be- quest, vol. ii. p. 105. 
 
 tween natives and foreigners for do- * As to the constitutional value of 
 
 minion in England." Norm. Conq., the alleged promise, see Freeman, 
 
 vol. ii. p. 19. Norm. Cony., vol. ii. pp. 195-198.
 
 I.] THE NORMAN DUCHY AND ITS DUKES. 22$ 
 
 enough to persuade a large part of Europe that he was the 
 true heir of Eadward, and, what was more to the purpose, he 
 proved himself strong enough to maintain his argument upon 
 the field of battle. William's visit was followed by a great National 
 national reaction ; the next year witnessed the complete 
 overthrow of the Norman party, and the return of Godwine 
 and his sons to power. 1 The king became reconciled to God- 
 wine, and his house was fully restored to its former rank and 
 influence. 2 In the midst of his triumph (1053) Godwine 
 died, and the earldom of the West Saxons passed to his great 
 son Harold, who, for the next thirteen years, became the ac- 
 tual ruler of the English nation. 3 Upon the death of the Election of 
 childless Eadward, Harold became a candidate for the royal whTch ld> 
 office, to which he was hurriedly but unanimously elected by ^jl^ 
 the witan of the whole realm. 4 This solemn and valid elec- recognize, 
 tion William refused to recognize ; he denounced it as hasty 
 and illegal. William did not claim that he had an absolute 
 right to the crown, but he did claim the sole right to present 
 himself as a candidate to the witan as the chosen heir of the 
 Confessor. 6 And he further claimed that Harold had bound 
 himself by a solemn oath not to oppose but to uphold his 
 title. 6 To win for himself the right of presentation to the 
 witan, and to execute his vengeance on Harold for his per- 
 jury, were the ostensible objects of William's invasion. 
 
 6. Eadward the Confessor died on the 5th January, 1066, William's 
 
 T T i i conquest of 
 
 and on the same day the witan elected Harold to be king. England. 
 On the next day 7 Eadward was entombed in the West Min- 
 ster, the freshly hallowed church of his own rearing ; and 
 on the same day and in the same place the king-elect was 
 crowned and anointed, not by Stigand, the primate of all 
 England, but by Ealdred, primate of Northumberland. The 
 
 1 E. Chron.,z.. 1052. regale culmen electus." Flor. Wig, 
 
 2 "To Godwine was his earldom 1066. 
 
 clean given back, as full and free as he 6 Freeman, Norm. Cong., vol. iii. p. 
 
 first possessed it ; and in like manner 350. 
 
 to his sons all that they had before 6 See Lectures on the Hist, of Eng^ 
 
 possessed, and to his wife and daughter Guest (London, 1879), p. 132. 
 
 all as full and as free as they had be- 7 " On that day began that long se- 
 
 fore possessed." E. Chron., a. io<2. ries of national ceremonies which has 
 
 8 Upon the accession of Harold to gone on uninterruptedly to our own 
 
 the earldom of the West Saxons, see time, and which has made the Abbey 
 
 Freeman, Norm. Conq., vol. ii. pp. 235, of Saint Peter the hearth and Pryta- 
 
 236. neion of the English nation." Norm. 
 
 * " A totius Angliae priroatibus ad Cony., vol. iii. p. 17,
 
 230 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Harold 
 retains the 
 West 
 Saxon 
 earldom. 
 Eadwine 
 and Mor- 
 kere ; the 
 earldoms of 
 Mercia and 
 Northum- 
 berland. 
 
 Norwegian 
 invasion. 
 
 The fight 
 at Stam- 
 fordbridge. 
 
 William 
 lands at 
 Pevensey. 
 
 Treachery 
 of Eadwine 
 and Mor- 
 kere dis- 
 ables Har- 
 old. 
 
 elevation of Harold to the kingdom made no vacancy, how- 
 ever, in the great earldom of the West Saxons. Harold still 
 retained in his own hands the immediate control of the south 
 of England, while he continued to intrust to Eadwine and 
 Morkere, sons of the rival house of Leofric, the great north- 
 ern earldoms of Mercia and Northumberland. In the gov- 
 ernment of the latter Morkere had been preceded by Harold's 
 brother, Tostig, whose administration had been so oppressive 
 that, in the year preceding Eadward's death, he was deposed 
 and outlawed, and Morkere, the younger brother of Eadwine 
 of Mercia, elected in his stead. 1 When in the ninth month 
 of Harold's reign the storm of the, Norman conquest burst 
 upon the south of England, Harold was absent in the north- 
 ern earldoms aiding Eadwine and Morkere to repel a great 
 Norwegian invasion led by Harold Hardrada, who had been 
 solicited to make the attack by the exiled traitor Tostig. 2 
 Harold's presence in the north was at once followed by the 
 great fight at Stamfordbridge, in which the Norwegians were 
 routed, and Harold Hardrada and Tostig left dead upon the 
 field. In the midst of his triumph Harold was startled by 
 the announcement that William had landed at Pevensey, 3 on 
 the coast of Sussex. After a council had been held, Harold 
 at once marched towards London, after having bidden Ead- 
 wine and Morkere to follow him with the whole force of their 
 earldoms. But the treacherous sons of yElfgar held back 
 from their duty ; the " main forces of Northumberland and 
 northwestern Mercia came not to King Harold's muster." 4 
 In the midst of the great crisis the cohesive power of na- 
 tional unity was weakened as usual by the counter-force of 
 the provincial spirit. The treacherous policy of Eadwine 
 and Morkere, by disabling the right arm of Harold, opened 
 the way to the Norman conquest. 6 Harold might not have 
 lost the great fight on Senlac had he been heartily sustained 
 by the united power of the whole realm of England. Wil- 
 
 1 " All the thegns in Yorkshire and 
 in Northumberland gathered them- 
 selves together and outlawed their 
 earl, Tostig, . . . and sent after Mor- 
 kere, the son of ^Elfgar the earl, and 
 chose him to be their earl." Chron. 
 Wig. Petrib., 1065; Norm. Conq. t vol. 
 ii. p. 322. 
 
 2 Guest, Lectures on the Hist, of Eng., 
 
 P- J 37- 
 
 * " Venit ad Pevenesae." Bayeux 
 Tapestry, pi. 9. 
 
 4 Freeman, Norman Cony., vol. iii. p. 
 282. 
 
 6 Stubbs, Const. History, vol. i. p. 
 203.
 
 I.] THE NORMAN DUCHY AND ITS DUKES. 231 
 
 liam's victory, crushing as it was, did not put him in actual 
 possession, however, of more than a fraction of the kingdom ; 
 neither did it bring to an end all organized national resist- 
 ance. But by the death of Harold the English nation had 
 been deprived of the only leader under whom victory was 
 possible. For the want of a more available candidate, the Election of 
 witan assembled in London now chose the almost imbecile ff?e r g Har- 
 young yEtheling Eadgar the grandson of Eadmund Ironside ld ' sfa11 - 
 and the only survivor of the old line to be king. 1 This hope- 
 less expedient imparted no strength, of course, to the national 
 cause, and with the Norman duke's advance on London the 
 spirit of further resistance came to an end. When William Crown 
 reached Berkhampstead he was met by a great deputation, wm!am 
 headed by Eadgar, and composed of the chief men of Eng- 
 land, temporal and spiritual, who came to offer him the 
 crown. 2 So far William had not claimed to be king ; he 
 only claimed the sole right to become king. And even when 
 the crown was offered him by the deputation of great men, 
 who certainly had the right to represent the south of Eng- 
 land, he pretended to hesitate ; and not until he had dis- 
 cussed the matter in a council of his own followers did he 
 express to the English embassy a decided willingness to ac- 
 cept it. 3 As soon as that conclusion was reached, the corona- 
 tion of the king-elect was fixed to take place at London, in his election 
 the West Minster, on the Feast of the Nativity, which was tk>n. C01 
 fast approaching. In the church of Eadward, on Christmas 
 Day, amid the shouts of " Yea, yea," from his new English 
 subjects, 4 William, after taking the oaths usually administered 
 to an English king, was crowned and anointed by the hands 
 of the Northumbrian prelate who, less than a year before, had 
 poured the consecrating oil upon the head of the mighty 
 chief of the house of Godwine. Thus with every outward The duke 
 show of legality William, duke of the Normans, was elected, man^tS-** 
 crowned, and anointed king of the English. ^f "the Enl 
 
 1 Flor. Wig., 1066; Ord. Vit, 502 D. * Green, Hist of the English People, hsh * 
 
 2 Chron. Wig., 1066. vol. i. p. 115. 
 8 Upon this whole subject, see Norm. 
 
 .y vol. iii. pp. 366-369.
 
 CHAPTER II. 
 
 THE NORMAN KINGS OF ENGLAND. 
 
 ori 6 iifof ble r * ^ HE reat outwai "d show of legality under which Wil- 
 
 wiiiiam's liam endeavored to conceal the fact that he was a foreign 
 conqueror, " a king only by the edge of the sword," was but 
 a part of a deliberate policy which has marked him as one of 
 the foremost statesmen of the world. By claiming to be the 
 heir of Eadward, he connected himself directly with the line 
 of national kings that had gone before him ; by insisting 
 upon his elevation to the royal office by the choice of the 
 witan he obtained the highest confirmation of his title which 
 could be drawn from the ancient constitution ; by seeking 
 consecration at the hands of an English prelate, and by 
 taking the usual coronation oaths, he complied at once with 
 every prerequisite to full kingship prescribed by ancient cus- 
 tom and by the national church. By means of these outward 
 forms William clearly proclaimed the fact, not only to the 
 conquered English but to his Norman followers, that he 
 
 af n ] ona} would rule in his new realm, not as a mere feudal conqueror 
 but as a national king. 1 It was no part of William's plan to 
 remain simply a military chieftain, wholly dependent upon 
 the jealous and exacting host by whose aid the Conquest had 
 been accomplished. With the prescience of a statesman, he 
 claimed to be the ruler of a nation in which Normans and 
 Englishmen were alike his subjects ; and as such a ruler he 
 claimed the possession of every royal right which had ever 
 belonged to any of the kings who had gone before him. The 
 sum of royal power which thus accrued to William as a na- 
 
 aspect dal tlona l king was augmented by the addition of every feudal 
 right 2 which tended to increase the royal revenue and to 
 
 strengthen the royal authority, while every principle was 
 
 1 " In that claim he saw not only it. Accordingly, immediately after the 
 
 the justification of the Conquest in the battle of Hastings he proceeded to seek 
 
 eyes of the church, but his great safe- the national recognition." Stubbs, 
 
 guard against the jealous and aggres- vol. i. p. 258. 
 
 sive host by whose aid he had realized 8 " To his elective right he added
 
 THE NORMAN KINGS OF ENGLAND. 233 
 
 carefully eliminated which tended to promote the disruptive 
 tendencies of feudal institutions. As king of the English, 
 William was careful to preserve the law of the land as it 
 stood in the days of King Eadward, 1 and along with it those 
 ancient assemblies of the shire and the hundred in which 
 that law had been immemorially administered. 2 Under the The 
 authority of the old system, thus carefully preserved, the new 
 king rigorously exacted every kind of revenue, ordinary and 
 extraordinary, which had ever belonged to any of his English 
 predecessors. As feudal lord, William firmly established the 
 doctrine that the king was the supreme landowner, and that 
 all land was held by grant from him. In his time the folk- 
 land became terra regis* All landowners thus became ten- The feudal 
 ants of the king, and under William's successors the feudal " 
 revenue which accrued to the crown from this source was 
 enormous. It was the policy of William to introduce but 
 one side of feudalism, 4 to accept it as a system of tenure, 
 but not as a system of government. And in thus drawing William's 
 to the crown all the available benefits of the system, he was 
 careful to guard against its disruptive tendencies, first, by 
 preventing the accumulation in the hands of any of the great 
 feudatories of any considerable number of contiguous es- 
 tates; 6 second, by requiring from all freeholders an oath 
 which bound them directly to the king by the double tie of 
 homage and allegiance. 6 To every landowner the Conqueror 
 
 the right of conquest. It is the way in 8 " The reign of the Conqueror 
 
 which William grasped and employed finally changed the ancient folkland 
 
 this double power that marks the origi- into terra regis. The doctrine was 
 
 nality of his political genius, for the established that the king was the su- 
 
 system of government which he de- preme landlord, and that all land was 
 
 vised was in fact the result of this held by his grant." Freeman, vol. v. 
 
 double origin of his rule. It repre- p. 256. 
 
 sented neither the purely feudal system 4 Ibid., vol. v. pp. 255-257. 
 
 of the Continent nor the system of 6 Thorpe's Lappenberg, vol. iii. p. 
 
 the older English royalty : more truly 201 ; Gneist, Self -government, vol. i. 
 
 perhaps it may be said to have repre- pp. 66, 67. 
 
 sented both. As the conqueror of Eng- 6 In the gemot of Salisbury all the 
 
 land, William developed the military landowners of England who were worth 
 
 organization of feudalism so far as was summoning, " whose men soever they 
 
 necessary for the secure possession of were, all bowed to him and were his 
 
 his conquests." Green, Hist. Eng. men, and swore to him faithful oaths 
 
 People, vol. i. p. 127. that they would be faithful to him 
 
 1 With such additions as he himself against all other men." E. Chron., 
 made for the benefit of the English. 1086. As to the anti-feudal character 
 Statutes of William, 7. of this oath, see Stubbs, vol. i. pp. 265, 
 
 2 " Requiratur hundredus et comita- 266, and notes ; Freeman, Norm. Conq., 
 tus, sicut antecessores nostri statue- vol. iv. p. 471; Gneist, Verwalt. vol. i. 
 runt." Ibid., 8. p. 1 16.
 
 234 THE NORMAN CONQUEST. [Cn. 
 
 stood in the double relation of landlord and sovereign. 
 "After the coming of William, a king of the English re- 
 mained all that he was before, and he became something else 
 as well. He kept all his old powers, and he gained some 
 new ones. He became universal landlord, but in so doing 
 he did not cease to be universal ruler. At once king and 
 lord, he had two strings to his bow at every Critical moment ; 
 if one character failed him, he had the other to fall back 
 he strength- upon." 1 During William's reign the royal power was greatly 
 roya'uu- strengthened and consolidated ; the tendency to provincial 
 thority and i so i a tion was crushed out ; the four great earldoms were 
 
 consoli- ' 
 
 dates the abolished ; and the whole realm at last united in one consoli- 
 dated kingdom which was never afterwards to be divided. 
 Gradual 2. It is a mistake to suppose that William's great victory 
 the c n on- f near Hastings, crushing as it was, put him at once in pos- 
 quest. session of the whole realm of England. As the immediate 
 result of the battle he only gained the actual possession of a 
 few of the southern shires ; but, during the month and a half 
 that intervened between his victory and his crowning at 
 Submission Westminster, he received the submission of all southeastern 
 eastern England east of a line roughly extended from the Wash to 
 England. ^ Southampton 2 Water. Although William was not now 
 opposed by any rival king, the greater part of the realm held 
 quietly aloof from him, and not until several campaigns had 
 been fought and won was the conquest of northern and west- 
 ofThe'we'st ern England finally accomplished. The conquest of the west, 
 and north. w hi cn was first undertaken, practically ended with the fall of 
 Exeter in 1068 ; and the first conquest of the north, which 
 was provoked by the risings of Eadwine and Morkere, ended 
 with the submission of York before the end of the same year. 
 But the final and terrible conquest of the north, which has 
 left an indelible stain upon the name of William, did not be- 
 gin until 1069. The signal for the final struggle was the 
 invasion of Swegen, king of Denmark, whose arrival in the 
 H umber was followed by a general uprising not only in 
 northern but in all western and southwestern England. 
 After this revolt had been put down piecemeal, William, 
 
 1 Freeman, Norm. Cony., vol. v. p. military possession only of certain of 
 262. the southern and eastern shires." 
 
 2 Green, Hist, of the English People^ Norm. Conq. t vol. iv. p. I. 
 vol. i. p. 116. "He had indeed direct
 
 II.] THE NORMAN KINGS OF ENGLAND. 235 
 
 who had sworn vengeance against the north, entered upon pevasta- 
 the deliberate and systematic harrying of the whole terri- northas e 
 tory between the Tyne and the H umber. Seventeen years 
 afterwards, when the great Survey was taken, the record of 
 the devastation was made by entries of "waste," "waste," 
 "waste," which are attached through page after page to the 
 Yorkshire lordships ; and sixty years afterwards William of 
 Malmesbury wrote that the country was still lying waste, and 
 "if any ancient inhabitant remains he knows it no longer." 1 
 When this terrible work of policy and vengeance had been 
 fully carried out William marched westward upon Chester, 
 whose submission early in 1070 practically ended the Nor- conquest 
 man conquest. William was now full king over all of Eng- p^ulTta 
 land in fact as well as in name. I0 7- 
 
 3. When the fact is borne in mind that the advance of The work 
 the Conquest was gradual, it becomes more easy to under- tkm'ancT* 
 stand the manner in which William dealt with the land which, "grant, 
 district by district, became subject to his authority. The 
 theory upon which the Conqueror claimed title to the lands 
 of the conquered was, that he, the heir of Eadward, upon 
 coming to take possession of his kingdom, had been opposed 
 either actively or passively by the whole nation, who, by the 
 customary laws of both England and Normandy, had thus 
 become involved in the guilt of treason. 2 Under the strict Theory 
 letter of the law, the lands of all were forfeited to the king, ^kh Eng. 
 but the application of this principle William undertook to lish 'a nd s 
 
 rr ~ were for- 
 
 regulate according to the circumstances of individual cases, felted. 
 While there can be no doubt that through the enforcement 
 of this principle the bulk of all the great estates passed dur- 
 ing William's reign into Norman hands, it seems to be equally 
 clear that the main body of the people, the actual occupants Main body 
 of the soil, remained, as a general rule, undisturbed in their pi eU ndhT 
 possessions. 3 The work of confiscation seems to have begun [{j^ 6 ^" 
 immediately after the great fight at Hastings, and the evi- sessions. 
 
 1 For a full and graphic account of 8 " The actual amount of disposses- 
 " The Conquest of Western and North- sion was no doubt greatest in the 
 ern England," see Freeman, Norm, higher ranks ; the smaller owners may 
 Conq., vol. iv. ch. xviii. See, also, Green, to a large extent have remained in a 
 Hist. Eng. People, vol. i. pp. Ii6-n8. mediatised position on their estates," 
 
 2 Freeman, Norm. Conq., vol. iv. p. etc. Stubbs, Const. Hist., vol. i. p. 
 14, vol. v. p. 12; Digby, Law of Real 260. 
 
 Property, pp. 34, 35.
 
 236 
 
 THE NORMAN CONQUEST. 
 
 [Cn. 
 
 Foikiand 
 
 Estates of 
 
 generally 11 
 forfeited, 
 
 Nonew 
 ure syste- n ~ 
 Introduced 
 
 dence tends to show that the lands of all who actually took 
 part in the battle were held to be forfeited. In this way a 
 great fund was at once placed at the Conqueror's disposal out 
 of which to enrich his followers. William was himself en- 
 riched by becoming the possessor of the private estates of 
 his royal predecessors, and by all of the folkland becoming 
 terra regis. 1 In some instances express mention is made of 
 men's buying back their lands from the king, and from the 
 joint witness of the Chronicle and Domesday it appears that 
 at some time soon after the coronation of William the Eng- 
 lish as a body redeemed their lands from him. 2 Thus as the 
 Conquest advanced William persistently enforced with greater 
 or less strictness his scheme of confiscation. In dealing with 
 tne estates of the great men, living or dead, who had actually 
 opposed him, or who held out against him, the rule seems to 
 have been to strictly enforce the forfeiture ; but in the case 
 of those who were willing to acknowledge him the rule seems 
 to have been for the king to receive a surrender, and then to 
 make a regrant upon the payment of a moneyed compensa- 
 tion. There is no evidence, however, going to show that 
 William directly or systematically introduced any new kind 
 ^ tenure ' tne grantee of William, whether an old owner or 
 a new one, held his land as it had been held in the days of 
 King Eadward. 3 There is nothing in Domesday which estab- 
 lishes the existence of military tenures as they were after- 
 wards understood. 4 The powerful followers of the Conqueror 
 who received grants of large estates received them no doubt 
 as his tenants, bound to render military service to him. And 
 other landholders who received their lands back from the king 
 probably stood to him in substantially the same relation. It 
 is not likely, however, that William's grants were made upon 
 a definite pledge to provide a certain contingent of knights 
 
 1 Digby, Law of Real Property, p. 
 
 34- 
 
 2 " And he came to Westminster, 
 and Archbishop Ealdred consecrated 
 him king, and men paid him tribute, 
 and delivered him hostages, and after- 
 wards bought their land}' 1 E. C/iron., 
 1066. Domesday (ii. 360) tells of a 
 time when the English as a body re- 
 deemed their lands. See Freeman, 
 Norm. Conq., vol. iv. p. 16; Stubbs, 
 Const. Hist., vol. i. p. 259. 
 
 8 Freeman, Norm. Cong., vol. v. p. 
 249. " Domesday bears abundant traces 
 of the growth of the idea of tenure, 
 though we still hear of the men (homi- 
 nes) of a lord rather than of his ten- 
 ants. The land is everywhere spoken 
 of as having been held of King Ed- 
 ward or some other lord." Digby, 
 Law of Real Property, p. 38. 
 
 4 This fact is clearly pointed out by 
 Sir Francis Palgrave in his Normandy 
 and England, vol. iii. p. 609 etseq.
 
 II.] THE NORMAN KINGS OF ENGLAND. 237 
 
 for the king's service. The military service due from the ten- NO immedi- 
 ant was probably measured at first by the old custom which f^the^ 6 
 required the equipment of one fully armed man for every five tu . r( r of 
 hides of land. 1 Under William as under Eadward, military service, 
 service is due, not to the lord as lord, but to the state and to 
 the king as its head. 2 
 
 4. The origin and growth of the feudal elements contained Elements 
 in the Old-English system have been already explained. In 
 that system the relation of lord and man a relation at first 
 not necessarily connected with the holding of land was English 
 fully developed. This relation in its primitive form was that SJ 
 of princeps and comes, of king and thegn, of lord and man, 
 and not of lord and tenant. But in the " process of feudali- 
 zation," through which the primitive system was passing at 
 the time the Norman conquest began, a gradual development 
 can be traced in which the original relation of lord and man 
 closely approaches that of lord and tenant. 3 The fact has Manorial 
 been already pointed out that the manorial system originates orfgh^tes 
 in Old-English and not in Norman law, and that the relation ? o . ld - 
 
 . . English 
 
 of a lord of a manor and his tenants substantially existed and not in 
 from the time the title to the lands of the once free village- law" 
 community passed from the community itself and became 
 vested in a lord. 4 The lord or thegn, whose men were thus 
 gradually becoming his tenants, looked in turn to the king as 
 the lord from whom he might receive the grant of a large 
 district to be held allodially, or simply as a possessory right in 
 the folkland upon the payment of dues and services. Every 
 landowner, whether his land was burdened or not, was sub- 
 ject to military service, which was regarded, not as an inci- 
 dent of tenure, but as a duty to the state. The Old-English 
 system thus contained all the elements of feudalism, and 
 these elements, at the time of the Conquest, were gradually 
 
 1 Stubbs, Const. Hist., vol. i. pp. 259- man conquest upon the customary law 
 262 ; Digby, Law of Real Property, of land seems to have been the devel- 
 p. 35. " Si rex mittebat alicubi exer- opment of the idea of tenure. . . . 
 citum, de quinque hidis tantum unus This result was not brought about by 
 miles ibat et ad ejus victum vel stipen- any positive enactment. It was due to 
 dium de unaquaque hida dabantur ei the introduction of Norman customs 
 iiii. solidi ad duos menses." "Cus- and ideas, and their combination with 
 toms of Berkshire," Domesday, vol. i. p. Anglo-Saxon customs and ideas." 
 56. Digby, Law of Real Property, p. 37. 
 
 2 Freeman, Norm. Conq., vol. v. p. 8 See above, p. 133. 
 249. " A principal result of the Nor- * See above, p. 139.
 
 238 
 
 THE NORMAN CONQUEST. 
 
 [Cn. 
 
 Only an 
 
 Norman 
 
 more fuHy 1 
 developed; 
 
 their influ- 
 
 of tenure* 
 
 The king 
 
 becomes the 
 
 supreme 
 landlord, 
 
 becoming blended : the thegn was passing into the tenant-in- 
 chief ; the men of the dependent township were surely be- 
 coming the tenants of the lord in whom the title to lands of 
 the community was vested. And yet these elements, which 
 thus developed in England before the Conquest into a kind 
 of feudalism, were never worked into a systematic shape ; they 
 were never woven into a harmonious feudal system. 
 
 In the minds of William and his followers, who came from 
 a continental land in which feudal ideas had reached a far 
 higher and more perfect development, the conception of feu- 
 dal tenure, of military tenure, was no doubt far more clearly 
 defined than it had ever been in the insular English system. 1 
 By the coming of William two kindred systems of land ten- 
 ure, both tending in the same direction, and yet in different 
 stages of development, were brought into the closest contact, 
 and out of the fusion between the two has arisen the feudal 
 mode of holding land imbedded in the English common law. 2 
 Under the invigorating influence of Norman ideas the growth 
 f feudalism as a system of tenure was greatly stimulated ; 
 tne ^ ea ^ tenure tne more exact definition of the rights and 
 duties of lord and tenant, was rapidly developed. William's 
 endless confiscations and regrants gave a new strength to 
 the principle that all land should be held of a lord ; the folk- 
 land which had long been tending to become terra regis actu- 
 ally became so ; the king's thegns who had been tending to 
 become ten ants-in-chief actually became so ; 3 the dependent 
 township became the manor of the lord, and the once free 
 townsmen became his tenants. 4 By the end of the Conquer- 
 
 , > ... 11,1 ,11- i 
 
 or s reign the principle was settled that the king was the 
 supreme landlord ; that all private land was held mediately or 
 immediately of him ; and that all holders were bound to their 
 
 1 "To the mass of his (William's) 
 followers a feudal tenure, a military 
 tenure, must have seemed the natural 
 and universal way of holding land." 
 Freeman, Norm. Conq., vol. v. p. 247. 
 
 2 " From the mixture of Anglo- 
 Saxon customary law with the Norman, 
 the blending process beginning under 
 the influence of the strong rule of the 
 Conqueror, and forced on with rapid 
 strides by the vast territorial confisca- 
 tions which followed the Conquest, 
 arose the Common Law relating to 
 
 land." Digby, Law of Real Property, 
 p. 33. 
 
 8 " The one name gradually displaced 
 the other, not merely because the one 
 name was English and the other name 
 French, but because the leading ideas 
 conveyed by the two names now 
 changed places." Freeman, Norm. 
 Conq., vol. v. p. 248. 
 
 * " In this way were the lands of the 
 manor substituted for those of the 
 community." Essays in A. S. Law, 
 p. 90.
 
 II.] THE NORMAN KINGS OF ENGLAND. 239 
 
 lords by homage and fealty, either expressed or implied, in 
 
 every case of transfer by inheritance or otherwise. 1 And 
 
 yet the extent of the change that actually took place in Wil- 
 
 liam's reign must not be overestimated. Although Domes- 
 
 day contains abundant evidence of the growth of the idea of 
 
 tenure, the "men" of a lord rather than his tenants are 
 
 spoken of on every page ; the personal relation of lord and 
 
 man is generally, though not always, merged in that of lord 
 
 and tenant : of knight service or military tenure in its later 
 
 and stricter sense we hear nothing, " miles " had not yet ac- 
 
 quired the technical sense of "knight." 2 It was in the sue- Feudalism 
 
 ceeding reign of William Rufus that the system of military in a t r | ns 
 
 tenures was hardened and sharpened by the " malignant gen- 
 
 ius " of Ranulf Flambard into a methodical system of exac- u^er wil - 
 
 J Ham Rufus. 
 
 tions and oppressions.* 1 
 
 5. An examination has been heretofore made of the his- Effects of 
 tory of the witan, considered as the supreme council of an 
 heptarchic state, and also as the supreme council of the whole 
 English nation when finally united in a single consolidated the king 
 kingdom. In the Old-English national assembly all grave titan. 6 
 matters were discussed, and with its advice and consent were 
 performed all important acts which the king could authorize. 4 
 After the coming of William the continuity of the old na- Continuity 
 tional assembly went on unbrokea; the witan remained, as national 
 before, the national council of the king, and during William's 
 
 reign it retained much of its earlier character. The name by the 
 
 . Conquest, 
 
 witan goes on in English as long as the Chronicle continues, 
 and the new Latin name, magnum concilium, which grows 
 up by its side, is simply a translation of mycel gemot. 6 Of 
 the constitution of the witan, either before or after the Con- 
 quest, we have no direct or formal account, but the highest 
 authorities substantially agree in the conclusion that on all 
 ordinary occasions the witan was a comparatively small gath- 
 ering of great men, while on extraordinary occasions the 
 assembly was sometimes reinforced by large popular bodies 
 from every part of the kingdom. 6 From the Chronicler, who 
 
 1 Stubbs, Const. Hist., vol. i. p. 260. man adopts this view, Norm. Conq. t 
 
 2 Sir H. Ellis, General Introduction vol. v. p. 253, and note HH. 
 to Domesday, vol. i. p. 58. * See above, p. 186. 
 
 8 This is the conclusion of Stubbs, 6 Norm. Cong., vol. v. p. 276. 
 Const. Hist., vol. i. p. 298. Mr. Free- 6 There may be a shade of difference
 
 240 THE NORMAN CONQUEST. [Cn. 
 
 Testimony had evidently lived at King William's court, we learn that 
 derwho" 11 " thrice he wore his crown every year, as often as he was 
 had lived at j n England : at Easter he wore it at Winchester ; at Pente- 
 
 \\ ilham s 
 
 court. cost at Westminster ; at Midwinter at Gloucester ; and then 
 were with him all the rich men over all England, archbishops 
 and suffragan bishops, abbots and earls, thegns and knights." 1 
 The ordinary courts or councils here referred to were no 
 doubt of a limited character, seldom embracing more than 
 the great officers of state, and the household, the bishops, the 
 earls, and the greater barons. But in the great Gemot of 
 Salisbury in 1086 we have an example of what seems to have 
 been a general gathering of all the landowners in the king- 
 dom. What were the qualifications necessary to bestow the 
 right of membership in the great council, during the Norman 
 reigns, cannot be definitely stated : not until the reign of 
 Henry II. can it be confidently maintained that every tenant- 
 in-chief of the crown was a member of the assembly. 2 It 
 The witan seems to be admitted that the Norman conquest wrought no 
 councii g r&- at formal change in the constitution of the witan : after the 
 itTdd 11 f Conquest the great council remains in possession of all the 
 powers. powers of the old witenagemot. In legal theory at least, 
 what the witan was in the days of King Eadward it seems to 
 have remained in the days of King William. 3 In the forms of 
 legislation, change there was none. William legislates, like 
 his English predecessor, "with the common council and coun- 
 sel of the archbishops, bishops, abbots, and all the princes of 
 the kingdom." 4 The formal right of the witan to elect the 
 king is still distinctly recognized ; William is elected before 
 he receives the crown at Westminster. Henry admits that 
 he owes his election to the barons ; 6 while Stephen rests his 
 
 between the masters as to the constitu- sembly, so no formal change took place 
 
 tion of the witan after the Conquest, in its powers." Freeman, Norm. 
 
 but they substantially agree in the con- Cong., vol. v. p. 280. 
 
 elusion stated in the text. See Stubbs, * " Communi concilio et consilio 
 
 Const. Hist.,\o\. i. pp. 356-359; Free- archiepiscoporum, episcoporum et ab- 
 
 man, Norm. Conq., vol. v. pp. 272-284. batum et omnium principum regni mei." 
 
 Gneist denies the continuance of the See William's ordinance separating the 
 
 witan as a feudal council. Ver-walt., spiritual and temporal courts, Thorpe, 
 
 i. p. 224 seq. Ancient Laws, p. 213. "This imme- 
 
 1 E. Chron., 1087. morial counsel and consent descends 
 
 3 Stubbs, Const. History, vol. i. p. from the earliest Teutonic legislation." 
 
 356. Select Charters, p. 18. 
 
 8 " As no formal change took place 6 See preamble to charter Henry I., 
 
 in the constitution of the national as- Thorpe, Ancient Laws, p. 215.
 
 II.] THE NORMAN KINGS OF ENGLAND. 241 
 
 claim on the broader basis of a choice by the clergy and the 
 people. 1 At the coronation the people still formally accept 
 the king elected by the national assembly ; and the king upon 
 his part still takes the oath of good government, whose 
 pledges are expressed in the form of charters. 2 The elective Elective 
 principle survives with diminishing force until it is finally ^ n n jfy lp 
 extinguished in the time of the Angevins by the new feudal yields to 
 
 r ,. o T- i the doctrine 
 
 theory of hereditary descent. 3 From the mention made by of heredi- 
 Henry of an aid which his barons had given him, it may be *"* nght 
 inferred that the king as of old, with the advice of the great 
 council, laid taxes upon his people. 4 Yet the right of the Taxative 
 council to join in taxation is nowhere distinctly stated. That powers of* 
 the judicial powers of the witan went on practically undis- ^fffi 
 turbed by the Conquest, there can be no doubt. The history 
 of the Norman reigns furnish abundant instances of the 
 exercise of such powers by the national assembly both in 
 civil and criminal cases. 5 In such trials the will of the king 
 may generally have prevailed, but the formal right at least of 
 discussion and debate seems to have been recognized. The its power to 
 power of the witan to deal with ecclesiastical business also ecITeslasti- 
 survived ; but owing to the existence of the separate eccle- cal busi - 
 siastical courts and councils to which the policy of the 
 Conqueror gave birth, it survived with diminished authority. 
 But although the witan, under the title of the great council, 
 outlived the Conquest, and although in legal theory it still 
 retained all of its old powers, and although its formal right to 
 participate in legislation was distinctly recognized, yet the 
 fact remains that the constitution of the assembly underwent A great 
 a great practical transformation. At the beginning of Wil- 
 Ham's reign those who composed the council that ordinarily tion - 
 gathered round the king were a body of Englishmen ; by the 
 end of his reign this body had gradually changed into an 
 
 1 " Ego Stephanus Dei gratia assen- Freeman Norman Conquest, vol. v. p. 
 su cleri et populi in regem Anglorum 261. 
 
 electus." See second charter of Ste- 4 Henry I. speaks of an aid as " auxil- 
 
 phen. Statutes of the Realm: Charters ium quod barones mihi dederunt." 
 
 of Liberties, p. 3. Chron. Abingd., ii. p. 113. See First 
 
 2 Stubbs, Const. Hist., vol. i. p. 339. Report on the Digtiity of a Peer, pp. 38, 
 8 "Under the Angevins, circum- 39; Stubbs, Const. Hist., vol. i. p. 371, 
 
 stances became more favorable to and note 4. 
 
 hereditary succession, and such succes- 6 Stubbs, Const. Hist., vol. i. pp. 371 
 
 sion became, not by law but by prescrip- 373; Freeman, Norm, Conq., vol. v. p. 
 
 tion, the rule of English kingship." 282. 

 
 242 
 
 THE NORMAN CONQUEST. 
 
 [Cn. 
 
 The 
 assembly 
 
 subject to 
 
 the king's 
 
 pleasure, 
 
 Growth of 
 
 council, 6 
 curia 
 
 A standing 
 ofThe ltte 
 
 assembly of Normans, among whom an Englishman here and 
 there held his place. 1 This change naturally resulted from 
 the character of the Conquest itself. Through William's 
 policy of confiscation and regrant, nearly all of the great 
 estates passed from English to Norman hands ; and in the 
 same way all of the great offices in church and state were 
 parcelled out among his followers. The king's thegns thus 
 became his tenants-in-chief, holding their lands from him as 
 their lord. Through this feudalizing process the national 
 assembly of wise men gradually became the king's court of 
 feudal vassals, whose right to exercise power was made to 
 depend practically upon the king's pleasure. 2 The effects of 
 
 , f ... 
 
 the Conquest on kingship, and on the constitution of the 
 witan, are diametrically opposite in their results. While the 
 powers of the witan are practically reduced to a mere shadow, 
 the royal authority becomes the central and dominant force in 
 the constitution. The new kingship, which is built up through 
 the consolidation of all that is strongest in both the English 
 and Norman systems, refuses to be limited either by the con- 
 stitutional action of the witan on the one hand, or to be weak- 
 ened by the disruptive tendencies of feudalism on the other. 
 
 In order to discharge the vast and intricate duties which 
 tne growth of the royal power thus concentrated around the 
 person of the king, it became necessary for the crown to or- 
 ganize out of the main body of the great council a smaller 
 body, composed of the king's immediate officers and advisers, 
 which could be specially charged with the work of adminis- 
 tration. Owing to the scantiness of documentary evidence 
 touching the Norman period, the early history of the consti- 
 tution of this lesser council, and of its relations to the greater 
 body of which it was a part, is vague and shadowy in the 
 extreme. The greatest scholars substantially agree, however, 
 i n ^e conclusion that the lesser or inner council was what 
 would be called in modern language a standing committee of 
 the greater body ; that it was composed of the great officers 
 
 1 " Step by step, as high posts fell 
 vacant by death or deprivation, as great 
 estates passed to new owners by confis- 
 cation or by marriage, Normans sue- 
 ceeded Englishmen at every change." 
 
 Freeman, Norm. Conq. t vol. v. p. 
 277. 
 
 2 " The legislative functions of the 
 national council are, under the Norman 
 kings, rather nominal than real." Se- 
 lect Charters, p. 17.
 
 II.] THE NORMAN KINGS OF ENGLAND. 243 
 
 of state and of the household, and of such other advisers as 
 were specially summoned by the royal authority ; and that it 
 was charged under the king's direction with the whole work 
 of central or national administration. 1 This inner council, 
 which soon came to be known by the name of curia regis, 
 seems to have been mainly occupied from the beginning with 
 the transaction of fiscal and judicial business. Owing to the Early 
 lack of direct evidence, and to the vague way in which titles the'councii 
 are used, the growth of the great officers who stand forth obscure - 
 most prominently among the members of the inner council 
 is involved in the same obscurity which conceals the early 
 history of the council itself. In the mind of the Teuton the 
 duty of personal service involved in the comitatus, so far 
 from being degrading, actually tended to ennoble those who 
 rendered such service to persons superior in rank to them- 
 selves. 2 Upon this principle those members of a king's Ennobling 
 household who came into the closest contact with the royal nf^ ' 
 person were actually honored by rendering menial services services 
 
 * J rendered to 
 
 to their lord. Under the Frank kings and emperors the four royalty. 
 great officers of the court and household were the steward, 
 the butler, the marshal, and the chamberlain. 3 These offices, 
 which became hereditary and which continued down to the 
 latest days of the empire, passed with slight modifications to 
 the lowlier court of the Norman dukes, where they had be- 
 gun to be hereditary before the conquest of England. 4 The Ducal 
 royal household of the Norman kings of England was simply o^T 
 
 a reproduction of the ducal household of Normandy ; and, mandy p">- 
 although it is difficult to determine the exact dates of their royal house- 
 formation, it seems to be certain that by the end of the reign England. 
 of Henry II. the offices of high steward, butler, constable, 
 and chamberlain had become hereditary in England. 5 But 
 whilst these great offices of the household were becoming 
 hereditary, and whilst as offices of the household they were 
 becoming altogether nominal and formal, the powers which 
 had once belonged to them were gradually absorbed by a 
 
 1 Freeman, Norm. Cony., vol. v. pp. 8 G. L. von Maurer, Hofi>erfassung t 
 283-294 ; Stubbs, Const. ffist. t vol. i. L p. 189. 
 
 pp. 387-391, and also p. 376. * Freeman, Norm. Conq. t vol. v. p. 
 
 2 See Kemble, Saxons in England, 287. 
 
 vol. i. ch. vii., " The Noble by Ser- Stubbs, Const, ffist., vol. i. pp. 344, 
 vice." 345.
 
 244 
 
 THE NORMAN CONQUEST. 
 
 [Cn. 
 
 New 
 
 ministerial 
 officers : 
 
 the justi- 
 ciar: 
 
 secondary class of offices which sprang up by their side. 
 Among the new ministerial offices which thus grew up, and 
 which as a rule did not become hereditary, those of the justi- 
 ciar, the chancellor, and the treasurer rise to the greatest 
 constitutional importance. First in power among these was 
 the justiciar, who appears in history as the lieutenant or vice- 
 roy of the king during his absence. 1 Under William Rufus 
 the office of justiciar became permanent, and its functions 
 were so extended as to embrace the direction of the whole 
 judicial and financial administration of the kingdom. After 
 the time of William's famous minister Ranulf Flambard, 2 
 the office became a definite and well-organized institution. 
 In the first Henry's reign the office pased to Roger, Bishop 
 of Salisbury, the first to be called " secundus a rege" 
 who reorganized and remodelled the whole system of admin- 
 istration. 3 Under the second Henry the office was held by 
 Ranulf Glanvill, the writer of the first English law-book 
 which bears the name of a personal author. 4 The office of 
 the chancel- chancellor, which was far older than that of justiciar, but 
 originally far lower in power and dignity, probably derived 
 its name from the cancelli, or screen, behind which the secre- 
 tarial work of the royal household was carried on. 5 This 
 secretarial work was imposed upon the royal chaplains, a 
 trained body of men by whom all letters, writs, and accounts 
 pertaining to the king's immediate administration were writ- 
 ten and kept. From the head of this body the archi- 
 cancellarius, who was the official keeper of the royal seal 
 the English chancellor derives his name and functions. 6 The 
 
 1 " In this capacity William Fitz- 
 Osbern, the steward of Normandy, 
 and Odo of Bayeux, acted during the 
 Conqueror's visit to the Continent in 
 1067." Stubbs, Const. Hist., vol. i. p. 
 346, citing Will. Pict., ed. Maseres, p. 
 151 ; Ord. Vit, iv. i ; Flor. Wig., A. D. 
 1067. 
 
 2 " Summus regiarum procurator 
 opum et justitiarius factus est." 
 Ord. Vit., x. 18. By Florence he is 
 called " negotiorum totius regni ex- 
 actor." Flor. Wig., A. D. 1099. 
 
 8 "Henry, like Rufus, found it to 
 his interest to vest these great powers 
 only in a man of his own making, a 
 clerk who might grow into a bishop." 
 
 Freeman, Norm. Conq., vol. v. p. 
 289. 
 
 4 Tradatus de Legibus et Consuetudi- 
 nibus Regni Anglia, which consists 
 of fourteen books, is chiefly a treatise 
 on the forms of procedure in the curia 
 regis. " This book is also said to be 
 the first performance that has anything 
 like the appearance of a treatise on 
 the subject of jurisprudence since the 
 dissolution of the Roman empire." 
 Reeves, Hist, of Eng. Law, ed. Finla- 
 son, vol. i. p. 484 and note 3. 
 
 6 As to the etymology of the word 
 "chancellor," see Campbell's Lives oj 
 the Chancellors, vol. i. pp. I, 2. 
 
 6 Stubbs, Const. Hist., vol. i p. 352.
 
 II.] THE NORMAN KINGS OF ENGLAND. 24$ 
 
 office of chancellor, which had existed on the Continent from 
 the days of the first Karlings, 1 was first introduced into Eng- 
 land in the reign of Eadward the Confessor, who was the 
 first English king that ever had a seal. The king's hoarder the treas- 
 the keeper of the king's hoard who received after the urer< 
 Conquest the Latin name of treasurer was an important 
 member of the household who kept the royal treasure, and 
 received the accounts of the sheriffs in the exchequer at 
 Westminster. 
 
 The curia regis, which during the Norman reigns drew to curia 
 itself the whole central administration of justice and finance, "^ C e h C f 
 has given birth not only to every court of law or equity in * h |. e l ltire , 
 which justice is administered in the king's name, but also administra- 
 te the entire administrative machinery of the constitution. 2 er 
 The great stages in its development may be indicated as fol- 
 fows : As the highest judicial tribunal in the realm, the curia 
 regis consisted of the king sitting to administer justice in 
 person, with the advice and counsel of those vassals who 
 were members of the royal household, and of such others as 
 were, on account of their knowledge of law, specially ap- 
 pointed as judges. 3 In the absence of the king his court was 
 presided over by the justiciar, 4 who was at all times the su- 
 preme administrator of law and finance. As a legal tribunal The curia 
 the jurisdiction of the curia was both civil and criminal, 5 
 original and appellate. As a primary court it heard all 
 causes in which the king's interests were concerned, as well 
 as all causes between the tenants-in-chief of the crown, who 
 were too great to submit to the local tribunals of the shire 
 and the hundred. 6 As an appellate court it was resorted to 
 in those cases in which the powers of the local courts had 
 been exhausted or had failed to do justice. By virtue of spe- 
 cial writs, and as a special favor, the king could at his pleas- 
 ure call up causes from the local courts to be heard in his 
 own court according to such new methods as his advisers 
 
 1 See Waitz, D. V. G., ii. p. 409, and 8 Reeves, Hist, of Eng. Law, vol. i. 
 iii. p. 406. p. 265. 
 
 2 " Every court where law or equity 4 History of Procedure in England, 
 is administered in the king's name is a Bigelow, p. 87. 
 
 fragment of the king's court of Nor- 6 Madox, Hist. Exc/i., p. 70. 
 
 man times. So, again, another side of 6 Stubbs, Const. Hist., vol. i. p. 390, 
 
 this inner council of the king survives citing writ of Henry I., Select Charters, 
 
 in the privy council." Freeman, p. 99. 
 
 Norm. Conq., vol. v. p. 285.
 
 246 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 The finan- 
 cial session 
 of the 
 curia, 
 the ex- 
 chequer. 
 
 The leading 
 subjects of 
 revenue. 
 
 Exchequer 
 records. 
 
 might invent. 1 Through the issuance of these special writs 
 the king became practically the fountain of justice, and 
 through their agency the new system of royal law, which 
 finds its source in the person of the king, was brought in to 
 remedy the defects of the old, unelastic system of customary 
 law which prevailed in the provincial courts of the people. 2 
 The curia followed the person of the king, or the justiciar 
 in the king's absence. Twice in every year, at Easter and 
 Michaelmas, the curia held sessions at Westminster in order 
 to transact with the sheriffs the financial business of the king- 
 dom. When engaged in this work two chambers were used : 
 in one the reports and accounts were received and audited ; 
 in the other the money was paid down, weighed, and tested. 3 
 From the chequered cloth which covered the table at which 
 the accounts were taken, the financial session of the curia 
 took the name of exchequer. 4 This name does not occur be- 
 fore the time of Henry I., during whose reign the fiscal side 
 of the curia was separately and elaborately organized. 5 The 
 same officers who sat in the curia as justices, sat in the ex- 
 chequer as barons, barones scaccarii, a title which contin- 
 ues to belong to them after they have ceased to be chosen 
 from the ranks of the greater vassals. 6 With the barons of 
 the exchequer the sheriffs accounted twice in each year for 
 the several kinds of revenue due from or collectible in their 
 several shires. 7 The leading subjects of revenue to be ac- 
 counted for were the " ferm of the shire ; " i. e. the profits of 
 the county jurisdictions, and the rents of the royal domains 
 let to the sheriffs at fixed sums, the Danegeld or land-tax, 
 the proceeds of the pleas of the crown, and the fruits of feu- 
 dal tenures. 8 The record of the business of the exchequer 
 was kept in three great rolls, by three separate officers. One 
 
 1 As to the extraordinary jurisdic- 
 tion of the king's court thus acquired 
 by the king's writ, see Bigelow, Hist, of 
 Procedure, pp. 77, 78, 83. 
 
 2 These special writs " were the ex- 
 pedients by which the ' jus honorarium ' 
 of the king, as fountain of justice, was 
 enabled to remedy the defects of the 
 'jus civile ' or ' commune,' the custom- 
 ary proceedings of the local moots." 
 Stubbs, Const. Hist., vol. L p. 391. 
 As to the connection of the Norman 
 and English writs with the writ pro- 
 
 cess of the Prankish procedure, see 
 Brunner, Schitwrgerichte, pp. 76-84. 
 
 8 Dialogus de Scaccario, i. 2. 
 
 * Dialogus, i. i. 
 
 8 Stubbs, Const. Hist., vol. i. p. 377. 
 
 6 Mad., Ex., p. 134; Select Charters, 
 p. 17. 
 
 " As to the manner in which the tal- 
 lies were kept, see Madox's Ex., p. 
 708. 
 
 8 Stubbs, Const. Hist., vol. i. pp. 
 380-384 ; Select Charters, p. 18 ; Free- 
 man, Norm. Conq., vol. v. p. 294.
 
 II.] THE NORMAN KINGS OF ENGLAND. 247 
 
 was kept by the treasurer, which was called the great roll 
 of the Pipe ; another was kept by the chancellor, which was 
 called the roll of the Chancery; while the third, in which 
 were registered matters of special importance, was kept by 
 an officer specially nominated by royal authority. 1 
 
 In the course of the assessment and collection of the reve- Origin of 
 nue, which was the chief work of the curia as a financial antjudka- 
 body, local disputes so constantly arose that it became neces- ture- 
 sary to send detachments of justices to adjust the business 
 of the exchequer in each shire. As early as the reign of 
 Henry I. officers of the exchequer were frequently sent 
 through the country to assess the revenue ; 2 and in the reign 
 of his grandson, Henry II., this custom was enforced with 
 systematic regularity. 3 The justices while thus engaged in justices 
 provincial business sat in the shire-moots, where judicial work cTda^un 
 soon followed in the path of their fiscal duties. In 1 1 76 4 the shire- 
 
 r . - ' moots. 
 
 the kingdom was divided into six circuits,* each of which 
 were assigned three justices, who are now for the first time 
 given in the Pipe Rolls the name of Justitiarii Itineraries. 
 After several intermediate changes in the number of the cir- 
 cuits, it was at last provided by Magna Carta that two justices 
 should be sent four times each year into each shire to take 
 the assizes of novel disseisin, mort d'ancester, and darrien 
 presentment? The provincial visitations of the justices from Financial 
 the exchequer, whose primary object was financial, thus led to foUowSTby 
 the establishment of those judicial visitations which have i udidal - 
 
 1 Dialogus de Scaccarto, \. 5, 6. The 8 " It simply needed to be organized 
 great sources of authority for the early in a more systematic shape by Henry 
 history of the exchequer are the Pipe the Second." Freeman, Norm. Cong., 
 Rolls and the Dialogus de Scaccarto, a vol. v. p. 300. 
 
 treatise written by the treasurer, Rich- 4 It was not until 1166 that the judi- 
 
 ard, Bishop of London, from which we cial eyres became annual and general, 
 
 derive an accurate idea of the adminis- 2 Benedictus, pref. 64; Bigelpw, Le- 
 
 tration of the exchequer as it stood in gal Procedure,^. 14. The division into 
 
 1177. The Pipe Rolls are complete circuits was provided for in the Assize 
 
 from the second year of Henry II. of Northampton. For a list of the 
 
 For the preceding period there is but circuits, see Reeves, Hist, of Eng. Law, 
 
 one Roll extant, and that is of the vol. i. p. 273. See, also, Placita Ang^ 
 
 thirty-first year of Henry I. The Dia- Norm., p. 216. 
 
 logue was for tha first time printed in 8 " Mittemus duos justiciaries per 
 
 Madox's History of the Exchequer. unumquemque comitatum per quatuor 
 
 2 The single Pipe Roll of the thirty- vices in anno, qui, cum quatuor militibus 
 first year of Henry I. exhibits a system cujuslibet comitatus electis per comita- 
 of iters by the royal officers in regular turn, capiant in comitatu et in die et 
 working order. See, also, Dialogus, i. loco comitatus assisas praedictas." C. 
 c. 7. 18.
 
 248 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Fusion of 
 Norman 
 and Old- 
 English 
 judicature. 
 
 The break- 
 ing up of 
 the curia 
 regis. 
 
 Beginnings 
 of the 
 king's 
 bench as a 
 distinct tri- 
 bunal. 
 
 ever remained an abiding feature in English judicature. 1 
 Through these visitations was established that vitally impor- 
 tant connection between the strong central system of ad- 
 ministration embodied in the Norman curia and the ancient 
 system of local freedom embodied in the Old-English shire- 
 moots. "The visits of the itinerant justices form the link 
 between the curia regis and the shire-moot, between royal 
 and popular justice, between the old system and the new. 
 The courts in which they preside are the ancient county 
 courts, under new conditions, but substantially identical with 
 those of the Anglo-Saxon times." 2 
 
 During the progressive reign of Henry II. the curia regis, 
 as a supreme court of justice, underwent such a rapid devel- 
 opment, and the volume of judicial work which then came 
 before it became so great, that the king and his regular min- 
 isters were no longer able to dispatch it. The reasonable 
 inference is that* this great increase of judicial work, which 
 grew out of Henry's legislative reforms, finally brought about 
 the large increase in the number of judges who are found 
 acting in 1 1 /S. 3 In that year, however, the staff of the 
 curia was reduced to five justices, and then it was increased 
 in the next year to six, and "these six are justices consti- 
 tuted in the curia regis to hear the complaints of the peo- 
 ple." 4 These specially selected justices, who from the year 
 1 1 79 hold regular sessions " in banco" 6 probably represent 
 the beginnings of the king's bench as a distinct tribunal. 
 Their sessions are still held nominally but not actually 
 "coram rege ;" and before them is brought all of the busi- 
 ness which came at a later period before the courts of king's 
 bench, exchequer, and common pleas. 6 Although the busi- 
 ness of the court is no longer conducted in the king's pres- 
 
 1 For a more detailed account of the 
 history of the courts of assize, see Sir 
 James F. Stephen's Hist. Crim. Law of 
 Eng., vol. i. pp. 97-1 1 1 ; Bigelow, Hist, 
 of Procedure, pp. 92-103 and 138-141. 
 
 2 Stubbs, Const. Hist., vol. i. p. 605. 
 As to the distinction between the 
 courts held in the counties by the royal 
 justices and the ordinary county courts, 
 see Bigelow, Hist, of Procedure, pp. 
 136-141. 
 
 8 " It is then to these years, from 
 1 1 66 to 1176, that we must refer the 
 
 creation or development of the large 
 staff of judges in the curia regis which 
 we find acting in 1178." Stubbs, 
 Const. Hist., vol. i. p. 600. 
 
 4 " Isti sex sunt justitiae in curia re- 
 gis constituti ad audiendum clamores 
 populi." Benedictus, vol. i. p. .139. 
 
 As to the "justiciarii sedentes in 
 banco," see Glanville, lib. 2, c. 6, lib. 
 8, c. i, and lib. n, c. i; Benedictus, 
 vol. ii. pref. 75, Rolls Series. 
 
 6 Stubbs, Const. Hist., vol. i. p. 602, 
 vol. ii. p. 266.
 
 II.] THE NORMAN KINGS OF ENGLAND. 249 
 
 ence, it still follows his person, or the justiciar in his ab- 
 sence, until it was provided by Magna Carta that " common 
 pleas shall not follow our court, but shall be holden in some 
 certain place." 1 This provision led to the fixing of the com- Common 
 mon pleas at Westminster, which broke up the unity of the aV* 6 
 curia. But not until the end of the reign of Henry III. was 
 the general staff permanently divided into three distinct final dm- 
 
 .... , ,. . ,. .,., sion into 
 
 courts, each exclusively devoted to the hearing of a different three dis- 
 class of causes, the exchequer to the hearing of cases tm 
 touching the king's revenue, the common pleas to the hear- 
 ing of private suits of subjects, and the king's bench to the 
 hearing of all other suits that might fall under the general 
 head of placita coram rege? 
 
 The three law courts to which the curia regis thus gave judicial su- 
 birth were not, however, the last resort of suitors. "The ju- thTkfng in 
 dicial supremacy of the king is not limited or fettered by the coundL 
 new rule ; it has thrown off an offshoot, or, as the astronomi- 
 cal theorists would say, a nebulous envelope, which has rolled 
 up into a compact body, but the old nucleus of light remains 
 unimpaired." 3 The decision of all extraordinary or difficult 
 causes of a judicial nature was still reserved to the king in 
 council. 4 The bulk of the business which thus devolved 
 upon the council came before it in the form of petitions, 
 which were divided into classes or bundles, and then severally ciassifica- 
 assigned to the consideration of the different members, ac- t!tions. pe " 
 cording to their special knowledge of them. 5 High among 
 the members of the council stood the chancellor, whose con- 
 
 1 " Communia placita non sequantur * " Si aliqua quasstio inter eos veni- 
 curiam nostram sed teneantur in aliquo ret quae per eos ad finem duci non pos- 
 loco certo." Art. 17. As to the in- set, auditui regio praasentaretur et sicut 
 convenience to suitors which this pro- ei et sapientioribus regni placeret ter- 
 vision was designed to remedy, see the minaretur." Benedictus, vol. i. p. 207. 
 history of the plea of D'Anesty, whose As to the general character of the 
 suit lasted from 1158 to 1163. Pal- causes reserved for the king, see Dialo 
 grave, Commonwealth, ii., ix.-xxvii. gus de Scaccario, \. c. 8. 
 
 2 " The final separation of the three 6 Ryley, Pleadings, etc., pp. 442, 459. 
 courts originated in the direction of " Those which could not be answered 
 the seventeenth chapter of Magna Carta, without reference to the king formed a 
 but it does not appear that even then a special branch of business, and it was 
 distinct staff of judges was appointed to from the share taken by the chancellor 
 each tribunal. Probably until late in in examining and reporting on the bills 
 the reign of Henry III. the same per- of grace and favor that his equitable 
 sons continued as before to sit in the jurisdiction in the fourteenth century 
 three different courts in distinct capaci- grew up." Stubbs, Const. Hist., vol. 
 ties." Benedictus, vol. ii. pref. 76, R. S. ii. p. 263. See Hardy's Preface to the 
 
 8 Stubbs, Const. Hist., vol. i. p. 603. Close Rolls, i. p. xxviii , cited.
 
 250 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 The chan- 
 cellor ; 
 
 ins common 
 law juris- 
 diction ; 
 
 his equi- 
 table juris- 
 diction. 
 
 nection with judicial business begins with the 
 
 This ministerial duty was not, however, his only occupation. 
 As a baron of the exchequer, 2 and as a leading member of the 
 curia, the chancellor had long been in possession of judicial 
 functions, and so to him, as to the other justices, were re- 
 ferred a definite class of petitions. In this way the chancel- 
 lor was called upon to decide a distinct class of suits as a 
 judge, according to the rules and maxims of the common law, 
 and hence the origin of what is called his "common law 
 jurisdiction." 3 
 
 The chan- 
 cellor's 
 court be- 
 comes a 
 distinct 
 tribunal. 
 
 Hien early in the reign of Eadward 
 III. the chancellor ceased to follow the court as one of the 
 royal retinue, his tribunal began to acquire a more distinct 
 and substantive character. And from thednnafttMMMHhlMRr 
 
 Equity one 
 of the agen- 
 cies by 
 which strict 
 law is 
 adapted to 
 the expand- 
 ing wants of 
 society. 
 
 1 
 
 tion " of the chancellor thus 
 agencies which have adapted 
 
 1 " This was the ojficinajustititz, called 
 chancery, and the officer who presided 
 over it was called chancellor." Camp- 
 bell's Lives of the Chancellors, vol. i. 
 
 P-3- 
 
 2 Madox, Hist, of Ex., p. 131. 
 
 8 Gilbert's History of the Exchequer, 
 
 The "equitable jurisdic- 
 became one of the three great 
 the old, unelastic code of cus- 
 
 p. 8 ; Campbell's Lives of the Chancel- 
 lors, vol. i. pp. 5, 6. 
 
 4 Ryley, Pleadings, etc., p. 442. 
 
 5 Rot. Claus., 38 Edw. III. ; Hardy, 
 Close Rolls, i. pref. xxviii. ; Stubbs, 
 Const. Hist., vol. ii. p. 269. 
 
 6 Campbell's Lives, vol. i. p. 7.
 
 II.] 
 
 THE NORMAN KINGS OF ENGLAND. 
 
 251 
 
 ternary law to the expanding wants of a progressive society. 
 In order to give complete expression to this idea resort must 
 be had to the weighty words of one who, in our own time, 
 has made perhaps the largest and most invaluable contribu- 
 tions to the early history of jurisprudence: "A general prop- 
 osition of some value may be advanced with respect to the 
 agencies by which law is brought into harmony with society. 
 These instrumentalities seem to me to be three in number, 
 legal fictions, equity, and legislation. Their historical order 
 is that in which I have placed them. ... I employ the word 
 ' fiction ' in a sense considerably wider than that in which 
 English lawyers are accustomed to use it, and with a meaning 
 much more extensive than that which belonged to the Roman 
 'fictiones? ... I now employ the expression 'legal fic- 
 tion ' to signify any assumption which conceals, or affects to 
 conceal, the fact that a rule of law has undergone alteration, 
 its letter remaining unchanged, its operation being modified. 
 . . . The next instrumentality by which the adaptation of 
 law to social wants is carried on I call ' equity,' meaning by Equity, 
 that word fPfeadMM^VHfeMMhMMdMMtiivaMaMfaliM^Vtafcv 
 
 Maine's 
 view. 
 
 Legal 
 fictions. 
 
 Cl- 
 
 The equity, whether 
 of the Roman praetors or of the English chancellors, differs 
 from the fictions which in each case preceded it, in that the 
 interference with law is open and avowed. On the other 
 hand, it differs from legislation, the agent of legal improve- Legisia- 
 ment which comes after it, in that its claim to authority is tl 
 grounded, not on the prerogative of any external person or 
 body, not even on that of the magistrate who enunciates it, 
 but on the special nature of its principles, to which it is al- 
 leged that all law ought to conform." 1 
 
 After giving birth to the system of itinerant judicature, The privy 
 and to the four great courts of king's bench, common pleas, counal - 
 exchequer, and chancery, the curia regis survived as the 
 privy council, which has ever retained an almost indefinable 
 reserve of administrative and judicial functions. At one 
 period in the history of the privy council its judicial side 
 reached an abnormal development; at another its adminis- 
 
 1 Sir Henry Maine, Ancient Law, pp. 23-27.
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Its judicial 
 functions as 
 developed 
 in the star 
 chamber; 
 
 its adminis- 
 trative, as 
 developed 
 in the cabi- 
 net. 
 
 trative side has become the most subtle force in the constitu- 
 tion. When under the Tudor dynasty the royal prerogative 
 reached its height, the judicial power of the council became 
 the handmaid of tyranny through the famous committee 
 commonly known as the star chamber. 1 When in compara- 
 tively modern times the true principles of constitutional 
 executive government became firmly established, when it 
 finally became settled that the ministry should consist of 
 statesmen holding the same political principles, and that such 
 ministry should depend for its authority and permanence 
 upon a majority of the house of commons, the administra- 
 tive functions of the privy council found their most perfect 
 expression through that mysterious committee, undefined 
 by law, known as the cabinet. 2 This inner circle of the 
 privy council, which is for the time being the government of 
 Great Britain, has been aptly styled " a board of control, 
 chosen by the legislature out of the persons whom it trusts 
 and knows, to rule the nation." 3 
 
 Effects of 6. Having now defined the outlines of that vigorous system 
 ques^on f central administration to which the Norman conquest 
 izations gan " & ave birth, it will next become necessary to trace the effects 
 of the Conquest on the tenacious substructure of Old-English 
 local freedom upon which the Norman system was superim- 
 posed. As the Norman superstructure was strongest in the 
 higher ranges of organization, so the Old-English substruc- 
 ture was strongest in the cohesion of its lower organism, in 
 the local associations of the township, the hundred, and the 
 shire. 4 The growth of these local associations out of the 
 Teutonic polity of the fatherland has already been explained, 
 the growth of the township out of the mark, the identity 
 
 The town- 
 ship, hun- 
 dred, and 
 shire. 
 
 1 "The original tribunal, the king's 
 ordinary council, retained its undimin- 
 ished powers throughout, changing at 
 various times and throwing off new 
 off-shoots, such as the court of star 
 chamber, until it has reached our own 
 time in the form of the judicial com- 
 mittee of privy council." Select Char- 
 ters, p. 24. 
 
 2 " The cabinet has been formed out 
 of the privy council by exactly the same 
 process by which the curia regis and 
 the later parliament were formed out 
 
 of the witenagemot. Certain members 
 of the body are specially summoned ; 
 those who are not specially summoned 
 stay away." Freeman, Norm. Conq. t 
 vol. v. p. 285. 
 
 8 Bagehot, English Constitution, p. 
 78. The selection is of course formally 
 made by the crown, but really by the 
 house of commons. 
 
 4 " The strongest elements of both 
 were brought together." Stubbs, 
 Const. Hist., vol. i. p. 278.
 
 II.] THE NORMAN KINGS OF ENGLAND. 253 
 
 of the hundred with the early shire, and the origin of the 
 modern shire in the primitive state. The fact has also been 
 pointed out that the consolidated kingdom was but an aggre- 
 gation of shires, the shire an aggregation of hundreds, and 
 the hundred an aggregation of townships. 1 With the growth 
 of national unity, and with the advance of the "process of 
 feudalization," each local division and subdivision suffered a 
 certain degree of change which necessarily curtailed its prim- 
 itive freedom of action, without at all destroying its corporate 
 identity. The greatest amount of change that took place The town- 
 was in the status of the township, which, in the "process of S a r ! the 
 feudalization," underwent a marked transformation. The 
 evidence seems to justify the conclusion that, before the 
 Norman conquest, all townships had, as a rule, become 
 dependent ; that is, the title to the land occupied by the once 
 free community had become vested in a lord, and the de- 
 pendent townsmen had become his men, or, in the language 
 of later times., his tenants. 2 The word "manor" 3 is of The word 
 Norman introduction, but the relation of a lord of a manor of^o 
 and his tenants substantially existed in every case in which a 
 township had become dependent through the substitution of 
 the lord for the community. The manorial system, which but the 
 thus originates in Old-English and not in Norman law, as- 
 sumed a more definite form in the hands of the Norman 
 lawyers and justices, by whom the legal relation between the 
 lords and the smaller holders within the manor was more 
 exactly defined. 4 By the time of the Domesday Survey, the 
 territorial lordship had become the rule ; there were manors 
 everywhere ; and " the manor was a landlord's estate, with a 
 township or village-community in villeinage upon it, under 
 the jurisdiction of the lord of the manor." 5 At the date of Number of 
 
 * . i ' i r manors at 
 
 the Survey, 1,422 manors were in the ancient demesne ot the date of 
 the crown, most of which had been royal manors in the days the Survey 
 of King Eadward. 6 After the Conquest some new manors 
 
 1 See above, pp. 170-173. * Digby, Law of Real Property, p. 
 
 2 Essays in A. S. Law, pp. 88-90; 45. 
 
 Digby, Law of Real Property, pp. 43- 5 Seebohm, English Village Commu- 
 
 45. n *ty' P - ^ 2 ' 
 
 8 The earliest appearance of the * Ellis, Introduction to Domesday, p. 
 word is in the reign of Eadward the 225. 
 Confessor. Ellis, Introduction to Domes- 
 day, p. 225. J
 
 254 
 
 THE NORMAN CONQUEST. 
 
 [Cn. 
 
 Manorial 
 courts. 
 
 honors. 
 
 were no doubt created ; some were diminished and others 
 added to ; but upon the whole it is probable that there was 
 no great addition to the number of manors. 1 As the manor 
 then was nothing but a dependent township under a new 
 name, so the court baron, the principal court of the manor, 
 was primarily the successor of the tun-moot, the ancient 
 assembly of the village or township. To the functions thus 
 inherited by the manorial court from the tun-moot, was 
 added, by an express grant of sac and soc, the jurisdiction of 
 a private hundred court. The criminal side of the jurisdic- 
 tion thus acquired was the manorial court leet. By every 
 grant of sac and soc terms which are used as well after the 
 Conquest as before a section of jurisdiction was simply 
 carved out of the hundred and vested in the manorial court. 2 
 In some instances, however, these private jurisdictions were 
 Liberties or organized upon a much larger scale. The greater jurisdic- 
 tions, which were called liberties or honors, often embraced 
 large districts, which were in some instances completely 
 organized as shires, but as a general rule they were only 
 hundreds in private hands. 3 Jurisdictions of this class which 
 originated before the Conquest, and which were greatly mul- 
 tiplied during the Norman reigns, 4 constantly tended to 
 undermine the ancient local jurisdictions by freeing suitors 
 from all attendance upon the popular courts. And yet the 
 leading difference in practice between a royal or national and 
 a private hundred court was, that in the one the freemen 
 met together to declare the law under the presidency of a 
 royal official, in the other, under the presidency of a lord 
 or his representative. In either event, justice was adminis- 
 tered according to the custom of the manor, and not accord- 
 ing to the will of the presiding officer. 6 
 
 It seems to have been a leading feature in the policy of 
 William to maintain the ancient usages of the English nation 
 by keeping up the administration of the customary law in the 
 popular courts of the shire and the hundred. In obedience to 
 
 Courts of 
 the shire 
 and hun- 
 dred kept 
 up by 
 William. 
 
 1 Digby, Law of Real Property, p. 44, 
 note 5. 
 
 2 See above, pp. 207-210. 
 
 * Essays in A. S. Law, p. 54. 
 
 4 Stubbs, Const. History, vol. i. p. 
 
 400. 
 
 6 
 
 The law administered in the ma- 
 
 norial court was hundred law ; the pro- 
 cedure was hundred procedure ; the 
 jurisdiction, like that of the hundred, 
 was controlled by the shire." Essays 
 in A. S. Law, p. 54. As to the mano- 
 rial courts, see Digby, Law of Real 
 Property, pp. 53-56.
 
 II.] THE NORMAN KINGS OF ENGLAND. 255 
 
 this policy he confirmed the laws which had been in use in the 
 days of King Eadward, with such additions as he himself had 
 made for the benefit of the English. 1 From the same source 
 from which we learn this fact, we hear of the continuance by 
 him of the courts of the shire and the hundred. 2 The exist- 
 ence of these courts in the succeeding reign of William Rufus 
 is not only proven by the expressive entry in the Chronicle 
 which describes Ranulf Flambard as " driving all the gemots 
 throughout England," 3 but by writs addressed to the shire-moot 
 through the sheriff and other leading members. 4 From the Employed 
 language of the charter in which Henry I. orders the holding l^poSs 
 of the courts of the shire and hundred, it may be inferred that ,y ^ Villiam 
 
 J Rufus and 
 
 they had been used in the preceding reign for the purpose of Henry i. 
 extraordinary exactions. 6 And in the same charter Henry 
 says, " I will cause those courts to be summoned when I will, 
 for my own sovereign necessities, at my pleasure." 6 The 
 use thus made of the shire-moots to raise money may account 
 for the necessity of imposing penalties, as of old, upon those 
 members who failed to attend. 7 From the issuance of 
 Henry's charter (A. D. 1108-1112) onward, the local courts 
 are held, "as in King Eadward's day, and not otherwise." 
 From the " Leges Henrici Primi," as they are called a Composi- 
 compilation later than his reign we learn that, after the 
 Conquest as before, the shire-moot was attended by the 
 "thegns of the shire," 8 by the parish priest, and the reeve changed, 
 and four selectmen from each township. 9 The full court 
 which met twice a year still possessed both civil and criminal 
 
 1 "Hoc quoque prascipio et volo, between 1108 and 1112, see Fa>dera,'\, 
 ut omnes habeant et teneant legem p. 12 ; Select Charters, p. 104. 
 Edwardi regis in terris et in omnibus 6 " Ego enim, quando voluero, fa- 
 rebus, adauctis iis quae constitui ad ciam ea satis summonere propter mea 
 utilitatem populi Anglorum." Stat- dominica necessaria ad voluntatem 
 utes of William, 7. See, also, Char- meam." See Stubbs, Const. Hist., vol. 
 ter Henry I., 13; Select Charters, i. p. 398. 
 
 pp. 84, 101. 7 Freeman, Norm. Cony., vol. v. p. 
 
 2 " Requiratur hundredus et comita- 300. 
 
 tus, sicutantecessoresnostristatuerunt." 8 " Intersint autem episcopi, comites, 
 
 Stat. of Will., 8. vicedomini, vicarii, centenarii, alder- 
 
 8 Chron. Petrib., 1099. manni, praefecti, praepositi, barones, 
 
 4 There is extant a writ direct by the vavasores, tungrevii et ceteri terrarum 
 
 Red King to the sheriff of Northamp- domini." Leg. Hen. I., vii. 2. See 
 
 tonshire commanding him to call to- Norman Conquest, vol. v. p. 301. 
 
 gether his shire to inquire into the 9 " Si uterque necessario desit, prae- 
 
 rights of the monks of Ramsey. Pal- positus et sacerdos et quatuor de me- 
 
 grave, Commonwealth, clxxix. lioribus villas assint pro omnibus qui 
 
 6 For this charter, which was issued nominatim non erunt ad placitum sub- 
 
 moniti." Leg. Hen. I., vii. 7.
 
 256 
 
 THE NORMAN CONQUEST. 
 
 [Cn. 
 
 with the 
 exception 
 of trial by 
 battle. 
 
 Survival of 
 the hundred 
 court. 
 
 Centraliza- 
 tion of jus- 
 tice and 
 growth of 
 immunities 
 undermine 
 the popular 
 courts. 
 
 How the 
 king came 
 to be re- 
 garded as 
 the source 
 of justice. 
 
 jurisdiction, which was exercised according to the old forms 
 of witness, compurgation and ordeal. All transfers of land, 
 as well as the execution of all private documents and char- 
 ters, were still witnessed in its presence, and the old theory 
 survived that the suitors were the judges. 1 A great innova- 
 tion in the proceedings of the popular courts now arose out 
 of the introduction by the Normans of trial by battle. 2 By 
 the so-called laws of Henry I. the court of the hundred, no 
 less than that of the shire, was restored as it had been in the 
 days of King Eadward. 3 In these laws the distinction is 
 clearly drawn between the great court of the hundred, held 
 twice a year under the sheriff for the view of frank pledge, 
 and the lesser court held monthly by the bailiff of the hun- 
 dred 4 chiefly to consider disputes about small debts, which 
 long continued to be its sole employment. 5 
 
 The two great forces which constantly tended to under- 
 mine and weaken the courts of the shire and the hundred 
 were the growth of immunities and the centralization of 
 justice, both of which had begun to assert themselves long 
 before the Norman conquest. The growth of immunities 
 having already been explained, the centralization of justice 
 may next be examined. With the advance of national unity, 
 and with the consequent growth of the royal power, the idea 
 constantly gained ground that the national peace was the 
 king's peace, that the national officers were the king's offi- 
 cers, and that the justice of the shire and the folk was the 
 king's justice. In this way the principle was established that 
 the national king was the supreme judge throughout his 
 dominions. 6 The earliest form, perhaps, in which the asser- 
 tion of this principle began to interfere in the local adminis- 
 tration of justice, appears in a law of Cnut, in which are 
 defined certain pleas of the crown that were specially re- 
 served to be dealt with in the local courts, only in the king's 
 name, by the king's officers, and for the king's profit. 7 This 
 
 1 Stubbs, Const. Hist., vol. i. p. 394 ; 
 Bigelow, Hist, of Procedure, pp. 131- 
 141. 
 
 2 Ibid., p. 326. 
 
 8 " The hundred courts . . . contin- 
 ued after the Conquest with no further 
 constitutional change than was effected 
 by the Conqueror's- charter concerning 
 
 jurisdiction of spiritual causes." Bige- 
 low, Hist, of Procedure, p. 141. 
 
 4 Leg. Hen. I., vii. 8. 
 
 6 Mad ox, Formulare Anglicanum, p. 
 40 ; Stubbs, Const. Hist., vol. i. p. 399. 
 
 6 See above, p. 177. 
 
 7 Laws of Cnut, ii. 12; K. Maurer, 
 Krit. Ueber$chau> ii. p. 55.
 
 II.] THE NORMAN KINGS OF ENGLAND. 2$? 
 
 was not, however, the only form in which the royal power 
 interfered in the local administration of justice. Several instances of 
 instances exist of such interference, in the later days of the fere^cTwUh 
 Old-English commonwealth, through the issuance of the j^J"^ 06 
 king's writ or insigel. 1 In the days of ^Ethelred, the king Conquest, 
 sent his writ by the hands of Abbot ^Elfhere to the shire-moot 
 of Berkshire bidding them arbitrate in a suit then pending 
 between Wynflaed and Leofwine. 2 In Cnut's day, Tofig the 
 Proud seems to have been sent for the same purpose on the 
 king's errand to the shire-moot of Herefordshire, before which 
 was pending a suit between Eanwene and her son Eadwine. 3 
 There is still other evidence which goes to show that the 
 Old-English kings occasionally administered justice in the 
 local courts either in person or by deputy. 4 It is recorded 
 among the merits of ^Elfred, Eadgar, and Cnut, that they 
 either went about doing justice in their own persons, or else 
 sent forth justices to do justice in their names. Two dis- 
 tinct records exist of the action of the royal missi in the 
 reign of ^Ethelstan. 5 After the Conquest the interference After the 
 of the king with the local administration of justice became 
 more systematic and more frequent. The list of offences 
 contained in Cnut's law, and which were specially reserved w" ts 
 for the king's jurisdiction and profit, was, during the Norman 
 reigns, greatly extended, the king then becomes entitled ^ d cus " 
 for the first time to the profits of all murders. 6 The royal 
 right to interfere with the local courts through the issuance 
 of special writs a right which had been occasionally exer- 
 cised before the Conquest now ripened into an established 
 custom. 7 But the influence of the central authority over the 
 provincial administration of justice was most effectively 
 exercised after the Conquest through the royal representa- 
 tives who presided in the local tribunals. Under the old 
 
 1 " There is no mention in the laws 6 Murdrum was the fine payable by 
 of the insigel or breve, but the char- the hundred in which the murder was 
 ters give some evidence of what has committed, in the event of its being un- 
 been averred." Kemble, Saxons in able to prove that the party slain was 
 England, vol. ii. p. 46. an Englishman. Dialogus de Scac- 
 
 2 Cod. Dipl., No. 693. cart'ff, i. 10. As to Englishry, see 
 8 Ibid., No. 641. Bigelow, Hist, of Procedure, p. 81. 
 
 4 Kemble, Saxons in Eng., vol. ii. ' For a full history of the growth of 
 
 p. 41. the "writ process," see Bigelow's His- 
 
 6 Freeman, Norm. Conq., vol. v. pp. tory of Procedure, pp. 147-200. 
 298, 299.
 
 258 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Ancient 
 presidents 
 of the shire 
 "sappear. 
 
 Their 
 
 places filled 
 by royal 
 officers. 
 
 The itiner- 
 ant system 
 firmly es- 
 tablished 
 in the reign 
 of Henry 
 II. 
 
 Effects of 
 the Con- 
 quest on 
 ecclesiasti- 
 cal organi- 
 zation. 
 
 system the ealdorman and the bishop presided in the shire- 
 moot to declare the law, secular and spiritual, while the sheriff 
 was the constituting officer, and the executor of the law. 1 
 After the Conquest the constitutional presidents of the shire- 
 moot both disappear. The old earldoms, which were stripped 
 of their official duties, sink into mere places of honor, while 
 the bishop was virtually removed from the headship of the 
 shire-moot by the ordinance which placed him at the head of 
 a distinct ecclesiastical court. 2 In this way the headship of 
 the shire was left alone to the sheriff, the king's ever-present 
 and immediate representative. In addition to this permanent 
 officer, the crown was represented by commissioners, justices, 
 or barons, who were periodically sent from the king's court to 
 preside in the local tribunals. The connection between the 
 central and provincial judicature, of which there is not the 
 faintest trace before the Conquest, was definitely established 
 in the reign of Henry I., who sent justices from the excheq- 
 uer through the country to assess the revenue. 3 These 
 justices while engaged in provincial business sat in the shire- 
 moot, where judicial work soon followed in the path of their 
 fiscal duties. In the reign of Henry II. the system of 
 itinerant judicature became a well organized and permanent 
 institution. 4 Through the visits of the itinerant justices was 
 gradually brought about that vitally important union between 
 the curia regis and the shire-moot, between the new system 
 of royal law and the old system of popular law, out of which 
 has been born the typical English law court, in which the 
 witnesses depose to facts upon which the jury pass, under 
 the guidance and instruction of a judge learned in the 
 law. 
 
 7. The same general plan of reorganization which William 
 applied to the remodelling of the state, he gradually applied 
 to the remodelling of the church. With the councils of the 
 
 1 See above, p. 199. 
 
 2 " The chief places in the local as- 
 semblies were thus open, to be filled no 
 longer by the local chiefs, but by the 
 immediate representatives of the king." 
 Norm. Conq., vol. v. p. 299. 
 
 8 As heretofore explained, the single 
 Pipe Roll of the thirty-first year of 
 Henry I. exhibits a system of iters by 
 
 the royal officers in regular working 
 order. 
 
 4 " The courts held by these itinerant 
 justices of the king possessed a dignity 
 altogether above that of the ordinary 
 judicial assembly of the county. These 
 were the king's courts held in the 
 counties " Bigelow, Hist, of Proced- 
 ure, p. 137.
 
 II.] THE NORMAN KINGS OF ENGLAND. 259 
 
 year 1070 the Conqueror's ecclesiastical policy actively be- 
 gins. In that year, at the request of William, Pope Alex- 
 ander II. sent into England three legates 1 to aid in the work Deposition 
 of deposing the native bishops in order to make places for ^J^l pre . 
 such Norman or other foreign prelates as the new king could Iates - 
 trust. 2 The metropolitan see of York, now regularly void by 
 the death of Ealdred, was bestowed by William upon one of 
 his own chaplains, Thomas, 3 treasurer of the church of Bay- 
 eux. The primatial see of Canterbury, as soon as it could 
 be made vacant by the deposition of Stigand, was bestowed 
 upon an Italian abbot from Normandy, the famous scholar, 
 theologian, and statesman, Lanfranc. 4 By the end of the 
 year 1070 only two sees, Worcester and Rochester, 6 re- 
 mained in the hands of native pastors, and for a long time 
 to come all Englishmen were severely excluded from the 
 rank of bishop, and but sparingly admitted to that of abbot. 
 The natural result of the deposition of the native bishops, English 
 and the elevation of their foreign successors, was to draw the ^awninto 
 English church from its position of practical independence g reater de - 
 
 * r pendence 
 
 and isolation into closer communion with the rest of West- upon Rome. 
 ern Christendom, and into greater dependence upon the see 
 of Rome. From the accession of William, applications to 
 Rome, and the visits of Roman legates, became more fre- 
 quent ; and questions which in earlier times would have been 
 settled in the national assembly now began to be referred to 
 the judgment of the pope, or to some one of his representa- 
 tives. William was careful, however, to provide that the 
 Roman pontiff should not interfere with the internal affairs 
 of the church, except under such restrictions and limitations 
 as should be fixed by him. From the historian Eadmer we 
 learn that " he would not suffer that any one in all his do- William's 
 minions should receive the pontiff of the city of Rome as 
 apostolic pope except at his command, or should on any con- 
 dition receive his letters if they had not been first shown to 
 
 1 Bishop Ermenfrid and the cardinal reformation of the benighted island- 
 priests John and Peter. Ord. Vit., ers." Freeman, Norm. Conq., vol. iv. 
 516 A ; Flor. Wig., 1070. p. 220. 
 
 2 They came " at once to congratu- 8 Ord. Vit., 516 B. 
 
 late the Conqueror on the temporal * Vita Lanfr., Giles, i. 19, 20, 293 ; 
 
 success of his holy enterprise, and to Flor. Wig., 1070. 
 
 help him in carrying out his ecclesias- * Stubbs, Const, ffist., vol. i. p. 282. 
 tical schemes for the subjugation and
 
 260 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Severance 
 
 business 1 
 
 Creation of 
 
 systemo? 
 spiritual 
 
 himself." l But in spite of all such restrictions the Eng- 
 lish church was brought into closer connection with Rome 
 through the Conquest, and out of this closer connection grew 
 the tendency that now began to manifest itself to sever the 
 organization of the church from that of the state. 2 The 
 direct aid which William gave to this tendency by separating 
 tne spiritual from the temporal tribunals constitutes the lead- 
 ln & ^ eature * n n ^ s ecclesiastical policy. The fact has been 
 heretofore pointed out that the distinctive feature in the his- 
 tory of the church before the Conquest was its perfect one- 
 ness with the state. The same legislative and judicial assem- 
 blies dealt alike with ecclesiastical and temporal business, 
 without the slightest jealousy or conflict of authority. The 
 witan legislated for the church as it did for the state, and in 
 the witan the bishop as well as the ealdorman was elected 
 and deposed. In the shire-moot the bishop and the ealdor- 
 man sat side by side as its constitutional presidents, and in 
 the popular courts there was no separation of secular from 
 spiritual causes. 3 The primary object of the new policy, 
 which grew directly out of the Conquest, was to accomplish 
 a complete severance of ecclesiastical from temporal busi- 
 ness by the creation of distinct courts and councils, in which 
 the church could judge and legislate upon its own affairs 
 without secular interference. 
 
 By an express ordinance William and his witan decreed 
 tne se P arat i n f the spiritual from the temporal tribunals. 4 
 This ordinance, after declaring the episcopal laws which had 
 previously been in force in England to be bad and contrary 
 to the sacred canons, forbids the bishops and archdeacons to 
 bring any cause involving questions of canon law, or ques- 
 tions concerning the cure of souls, before the courts of the 
 
 1 Eadmer, Hist. Nov., i. p. 6. From 
 the same authority we learn that the de- 
 crees of an ecclesiastical council, even 
 when convened by the archbishop of 
 Canterbury, had no force until they 
 were confirmed by the king. See Se- 
 lect Charters, p. 82. 
 
 2 " We must never forget that, while 
 Lanfranc ruled at Canterbury, Hilde- 
 brand ruled at Rome ..... The two 
 main objects of the great pope, two ob- 
 iects which in his idea could hardly be 
 kept asunder, were the subjection of 
 
 the civil to the ecclesiastical power, 
 and the establishment of the clergy as 
 a distinct order, animated by one uni- 
 versal corporate spirit, and cut off 
 from those ties of citizenship and 
 kindred which bind men together in 
 earthly bonds." Freeman, Norm. 
 Conq., vol. iv. p. 286. 
 
 8 See above, p. 200. 
 
 * For the text of the ordinance, see 
 Thorpe, Ancient Laws, p. 213; Select 
 Charters, p. 85.
 
 II.] THE NORMAN KINGS OF ENGLAND. 26 1 
 
 hundred. 1 Henceforth they are to hold courts of their own, 
 in which causes are to be tried, not by the customary but by 
 the canon law. 2 All interference by laymen in spiritual 
 causes is expressly forbidden. Those who are summoned 
 must attend, as in the courts of the civil magistrates ; and in 
 case of continuacy the offender may be excommunicated, and 
 the king and sheriff will enforce the punishment. Thus by 
 the policy of William and Lanfranc was organized a distinct 
 system of ecclesiastical courts, whose jurisdiction was des- 
 tined to grow and widen with the growth of the canon law, 
 which had not yet become a well organized system of author- 
 itative jurisprudence. 3 Not until the reign of Stephen did Systematic 
 the systematic study of the canon law begin in England. In canon aw 
 that reign (1149) Vacarius began his first teaching of the ^ef^f 1 the 
 civil and canon law at Oxford. 4 The bishops and clergy vig- Stephen, 
 orously supported the new system, so favorable to their order, 
 which gave to them a more distinct civil status than they had 
 ever possessed before, and which ultimately drew into the 
 spiritual courts a mass of business with which the church 
 had heretofore only a remote connection. 6 Out of the new 
 order of things soon grew up claims upon the part of church- 
 men to exemption from all temporal jurisdiction, and to the 
 right of appeal to Rome, claims which led, after bitter 
 strife, to the adoption, in the reign of Henry II., of the re- 
 straining measures which are embodied in the Constitutions 
 of Clarendon. 
 
 The same general causes which led to the organization of Distinct ec- 
 a distinct system of ecclesiastical courts, soon led to the or- 
 ganization of a distinct system of ecclesiastical councils. 
 Such a separation of spiritual from temporal affairs had occa- 
 sionally occurred before the Conquest, but the custom was 
 
 1 " Propterea mando et regia aucto- sed secundum canones et episcopales 
 ritate praecipio, ut nullus episcopus vel leges, rectum Deo et episcopo suo fa- 
 archidiaconus de legibus episcopalibus ciat." 
 
 amplius in hundret placita teneant, nee 8 Stubbs, Const. Hist., vol. i. p. 284. 
 
 causam quae ad regimen animarum per- * " Tune leges et causidici in An- 
 
 tinet ad judicium secularium hominum gliam primo vocati sunt, quorum pri- 
 
 adducant." mus erat magister Vacarius ; hie in 
 
 2 " Quicunque secundum episcopales Oxenefordia legem docuit." Gervase, 
 leges, de quacunque causa vel culpa c. 1665. Cf. R. de Monte, A. D. 1149. 
 enterpellatus fuerit, ad locum quern ad 6 For an exhaustive review of the 
 hoc episcopus elegerit vel nominaverit jurisdiction and procedure of the ec- 
 veniat, ibique de causa vel culpa sua clesiastical courts, see Bigelow, Hist. 
 respondeat, et non secundum hundret, of Procedure, pp. 30-75.
 
 262 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 During the 
 primacy of 
 Lanfranc 
 such coun- 
 cils met 
 frequently. 
 
 William 
 limits ec- 
 clesiastical 
 legislation. 
 
 Diocesan 
 and provin- 
 cial coun- 
 cils. 
 
 looked upon with such disfavor as to evoke, in the reign of 
 ^Ethelred, a solemn condemnation in a formal decree of a 
 national assembly. 1 Under the new theories of William and 
 Lanfranc, the holding of distinct ecclesiastical councils, so 
 far from exciting condemnation, received open and positive 
 approval. During the primacy of Lanfranc the meetings of 
 such councils, which were held at the same time as the regu- 
 lar gemots, became frequent. 2 From an entry in the Chroni- 
 cle, under the year 1085, we learn that "at midwinter the 
 king was at Gloucester with his witan, and he held his court 
 there five days ; and afterwards the archbishop and clergy 
 held a synod during three days ; and Maurice was there 
 chosen to the bishopric of London, William to that of Nor- 
 folk, and Robert to that of Cheshire ; they were all clerks of 
 the king." 3 It was, however, no part of William's policy to 
 allow to these ecclesiastical assemblies the right to legislate 
 without limitation. Eadmer tells us that " he did not suffer 
 the primate of his kingdom, the archbishop of Canterbury, if 
 he had called together under his presidency an assembly of 
 bishops, to enact or prohibit anything but what was agreeable 
 to his will and had been first ordained by him." 4 Under 
 these circumstances, and subject to such limitations, the na- 
 tional councils of the English church finally became distinct 
 bodies from the national parliaments. But it must not be 
 inferred from this statement that it was only in national 
 councils that the clergy met together for the purpose of de- 
 liberation and action. The character of the lesser councils 
 can best be explained by reference to the jurisdictions into 
 which the church, as a whole, was subdivided. At an ear- 
 lier period of our inquiries the fact was pointed out that, 
 although each one of the heptarchic states was Christianized 
 from a distinct source, the general aspects of the missionary 
 work were everywhere the same. The conversion of the king 
 generally preceded the acceptance of the faith upon the part 
 
 1 ^Ethelred's Laws, 36, 37, 38, in 
 Thorpe's Ancient Laws, vol. i. p. 340 ; 
 Schmid, p. 242 ; Freeman, Norm. Cong., 
 vol. i. p. 248. 
 
 2 Such councils were held in 1071, 
 1074, 1075, 1076, 1078, 1081, 1086. See 
 Latin Life of Lanfranc attached to the 
 Canterbury Chronicle. 
 
 8 Chron. Petrib., 1085. 
 
 * " Non sinebat quicquam statuere 
 aut prohibere nisi quae suae voluntati 
 occomoda et a se primo essent ordi- 
 nata." Eadmer, Hist. Nov., i. p. 6. See 
 Stubbs, Const. Hist., vol. i. p. 286.
 
 II.] THE NORMAN KINGS OF ENGLAND. 263 
 
 of his people, and then the missionary bishop became the 
 royal chaplain, and the kingdom itself his diocese. The dio- Diocesan 
 cesan synod was therefore, in the early days, the highest 
 ecclesiastical assembly of an heptarchic state. In this way 
 the heptarchic divisions of the country reappeared in the ear- 
 liest forms of organization which the church assumed. When 
 Theodore came to bind the missionary bishoprics together 
 under a single rule, so as to bring the united church into 
 definite relations with the see of Rome, he began his work 
 by breaking up the great original dioceses into smaller sees. 
 Not long after Theodore's death the work of subdivision had 
 so far advanced as to allow the grouping of the whole nation 
 in sixteen dioceses subject to the metropolitan primacy of 
 Canterbury. This arrangement was in a short time so modi- 
 fied as to allow to York the position of an archbishopric, 
 with three suffragan sees. By the final subdivision of Wes- The syste 
 sex, under Eadward the Elder, the scheme of Theodore was 
 
 at last carried out, and the territorial organization of the ward the 
 dioceses, as then fixed, has remained with a few minor 
 changes to the present day. 1 In the organization of the 
 church as thus finally established, the narrowest ecclesias- 
 tical assemblies were the diocesan synods ; the next in the 
 ascending scale, the provincial convocations of York and 
 Canterbury ; z the last and highest, the general councils of 
 the united national church. 3 The circumstances under which 
 these general councils became, during the primacy of Lan- 
 franc, distinct bodies from the national parliaments, have 
 already been drawn out. The existence of such councils was National 
 destined, however, to be of short duration. Owing to the shortlived 
 jealousy and strife between Canterbury and York, the assem- 
 bling of general councils, after the independence of York had 
 been vindicated by Thurstan, became practically impossible. 4 
 The government of the church thus passed to the two pro- 
 vincial convocations of York and Canterbury, which, as con- 
 stitutional assemblies of the English clergy, have suffered no 
 
 1 Upon this subject see above, pp. the county court, the provincial convo- 
 160, ioi. cation to the occasional divided parlia- 
 
 2 As to the respective constitutions ments, and the national church council 
 of the convocations of York and Can- to the general parliament." Stubbs, 
 terbury, see Wilkins, Concilia, vol.ii. 41, Const, Hist., vol. ii. p. 195; Bigelow, 
 49- Hist, of Procedure, pp. 28, 29. 
 
 " The diocesan synod answers to * Stubbs, Const. Hist., vol. ii. p. 198.
 
 264 THE NORMAN CONQUEST. [CH. 
 
 Govern- material change of organization from the reign of Eadward I. 
 h * ie down to the present day. 1 The clergy, as a mere spiritual 
 
 organization, when assembled in convocation, possessed the 
 tions of power to legislate for the general government of the church, 
 
 Canterbury , . , ...... . , 
 
 and York, subject to such restrictions, limitations, or warnings as the 
 king or the parliament might from time to time impose. In 
 the Conqueror's reign, as has been already pointed out, even 
 a general council, held under the presidency of the primate 
 himself, was not allowed " to enact or prohibit anything but 
 what was agreeable to his will and had been first ordained by 
 him." 2 This rule was, however, so far relaxed in practice as 
 to allow to the convocations great freedom of action, so long 
 as their deliberations were confined to matters of purely 
 spiritual or ecclesiastical concern. 3 But the clergy, as a dis- 
 tinct body possessing class interests, stood to the state, so 
 far as constitutional history is concerned, in another and 
 Representa- far more important relation. When, in the thirteenth cen- 
 ciergy f in he turv t ^ ie svstem f estates becomes thoroughly organized, 
 parliament, the clergy head the list ; in the classification of estates 
 the order is, the clergy, the baronage, and the commons. 
 The temporal representation of the clergy in the national 
 -parliament, as a distinct estate, must be considered here- 
 after. 
 
 The 8. In the attempt which has now been made to define in 
 
 S eneral terms the effects of the Conquest on central, local, 
 and ecclesiastical organization, it has been necessary to pass 
 not only beyond the limits of the Conqueror's reign, but 
 beyond the limits of the Norman period itself. Let us re- 
 turn for a moment to that early stage in the history of the 
 Conquest at which we have heretofore examined the manner 
 in which William dealt with the conquered soil of his Eng- 
 lish kingdom, as it passed, district by district, under his au- 
 thority. It was there observed 4 that the theory upon which 
 the Conqueror claimed title to the lands of the conquered 
 was, that he, the heir of Eadward, upon coming to take pos- 
 
 1 See Sir Travers Twiss's excellent stead of restricting the liberty of meet- 
 article upon Convocation in Enc. Brit., ing, contented themselves with warn- 
 9th ed. vol. vi. p. 325. ing the clergy not to infringe the royal 
 
 2 Eadmer, Hist. Nov., i. p. 6 (ed. rights." Stubbs, Const. Hist., vol. iiL 
 Selden). p. 324. 
 
 8 " As a rule, the later sovereigns, in- * See above, p. 235.
 
 II.] THE NORMAN KINGS OF ENGLAND. 26$ 
 
 session of his kingdom, had been opposed, either actively or 
 passively, by the whole English nation, who thus became in- 
 volved in the guilt of treason. It was claimed that under the 
 strict letter of the law the lands of all were forfeited to the 
 king ; but the application of this principle William undertook 
 to regulate according to the circumstances of individual cases. 
 There can be no doubt that, through the enforcement of this 
 principle, the bulk of all the great estates passed during Wil- 
 liam's reign into Norman hands, although the main body of 
 the people, the actual occupants of the soil, may have re- 
 mained, as a general rule, undisturbed in their possessions. 
 In view of this vast confiscation, in view of the numberless Causes 
 grants and transfers of land which followed in its train, it is brought it 
 not strange that William should have desired to know, as his about - 
 reign drew to a close, "about this land, how it was set and by 
 what men." l From the well known entry in the Chronicle, chronicler's 
 under the year 1085, we further learn that "he sent over all 
 England into ilk shire his men, and let them find out how 
 many hundred hides were in the shire, or what the king him- 
 self had of land or cattle in the land, or whilk rights he ought 
 to have to twelve months of the shire. Eke he let write how 
 mickle of land his archbishops had and his bishops and his 
 abbots and his earls, and though I it longer tell, what or how 
 mickle ilk man had that landholder was in England, in land 
 and in cattle, and how mickle fee it were worth. So very 
 narrowly he let spear it out, that there was not a single hide 
 nor a yard-land, 2 nor so much as it is shame to tell and it 
 thought him no shame to do an ox nor a cow nor a swine 
 was left that was not set in his writ. And all the writs were 
 brought to him since." Under this order, passed in the mid- 
 winter gemot of 1085-1086, the Great Survey was made. 
 By Lammastide the work was done, and the result was the 
 famous record of Domesday. 3 The Survey was taken by 
 royal commissioners, who went forth into every shire in order 
 
 1 Chron. Petrib., 1085. . mal tenant in villenage. Ibid., pp. 36, 
 
 2 The statement that " tuts an alpig 73. 
 
 hide ne an gyrde landes " was omitted 8 In order fully to grasp the nature 
 
 from the Survey " does not mean that and value of this great record, it is 
 
 not a hide nor a yard of land was necessary to read Sir Henry Ellis' In- 
 
 omitted, but not a hide or a yard-land, (reduction, in connection with Mr. 
 
 *'. f., a virgate" Seebohm, English Freeman's brilliant chapter entitled 
 
 Village Community, p. 92. The vir- " Domesday." See Norman Conquest, 
 
 gate was the normal holding of the nor- vol. v. ch. xxii.
 
 266 THE NORMAN CONQUEST. [Cn. 
 
 Manner in to prosecute their inquiries through the oaths of those who, 
 Surrey was m ordinary times, composed the county court. Oaths were 
 taken - exacted from the sheriff and all the barons of the shire and 
 their Norman associates ; every hundred appeared also by 
 sworn representatives, and from each manor or township the 
 priest, the reeve, and six villeins or ceorls. 1 From the testi- 
 mony thus obtained was reported the name of each manor, 
 its owner in the time of King Eadward and its present owner ; 
 its extent in hides, the number of carucates or plough-teams ; 
 the number of homagers, ceorls or villeins, cotters, and serfs ; 
 how many freemen, how many sokemen ; the extent of wood, 
 meadow, and pasture ; the number of mills and fisheries ; the 
 increase and decrease since King Eadward's time, the several 
 and collective values of every holding. 2 From this statement 
 may be derived a very definite idea of the minuteness and 
 exactness with which the commissioners made up the great 
 William rate-book of the kingdom. 3 The leading fiction which per- 
 thelmmedi- vaded the whole work was that King William was the imme- 
 sor oread- ^iate successor of King Eadward ; their reigns were estab- 
 lished as the two great periods of legal government ; and the 
 leading inquiry as to each parcel of land was, who was its 
 owner in the time of King Eadward, who was its owner at 
 Unit of in- the date of the Survey. 4 Throughout the record, " the unit 
 of inquiry is everywhere the manor, and the manor was a land- 
 lord's estate, with a township or village-community in villen- 
 age upon it, under the jurisdiction of the lord of the manor." 5 
 It is therefore possible to gather from the Survey a very defi- 
 nite idea of the internal organization of the manorial system, 
 and of the different classes into which each manorial group 
 was divided. The division of the lands of the manor into 
 
 1 " Barones regis inquirunt, videlicet quot pascuorum ; quot molendina ; 
 per sacramentum vicecomitis scirae et quot piscinae ; quantum est additum 
 omnium baronum et eorum Francige- vel ablatum ; quantum valebat totum 
 narum, et totius centuriatus, presbi- simul ; et quantum modo." Ibid, 
 ten, praepositi, vi. villanorum uniuscu- 8 " By this report an exhaustive reg- 
 iusque villae." Ely Domesday, Dom. ister of the land and its capabilities 
 lii. 497. was formed, which was never entirely 
 
 2 " Deinde quomodo vocatur mansio, superseded." Stubbs, Const. Hist., 
 quis tenuit earn tempore Regis Ead- vol. i. p. 386. 
 
 wardi ; quis modo tenet ; quot hidae ; * Freeman, Norm. Cong., vol. v. pp. 
 
 quot carrucas in dominio, quot homi- 9, 10. 
 
 num ; quot villani ; quot cotarii ; quot e Seebohm, Eng. Village Community t 
 
 servi ; quot liberi homines ; quot soche- p. 82. 
 
 manni ; quantum silvae ; quantum prati ;
 
 /I.] THE NORMAN KINGS OF ENGLAND. 267 
 
 lord's demesne and land in villenage seems to have been 
 almost universal ; 1 while the manorial group was broadly di- Manorial 
 vided into two classes, free tenants and tenants in villenage. divided into 
 The result of special investigation into the relation of the two classes, 
 classes to each other is that the free tenants liberi homines, Fewness of 
 together with the allied class of sokemen constituted but , e t e s. ten ~ 
 a small part of the whole population. It further appears that 
 the free tenants, who seem to represent the mediaeval and 
 modern freehoTders, were most numerous in those counties 
 which had been most completely under Danish influence. 2 
 There seems to be no doubt that the tenants in villenage con- 
 stituted the bulk of the population. The three classes of Tenants ia 
 tenants in villenage actually mentioned in the Survey are al- constitute 
 most universally the (i) villani, the (2) bordarii or cotarii, and 
 the (3) servi. z The servi, embracing less than ten per cent, 
 of the population, and who seem to have held no land, were 
 perhaps rather household thralls of the lord of the manor 
 than tenants in the proper sense of the term. The real ten- 
 ants in villenage, then, were the bordarii or cotarii the cot- 
 tage-tenants and the villani ; and these two classes seem 
 to have been scattered over the country in nearly equal pro- 
 portions. 4 The villani, who were at the date of the Survey 
 somewhat more numerous than the cotarii? were the typical 
 tenants in villenage, who are supposed to represent the Old- 
 English ceorls, the settled cultivators of the soil, who were 
 no doubt in the early days the owners of the land they 
 tilled. 6 The commissioners made careful inquiry as to every 
 class of which mention has been made, " quot villani ; quot 
 cotarii; quot servi ; quot liberi homines ; quot sockemanni," lords failed 
 are the words of the Ely Domesday. 7 The Norman lord does n z r e e ^n g " 
 not seem, however, to have been willing to recognize in prac- P 1 "^ 1 ^ de " 
 tice these minute distinctions between the different classes villenage. 
 
 1 "Both at the time of Edward the vol. ii. p. 511 see/.) the bordarii numbered 
 Confessor and at the later date." 82,119, the cotarii 5,054, the coscets 
 Seebohm, Eng. Village Community, p. 1,749, 'he servi 25,156, the villani 
 84. 108,407. 
 
 2 See the very interesting shaded * Ibid., pp. 89, 90. 
 
 maps, illustrating the manner in which 5 " They were at the date of the 
 
 the different classes were distributed Survey even more numerous than the 
 
 over the country, contained in See- cottier class below them." Seebohm, 
 
 bohm's Eng. Village Community, pp. p. 90. 
 
 86,87. 8 Stubbs, Const. Hist., vol. i. p. 428. 
 
 8 According to Ellis (Introduction^ T See above, p. 266, note 2.
 
 268 THE NORMAN CONQUEST. [Cn. 
 
 of tenants in villenage : the tendency of both law and social 
 custom was to throw the servi, bordarii, and villani into the 
 class of born villeins, who held their lands at the will of the 
 lord, and who were bound to perform the customary services. 1 
 The rising of the commons, and the breaking up of vil- 
 lenage, are subjects which belong to the history of the thir- 
 teenth century. 
 
 Gemot of 9. Immediately after the completion of the Domesday Sur- 
 
 Saiisbury. ^^^ William called together the famous Gemot of Salisbury, 2 
 in which was carried out the most far-reaching single feature 
 
 weakness of his English policy. The fact has been heretofore ex- 
 o^ity 7 plained that in the Old-English system the cohesive power of 
 nat i na l unity, which had grown up through a premature and 
 imperfect concentration of powers around a single throne, 
 was constantly strained and weakened by the counter-force 
 of the provincial spirit. Whenever the moment of trial 
 came, whenever the throne was filled by an irresolute ruler 
 or a child, the tendency to disruption was sure to assert 
 itself through the defections of the provincial magistrates, 
 the great earls, who were ever striving to win for themselves 
 a part of the sovereign power which had passed from the na- 
 tion to the king. In the wasting struggle which ensued, the 
 cohesive power of the nation was broken ; the spirit of dis- 
 union and disorder, which was ever assailing the foundations 
 of the throne, was equally ready to paralyze the national arm 
 
 William in the presence of the invader. 3 Through the inflexible pol- 
 evils icy of William the old tendency to disruption was checked, 
 
 tne ^ our g rea t earldoms were abolished, and the whole realm 
 
 against new united in one consolidated kingdom which was never after- 
 ones. 
 
 wards to be divided. 4 Under the heel of the stranger the 
 
 English nation finally awoke to a sense of its oneness, 
 While William was thus careful to crush out every tendency 
 to disunion that lurked in old institutions, he was equally 
 careful to see that the same danger should not be reestab- 
 lished in a new form by his own policy. With the tendency 
 
 1 " The tendency of both law and 2 Chron. Petrib., 1086. 
 
 social habit was to throw into the class 8 See above, p. 216. 
 
 of nativi or born villeins the whole of * "The great work of William's 
 
 the population described in Domesday reign was to make England for ever 
 
 under the heads of servi, bordarii, and after an undivided kingdom." Free- 
 
 villani." Stubbs, Const, ffist., vol. i. man, Norm, Cony,, vol. iv. p. 472. 
 p. 428.
 
 II.] THE NORMAN KINGS OF ENGLAND. 269 
 
 of Frank feudalism to destroy all forms of central or national Disruptive 
 organization, William, as duke of the Normans, had become 
 
 thoroughly familiar. In the Frank kingdoms, as has been here- dallsm - 
 tofore pointed out, feudalism grew not only into a system of 
 tenure, but into a system of government. As soon as the prin- 
 ciple was established that benefices were hereditary, it was 
 extended to the official magistracies, which also became hered- 
 itary. The local sovereignty of the official magistrate, who 
 thus grew into a ruler by hereditary right, was then enhanced 
 by grants of immunity, which were nothing less than sections 
 of the national or royal right of judicature bestowed upon 
 the receiver of a fief. To the right of judicature the heredi- 
 tary provincial ruler gradually added all the other attributes 
 of actual sovereignty. And so intense did this idea of sov- 
 ereignty in the provincial lord become, that the doctrine was 
 finally asserted that a man who pledged his faith to a lord, 
 who was the man of the king, became the man of that lord 
 only, and not the man of the king himself. To the disruptive 
 tendency of this principle, more than to any other cause, can 
 be attributed the falling to pieces of France and the imperial 
 kingdoms. 1 In order to render the growth of this principle William 
 impossible in England, William determined to make himself ^every 
 immediate sovereign and immediate lord of every man in the ma "' s im ~ 
 realm. With this end in view he convened the great assem- lord. 
 bly of landowners at Salisbury, whose numbers tradition 
 fixes at sixty thousand. 2 From the Chronicle we learn that, 
 after the completion of the Survey, William went to Salis- 
 bury, "and there came to him his witan, and all the land- 
 owning men (landsittende men) of substance that were over 
 all England, whose soever men they were, and all bowed 
 down to him, and became his men, and swore oaths of fealty 
 to him that they would be faithful to him against all other 
 men." 3 In the statute which was passed, it was provided that 
 every freeman should take the oath of fealty to King Wil- 
 liam, that he would be faithful to him within and without Eng- 
 land, that he would keep his lands and honors with all faith- 
 fulness, and would defend him before all men against all 
 enemies. 4 After the completion of this great act of precau- 
 
 1 Upon this whole subject, see 8 Chron. Petrib., 1086. 
 above, pp. 222-225. * " Statuimus etiam ut omnis liber 
 
 8 Ord. Vit., 649 D. homo foedere et sacramento affirmet,
 
 270 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 William 
 Rufus: 
 the growth 
 of feudal 
 tenures. 
 
 Revolt of 
 the Norman 
 nobles, 
 
 tion against the disintegrating power of feudalism in Eng- 
 land, 1 William passed over into Normandy, where he died in 
 the following year. 
 
 10. The death of William was the signal for the first great 
 struggle between the crown, whose powers he had been so 
 careful to consolidate, and the baronage, now eager to throw 
 off the stern rule beneath which they had bowed. The Nor- 
 man succession the Conqueror had bequeathed to his eldest 
 son, Robert, to whom it had been promised even before the 
 crown of England had been won ; while the English succes- 
 sion was by the aid of Lanfranc peacefully secured to his 
 second son, William the Red. At the time of his crowning, 
 William promised Lanfranc that he would preserve justice 
 and mercy throughout the realm, that he would defend the 
 church, and in all things comply with his precepts and coun- 
 sels. 2 But the peace of the new reign thus auspiciously be- 
 gun was soon rudely broken by a revolt of the chief men of 
 Norman blood throughout England, who rose under the lead- 
 ership of bishop Odo, upon the pretext of supporting the 
 claims of Robert to the whole of his father's dominions. 
 Thus deserted and defied by the bulk of the greater nobles, 
 William at once fell back upon his character as a national 
 king, and appealed to the loyalty of his English subjects. If 
 they would assist him in his need, he promised to grant them 
 a better law of their own choosing ; he would instantly forbid 
 all unjust taxation, and would surrender his hold upon their 
 forests. 3 All who refused to obey the summons of their lord 
 the king would be branded with the shameful name of nith- 
 ing. 4 By the aid of the English host which William thus 
 
 quod infra et extra Angliam Willelmo 
 regi fideles esse volunt, terras et hono- 
 rem illius omni fidelitate cum eo ser- 
 vare, et ante eum contra inimicos de- 
 fendere." Select Charters, p. 83. 
 
 1 William's anti-feudal legislation 
 was entirely misunderstood by the 
 older writers, who seem to have looked 
 upon the law passed at Salisbury as 
 the definite and formal introduction of 
 feudalism into England. Blackstone, 
 speaking of this statute, says that 
 " this may possibly have been the era 
 of formally introducing the feudal ten- 
 ures by law." Vol. ii. p. 49. The view 
 stated in the text is supported by all of 
 
 the leading modern authorities. See 
 Freeman, Norm. Cong., vol. iv. p. 472; 
 vol. v. p. 246 ; Stubbs, Const. Hist , vol. 
 i. p. 265. As to the direction given to 
 English feudalism by the oath at Salis- 
 bury, see Gneist, Verwalt., i. p. 116. 
 
 2 " Pacem, libertatem, securitatem ec- 
 clesiarum contra omnes defensurum ; 
 necnon praeceptis atque consiliis ejus 
 per omnia et in omnibus obtemperatu- 
 rum." Eadmer, Hist. Nov., i. p. 14. 
 
 8 Will. Malmes., G. K., iv. 306; 
 Ord. Vit., viii. 2 ; Stubbs, Const. Hist., 
 vol. i. p. 296, and note i. 
 
 1 This word appears in William of 
 Malmesbury, iv. 306, and in the Chron-
 
 II.] THE NORMAN KINGS OF ENGLAND. 2JI 
 
 drew to his standard the revolt was crushed, and the power which is 
 of the baronage trampled under foot. The royal authority, thTaidc/ 
 thus left unchecked by the counter-force of the feudal power, {' h Eng ~ 
 became in the hands of William an irresponsible despotism. 
 And in the midst of his triumph, at the very moment when 
 his restraining influence was most needed, William was de- 
 prived of his wisest counsellor by the death of Lanfranc, 
 who was succeeded by Ranulf Flambard, the organizer of the 
 tyrannical policy which marks the remainder of the reign. 1 
 Into the hands of Ranulf, who rose from the post of royal Flambard 
 chaplain to that of justiciar, 2 passed the management of all u^|j^ 
 the fiscal and judicial business of the kingdom. To this un- and system- 
 
 , . . . ., , . r atizes mih- 
 
 scrupulous minister is attributed the organization of the sys- tary ten- 
 tem of military tenures, together with all the oppressive con- ures> 
 sequences which were held to flow from them. 3 The system 
 of feudal law which he seems to have worked into a definite 
 and formal shape was applied by him with equal severity to 
 all feudatories, temporal and spiritual. The estate of a bishop w hkh are 
 or abbot now came to be regarded as a fief or benefice, held l^^* 
 personally of the king by the tenure of military service, the church 
 When a vacancy occurred, as there was no heir to the dead 
 bishop or abbot who could demand seisin, the king took the 
 fief into his own hands until such time as he saw fit to admit 
 a successor. When the new heir was admitted it was upon 
 the payment of such a sum as the lord saw fit to impose. 
 The profits of the vacancy and the payment from the suc- 
 cessor were the equivalents which the church paid for being 
 exempt from the ordinary feudal exactions which fell upon 
 the estates of laymen. 4 From the introduction by Flambard 
 
 icle under 1088. As to the vileness of man in accepting this conclusion says, 
 
 the epithet, see Norm. Cong., vol. ii. " We can feel little doubt in saying that 
 
 p. 67. the man who organized the system of 
 
 1 " Whether or not it is fair to as- feudal oppression was that same Ran- 
 
 cribe to Ranulf the suggestion of the dolf Flambard whom we have met with 
 
 tyrannical policy which marks the reign, as the author of so much evil, and 
 
 it is to him without doubt that the sys- whom a contemporary writer does not 
 
 tematic organization of the exactions scruple to speak of as the dregs of 
 
 is to be attributed." Stubbs, Const, wickedness." Norm. Cong., vol. v. 
 
 Hist., vol. i. p. 298. p. 253. 
 
 8 As to the offices held by Ranulf, * " The Church was open to these 
 
 see E. Chron., 1099; Ord. Vit, 786 C; claims because she furnished no oppor- 
 
 Will. Malmes., iv. 314; Lappenberg, tunity for reliefs, wardships, marriage, 
 
 Norman Kings, p. 226. escheat, or forfeiture." Stubbs, Const. 
 
 8 This is the inference of Stubbs, Hist. t vol. i. p. 300, 
 Const. Hist., vol. L p. 298. Mr. Free-
 
 2/2 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 The body 
 of the peo- 
 ple op- 
 pressed 
 through the 
 local courts. 
 
 Henry I. : 
 the admin- 
 istrative 
 system. 
 
 of these new and evil customs touching ecclesiastical fiefs, it 
 is inferred and the charter of Henry I. confirms the infer- 
 ence l that he was also the author of the equally oppressive 
 charges imposed about the same time upon lay estates. 2 To 
 the reign of William Rufus is now assigned the formal organ- 
 ization of that system of feudal oppression whose burdens 
 are generally summed up under the heads of relief, wardship, 
 marriage, escheat, and forfeiture. 3 To the reign of Henry I 
 must be traced the origin of the feudal exaction of an aid on 
 the marriage of the king's daughter. 4 The feudatories were 
 not, however, the only subjects of William's exacting finan- 
 cial policy. The body of the people at large were oppressed 
 not only indirectly by the burdens which were imposed upon 
 their feudal masters, but they were also subjected to a direct 
 exaction in the form of the old and hateful tribute of Dane- 
 geld, 5 which assumed during the Norman reigns the char- 
 acter of ordinary revenue. By the policy of Flambard the 
 local courts of the shire and the hundred were turned into 
 engines of extortion ; in the expressive words of the Chron- 
 icler, " He drove and commanded all his gemots over all 
 England." 6 In the midst of his tyrannies William perished 
 by the hand of a hunter or assassin, and thus made way for 
 his younger brother Henry, the one English-born member of 
 the house of the Conqueror. 
 
 ii. At the time of William's sudden death his elder 
 brother Robert, upon whom he had attempted to bestow the 
 right of succession by treaty, 7 being far away from England, 
 Henry, who was on the spot, promptly embraced the opportu- 
 nity to seize the kingdom. William "was slain on a Thurs- 
 day, and buried the next morning ; and after he was buried, 
 the witan, who were then near at hand, chose his brother 
 Henry as king." 8 The promises contained in Henry's cor- 
 onation oath, whose exact words are still preserved, 9 were 
 
 1 Henry's charter, art. 2. 
 
 2 " All are deductions from a single 
 principle, and we can hardly doubt that 
 he who is known to have invented one 
 of them was also the inventor of the 
 others." Freeman, Norm. Cony., vol. 
 v.p. 254. 
 
 8 As to-the nature of these incidents, 
 see Digby, Law of Real Property, pp. 
 77-86; Blacks tone, vol. ii. pp. 63-72. 
 
 4 Henr. Huntingd., Hist., lib. vii. ; 
 Chron. Petrib., 1 1 IO. 
 6 Stubbs, Const. Hist., vol. i. p. 301. 
 
 6 Chron. Petrib., 1099. 
 
 7 As to the terms of the treaty of 
 Caen, see the Chronicle, 1091. 
 
 8 Chron. Petrib., \ 100. As to the elec- 
 tion, see Will. Malmes., G. R., v. 393, 
 
 9 See Maskell, Man. Kit., vol. iii pp. 
 5, 6; Select Charters, p. 99.
 
 II.] THE NORMAN KINGS OF ENGLAND. 273 
 
 amplified into a comprehensive charter of liberties, which Henry's 
 stands not only as the immediate parent of the Great Charter p^enYof' 6 
 of John, but as the first limitation imposed upon the des- 
 potism established by the Conqueror and carried to such a 
 height by his sons. 1 In this charter, 2 which was specially 
 intended to undo the wrongs of the preceding reign, distinct 
 concessions were made to the clergy, to the baronage, and 
 to the people at large. The "evil customs" through which 
 Rufus had plundered and oppressed the church were specially 
 renounced, 3 while to the baronage the guarantee was given 
 that the recent feudal innovations should be limited to the 
 exaction of customary fees. 4 This concession was not made, 
 however, for the exclusive benefit of the tenants-in-chief : they 
 were admonished to extend the same concessions to their own 
 under-tenants, 6 and to renounce all tyrannical exactions. To 
 the people at large were restored the laws of King Eadward, 
 which symbolized the ancient constitution, with such 
 amendments as the Conqueror had made. 6 The hold which 
 Henry thus acquired upon the English nation, by the acci- 
 dent of birth and by the grant of a charter, he strengthened 
 in a short time by a marriage with Matilda, the daughter of Henry's 
 King Malcolm of Scotland and of Margaret, the sister of Ead- 
 gar ^Etheling, the last king of the ancient house of Cerdic and 
 of Woden. Thus intrenched in the affections of his English 
 subjects, Henry found it an easy matter to maintain himself 
 in the face of the disaffection of his nobles, when Robert, 
 upon his return from the Holy Land, came to challenge the 
 English crown as the head of the Norman race. But not 
 until the unfaithful baronage had been trampled under foot, 
 not until Normandy had been made an English dependency, 
 was Henry free to devote himself to the working out of that 
 memorable policy whose central idea seems to have been the 
 organization of the vast powers of the crown, which Rufus 
 
 1 Green, Hist. Eng. People, vol. i. p. suam sicut faciebat tempore fratris 
 140. mei, sed justa et legitima relevatione 
 
 2 For the text of the charter, see relevabit earn." Art. 2. 
 Thorpe, Ancient Laws, p. 215; Select 6 Art. 2. 
 
 Charters, p. loo. * " Lagam Edwardi regis vobis reddo 
 
 8 " Sanctam Dei ecclesiam imprimis eum illis emendationibus q^uibus pater 
 
 liberam facio." Art. i. metis earn emendavit consilio baronum 
 
 * "Si quis baronum . . . mortuus suorum." Art. 13. 
 
 fuerit, haeres suus non redimet terrain
 
 2/4 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Creation of 
 a new min- 
 isterial 
 nobility. 
 
 Bishop 
 Roger of 
 Salisbury. 
 
 He organ- 
 izes the 
 curia into a 
 strong judi- 
 cial and 
 ministerial 
 body, 
 
 had wielded with the caprice of a despot, into a rigorous sys- 
 tem of methodical administration. 1 Upon the ruins of the 
 great feudatories whom he had crushed, Henry now raised up 
 a set of lesser nobles, whom he enriched out of the estates 
 which, through forfeiture, had fallen to the crown. Out of 
 this new nobility, upon which the older nobles of the Con- 
 quest looked down with scorn, Henry selected the sheriffs 
 and judges who were to aid him in the work of administrative 
 reform. 2 Chief among this new ministerial nobility depend- 
 ent upon royal favor was Bishop Roger of Salisbury, who, 
 as justiciar, became the organizer of the new fiscal and 
 judicial system. 3 It has been heretofore observed that the 
 vast accumulation of powers and duties, which the growth of 
 the royal authority after the Conquest concentrated around 
 the person of the king, made it necessary for the crown to 
 select out of the main body of the great council a smaller 
 body which could be specially charged with the work of 
 administration. This inner council, which soon came to be 
 known by the name of curia regis, and which was composed 
 of the great officers of state and of the household, and of 
 such other advisers as were specially summoned, seems to 
 have been mainly occupied from the beginning with fiscal 
 and judicial business. During the reign of Henry the curia 
 was organized by Bishop Roger into a strong judicial and 
 ministerial body, whose methodical procedure imposed upon 
 the despotic powers of the crown the restraints at least of 
 administrative routine. From the reign of Henry I. the 
 curia can be distinctly traced as a supreme court of justice 
 containing specially appointed judges, and presided over by 
 the king or justiciar, who is occasionally distinguished by the 
 title of "summus" or "capitalis." In this reign the financial 
 department of the curia, now called for the first time the 
 exchequer, was also made a more efficient instrument for the 
 collection of the revenue. 4 Henry's reforms were not limited 
 
 1 For the details of the struggle 
 which ended with the battle of Tinche- 
 brai (uo6), see P'reeman, Norm. Conq, t 
 vol. v., pp. 109-118. 
 
 2 Green, Hist, of the Eng. People, 
 vol. i. p. 145. 
 
 8 " Under his guidance, whether as 
 chancellor or as justiciar, the whole ad- 
 ministrative system was remodelled ; 
 
 the jurisdiction of the curia regis and 
 exchequer was carefully organized, 
 and the peace of the country main- 
 tained in that theoretical perfection 
 which earned for him the title of the 
 Sword of Righteousness." Stubbs, 
 Const. Hist., vol. i. p. 349. 
 
 4 Upon this whole subject, see above, 
 pp. 245, 246.
 
 II.] THE NORMAN KINGS OF ENGLAND. 275 
 
 however, to the central administration. A memorable part and also in- 
 of his policy consists of his order for the holding of the theTocaf 
 courts of the shire and the hundred. 1 Under the guidance courts - 
 of Bishop Roger the whole judicial and financial organization 
 of the kingdom, both central and local, was reorganized and 
 remodelled. The death of Henry brought to a close the reign 
 of peace and order, and opened the way for that long period 
 of anarchy which is called the reign of Stephen. 
 
 12. After the loss of Henry's only son in the sinking of Stephen : 
 the White Ship, and after he had given up all hopes of chil- hy. anar " 
 dren by a second marriage, 2 he resolved to settle the succes- 
 sion in a way which then stood without a parallel either in 
 England or in Normandy. So long as the old Teutonic no- 
 tion of kingship prevailed, so long as kingship was looked 
 upon, not as an estate but as an office, the idea never gained 
 ground that it could be bestowed upon one who could dis- 
 charge none of its chief duties. Not until the new feudal 
 conception of kingship arose was it supposed that a king- 
 dom, like any other estate, might, in the absence of a son, 
 pass to a daughter. 3 By the aid of this growing feudal the- 
 ory Henry hoped to be able to settle the succession to all his 
 dominions upon his widowed daughter Matilda. With this The oath to 
 end in view, at the Christm^rgemot of 1126-1127, Henry MatildjL 
 required all the great men of the land, both clergy and laity, 
 to swear that they would, after his death, receive his daughter 
 as Lady over England and Normandy. 4 Before the end of The 
 the year in which these oaths were taken, Matilda was mar- nmriage. 
 ried to Geoffry, called Plantagenet, the son of the one enemy 
 whom Henry feared, Count Fulk of Anjou. 6 But in spite 
 of all his precautions Henry's experiment only paved the 
 way to civil war. The death of the peace-loving king was im- 
 mediately followed by an outburst of anarchy, during which 
 
 1 " Sciatis quod concede et praecipio sence of a son, pass to a daughter." 
 
 ut amodo comitatus mei et hundreda in Freeman, Norm. Conq., vol. v. p. 133. 
 illis locis et eisdem terminis sedeant, * Chron. Petrib., 1127; Flor. Wig., 
 
 sicut sederunt in tempore Regis Ead- 1126. William of Malmesbury (Hist. 
 
 wardi et non aliter." For the full text, Nov., i. 2, 3) says : " Ut si ipse sine 
 
 see Fcedera, i. 12 ; Select Charters, p. haerede masculo decederet, Matildam 
 
 104. filiam suam, quondam imperatricem, 
 
 8 Will. Malmes., Hist. Nov., i. 2. incunctanter et sine ulla retractione 
 
 8 " But now the feudal conception of dominam susciperent." 
 kingship had gained such ground that 6 Upon the Angevin marriage, see 
 
 it began to be thought that a kingdom, Green's brilliant pages, Hist, of Eng. 
 
 like any other estate, might, in the ab- People, vol. L pp. 146-150.
 
 2/6 THE NORMAN CONQUEST. [Cn. 
 
 Election of Stephen, the nephew of Henry and the nearest male heir of 
 hischar^" the Conqueror's blood, hastened over into England and was 
 ters< elected l and consecrated king with but little opposition. 
 
 The first few years of the new reign, which was ushered in 
 by the issuance of a charter, 2 were comparatively peaceful, 
 civil war Not until the landing of Matilda in 1139 did the period of 
 genera] civil war actively begin. In the protracted struggle 
 which ensued the royal authority, which Henry had done so 
 much to consolidate, came to an end ; the administrative sys- 
 tem, which Bishop Roger had so carefully reorganized, broke 
 down ; and England, for the first and last time in her history, 
 sank into that state of feudal anarchy which the Conqueror 
 by his far-sighted policy had striven to prevent. Neither 
 party was strong enough to preserve discipline. The whole 
 land was rent, not only by the struggle between the king and 
 the empress, but by individual strife between the barons, who 
 arrogated to themselves all the powers of petty despots. 3 
 Wail of the From the wail of the Peterborough Chronicler we learn that 
 borough " they filled the land with castles. They greatly oppressed 
 chronicler, foe W retched people by making them work at these castles, 
 and when the castles were finished they filled them with 
 devils and evil men. . . . Many thousands they exhausted 
 with hunger. . . . And this state of things lasted the nine- 
 teen years that Stephen was king, and ever grew worse and 
 Barons ex- worse." The land thus lay helpless for a time in the hands 
 ereign S V ~ ^ tne Dar ons, who even presumed to strike their own coins, 
 rights. and to exercise every other royal right which the feudal his- 
 tory of France suggested. When each of the contending 
 parties had well-nigh reached a state of exhaustion, Henry of 
 Anjou, the son of Geoff ry and Matilda, appeared upon the 
 scene as the champion of his own cause. In 1153 Henry 
 came to England, raised a native army, 4 and confronted 
 
 1 Gesta Stephani, p. 3 ; E. Chron., clergy and the people, " Ego Stepha- 
 1135; Will. Malmes., Hist. Nov., i. nus Dei gratia assensu cleri et populi 
 1 1 ; Gervase, c. 1340. in regem Anglorum electus." See 
 
 2 This first charter, probably issued Select Charters, p. 120. 
 
 at the coronation, is both brief and 8 "There were in England as many 
 
 formal. See Statutes of the Realm : kings, tyrants rather, as there were 
 
 Charters of Liberties, p. 4. In 1136 a lords of castles; each had the power 
 
 second charter was issued, however, in of striking his own coin, and of exer- 
 
 which, as in the charter of Henry I., cising like a king sovereign jurisdic- 
 
 distinct promises are made to each of tion over his dependents." Stubbs, 
 
 the three estates. In this charter he Const. Hist., vol. i. p. 328. 
 
 describes himself as elected by the * R. de Monte, 1153.
 
 II ] THE NORMAN KINGS OF ENGLAND. 277 
 
 Stephen in the field. But before a decisive battle could be 
 fought, the barons intervened as mediators ; the archbishop 
 and the bishop of Winchester also counselled conciliation ; 
 and the result was the Treaty of Wallingford, through which Treaty of 
 the evils of the long anarchy were brought to a close. 1 This ford/"* 
 treaty, in which Stephen was recognized as king and Henry 
 as his heir, was attended by an elaborate project of reform 
 which contemplated among other things the resumption of 
 all royal rights that had been usurped by the baronage, the 
 restitution of estates taken from their lawful owners, the raz- 
 ing of all unlicensed castles, the banishment of the foreign 
 mercenaries from the country, and the appointment of sher- 
 iffs to reestablish justice and order. 2 The death of Stephen, Death 01 
 within a short time after the pacification, removed the only fnd P acces- 
 remaining obstacle from the path of Henry, " whose states- ^ of 
 manlike activity, whose power of combining and adapting Anjou. 
 that which was useful in the old systems of government with 
 that which was desirable and necessary under the new, gives 
 to the policy which he initiated in England almost the char- 
 acter of a new creation." 3 
 
 1 " The result was stated in the form tire scheme of reform which attended 
 of a treaty to settle the succession, it can only be gathered from the con- 
 Each of the parties had something to temporary historians. See R. de 
 surrender and each something to se- Monte, 1153; Hen. Hunt., fol. 228; 
 cure." Stubbs, Const. Hist., vol. i. p. Gervase, 1375; Will. Newburg, i. 30; 
 332. Roger of Hoveden, i. 212. Cf. Freeman, 
 
 2 The treaty itself is preserved in Norm. Cong., vol. v. p. 219, and note 
 the form of a charter of Stephen, FF. 
 
 printed in Rymer, i. 18. But the en- 8 Stubbs, Const. Hist., voL i. p. 336.
 
 CHAPTER III. 
 
 HENRY OF ANJOU. 1 THE PERIOD OF FUSION. 
 
 The grow- i. BY the death of Stephen the strictly Norman period of 
 gefher of English history was brought to a close. The character of 
 Hsh'tocai tnat P ei "id, an d the immediate changes which it wrought in 
 machinery government, in law, and in tenure, have in the preceding 
 man system chapter been briefly reviewed. The leading object of that 
 admlnistra- review was to point out the fact that, although the Conquest 
 brought with it a change of dynasty, the establishment of a 
 new nobility, and a sweeping confiscation through which 
 most of the great estates were transferred from English to 
 Norman hands, yet that it did not involve the displacement 
 of the English nation, nor a wiping out of the immemorial 
 laws and political institutions of the conquered race. The 
 master of the history of the Norman conquest never grows 
 weary of enforcing the truth that the importance which 
 belongs to it is not the importance which belongs to a be- 
 ginning or an ending, but the importance that belongs to a 
 turning point ; 2 that the coming of the Normans only gave 
 a fresh impulse to causes already at work, only hastened 
 tendencies to change already begun. In the Old-English sys- 
 tem all the elements of feudalism were imbedded ; and long 
 before the Normans came these elements were gradually 
 becoming blended : the thegn was passing into the tenant- 
 in-chief, the men of the dependent township were surely be- 
 
 1 The most perfect sketch ever reign as a period of revolution as a 
 
 drawn of the personal and political second conquest. " I can find the most 
 
 character of this great prince is con- evident and cogent proof," says Sir 
 
 tained in Bishop Stubbs's preface to Francis, " that a great revolution was 
 
 Benedict of Peterborough, whose chron- effected, not by William, but by Henry 
 
 icle is the leading authority for the Flantagenet." See Normandy and 
 
 reign. The vividness, the warmth, the England, vol. iii. p. 601. For Mr. 
 
 brilliancy of the picture, is like an oasis Freeman's view, which agrees in all 
 
 in the desert to the student who has material particulars with that of Bishop 
 
 marched across the sands of the Con- Stubbs, see Norm, Conq., vol. v. pp. 
 
 stitutional History. See Rolls Series, 436-459. 
 
 Benedictus, vol. ii. Bishop Stubbs's 2 Freeman, Norm. Conq., vol. i. p. I ; 
 
 view differs widely from that of Sir vol. v. p. 434. 
 Francis Palgrave, who regards Henry's
 
 THE PERIOD OF FUSION. 279 
 
 coming the tenants of the lord in whom the title to the lands 
 of the cultivating community was vested. The " process of 
 feudalization " which everywhere in Europe was transform- 
 ing the mark into the manor, the village-community into the 
 fief, the elective chief of the people into the hereditary lord 
 of the land, 1 did not fail to extend itself to the English king- 
 dom. But in the continental land from which the conquer- 
 ors came these feudal ideas had reached a far higher and 
 more perfect development than they had yet reached in the 
 insular system. By the coming of William two kindred sys- 
 tems of government and tenure, both tending in the same 
 direction and yet in different stages of development, were 
 brought into the closest contact, and out of the fusion be- Themod- 
 tween the two has grown the modern constitution. 2 The 
 period of transition and growth which intervenes between 
 the ancient constitution and the constitution in its modern 
 form has been happily divided into two stages : the first or 
 Norman stage, embracing the reigns of the four Norman 
 kings, is the stage during which the great mass of foreign 
 elements and influences were infused into the blood, the 
 language, the laws, the political institutions, of the English 
 nation ; the second or Angevin stage, embracing the reigns 
 of Henry II. and his sons, is the stage during which the for- 
 eign and native elements were worked together into a new 
 combination which retained the strongest elements of both. 3 
 The most striking single fact which an analysis of the result super- 
 has so far revealed is, that in the new combination the super- Nonnan! 
 structure is Norman, the substructure Old -English. 4 The f ubst !i~ 
 
 ture Old- 
 
 first or Norman stage of the transitional period has already English. 
 
 been reviewed. In the preceding chapter the attempt was 
 made to define in general terms the character of the new 
 elements, and the amount of change or innovation introduced 
 
 1 See Sir Henry Maine's review of oped into the English constitution." 
 "The Process of Feudalization," Vil- Preface to Benedict, Rolls Series, vol. 
 lage - Communities, lecture v. ; Ancient ii., xxxvi. 
 
 Law, pp. 101-108. 8 Freeman, Norm. Conq., vol. v. p. 
 
 2 For a more complete statement of 439. 
 
 this whole subject with the authorities, 4 " The principle of amalgamating 
 
 see the preceding chapter, pp. 238-248. the two laws and nationalities by su- 
 
 " The Anglo-Saxon and the Norman perimposing the better consolidated 
 
 institutions had been actually in a state Norman superstructure on the better 
 
 of fusion since the Conquest, and the consolidated English substructure, runs 
 
 reign of Henry gave to the united sys- through the whole policy." Stubbs, 
 
 terns the character which has devel- Const. ffitt. t vol. i. p. 278.
 
 280 THE NORMAN CONQUEST. ~CH. 
 
 during the reigns of the Conqueror and his sons. The effort 
 was then made to draw out the fact that, while the Norman 
 kings were ever striving to consolidate and strengthen the 
 royal authority by building up around it a new system of 
 central administration, they were also careful to preserve by 
 express ordinance the ancient customary law of the realm, 
 together with the system of local courts in which that law 
 Norman had been immemorially administered. The distinctive feature 
 tem tr the sys ~ f tne Norman period, so far as constitutional history is con- 
 Tth^rT! 1 cerne d> i s tne development of a new system of central admin- 
 kingship, istration with the source of its strength in the royal authority. 
 In order to discharge the many vast and intricate duties 
 which the growth of the royal power after the Conquest 
 concentrated around the person of the king, it became neces- 
 sary for the crown to organize out of the main body of the 
 great council a smaller body, which could be charged under 
 the king's direction with the whole work of central or national 
 administration. 1 Out of this inner council, which soon came 
 to be known by the name of curia regis, all the administrative 
 institutions of the kingdom seem to have sprung. During the 
 reign of Henry I. the curia was organized by Bishop Roger 
 into a strong judicial and ministerial body, whose methodical 
 procedure imposed upon the despotic powers of the crown 
 the restraints at least of administrative routine. In this reign 
 the financial department of the curia, now called for the first 
 time the exchequer, was also made a more efficient instru- 
 ment for the collection of the revenue. In Henry's time de- 
 tachments of justices were first sent from the curia to assess 
 the revenue and to adjust the business of the exchequer in 
 Central and eac ^ shire. 2 In this way the new system of central adminis- 
 locaisys- tration was first brought into direct contact with the local 
 
 tems first . . 
 
 drawn machinery of the constitution. But, excepting the occasional 
 through' contact which thus arose out of the fiscal visitations of the 
 of C the V1SltS J ust i ces > the central and local systems stood apart during the 
 justices reigns of the Norman kings. Not until the Angevin period 
 is reached, not until the reigns of Henry II. 3 and his sons, 
 
 1 " In conformity with the system of nue, the administration of justice to suit- 
 France and other feudal countries, ors, and the dispatch of all public busi- 
 there was one standing council, which ness." Hallam, M. A., vol. ii. p. 317. 
 assisted the kings of England in the col- 2 See above, p. 247. 
 lection and management of their reve- 8 " His reign was the period of amal-
 
 III.] THE PERIOD OF FUSION. 281 
 
 is there anything like a growing together of the Norman sys- 
 tem of central administration and the tenacious machinery of 
 Old-English local freedom embodied in the organizations of 
 the township, the hundred, and the shire. 
 
 The same agencies which, during the Angevin reigns, Commix- 
 brought about the amalgamation of the new administrative ^a cus- y< 
 system and the ancient local machinery, also brought about 1 t ary 
 a union between the new system of royal law, which radiated 
 from the curia regis, and the ancient system of customary 
 law as administered in the local courts. A great German 
 writer has lately pointed out the fact that in the study of Teu- 
 tonic law the distinction must be sharply drawn between such 
 law as flows from a royal or official source, and such as flows 
 from a customary or popular source. 1 By the application of 
 this idea to the special investigation of the origin of the Eng- 
 lish jury, rich results have already been attained. By keep- 
 ing this distinction steadily in view, Brunner has finally dem- origin of 
 onstrated the fact that out of the union of a certain branch * he trial 
 
 jury. 
 
 of royal law in the form of special commissions or writs of 
 inquiry issued from the curia regis with a certain kind of 
 witness-proof imbedded in the customary law has been grad- 
 ually developed the English jury of judgment, the trial jury 
 of modern times. 2 
 
 Before attempting, however, to work out in detail the pro- Union of 
 cess of fusion between the systems of central and local ad- races ' 
 ministration, and between the systems of royal and customary 
 law, it will be helpful to indicate in general terms the steps 
 by which the two races became fused into one nationality. 
 The effects of the Conquest on national unity were twofold. 
 In the first place it had the effect of uniting the English 
 among themselves. By the coming of William the tendency 
 to provincial isolation was checked, and the whole realm 
 united in one consolidated kingdom which was never after- 
 wards divided. 3 After the time of Stephen, even the three- 
 fold division of the kingdom into the Dane law, the West 
 
 gamation, the union of the different 1 As to Sohm's views upon this sub- 
 elements existing in the country, which, ject, see North American Review for 
 whether it be looked on as chemical July, 1874, p. 222. 
 
 or mechanical, produced the national 2 See Die Entstehung der Schwur- 
 
 character and the national institu- gerichte, Berlin, 1874. 
 
 tions." Preface to Benedict, Rolls 8 See above, p. 217. 
 Series, vol. ii. p. xxxiii.
 
 282 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Fusion 
 completed 
 at the ac- 
 cession of 
 Henry II. 
 
 The resto- 
 ration of 
 order. 
 
 Saxon, and Mercian law became obsolete and disappeared. 1 
 No dividing lines survived except such as were drawn by 
 slight differences in local custom. 2 Into the greater mass of 
 the united English nation the smaller Norman mass was grad- 
 ually absorbed ; the " conquerors were conquered ; the Nor- 
 mans became Englishmen." As early as the reign of Henry 
 
 I. causes began to work which, before a century had passed 
 by, had drawn together into one nation all natives of the soil, 
 regardless of older differences of race and speech. 3 Under 
 the pressure of common calamities, national enmities were 
 during Stephen's reign in a great measure forgotten. And 
 through the agency of frequent intermarriage the work of 
 fusion so rapidly advanced that a writer of the time of Henry 
 
 II. is obliged to confess that, without a careful examination 
 of pedigree, it was impossible to ascertain in his time who 
 was Norman and who was English. 4 It may therefore be 
 safely assumed that by the time of the accession of Henry of 
 Anjou the two races had become fused together into one na- 
 tion scarcely conscious yet of its own unity. As soon as this 
 condition of things was reached, in which it was difficult to 
 distinguish an Englishman from a Norman, all legal distinc- 
 tions in favor of one race as against the other necessarily 
 passed out of view. 6 
 
 2. During the protracted struggle which occupies the pe- 
 riod of anarchy known as the reign of Stephen, the royal au- 
 thority which Henry I. had done so much to consolidate came 
 to an end ; the administrative system which Bishop Roger 
 had so thoroughly organized broke down ; and England, for 
 the first and last time in her history, sank into that state of 
 feudal anarchy which the Conqueror by his far-sighted policy 
 had striven to prevent. For a time the land lay helpless in 
 the hands of the barons, who intrenched themselves in their 
 
 1 " The terms are become archaisms 
 which occur in the pages of the histo- 
 rians in a way that proves them to have 
 become obsolete." Stubbs, Const. 
 Hist., vol. i. p. 545, citing Simeon of 
 Durham, ed. Hinde, vol. i. pp. 220- 
 222. 
 
 2 These, Glanvill says, are too nu- 
 merous to be put on record. De Legi- 
 bus, lib. xii. c. 6. 
 
 8 Freeman, Norm. Conq., vol. v. pp. 
 98, 438. 
 
 4 "Jam cohabitantibus Anglicis et 
 Normannis, et alterutrum uxores ducen- 
 tibus vel nubentibus, sic permixtae sunt 
 nationes, ut vix discerni possit hodie, de 
 liberis loquor, quis Anglicus quis Nor- 
 mannus sit genere." Dialogtis de 
 Scaccario, i. c. 10. 
 
 6 As to the gradual extinction of 
 Englishry, see Bracton, 135 b ; Fleta, 
 lib. i. c. 30; Bigelow, Hist, of Procedure^ 
 p. 8l.
 
 III.] THE PERIOD OF FUSION. 283 
 
 unlicensed castles, and arrogated to themselves all the rights 
 of petty despots. 1 Not until both of the contending parties 
 had well-nigh reached a state of exhaustion was the long 
 anarchy brought to a close by the Treaty of Wallingford, 
 which was attended by an elaborate scheme of reform that 
 contemplated, among other things, the disarming of the feu- 
 dal party, the demolition of the unlicensed castles, the ban- 
 ishment of all mercenary soldiers, the resumption of all 
 royal rights that had been usurped by the baronage, the res- 
 titution of estates taken from their lawful owners, the aboli- 
 tion of the fiscal earldoms, and the appointment of sheriffs 
 to reestablish order. 2 Upon the death of Stephen in H54, 3 
 Henry of Anjou, then in his twenty-second year, came to the 
 throne pledged to the task of bringing peace and prosperity 
 out of anarchy and exhaustion upon the lines of that project 
 of reform which had followed the Treaty of Wallingford. To 
 the complete performance of the work of restoration the first 
 ten years (1154-1164) of Henry's reign were chiefly devoted. 4 
 During the first three years of the reign, however, the greater 
 part of the work was actually accomplished. Within that 
 time the feudal party in the teeth of fierce resistance from 
 some of its strongest members was disarmed, the unli- 
 censed castles were destroyed, the royal estates resumed, the 
 mercenaries banished, the curia regis and exchequer reestab- 
 lished, and careful provision made for both central and pro- 
 vincial judicature. 6 
 
 3. It was impossible, however, for Henry, the ruler of vast Theinsti- 
 continental dominions, to confine his energies exclusively to s"ug f or 
 the affairs of England. In 1150 he became involved in a for- sh >eW- ' 
 
 nioncv, 
 
 eign war by attempting to enforce the claim of his wife on the 
 county of Toulouse. 6 As it was highly inconvenient to carry on 
 military operations against the most distant province of France 
 by the aid of feudal levies who were only bound to a limited 
 service, Henry hit upon an expedient through which money 
 
 1 Cf. Green, Hist. Eng. People, vol. 6 For the details of the work accom- 
 i. p. 155. plished by Henry in 1155, '56, '57, see 
 
 2 As to the scheme of reform that Stubbs, Const. Hist., vol. i. pp. 449-455. 
 attended the Treaty of Wallingford, see Henry did not land in England until the 
 above, p. 277. 8th of December, 1154. 
 
 8 Gervase, cc. 1375, 1376. R. de Monte, A. D. 1158, 1159. 
 
 * Freeman, Norm. Conq. t vol. v. p. 
 441.
 
 284 THE NORMAN CONQUEST. [Cn. 
 
 could be realized for the employment of mercenary soldiers. 
 In the fourth year of his reign, as a financial measure to 
 aid the meditated expedition against Toulouse, 1 Henry and 
 Thomas devised the institution of scutage or shield-money, 
 a pecuniary compensation in lieu of military service. The 
 hiring of mercenaries was nothing new, but the new device 
 for raising money for their employment was an innovation 
 which dates from this time. 2 Those tenants of the crown 
 who did not desire to go to the war were allowed to pay a tax 
 Assize of of two marks on the knight's fee. 3 The natural supplement 
 to this blow against feudalism was embodied in Henry's as- 
 size of arms (1181), whereby the old constitutional force was 
 reorganized by the duty being imposed upon every freeman 
 to provide himself, for the defence of the commonwealth, with 
 arms according to his means. 4 By reason of the expedition 
 against Toulouse, and a consequent quarrel with Louis VII., 
 his feudal lord, against whom he declined personally to 
 bear arms, 6 Henry was kept away from England until the 
 beginning of the eventful year 1163. 
 
 Henry's 4. The full scope of Henry's policy was not only to estab- 
 
 estabiish Hsh the reign of law, but to reduce all orders of men to a 
 
 equai e iaw. of state ^ equality before the same system of law. The most 
 
 formidable obstacles which stood in the way of the complete 
 
 execution of this design were the baronage on the one hand, 
 
 with their private jurisdictions, and the clergy on the other, 
 
 with their far-reaching claims of exemption from the ordinary 
 
 Conflict process of the temporal tribunals. 6 Not long after Henry's 
 
 clergy. 6 return in 1163 the prosecution of his scheme of reform 
 
 brought him into conflict with the clerical order, at whose 
 
 head now stood Thomas Becket, who, a year before, had been 
 
 elevated to the see of Canterbury. At the beginning of the 
 
 1 " Tolosam bello aggressurus," etc., 4 Benedictus, vol. i. p. 278 ; Hove- 
 John of Salisb. (Ep. 145), i. 223. den, ii. 261 ; Gervase, c. 1459; Select 
 
 2 "The hiring of mercenaries was Charters, 153. 
 
 nothing new; but to hire them %vith 6 Will. Fitz-Stephen (ed. Giles), vol. 
 
 money paid as an exemption from per- i. p. 200; R. de Diceto, 531. 
 
 sonal service was a device of Henry 6 " The former must be compelled to 
 
 and Thomas." Freeman, Norm, agree to the restriction of their hered- 
 
 Conq., vol. v. p. 451. itary jurisdictions within the smallest 
 
 8 Upon the general subject, see compass, and the latter to allow them- 
 
 Reeves, Hist. Eng. Law, vol. i. p. 247 ; selves to be, in all matters not purely 
 
 Digby, Law of Real Property, p. 116; spiritual, subject to the ordinary pro- 
 
 Madox, Hist. Ex., ch. 16; Preface to cess of law." Select Charters, p. 21. 
 Benedict, vol. ii. p. xcv.
 
 III.] THE PERIOD OF FUSION. 285 
 
 reign Thomas of London, the pupil of Archbishop Theobald, 
 had been recommended by his patron as an able adviser to 
 the young king, who at once raised him to the office of 
 chancellor. 1 This office Thomas held until his unfortunate 
 elevation to the primacy of the kingdom. 2 In his new sta- 
 tion the temper of Thomas at once passed through a marked Thomas as 
 transformation ; the knightly courtier now assumed the garb pl 
 of the ascetic ; the foremost lawyer and statesman of the 
 kingdom now became the champion and assertor of the rights 
 and privileges of the church. The first dispute between the 
 archbishop and the king the details of which are very First 
 obscure seems to have arisen out of the opposition of the b^w^en 
 former to the levying of a Danegeld in some new form T n h d ^ 
 prejudicial to the interests of the sheriffs, and in favor of the king touch- 
 royal revenue, and in a form which would vest it as a per- lion. 
 manent revenue in the king without any express grant by 
 the national assembly. Thomas, as the leader of the first 
 constitutional opposition to an English king in a matter of Thomas 
 taxation, 3 is recorded to have said : " We will not, my lord n ner < of 
 king, saving your good pleasure, give this money as revenue ; 
 but if the sheriffs and servants and ministers of the shires 
 will perform their duties as they should, and maintain and 
 'defend our defendants, we will not be behindhand in con- 
 tributing to their aid." To which the angered king an- 
 swered : " By the eyes of God, it shall be given as revenue, 
 and it shall be entered in the king's accounts ; and you have 
 no right to contradict ; no man wishes to oppress your men 
 against your will." Thomas then replied : " My lord king, by 
 the reverence of the eyes by which you have sworn, it shall 
 not be given from my land, and from the rights of the church 
 not a penny." 4 With this event the enmity between the king 
 and the primate begins. 
 
 In the following October, in the Council of Westminster, a 
 
 1 Gervase, c. 1377. stall the part of Hampden." Free- 
 
 2 For a sketch of the life of Thomas, man, Norm. Conq., vol. v. p. 451. 
 
 see Green, Hist, of the Eng. People, vol. * As to the obscure details of this 
 
 i. pp. 164-170. first dispute, see Grim, Vita S. Thomas, 
 
 8 "Even those who are most unwil- vol. i. pp, 21, 22; Roger of Pontigny, 
 
 ling to allr>w any praise to one who Vita S. Thorn, (ed. Giles), vol. i. p. 
 
 bore the titles of saint and martyr have 113; Preface to Benedict, vol. ii. p. 
 
 been driven to confess that in this xci. ; Stubbs, Const. Hist., vol. i. pp. 
 
 matter the part of Thomas did but fore- 462, 463.
 
 286 THE NORMAN CONQUEST. [Cn. 
 
 The second new quarrel arose between the primate and the king 
 ?oucWng touching the exemption of the clerical order from the juris- 
 munuies m " diction f trie temporal tribunals. From the time of the 
 I|6 3- Conqueror's famous ordinance separating the spiritual from 
 the temporal courts, the punishment of members of the 
 clerical order guilty of criminal offences had been attended 
 with great difficulty. In such cases the ecclesiastical courts 
 would not allow the lay tribunals to take jurisdiction, and the 
 ecclesiastical courts themselves could only inflict spiritual 
 penalties. 1 The provision that the king and the sheriff 
 should, under certain circumstances, enforce the judgments 
 of the bishops, had, through the jealousies of the two estates, 
 failed of its purpose. 2 Under these circumstances a large 
 number of clerks guilty of serious criminal offences, besides 
 a large number who falsely claimed to be clerks, escaped all 
 real punishment. 3 To remedy these evils in the administra- 
 tion of the criminal law, Henry now resolved that all crim- 
 inals, clerical as well as lay, should be tried in the ordinary 
 tribunals. If a clerical criminal confessed or was convicted, 
 he should first be degraded by the bishops, and then handed 
 over to the officers of the law for punishment. 4 Henry at 
 the same time complained of the exactions of the spiritual 
 courts, and he finally demanded that the bishops should agree 
 that the proceedings of their courts and the rights of the 
 clergy generally should be regulated by the customs which 
 had prevailed in the time of Henry I. Thomas refused to 
 accede unconditionally to the king's demands, and the result 
 of his refusal was a qualified assent of the bishops, " saving 
 their order." 5 To definitely settle the controversy, Henry 
 Council at called together all the bishops and barons at Clarendon, 6 in 
 n64? n '' January, 1164, and there renewed his demand that the cus- 
 toms regulating the rights of the church in use in the time 
 
 * "This state of things existed at its hood; it included in Henry's day the 
 
 height from the beginning of the reign whole of the professional and educated 
 
 of Stephen until the tenth year of the classes." Green, Hist. Eng. People, 
 
 reign of Henry the Second." Bige- vol. i. p. 164. 
 
 low, Hist, of Procedure, p. 34. * Hoveden, vol. i. p. 219; Gervase, c. 
 
 2 The provision referred to was con- 1384. 
 
 tained in the Conqueror's famous ordi- 6 Such were the results of the Council 
 
 nance separating the spiritual from the of Westminster which met in October, 
 
 temporal courts. Cf. Stubbs, Const. 1163. Cf. Stubbs, Const. Hist., vol. i 
 
 Hist., vol. i. pp. 283, 463. p. 464. 
 
 8 " The clerical order in the Middle 6 R. Diceto, c. 536; Gervase, c. 1385. 
 Ages extended far beyond the priest-
 
 III.] THE PERIOD OF FUSION. 287 
 
 of his grandfather should be accepted as the law. After 
 a second refusal from the archbishop to accept the royal 
 demand unconditionally, Henry ordered that the customs 
 should be reduced to writing, after their existence had first 
 been established by the process of recognition. 1 The result Constitu- 
 of the inquiry was embodied in the famous document known clarendon : 
 as the Constitutions of Clarendon. These constitutions, 
 sixteeen in number, were intended to codify and reestablish 
 the law as it had stood in the time of Henry I. In this fresh the concor- 
 understanding between church and state the distinction be- church^" 
 tween temporal and spiritual courts established by the Con- state - 
 queror was distinctly recognized. 2 But it was left for the 
 king's court to decide by which jurisdiction accused clerks 
 were in each case to be tried ; and it was further provided 
 that in all ecclesiastical proceedings a royal officer should be 
 present to confine the spiritual court to its proper limits, 
 and that the spiritual court should not shelter persons who 
 had offended against the laws of the land. 3 The curia regis 
 was recognized as a court of regular resort, and to it were 
 reserved all questions of presentation and advowson. 4 An 
 appeal was still allowed from the archbishop's court to the 
 king's court in a proper case, but no appeal to the papal 
 court could be taken without the king's leave. 5 Direct refer- 
 ence was made not only to the use of juries of twelve men 
 from the vicinage in criminal causes, 6 but also to the principle 
 of recognition by twelve lawful men in case of a dispute as to 
 the tenure of an estate alleged to be in franc-almoign. 7 All 
 elections to bishoprics and abbacies were to take place before 
 the royal officers, in the king's chapel, and with the king's 
 assent. 8 The baronial status of the bishops was expressly 
 recognized : 9 the prelate-elect before consecration must do 
 homage to the king, from whom his lands must be held as a 
 
 1 " These constitutions were, as they 4 Cap. i. " De advocatione et praesen- 
 
 purport, the result of an inquiry into tatione ecclesiarum si controversia emer- 
 
 the customs of England existing in the serit inter laicos, vel inter laicos et cler- 
 
 time of Henry the First, grandfather of icos, vel inter clericos, in curia domini 
 
 Henry the Second." Bigelow, Hist, regis tractetur vel terminetur." 
 
 of Procedure, p. 34. * Cap. viii. 
 
 8 Freeman, Norm. Cong., vol. v. p. 6 " Vicecomes requisitus ab episcopo 
 
 452. For the text of the constitutions, faciet jurare duodecim legates homines 
 
 see Lyttleton's Life of Henry //., vol. de vicmeto, seu de villa." Cap. vi. 
 
 iv. pp. 182-185; Select Charters, p. 7 Cap. ix. 
 
 140. 8 Cap. xii. 
 
 8 Cap. iii. Cap. xi
 
 288 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 barony subject to all feudal burdens. No bishop was to 
 leave the realm without the royal permission, and no tenant- 
 in-chief or royal servant was to be excommunicated, nor his 
 land placed under interdict, without the royal assent. 1 It 
 was further provided that no villein should be ordained with- 
 Permanent out the consent of his lord. 2 The permanent results of the 
 thTconsti- reform brought about by the adoption of the Constitutions 
 tutions. have thus been summarized : " i. All questions agitated 
 concerning church property were relegated to the king's 
 court, or other lay court, in one form or another. 2. All 
 offences committed by men in orders upon laymen were to 
 be redressed alone in the lay courts. 3. Debts and demands 
 in favor of laymen against clerics were to be sued in the 
 same courts. 4. Redress by clerics against laymen, when it 
 was not pursued for the mere purpose of punishing sin, was 
 to be sought in the lay courts. On the other hand, the 
 Court Christian still retained jurisdiction in the following 
 cases : i. Over offences between the clergy alone. 2. Over 
 small debts, and perhaps minor property causes between the 
 clergy. 3. Over matrimonial causes, the conduct of the 
 sexes, defamation, usury, and wills. 4. Over, it seems, 
 crimes committed by the laity, when jurisdiction was sought 
 for the purpose of imposing ecclesiastical censure, admoni- 
 tion, or penitential punishment. The jurisdiction of the 
 Ecclesiastical Court having thus become settled before the 
 close of the reign of Henry the Second, a way was found to 
 keep that court within the limits fixed, to wit, by means of a 
 writ of prohibition, issued from the king's court, a writ in 
 use from the time at least of Glanvill, and probably earlier, 
 until the present day." 3 To the definitions of ecclesiastical 
 Thomas' rights and limitations contained in the Constitutions Thomas, 
 assenfand after a passionate refusal, was finally induced to set his seal, 
 exile. H{ s reluctant assent was, however, immediately revoked, and 
 he appealed to the pope for forgiveness for having betrayed 
 the interests of the church. 4 This conduct greatly enraged 
 the king, through whose violent resentment he was soon 
 driven into exile. 6 But notwithstanding the storm which 
 
 1 Cap. vii. 
 
 2 " Filii rusticorum non debent ordi- 
 nari absque assensu domini de cujus 
 terra nati dignoscuntur." Cap. xvL 
 
 53 
 
 8 Bigelow, Hist, of Procedure, pp. 52, 
 
 4 Cf. Robertson, Becket, pp. 101-103. 
 6 The fatal quarrel in which Thomas
 
 III.] THE PERIOD OF FUSION. 289 
 
 followed their adoption, the Constitutions regulated from this 
 time the relations of the church with the state. 1 
 
 5. By the victory won at Clarendon in favor of administrative Reorgani- 
 order, the first period of Henry's reign was brought to a close, thVcentrai 
 The remainder of the reign (1164-1189), so far as constitu- 'hlSonai 
 tional history is concerned, was devoted to the reorganization council, 
 of the central and provincial systems, and to the task of 
 drawing them into closer relations with each other. The 
 system of central administration, embodied in the national 
 council and the curia regis, reached under Henry II. and 
 his sons a definiteness of organization which it had never 
 possessed before. The composition of the national council, 
 which was now summoned at regular intervals, was that of a 
 perfect feudal court, an assembly of archbishops, bishops, a perfect 
 abbots, priors, earls, barons, knights, and freeholders. 2 The court, 
 constituent members of the assembly are the same as under 
 the Norman kings, but greater prominence and a more defi- 
 nite position are now assigned to the minor tenants-in-chief. 3 
 But under the changes of form and of name the continuity of 
 the Old-English national assembly went on unbroken. " A 
 great council of Henry the Second undoubtedly differed its relation 
 widely from a witenagemot of the Confessor, and a parlia- 
 ment of Edward the First differed yet more widely from a 
 great council of Henry the Second. But there is no break 
 between any of the three. The constitution of the assembly 
 is changed first in practice, then by direct ordinance ; but 
 the assembly itself is the same. At no time was one kind 
 of assembly formally abolished, and another kind of assembly 
 formally put in its stead." 4 In the days of Henry of Anjou, 
 as in the days of Eadward and of William, an ordinary meet- 
 ing of the national assembly embraced only the witan, the 
 magnates of the kingdom ; while on an extraordinary occa- 
 
 perished, and which had nothing what- * " There is a growing recognition of 
 
 ever to do with the Constitutions, did their real constitutional importance, 
 
 not occur until his return in 1170. The . . . and a growing tendency to admit 
 
 final quarrel grew out of the old rivalry not only them, but the whole body of 
 
 between York and Canterbury. smaller landowners, of whom the minor 
 
 1 " In spite of denunciations from pri- tenants-in-chief are but an insignificant 
 mate and pope, the Constitutions regu- portion, to the same rights." Stubbs, 
 lated from this time the relations of the Const, Hist., vol. i. p. 564. 
 
 church with the state." Green, ffist. * Freeman, Norm. Cong., vol. v. p. 
 Eng. People, vol. i. p. 167. 272. See, also, Green, Hist. Eng. Peo- 
 
 2 Select Charters, pp. 22, 23. pie, vol. i. p. 349.
 
 290 THE NORMAN CONQUEST. [CH. 
 
 sion it might embrace, besides these, not only the tenants-in- 
 influenceof chief, but the whole body of freeholders. But through the 
 of e sum- Ctlce influence of the practice of summons, to whose origin an 
 mons - exact date cannot be assigned, the tendency was fast gaining 
 ground to limit the national assembly to those only who were 
 summoned by the king's writ, either personally or in a body. 
 The writs of summons were of two kinds : first, such as were 
 specially addressed to those great personages whose presence 
 was necessary, and who were summoned as a matter of course; 1 
 second, such as were addressed generally to the sheriff of 
 each shire, requiring him to summon in a body the lesser 
 The prac- landowners. 2 How far this practice of summons, which was 
 fined as in the in active operation in the time of Henry II., 3 had developed 
 arti3fo h U P to the sixteenth year of the reign of John, can be defi- 
 the Great nitely ascertained from the fourteenth article of the Great 
 Charter, which provides that, " to have the common counsel 
 of the kingdom, we will cause to be summoned the archbish- 
 ops, bishops, abbots, earls, and greater barons singly by our 
 letters ; and besides we will cause to be summoned in gen- 
 eral by our sheriffs and bailiffs all those who hold of us in 
 chief." 4 By this clause, which no doubt expressed the then 
 existing practice, the qualification for membership in the 
 national assembly was at last distinctly defined, and that 
 qualification naturally assumed a feudal shape. No one was 
 expected to attend unless he was summoned ; and no one 
 summons was summoned unless he was a tenant-in-chief. By the form 
 HnTbe- 116 ^ ^ ne summons a line was also distinctly drawn between two 
 tween lords definite classes of men, between the magnates, who were 
 
 and com- ' 
 
 entitled to a personal summons, and the mam body of 
 
 1 The earliest writ of this class extant the assembly of the county courts." 
 is one addressed to the bishop of Salis- Stubbs, Const. Hist., vol. i. p. 568. 
 bury in 1205, in which is stated the 8 A memorable instance of a special 
 date of the assembly and the cause of summons in that reign is the one di- 
 the meeting. It also contains a gen- rected to Becket, citing him to appear 
 eral clause directing the bishop to warn in the Council of Northampton to an- 
 the abbots and priors of his diocese to swer the claim of John the Marshal, 
 be present. See Report on the Dignity W. Fitz-Stephen, i. 220. 
 
 of a Peer, App. i. p. I ; Select Charters, * Cap. 14. " Summoneri faciemus 
 
 p. 282. archiepiscopos, episcopos, abbates, co- 
 
 2 The presumption is, in the absence mites, et majores barones, sigillatim 
 of any extant writs of this class of an per litteras nostras ; et praeterea facie- 
 early date, that " they must have enu- mus summoneri in generali, per vice- 
 merated the classes of persons sum- comites et ballivos nostros, omnes illos 
 moned in much the same way as they qui de nobis tenent in capite." 
 
 were enumerated in the writs ordering
 
 III.] THE PERIOD OF FUSION. 2gi 
 
 tenants-in-chief, who were summoned generally in the shires : 
 in this way the distinction between lords and commons 
 begins. 1 
 
 Henry II. legislated in the old Teutonic form which had 
 been immemorially employed by his Old-English and Nor- 
 man predecessors. As Ine legislated with the counsel and advicean f 
 
 . . . consent ot 
 
 with the teaching of his bishops, with all his ealdormen and his council 
 the most distinguished witan of his people ; as Alfred pro- 
 mulgated his code with the counsel and consent of his witan, 2 
 so Henry legislated with the advice and consent of his na- 
 tional council. The "counsel and consent may have been, 
 as a general rule, a mere formality ; it certainly did not imply 
 that full and authoritative power of deliberation possessed by 
 the witan in earlier times ; and yet the very survival of the 
 ancient form attested the fact that the theoretical right of the 
 nation to participate in legislation was not forgotten." In 
 Henry's time as in Alfred's, in all public matters legisla- 
 tive, judicial, political, and financial the nation through its 
 assembly was in theory consulted. 3 The legislative enact- 
 ments, which were thus promulgated by the Norman and 
 by some of the Plantagenet kings, assumed many different 
 forms before they appeared in the final form of statutes. 
 During the Norman reigns such enactments were usually 
 cast in the form of charters ; 4 in the reign of Henry II. they charters, 
 were generally known by the name of assizes, a word of va- 
 rious application. The assizes of Henry II., considered as Assizes, 
 legislative enactments, were in the main edicts or regula- 
 tions for the enforcement of new methods of legal procedure ; 
 they were not drawn up in the form of perpetual statutes, but 
 rather in the form of tentative or temporary enactments. 6 
 The most important remains of Henry's legislative work sur- 
 vive in the form of assizes, in the Assizes of Clarendon 
 and Northampton, in the Assize of the Forest, and in the 
 
 1 Freeman, Norm. Conq., vol. v. pp. making laws at this time." Reeves, 
 2 74> 2 75- Hist, of Eng. Law, vol. i. p. 478. 
 
 2 As to the forms of Old-English 6 " In this respect they strongly re- 
 legislation, see above, p. 186. semble the Capitularies of the Frank 
 
 Select Charters, p. 23 ; Green, Hist, kings, or, to go farther back, the edicts 
 
 Eng. People, vol. i. p. 350. of the Roman praetors : they might, 
 
 * " The form of a charter, in which indeed, as to both form and matter, be 
 
 the king is considered as a person called Capitularies." Stubbs, Const, 
 
 granting, was a very common way of Hist., vol. i. p. 573.
 
 2Q2 THE NORMAN CONQUEST. [Cn. 
 
 Provisions. Assize of Arms. In the reign of Henry III. legislative enact- 
 ments appear in the form of provisions ; 1 in the reigns of 
 statutes Edward I. and his successors they assume the form of stat- 
 nances^" utes and ordinances. 2 The ancient form of royal legislation 
 is not superseded by the modern form of national legislation 
 until the ancient council of the king is transformed into a 
 national parliament. 3 
 
 Taxation 6. In the early days of the Old-English commonwealth, as 
 oid^ng! tne king's revenues from the folkland, from his private estates, 
 lish system. anc j f rO m customary dues were amply sufficient to maintain 
 the royal state, and as the threefold duty (trinoda necessitas) 
 of rendering military service and of repairing bridges and 
 fortresses supplied all local requirements, there was no ne- 
 cessity for the imposition of taxes, in the modern sense of 
 that term. 4 Not until the reign of ^Ethelred, when money 
 had to be raised for the purpose of defence against the 
 Danes, did it become necessary for the king and the witan 
 to levy extraordinary taxes for the public service. With the 
 imposition of the Danegeld the history of English taxation 
 The Dane- really begins. 6 This tax, which was levied not only for the 
 hnd-tax. purpose of buying off the invaders but for the raising of 
 fleets, was necessarily a land-tax, for the reason that land, in 
 the early days, was the only standard of value on which an 
 assessment could be made. Under the famous rating of 1008, 
 to which can be traced the origin of ship-money, the burden 
 of raising a fleet was imposed upon the whole nation, but the 
 proportion to be contributed in kind by each district was 
 fixed by reference to the number of hides contained in each. 
 It may be inferred from the terms of assessment that every 
 three hundred hides were liable to furnish a ship, every ten 
 hides a boat, and every eight hides a helmet and breastplate. 6 
 From what we know of the Old-English fiscal system, the 
 
 1 Stubbs, Const. Hist., vol. i. p. 574. land-tax, under the name of the Dane- 
 
 2 Hallam, M. A., vol. iii. p. 50. geld, was laid on every hide of ground ; 
 8 " The legislation of the Great and to this national taxation the Nor- 
 
 Charter was to a certain extent an an- man kings added the feudal burdens of 
 
 ticipation, a type, a precedent, and a the new military estates created by the 
 
 firm step in advance, towards that con- Conquest, reliefs paid on inheritance, 
 
 summation." Stubbs, Const. Hist., profits of marriages and wardship, and 
 
 vol. i. p. 576. the three feudal aids." Green, Hist. 
 
 4 As to the royal revenue under the Eng. People, vol. i. p. 321. 
 
 Old-English system, see above, p. 182. 6 For the authorities upon this sub 
 
 6 "To raise a ransom which freed ject, see above, p. 187, note 2. 
 the land from the invader, the first
 
 III.] THE PERIOD OF FUSION. 293 
 
 conclusion may be drawn that the only tax ever levied, in the The pid- 
 modern sense of that term, was the Danegeld or land-tax, and uiTifof as- 
 
 that the unit of assessment was the hide. As the hide, then, 
 was the unit of assessment from the earliest times, and con- 
 tinued to be so long after the Norman conquest, it is quite 
 possible to understand why such great labor has been ex- 
 pended in the attempt to ascertain its character and extent. 1 
 By the light of recent researches into the early history of the 
 English land system, something like definite results have at 
 last been attained. Mr. Seebohm, after a minute examina- 
 tion of the open-field system by the aid of the Great Survey 
 and the Hundred Rolls, has ascertained that a virgate the 
 normal holding of a normal tenant in villenage usually con- 
 tained about thirty acres, and that the normal hide consisted Extent of 
 as a rule of four virgates. Although the virgate did not hjd e normal 
 always contain thirty acres, and although the hide did not 
 always contain the same number of virgates, 2 still, as a rule, 
 the normal hide seems to have represented about one hun- 
 dred and twenty acres. In the Hundred Rolls the assessed 
 value of manors is generally stated in hides and virgates. 
 The hide and the virgate thus seem to have been used as 
 measures of assessment as well for the demesne land of the 
 manor as for the land in villenage. 3 After the Conquest the 
 Danegeld or land-tax assumed under the Conqueror and his 
 sons the form of ordinary revenue, which, like the ferm, was 
 compounded for by the sheriffs at a fixed sum. In the case 
 of the towns, to which the reckoning by hides could not ap- 
 ply, the Danegeld seems also to have been compounded for, 
 and the composition or aid thus derived represents no doubt 
 the later talliage. 4 In the ninth year of Henry II. the Dane- Taiiiage, 
 geld, as such, finally disappeared from the Rolls, but was suo 
 
 1 As to the original character and ex- 2 " There were occasionally five vir- 
 
 tent of the ethel, hide, or alod, see Kem- gates and sometimes six virgates in 
 
 ble, Saxons in Eng., vol. i. ch. iv. ; G. the hide, . . . but the normal hide 
 
 L. von Maurer, Einleiting, p. 120 seq. ; consisted as a rule of four virgates 
 
 Grimm, /?. A., p. 535. The hube, the of about thirty acres each." See- 
 
 ethel, the hide, originally represented bohm, English Village Community, p. 
 
 the family estate, which, " in the old 37. 
 
 English community, consisted of the 8 Ibid., p. 38. 
 
 house and arable lands, and the rights * Freeman, Norm. Conq., vol. v. pp. 
 
 in the common land running with 294, 295; Stubbs, Const. Hist., vol. L 
 
 them." Essays in A. S. Law, p. 74; p. 381 seq. 
 K. Maurer, Kritische Ueberschau % i. 
 P 97-
 
 294 
 
 Hidage. 
 Carucage. 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Taxation 
 under the 
 Norman 
 system. 
 
 Gradual 
 develop- 
 ment of 
 military 
 tenures. 
 
 ceeded at once by a land-tax known as aid or hidage, which 
 must have been only a reproduction of the old impost in a 
 new form. In the reign of Richard I. the Danegeld reap- 
 pears in a more oppressive shape as carucage. 1 The caru- 
 cate the quantity of land which could be ploughed by a 
 plough-team in a season seems in some cases to have been 
 identical with the normal hide, while in others it seems to 
 have varied according to the quality of the soil or strength of 
 the team. 2 Under all these names, whether as Danegeld, 
 aid or hidage, carucage, or, in the case of towns, talliage, 
 the ancient land-tax, originally imposed by ^Ethelred 6*h the 
 hide, can be surely distinguished. 
 
 When William, duke of the Normans, was elected, crowned, 
 and anointed king of the English, he succeeded to every 
 royal right that had ever belonged to any of his English pre- 
 decessors, and he vigorously exacted every kind of revenue, 
 ordinary and extraordinary, that had ever been employed by 
 any of the kings who had gone before him. The sum of fis- 
 cal rights which thus accrued to William as a national king 
 was greatly augmented, in the reign of his successor, by the 
 feudal incidents which resulted from the position of the king 
 as supreme landlord. The income from feudal tenures, which 
 accrued to the Norman kings as feudal lords, may be regarded 
 then as an addition or supplement to the taxes and dues which 
 grew out of the ancient constitution. But not until after the 
 Conqueror's death, not until after feudalism as a system of 
 tenure had been developed under William the Red, did the 
 profit from reliefs, wardships, marriages, fines for alienation, 
 escheats, and from the three feudal aids, begin to swell the 
 royal revenue. 3 The conclusion is now established that the 
 development of military tenures in England was gradual, and 
 that the transition from the old military system by the thegn's 
 service to the new system by knight-service was also grad- 
 ual. 4 At the time of the Conquest the Old-English system 
 
 1 " Each carucate containing a fixed 
 extent of one hundred acres." Stubbs, 
 Const. Hist., vol. i. p. 582, citing Hove- 
 den, iv. 47. 
 
 2 For a definition of the " carucate 
 or land of a plough-team, used instead 
 of the hide for later taxation," see 
 English Village Community, p. 40. 
 
 8 For the authorities upon this sub- 
 ject, see above, pp. 271, 272. 
 
 * Cf. Palgrave, Normandy and Eng- 
 land, vol. iii. p. 609 seq. ; Stubbs, Const. 
 Hist., vol. i. p. 261 seq. ; Freeman, Norm. 
 Conq. t vol. v. p. 249, and note HH.
 
 III.] THE PERIOD OF FUSION. 295 
 
 was rapidly moving in a feudal direction, the thegn was 
 gradually passing into the tenant-in-chief, the man of a lord 
 of a district into his tenant. 1 The name thegn is supposed 
 to cover the whole class which, after the Conquest, appears 
 under the name of knights, with the same qualification in 
 land and nearly the same obligation. 2 Under the old system 
 the thegn was not only a warrior but a landowner, and as 
 such he was bound to render military service ; but such ser- 
 vice was due to the state and to the king as its head, and not 
 to the king as lord. 3 There is no reason to believe that Wil- 
 liam directly introduced into England any new kind of ten- 
 ure; in the language of Domesday there is no mention of 
 military tenures 4 as afterwards understood. There is no 
 direct evidence to show that the old obligation of military 
 service underwent any material change in the Conqueror's 
 time; throughout the Survey the land is divided not into The Survey 
 knights' fees, but into hides or carucates. 5 But although Wil- ^ a u n p d on 
 Ham did not directly introduce military tenures as afterwards carucates. 
 understood, still the effect of his vast confiscations and re- 
 grants was to firmly establish the principle that the king was 
 the supreme landlord, and that all lands were held by grant 
 mediately or immediately of him. As soon, then, as the idea 
 gained ground that the military service due from the land- 
 owner was due to the king, not as the head of the state but 
 as lord, the conception of feudal tenure became complete. 
 The new military service which thus arose out of the devel- 
 opment of tenures was probably measured at first by the 
 existing custom which imposed the equipment of one fully 
 armed man upon every five hides of land. 6 By degrees the Growth of 
 older system based upon the hide was gradually superseded ^knight 
 by a new division of the land into knights' fees, and by the ff| es " 4 of 
 
 the older 
 
 fixing of the knight's fee to a particular amount of land. 7 system of 
 This new scheme of distribution, which probably took a defi- 
 
 1 Digby, Law of Real Property, p. ibat, et ad ejus victum vel stipendium 
 
 35. de unaquaque hida dabantur ei iiii. so- 
 
 a Stubbs, Const. Hist., vol. i. p. 156. lidi ad duos menses." Domesday, 
 
 8 See above, pp. 133, 180. (Customs of Berkshire), i. 56. See, 
 
 * Palgrave, Normandy and England, also, Digby, Law of Real Property, p. 
 
 vol. iii. p. 609 seq. 35. 
 
 6 Seebohm, English Village Commu- T The knight's fee superseded the 
 
 nity, p. 84. hide as the unit of taxation so far only 
 
 " Si rex mittebat alicubi exercitum, as the knights and barons were con- 
 
 de quinque hidis tantum unus miles cerned.
 
 296 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 The army 
 composed 
 of both 
 feudal and 
 national 
 elements. 
 
 Scutage. 
 
 Excepting 
 the cus- 
 toms, all 
 taxes fell 
 upon the 
 land. 
 
 nite shape under Henry I., was certainly not completed before 
 the reign of Henry II. 1 Under the new arrangement the spe- 
 cific obligation was imposed upon each knight's fee to furnish 
 a fully armed horseman to serve at his own expense for forty 
 days in the year. This duty of military service was the sub- 
 stantive duty due from the tenant in chivalry to his lord ; the 
 right to aids, reliefs, wardships, marriages, alienations, and 
 escheats were mere incidents. 2 
 
 As successors of the Old-English kings, the Norman and 
 Angevin rulers retained the right to summon, under the lead 
 of the sheriffs, the ancient forces of the shires ;" as feudal 
 lords, they gained the right through the growth of tenures to 
 call upon the feudal array to perform the military service due 
 from their lands. As the fruits of feudal tenures were an 
 addition or supplement to the older revenues derived from 
 the ancient system, so the feudal army was an addition or 
 supplement to the older constitutional force of the land. 3 To 
 the army thus made up of feudal and national elements were 
 sometimes added mercenary soldiers. In order to raise 
 money for the employment of mercenaries in his war against 
 Toulouse, Henry dealt a serious blow at the feudal power by 
 the establishment of the institution of scutage, a pecuniary 
 commutation for personal service in the host. 4 This commu- 
 tation, at first assessed arbitrarily at the king's pleasure, was 
 finally made subject to legislative control by that clause in 
 the Great Charter which provides that "no scutage or aid 
 shall be imposed in our kingdom unless by the common coun- 
 sel of our kingdom." 5 
 
 Up to this point in Henry's reign leaving out of view 
 the receipts from the customs all taxation fell upon the 
 land, and consisted (i) of the ancient customary dues, and 
 the tax on the hide, survivals of the Old-English system; 
 and (2) of the feudal incidents, and the scutage, or tax on 
 
 1 " It is, however, probable that a 
 record of the number of knights' fees 
 in England had been made before the 
 death of Henry I., and that it was the 
 basis of the computation adopted by 
 his grandson." Stubbs, Const. Hist., 
 vol. i. p. 383. 
 
 2 Digby, Law. of Real Property, pp. 
 35, 36, 40, 123. 
 
 8 "The English fyrd went on along- 
 side of the Norman feudal array, and 
 the king could make use of either or 
 both, as suited his purpose." Free- 
 man, Norm. Cong., vol. v. p. 258. 
 
 4 See above, p. 283. 
 
 6 Cap. 12. "Nullum scutagium vel 
 auxilium ponatur in regno nostro, nisi 
 per commune consilium regni nostri."
 
 III.] THE PERIOD OF FUSION. 297 
 
 the knight's fee, products of the new system of military 
 tenures. Leaving the old customary dues and the feudal in- 
 cidents out of view, the two great burdens on land which 
 stand prominently forth are the Old-English tax on the hide, 
 whether known as aid, hidage, carucage, or, in case of the 
 towns, talliage, 1 and the new feudal tax on the knight's fee 
 known as scutage. These two taxes affected two distinct 
 classes of landowners ; the scutage was the tax assessed 
 upon the lands of the tenants in chivalry, the hidage or caru- 
 cage upon the lands of the freeholders. The tax last named, 
 when applied to the towns, bore the name of talliage. 2 On 
 great occasions, under the general name of auxilium, both taxes 
 were sometimes raised at once ; but as a general rule a year 
 marked by a scutage was not marked by a carucage. 3 So \yhiie the 
 long as taxation fell only on the land, and so long as the hide mafned the 
 continued to be the unit of assessment, the Domesday Sur- ^ 
 vey, whose record generally begins with the number of hides the rate- 
 
 i? u *u u i j J- book of the 
 
 or carucates at which the whole manor was rated according kingdom. 
 to ancient assessment, 4 continued to be the rate-book of the 
 kingdom. 5 When disputes arose as to the assessment of 
 towns, which could not be settled by the Survey, they were 
 specially adjusted or permanently fixed by the sheriffs, or by 
 the detachment of barons from the exchequer during their 
 fiscal circuits of the shires. 6 As soon, however, as the old 
 system of rating the lands of the tenants in chivalry, based 
 upon the hide, was superseded by the new system based upon 
 the knight's fee, a departure from the ancient rate-book fol- 
 lowed as a necessary consequence. The next expedient Newexpe- 
 which Henry II. employed to ascertain the number of knights' ascerta?n- 
 fees subject to taxation was to require by writ every tenant- ">gthe 
 
 * J J number of 
 
 in-chief, lay or clerical, to report directly the number of knights' 
 knights' fees for the service of which he was legally liable. 7 
 Under this arrangement the assessment of each baron or 
 knight depended chiefly upon his own report. After the 
 Danegeld was superseded by the tax known as aid or hidage, 
 
 1 Cf. Madox, Hist. Exch., p. 480; the name of auxilium." Stubbs, 
 Blackstone, vol. i. p. 310 (Sharswood Const. Hist., vol. i. p. 583. 
 
 ed.). 8 Ibid., vol. i. p. 583. 
 
 2 " The knights paid aid or scutage, 4 English Village Community, p. 84. 
 the freeholders carucage, the towns 6 Dialogus de Scaccario, i. c. 16. 
 talliage : the whole and each part bore 6 Ibid., ii. c. 13. 
 
 7 Stubbs, Const. Hist., vol. i. p. 584.
 
 298 THE NORMAN CONQUEST. . [Cn. 
 
 Henry intrusted its assessment upon the towns and the free- 
 holders to the officers of the exchequer. Under this system 
 the justices were compelled to accept the sum conceded by 
 each town or individual freeholder, or the latter had to pay 
 whatever the justices saw fit to put upon them. 1 Not until 
 personal property became subject to taxation was a new 
 method of assessment employed just alike to the crown and 
 to the tax-payer. 
 
 Taxation of The growth of national prosperity, and the consequent 
 property, development of material wealth, which followed Henry's 
 policy of order and reform, rapidly brought into existence a 
 mass of personal property which presented to the Angevin 
 financiers a new and tempting basis of taxation, a basis 
 Assize of capable of unlimited expansion. 2 By the Assize of 1181, in 
 ms ' " l ' which each freeman was required to equip himself with arms 
 according to his means, and in which local jurors were re- 
 quired to determine on oath the liability of each, the first 
 move was made towards the taxation of rent and chattels. 3 
 Seven years later Henry took the final step, and brought 
 taxation directly to bear upon personal property by decreeing, 
 Saiadin with the authority of a great council at Geddington, a tithe 
 nss as- f a tenth of movables to aid the common host of Christen- 
 sessedby jom in the retaking of the Holy City from Saiadin. In order 
 to fairly assess each man's liability to the tithe, Henry re- 
 sorted to his favorite institution of inquest by the oaths of 
 local jurors. Whenever any one was suspected of contribut- 
 ing less than his share, four or six lawful men of the parish 
 Lands as- were chosen to declare on oath what he should give. 4 In the 
 thefsame reign of Richard L, when the Danegeld was revived under 
 way in the name of carucage, the new principle of jury assessment 
 was applied in a general way to the assessment of all lands 
 subject to the tax. 5 In this way the representative principle 
 which first appears in the form of the reeve and four select- 
 men who represent the township in the courts of the shire 
 
 1 Dialogus de Scaccario, ii. c. 13. viri legitimi, qui jurati dicant quanti- 
 
 8 Green, Hist. Eng. People, vol. i. p. tatem illam quam ille debuisset dixisse ; 
 
 322. et tune oportebit ilium superaddere 
 
 8 See article 9 of the Assize ; Select quod minus dedit." Benedictus, vol. 
 
 Charters, p. 154. h. p. 31 ; Select Charters,^. 159; Norm. 
 
 4 " Et si aliquis juxta conscientiam Conq., vol. v. p. 456. 
 illorum minus dederit quam debuerit, 6 Hoveden, vol. iv. p. 46 seq . ; Stubbs, 
 
 eligentur de parochia quatuor vel sex Const. Hist., vol. i. pp. 510, 589.
 
 III.] THE PERIOD OF FUSION. 299 
 
 and hundred J is brought into close contact with the sys- 
 tem of taxation. In connection with that system the repre- Taxation 
 sentative principle ascends, through three stages, from the sentationT 
 lowest to the highest functions of government. It is first 
 applied in a humble way, through the chosen jurors, to the 
 assessment of the tax ; it next becomes involved with the 
 granting of the tax ; and finally it determines the method of 
 its expenditure. 
 
 In what has so far been said in regard to the direct taxation indirect 
 of real and personal property, no reference has been made to theou?* 
 indirect taxes, the duties, toll, tribute, or tariff payable upon toms ' 
 merchandise exported and imported, which are included 
 under the general name of the customs. 2 The origin of the tax on im- 
 duties on imports can be directly traced to the ancient cus- ports; 
 ternary right of the Old-English kings to levy tolls in harbors, 
 and upon transport by roads and navigable streams. 3 Upon 
 its entry into the harbor the toll or tax was imposed directly 
 on the ship ; and in the early charters several instances can be 
 found of grants to individuals and monasteries of an exemp- 
 tion from toll for one ship of burden, and in the event of the 
 destruction of the particular ship another was to receive the 
 same privilege. 4 The toll paid by the ship was the equivalent 
 given by the merchant for the right to bring goods into the 
 realm, and to trade under the king's protection. The duties 
 on imports are thus much more ancient than the duties on tax on ex- 
 exports, which are said to have come into existence as a part ports ' 
 of the general system of taxing personal property. 6 In the 
 reigns of Richard I. and John, the receipts from the customs 
 seem to have been considerable. 6 At the date of the Great 
 Charter they were of sufficient importance to suggest the 
 provision forbidding the levy of more than the ancient and 
 
 1 See above, p. 143. tionary, "Custom," as applied to taxa- 
 
 2 For a definition of customs, see tion. 
 
 Bacon, Abr., under Smuggling. The 8 Kemble, Saxons in England, vol. 
 
 word " customs " custuma of the an- ii. p. 75. 
 
 cient records seems to be derived * See Cod. Dipl., Nos. 78, 84, 95, 
 
 from the French word coustum or cou- 106. 
 
 turn, which signifies toll or tribute, and 6 " Those on exports were only a 
 
 owes its etymology to the word eoust, part of the general system of taxing 
 
 which signifies price, charge, or, as we personal property which we have al- 
 
 have adopted it in English, cost. ready noticed." Green, Hist. Eng. 
 
 Sharswood's Black. Comm., vol. i. p. People, vol. i. p. 323. 
 
 314, and note v. Cf. Worcester's Die- 6 Madox, Hist. Exch., p. 529 seq.
 
 300 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Exclusive 
 right of 
 parliament 
 to author- 
 ize taxa- 
 tion. 
 
 First 
 
 formal dis- 
 cussion of 
 a grant in 
 the Council 
 of Oxford, 
 1197. 
 
 lawful customs on merchants entering and leaving the realm. 1 
 Not until the reign of Edward I., however, did the right to 
 regulate the customs, together with the right to regulate 
 direct taxation, finally pass under the exclusive control of the 
 parliament. 2 The confirmation of the charters by Edward at 
 Ghent, in November, 1297, contained an express pledge from 
 the king that " for no occasion from henceforth will we take 
 such manner of aids, tasks, or prizes but by common assent 
 of the realm and for the common profit thereof, saving the 
 ancient aids and prizes due and accustomed." 3 It seems to 
 be clear that under the Old-English system the right of the 
 witan to join with the king in the imposition of taxes was full 
 and authoritative. In the levying of the land-tax for the 
 purpose of defence against the Danes, the right of participa- 
 tion upon the part of the witan is distinctly recognized. 4 But 
 from the dim fiscal annals of the Norman reigns it is hard to 
 determine whether taxes were imposed by mere edict of the 
 sovereign, or whether with the counsel and consent of the 
 great council. The idea that the nation was in some form 
 consulted is strengthened, however, by two records which 
 belong to the reign of Henry I. : in the one the king de- 
 scribes "the aid which my barons gave me ; " 5 in the other 
 the charter ordering the restoration of the local courts he 
 speaks of summoning the county courts in cases in which his 
 royal necessities required it. 6 Not until the latter part of the 
 reign of Richard I. can there be traced anything like a formal 
 discussion and refusal of a grant in the national assembly. 7 
 
 1 Cap. 41. " Omnes mercatores habe- 
 ant salvum et securum exire de Anglia, 
 et venire in Angliam, . . . sine omni- 
 bus malis toltis, per antiquas et rectas 
 consuetudines." 
 
 2 Green, Hist. Eng. People, vol. i. p. 
 365 ; Gneist, Verwalt., i. pp. 393-396 ; 
 Stubbs, Const. Hist., vol. ii. pp. 142, 
 244. 
 
 3 Art. vi. Statutes of the Realm, vol. 
 i. pp. 124, 125. Cf. Blackstone's Intro- 
 duction to the Charter, p. xcv. ; Select 
 Charters, p. 497. 
 
 4 See above, p. 186. 
 
 6 " Auxilium quod barones mihi de- 
 derunt." Chron. Abingd., ii. 113. 
 
 6 " Ego enim, quando voluero, faciam 
 ea satis summonere propter mea domi- 
 nica necessaria ad voluntatem meam." 
 
 Fadera, i. p. 12. As to the bear- 
 ing of these citations upon the ques- 
 tion of parliamentary consent to tax- 
 ation, see Stubbs, Const. Hist., vol. i. 
 p. 371, and note 4, p. 398. "Henry 
 even forestalls the constitutional lan- 
 guage of later times when he speaks, 
 in words half feudal, half parliamen- 
 tary, of the aid which his barons had 
 granted to him." Freeman, Norm. 
 Conq., vol. v. p. 280. 
 
 7 As to the successful opposition of 
 St. Hugh, bishop of Lincoln, to the 
 king's demand for money to carry on a 
 foreign war, see Hoveden, vol. iv. pp. 
 33, 34, 40 ; Magna Vita S. Ifngonis, p. 
 248 ; Freeman, Norm. Conq., vol. v, p. 
 465.
 
 III.] THE PERIOD OF FUSION. 3 ! 
 
 Although the provision contained in the twelfth article of the 
 Great Charter that no scutage or aid, other than the three 
 customary feudal aids, should be imposed without the com- 
 mon counsel of the kingdom was a clearer statement of the 
 right of the nation to be consulted than had ever been made 
 before, yet not until Edward's confirmation of the charters at 
 Ghent was the exclusive right of parliament to authorize both 
 direct and indirect taxation fully and finally recognized. 
 
 7. Perhaps the most important part of Henry's work in Reorgani- 
 the restoration of law and order was the reestablishment of thVcuria 
 the system of central administration embodied in the curia regls> 
 regis, which the policy of Henry I. had so successfully built 
 up, but which the protracted anarchy of Stephen's reign had 
 completely broken down. Under the organizing hand of 
 Bishop Roger the curia was developed into a strong judicial 
 and ministerial body, before which passed in review the whole 
 fiscal and judicial business of the kingdom. Under the ad- 
 ministration of Roger the financial department of the curia 
 then called for the first time the exchequer assumed such 
 special importance that when the king was not personally 
 present the judicial aspect of the curia seems to have been 
 overshadowed by its fiscal character. As reorganized by 
 Henry II. the unity of the curia was preserved, and its finan- 
 cial department restored as it had been in the days of his 
 grandfather. But through the results of Henry's legal re- its financial 
 forms, which tended to centralize to the utmost the ad- shadowed 
 ministration of justice, the financial aspect of the curia was 
 overshadowed by its development as a judicial tribunal. 1 
 From the Constitutions of Clarendon we learn that the sys- 
 tem of recognitions was then in full force; 2 that the curia 
 regis was a court of regular resort, and that to it were 
 reserved all questions of presentation and advowson. 3 In the 
 
 1 " Whereas under Henry I. the of the one, the justiciar the principal 
 financial character, under Henry II. actor in the other." Stubbs, Const. 
 the judicial aspect, of the board is the Hist., vol. i. p. 596. 
 most prominent. In the former reign 2 This is the earliest mention of the 
 the curia regis, except when the king principle of recognition by twelve law- 
 takes a personal share in the business, ful men, in a dispute as to tenure, in 
 seems to be a judicial session of the anything like statute law. See art. ix. 
 exchequer, an adaptation of exchequer of the Constitutions. Select Charters, 
 machinery to judicial purposes; under p. 136. 
 
 the latter the exohequer seems to be 8 " De advocatione et praesentatione 
 
 rather a financial session of the curia ecclesiarum ... in curia domini regis 
 
 regis. The king is ostensibly the head tractetur vel termineter." Art. i.
 
 302 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 In 1176 the 
 staff con- 
 sisted of 
 eighteen 
 justices, 
 in 1178 
 reduced to 
 five. 
 
 The king's 
 bench as a 
 distinct 
 tribunal. 
 
 Dialogus 
 de Scacca- 
 
 Tractatus 
 de Legibus 
 Angliae. 
 
 twelve years (1164-1176) of legislative reform which followed 
 the adoption of the Constitutions, the growth of the judicial 
 business of the curia seems to have been so great that in 
 1176 its staff had increased to eighteen justices, who were 
 apportioned to the six circuits into which the kingdom was 
 then divided. 
 
 fi^ffrtfl^PB'rtff^Wgife." In the following year a new arrange- 
 ment was made, and out of a larger staff, charged with ex- 
 chequer business and the work of the circuits, six justices 
 instead of five were selected, and "these six are the justices 
 constituted in the curia regis to hear the complaints of the 
 people." This limited tribunal, which from the year 1179 
 held regular sessions in banco, probably represents the begin- 
 ning of the king's bench as a distinct tribunal. Its sessions 
 are still held nominally but not actually coram rege, and 
 before it is brought all of the business which came at a later 
 period before the courts of king's bench, exchequer, and 
 common pleas. But neither the special tribunal, nor the 
 courts to which it gave birth, were courts of the last resort : 
 all causes too difficult for the justices were reserved for the 
 decision of the king in his ordinary council, a body from 
 which at a later .date the jurisdiction of the chancellor and 
 the judicial functions of the privy council emerge. 1 Upon 
 the internal organization of the curia as it existed in the time 
 of Henry II. we have two famous treatises from contempo- 
 rary authors whose opportunities for knowledge were singu- 
 larly great. As to the history of the exchequer we have, in 
 addition to the Pipe Rolls, the Dialogus de Scaccario, 2 a trea- 
 tise written by Richard, bishop of London, great nephew of 
 Roger of Salisbury, the reorganizer of the court, which gives 
 us a complete picture of the administration of the exchequer 
 as it stood in 1 177. As to the procedure of the curia we have 
 the famous treatise of the justiciar Ranulf Glanvill, which 
 is not only the first English law-book which bears the name 
 
 1 For the authorities upon this sub- 
 ject, see above, p. 248. 
 
 2 " The Dialogus de Scaccario has 
 generally passed as the work of Ger- 
 vase of Tilbury, but Mr. Madox thinks 
 
 it was written by Richard Fitz-Nigel, 
 bishop of London, who succeeded his 
 father in the office of treasurer in the 
 reign of Richard I." Reeves, Hist. 
 Eng. Law, vol. i. p. 482.
 
 III.] THE PERIOD OF FUSION. 33 
 
 of a personal author, but, with a single exception perhaps, 
 the first formal dissertation on jurisprudence since the fall of 
 the Roman Empire. 1 
 
 8. In the outline heretofore drawn of the constitution of Reprgani- 
 the Old-English commonwealth, in the form in which it ap- 
 peared after the fusion of the heptarchic states into a single 
 consolidated kingdom, the attempt was made to explain in courts, 
 detail the origin and structure of the system of local machin- 
 ery embodied in the organizations of the township, the hun- 
 dred, and the shire. It was then ascertained that the modern 
 shire the shire of the consolidated kingdom was an ag- 
 gregation of hundreds ; that the hundred was an aggregation 
 of townships ; and that both hundred and shire possessed its 
 own assembly or court, in which the freemen met together to 
 discharge such judicial or political functions as arose out of 
 the administration of their local concerns. The courts of the Shireand 
 shire and hundred which were more like public meetings 
 than like courts of justice in the modern sense of that term 
 were not only popular but representative assemblies. In resentative 
 
 J . . assemblies. 
 
 the hundred court appeared the reeve and four selectmen as 
 representatives from each township in the hundred ; in the 
 shire court appeared like representatives from each township 
 within the shire ; while the twelve senior thegns appeared as 
 a representative body in the courts of both the shire and the 
 hundred. In both courts the whole body of suitors were the 
 judges ; and, in theory, whatever judgment was rendered was 
 the judgment of the whole assembly. But the inconvenience 
 which arose out of the practical application of this principle 
 to large bodies of men indicated the obvious and natural 
 remedy. It seems to have been the custom of each assembly Delegation 
 to delegate its powers to judicial committees of its own mem- authority'. 
 bers, who acted as representatives of the whole court. The 
 familiar historical illustrations of this principle of delegation 
 are to be found in the twelve judges elected in the shire court 
 of Cambridge to confirm with their oaths a decision previ- 
 ously rendered in the same court in a case between the 
 bishop of Rochester and the sheriff of Cambridge, in the 
 twelve senior thegns who appeared as a representative body in 
 the courts of the shire and the hundred, and in the twenty-four 
 
 1 See above, p. 244, note 4.
 
 304 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Attendance 
 enforced by 
 fines. 
 
 Schoffen, 
 Scabani, or 
 fichevins. 
 
 Ordinance 
 separating 
 spiritual 
 and tem- 
 poral 
 courts. 
 
 "judices" or the thirty-six " barons " who were chosen in the 
 East Anglian county courts to determine the suits of Ram- 
 sey and Ely. The growth of the practice of delegating the 
 powers of the popular courts to select bodies was no doubt 
 stimulated in England, as it was upon the Continent, by an 
 indisposition upon the part of the mass of the freemen to 
 attend and exercise their rights in their own persons. 1 In 
 England, as well as upon the Continent, it became necessary 
 in comparatively early times to enforce attendance upon the 
 popular courts by the imposition of fines. But even this ex- 
 pedient proved ineffectual. In the Prankish assemblies of 
 the gau or hundred, in order to insure the certain attendance 
 of a sufficient number to discharge judicial functions, it be- 
 came necessary to appoint fixed bodies of Schoffen, Scabani, 
 or fichevins, who held their appointments for life, and who 
 were compelled to be present at the public assemblies as 
 official personages. 2 How near the system of delegation as 
 practised in the English popular courts ever approached the 
 Frankish Schoffen system is a question which has often been 
 suggested but never distinctly answered. 3 Apart, however, 
 from the loss of vigor which the local courts sustained through 
 the unwillingness of the general mass of freemen to attend 
 and exercise their rights in person, their powers were further 
 undermined, as heretofore explained, by the growth of immu- 
 nities and by the centralization of justice.* Subject to the 
 silent operation of these forces all of which had begun to 
 work before the Norman conquest the ancient courts of the 
 shire and the hundred continued to exist substantially un- 
 changed in organization or procedure throughout the reigns 
 of the Norman kings. The greatest change which did take 
 place by virtue of direct ordinance was brought about by the 
 Conqueror's famous edict which provided that spiritual 
 causes should no longer be tried in temporal tribunals. By 
 virtue of this ordinance the bishop was practically, if not for- 
 
 1 This whole subject is drawn out in 
 detail in bk. i, ch. v., sees, i, 5, 6. 
 
 2 Savigny says : " Der Unterschied 
 lag nur clarin, dass die Scabinen, als 
 offentliche Personen, die Verpflichtung 
 hatten, als Schbffen den Gerichten 
 beyzuwohnen, wahrend es in der Will- 
 
 kuhr der Ubrigen Freyen stand, zuers- 1874, ccxliv. p. 243. 
 cbeinen wenn sie wollten, nur mit * See above, p. 256. 
 
 Ausnahme der drey grossen Versamm- 
 lungstage in Jahr, an welchen alle 
 erscheinen mussten." Geschichte des 
 Romischen Rechts, i. p. 197. See Waitz, 
 iii. p. 487, iv. p. 325 ; Hallam, M. A. t 
 vol. i. p. 213 and n. 4, p. 233 and n. 5. 
 8 See North American fieview, July,
 
 III.] THE PERIOD OF FUSION. 305 
 
 mally, removed from the joint headship of the shire-moot by 
 being placed at the head of a distinct ecclesiastical court. 
 After the practical removal of the bishop, and after the an- 
 cient earl had been stripped of his official character, the 
 presidency of the shire was left alone to the sheriff, the 
 king's ever-present and immediate representative. 1 Henry I., 
 in his effort to reorganize and invigorate the provincial sys- 
 tem, commanded " that all the people of the county go to the 
 county and hundred courts as they did in the time of King 
 Eadward," 2 and from the " Leges Henrici Primi " we learn 
 that the shire-moot was attended as of old by the sheriff as Attendants 
 presiding officer, by the thegns of the shire, by the parish and the 5 " 
 priest, and the reeve and four best men from each town- 
 ship ; 3 but not by villeins, cottagers, ferdingi (freemen of the 
 lowest grade) or lower men. 4 The full court which met twice 
 a year still possessed both civil and criminal jurisdiction, 
 which was exercised according to the old forms of witness, 
 compurgation and ordeal. The composition of the hundred 
 court as restored by Henry I. was substantially the same as 
 that of the shire ; and in both courts the theory survived 
 that the "suitors" or members were the judges. 5 The 
 "judices" and the "judices et juratores" of the Pipe Roll of 
 Henry I. probably represent the body of land-holders, above 
 the villeins in rank, who constituted the courts of the shire 
 and hundred, with full power to participate in the administra- 
 tion of justice. 6 These fully qualified members seem to be 
 distinguished from the "mimtti homines" or mean men, who 
 were likewise bound to attend both courts, but who probably 
 did not possess a sufficient amount of land to qualify them to 
 act in a suit in which land was in question. 7 All members 
 of the court, including the mean men, who failed to attend 
 and discharge their judicial duties, were, in the absence of a 
 satisfactory excuse or exemption, punished by large fines. 
 With fines of this character the single Pipe Roll of Henry I. 
 
 1 Upon this subject see above, p. 258. dingi, vel qui sunt viles vel inopes per- 
 
 2 For Henry's charter ordering the sonae non sunt inter legum judices 
 holding of the courts of the hundred numerandi." Laws Hen. I., c. xxix. 
 and the shire, see Faedera, i. p. 12. Cf. Bigelow, Hist, of Procedure, p. 133. 
 
 8 Laws Hen. I., c. vii. For the text 8 Stubbs, Const. Hist., vol. i. pp. 393- 
 
 of the compilation known as Henry's 399- 
 
 Laws, see Ancient Laws, pp. 216-260; 6 Pipe Roll, p. 34; Bigelow, Hist, of 
 
 Select Charters, p. 104. Procedure, p. 134. 
 
 * " Villani vero, vel cotseti, vel fer- f Stubbs, Const. Hist., vol. i. p. 397.
 
 306 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Composi- 
 tion for 
 non-attend- 
 ance. 
 
 Reorgani- 
 zation of 
 the local 
 courts. 
 
 Assize of 
 
 Clarendon. 
 
 1166. 
 
 Present- 
 ment of 
 criminals 
 prior to the 
 assize. 
 
 abounds. In order to escape the burden of personal attend- 
 ance, and the penalties consequent upon non-attendance, a 
 composition was sometimes entered into with the king : the 
 "judices et juratores " of Yorkshire pay one hundred pounds 
 for the privilege of being no longer judges or jurors. 1 Dur- 
 ing the anarchy of Stephen's reign the local courts were no 
 doubt disorganized by the same disturbing influences which 
 shattered for a time the system of central administration, but 
 upon the restoration of peace and order prompt provision 
 was made for their reorganization. In the scheme of reform 
 which attended the Treaty of Wallingford it was provided 
 that the jurisdiction of the sheriffs should be revived; and 
 we learn from a trustworthy source that, at the very outset 
 of his reign, Henry II. made careful provision not only for 
 central but for provincial judicature. 2 
 
 Not until the twelfth year of his reign is there direct evi- 
 dence of an attempt upon Henry's part to remodel the pro- 
 vincial administration of justice by positive legislation. In 
 1 1 66 Henry, with the counsel and assent of the "arch- 
 bishops, bishops, abbots, earls, and barons of all England" 
 issued the Assize of Clarendon, which has been called " the 
 most important document, of the nature of law or edict, that 
 has appeared since the Conquest." 3 The two leading objects 
 of this Assize, whose enforcement was committed to the 
 justices itinerant, were to remodel the system for the pre- 
 sentment of criminals, and to advance the king's anti-feudal 
 policy by opening every franchise to the visits of the sheriffs 
 and justices. The manner in which criminal accusations 
 were made in the popular courts, prior to the Assize of Clar- 
 endon, is a subject which is wrapped in much obscurity and 
 confusion. It may, however, be reasonably inferred from the 
 ancient laws that, in the pre-Norman period, such accusa- 
 tions were made either by a private accuser, by the reeve 
 and four men of the township, or more often perhaps by the 
 twelve senior thegns in each hundred or wapentake,* who 
 
 1 Pipe Roll, Henry I., pp. 27, 28. 
 " Judices et juratores Eboraciscire de- 
 bent c. li. ut non amplius sint judices 
 nee juratores." As to the significance 
 of such entries, see Norm. Cong., vol. 
 v. p. 296. 
 
 Will. Newb., ii. c. i. 
 
 8 Stubbs, Const. Hist., vol. i. p. 469. 
 For the text of the Assize, see MS. 
 Bodl. Rawlinson, c. 641 ; Select Char- 
 ters, p. 143. 
 
 * Sir James F. Stephen, Hist. Crim- 
 inal Law of Eng., vol. i. p. 68 ; Pal- 
 grave, Commonw., vol. i. p. 213. Pal-
 
 III.] THE PERIOD OF FUSION. 307 
 
 went out, and the reeve with them, to " swear on the relic 
 that is given them in hand, that they will accuse no innocent 
 man, nor conceal any guilty one." 1 There is reason to be- 
 lieve that after the Conquest, in the absence of a private ac- 
 cuser, it was generally left to the common voice of the neigh- 
 borhood to make the accusation and denounce the suspected 
 person. 2 A leading object of the Assize of Clarendon was 
 to provide a definite system for the presentment of all per- 
 sons accused of felony by public report to the courts of the 
 sheriffs or justices. Under the provisions of the Assize in- The 
 quiry was to be made on oath in every county and in every 
 hundred, by twelve lawful men of the hundred, and by four 
 lawful men of each township, 3 whether any man in any the assize, 
 hundred or township had been accused of being a robber, 
 murderer, or thief, or a harborer of robbers, murderers, or 
 thieves, since the king was crowned. All persons so accused 
 should be taken before the sheriffs, and by them brought be- 
 fore the justices. 4 All persons are required to attend the 
 county court and join, if required, in the presentments. 5 No 
 lord of a franchise, not even of the honor of Wallingford, 
 shall refuse to allow the sheriff to enter his franchise either 
 to arrest accused persons, or to take the view of frank- 
 pledge. 6 All who were presented by the inquest were re- The 
 quired to go to the ordeal, which seems to have been substi- 
 tuted for the usual method of trial by compurgation. 7 If they g , to the 
 failed to stand the test of the ordeal, they were required to 
 accept the legal punishment ; if they were successful they 
 
 grave infers that the reeve and four hoc inquirant Justitiae coram se, et 
 
 men had the power of accusation from vicecomites coram se." 
 
 a passage in a law of Cnut. See Laws * Art. 4. This provision illustrates 
 
 of Cnut, 30, in Thorpe's Ancient Laws, the fact that, " in ordinary matters at 
 
 vol. i. p. 393. least, the duties of the sheriffs on the 
 
 1 Laws of .^thelred, iii. 3, in Thorpe, Eyre of the justiciars were ministerial, 
 vol. i. pp. 294, 295. Upon this provi- and not judicial. Thus early was the 
 sion in ^Ethelred's Law see above, p. change coming about which was at 
 204. last to strip the sheriffs of their an- 
 
 2 Forsyth, Trial by Jury, p. 160. cient functions as judges." Bigelow, 
 8 Art. i : " Inprimis statuit praedic- Hist, of Procedure, p. 99. 
 
 tus rex Henricus de consilio omnium 6 Art. 8 : " Nullus remaneat pro lib- 
 
 baronum suorum, pro pace servanda et ertate aliqua quam habeat, vel curia vel 
 
 justitia tenenda, quod per singulos soca quam habuerit, quin veniant ad 
 
 comitatus inquiratur, et per singulos hoc sacramentum faciendum." 
 
 hundredos, per xii. legaliores homines ' Art. 9. 
 
 de hundredo, et per iv. legaliores homi- 7 Art 4 : " Ibi ante Justiciam facient 
 
 nes de qualibet villata, Qer sacramen- legem suam." Cf. Bigelow, Hist, of 
 
 turn quod illi verum dicent. . . . Et Procedure, pp. 297, 323.
 
 308 
 
 THE NORMAN CONQUEST. 
 
 [Cn. 
 
 Assize of 
 Northamp- 
 ton, 1176. 
 
 Primitive 
 form of the 
 grand 
 jury. 
 
 Its later de- 
 velopment. 
 
 Use of the 
 petty jury 
 in criminal 
 
 were even then required to abjure the realm, provided they 
 had been accused of any grievous felony by the public voice 
 of the neighborhood. 1 With the issuance of the Assize of 
 Clarendon the history of the jury of presentment emerges 
 from obscurity ; and yet the scheme of accusation contained 
 in it cannot be considered as a new creation, but rather as a 
 fresh and formal union of the representatives of the township 
 and hundred in the joint discharge of a public duty with 
 which each body of representatives had been immemorially 
 connected. In 1176 the Clarendon Assize was reissued as 
 the Assize of Northampton, "in the form of instructions to 
 the six committees of judges who were to visit the circuits" 
 then marked out for them. 2 In the reign of Richard I. 
 Henry's scheme of presentment was reorganized and reestab- 
 lished upon a basis more distinctly representative. Under 
 the new arrangement " four knights are to be chosen from 
 the whole county, who by their oaths shall choose two law- 
 ful knights of each hundred or wapentake, and those two 
 shall choose upon oath ten knights of each hundred or wa- 
 pentake, 3 or if knights be wanting, legal and free men, so 
 that these twelve may answer under all heads concerning 
 their whole hundred or wapentake." The presentment juries 
 thus chosen were limited to the cognizance of offences com- 
 mitted within their own hundreds. Not until later times was 
 this primitive system gradually superseded by the more com- 
 prehensive one known as the grand inquest, which consisted 
 of a single representative body of grand jurors, whose duty it 
 was to make inquiry and presentment throughout the whole 
 county. Not until this last stage was reached did the grand 
 jury attain its full modern development. 
 
 The jury of presentment as organized under the ordinances 
 of Henry II. and Richard I. was a representative body whose 
 duty it was to make inquest and presentment in each hun- 
 
 1 Art. 14. Cf. Stephen, Hist. Crim- 
 inal Law, vol. i. p. 251. 
 
 2 Select Charters, p. 1 50 ; Benedictus, 
 vol. i. p. 108 ; Hoveden, vol. ii. p. 89 seq. 
 " The two assizes regulate the inquisi- 
 tions to be held by the king's judges in 
 every shire and in every hundred, with- 
 out regard to local privileges." Free- 
 man, Norm. Cony., vol. v. p. 454. 
 
 8 "In primis eligendi sunt quatuor 
 milites de toto comitatu, qui persacra- 
 mentum suum 'eligant duos legates 
 milites, de quolibet Hundredo vel Wa- 
 pentacco, et illi duo eligant super sac- 
 ramentum suum x. milites de singulis 
 Hundredis vel Wapentaccis." Hoveden, 
 vol. iii. p. 262.
 
 III.] THE PERIOD OF FUSION. 309 
 
 dred of persons accused of crime by public report, and all 
 persons so presented were required to submit the question of 
 their guilt or innocence to the ordeal. 1 The procedure was 
 very simple. In what is said to be the oldest judicial record 
 in existence are contained several illustrations of the manner 
 in which such prosecutions were conducted. From the "Roll 
 of the Iter of Stafford in 5 John," we learn that "Andrew 
 of Bureweston is suspected by the jurors of the death of one 
 Hervicus because he fled for his death ; therefore let him 
 purge himself by the judgment of water." 2 After the decree Trial by or- 
 of the Lateran Council forbidding it, trial by ordeal became den by"tne 
 obsolete, 3 and the petty jury gradually took its place as a body ^^J 
 before which the truth of the presentment of the grand jury 
 could be finally determined. The stages in the process by 
 which this result was finally worked out may be indicated as 
 follows : During the period which intervenes between the 
 Conquest and the introduction of the petty jury there were 
 but three modes of trial in criminal cases, compurgation, 
 ordeal, and trial by battle. 4 By the Assize of Clarendon, if Compurga- 
 not before, compurgation as a method of trial in criminal seded^y 61 " 
 cases was superseded by the ordeal, 6 and trial by battle could ordeal - 
 only apply in a case where there was an individual accuser. 
 It follows, therefore, that the truth of the public accusations 
 made by juries organized under the Assize of Henry II. could 
 have been tested only in one mode, by the ordeal. After 
 the decree of the Lateran Council of 1215, in which it was 
 ordered that the ordeal should be discontinued throughout 
 Christendom, it soon became obsolete in England. When 
 this point was reached an accusation by a grand jury became 
 practically equivalent to a conviction, for the reason that no 
 way remained of traversing the presumption of guilt which 
 arose out of the presentment. 6 To remedy this evil, and to 
 
 1 "The body of the country are the Francis Palgrave, clxxxv. - clxxxviii. 
 accusers. Their accusation is practi- Cf. Stephen, vol. i. p. 252. 
 
 cally equivalent to a conviction subject 8 " The effect of this decree, how- 
 to the chance of a favorable termina- ever, was not an immediate abrogation 
 tion of the ordeal by water." Ste- of ordeals in England." Bigelow, 
 phen, History of the Crim. Law, vol. i. Hist. Procedure, p. 323. 
 p. 252. * Stephen, Hist. Crim. Law, vol. i. p. 
 
 2 This entry is from the Rotuli Cu- 244 and note 2. 
 
 rice Regis for the reigns of Richard 6 Bigelow, Hist. Procedure, p. 2. 
 and John, and is published in his 6 Stephen, Hist. Crim. Law, vol. i. p. 
 "Proofs and Illustrations," by Sir 254; Forsyth, Trial by Jury, p. 165.
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 The petty 
 jury takes 
 the place of 
 both. 
 
 That result 
 reached by 
 the end of 
 the thir- 
 teenth cen- 
 tury. 
 
 give to the accused his constitutional right to traverse in some 
 form the presumption of guilt against him, trial by petty 
 jury a form of trial which was first introduced in civil suits 
 involving the right to land was gradually introduced into 
 criminal proceedings. 1 It seems, however, that even before 
 the abolition of ordeals the right to have the question of 
 guilt or innocence finally determined by a petty jury had oc- 
 casionally been purchased as a special boon from the royal 
 authority. 2 The legal historians find it difficult to determine 
 the exact point of time when a second and a different jury 
 came into general use as a tribunal before which could be 
 tried the truth of the presentment made by the first. This 
 result seems certainly to have been reached by the end of the 
 thirteenth century. 3 But the fact must be borne steadily in 
 mind that at the time of their introduction, and for a long 
 period thereafter, the jurors who were allowed to disprove or 
 sustain the accusation made by the jury of presentment were 
 nothing but witnesses. They were therefore summoned from 
 the hundred in which the crime was supposed to have been 
 committed, for the reason that personal knowledge of the 
 facts was an indispensable qualification. If any of the jurors 
 chosen were uninformed of the matters as to which they were 
 to swear, those who were informed were added to or afforced 
 until at least twelve were found who could agree in a definite 
 conclusion in favor of guilt or innocence. By degrees this 
 clumsy system was improved by separating the informed or 
 afforcing jurors from the uninformed jurors, who, after being 
 relieved of their character as witnesses, became judges of 
 evidence detailed by other persons. 4 By the end of the fif- 
 teenth century the evolution is complete, 5 and the result is 
 
 * As to the history of the process 
 through which the jurors ceased to be 
 witnesses, and became judges of evi- 
 dence derived from others, see Forsyth, 
 
 1 As to the right of the court to 
 force the new method of trial upon a 
 prisoner who did not request it, by the 
 proceeding known as ptine forte et dure, 
 see Palgrave, English Commonwealth, 
 vol. i. pp. 268-270; vol. ii. pp. 189- 
 191. 
 
 3 See Palgrave, " Proofs and Illustra- 
 tions," clxxvi., clxxvii., and clxxxvi., 
 No. 17. 
 
 8 Britton wrote, it is supposed, about 
 1291-92. " In his time there certainly 
 were two juries, and each was com- 
 posed of witnesses." Stephen, Hist. 
 Crim. Law, vol. L p. 258. 
 
 Trial by Jury, pp. 199 seq. 
 
 6 This is a reasonable inference from 
 the account given by Sir John For- 
 tesque in his De Landibus Legum An- 
 gli&, which must have been written be- 
 tween 1460 and 1470. How jurors are 
 informed by evidence is made plain, so 
 far as civil cases are concerned, in ch. 
 xxvi. p. 89 (Clermont ed.). Cf. Stephen, 
 Hist, Crim. Law,\o\. i. p. 264; For- 
 syth, Trial by Jury, pp. 158-167.
 
 III.] THE PERIOD OF FUSION. 311 
 
 the jury of judgment, the trial jury of modern times. But By the end 
 not until the present century was the ancient requirement, fifteenth 
 that the jurors in a criminal case should be taken from the ""^ the 
 hundred in which the crime was alleged to have been com- tri ai jury <rf 
 mitted, finally abolished. Since the passage of the Stat. of 6 times. 
 Geo. IV. (c. 50) the sheriff is only required to return for the 
 trial of an issue, civil or criminal, twelve good and lawful men 
 from the body of the county qualified according to law. 1 
 
 Trial by battle, which was of Norman introduction, 2 has, as Trial by 
 a method of trial in criminal cases, a distinct history of its 
 own. To the jury of presentment it stood in a perfectly 
 independent relation, for the reason that it could only be 
 invoked upon the accusation of an individual accuser, and 
 such an accuser could make his "appeal" not only after 
 indictment for the offence, but after trial and acquittal had 
 been had upon it. Many instances may be given of trial by 
 battle during the Norman period, but not until the thirteenth 
 century can there be found a complete history of the pro- 
 cedure. 3 This is given by Bracton, who is the great authority 
 upon the subject. 4 This method of trial seems to have been Usual 
 the usual and established way of prosecuting murder down to prosecuting 
 the close of the fifteenth century. As late as the years 1768 d^v 
 and 1774 attempts to abolish appeals of murder by statute 
 were unsuccessful. 5 The last appeal of murder brought in century. 
 England was the case of Ashford v. Thornton in i8i8. 6 In As M rd 
 
 v. 1 horn- 
 that case, after Thornton had been tried and acquitted of the ton, 1818. 
 
 murder of Mary Ashford at the Warwick Assizes her brother 
 charged him in the court of king's bench with her murder, 
 according to the forms of the ancient procedure. The court 
 admitted the legality of the proceedings, and recognized the 
 appellee's right to wage his body ; but as the appellant was 
 not prepared to fight, the case ended upon a plea of autrefois Appeals 
 
 J . not abol- 
 
 acquit interposed by Thornton when arraigned on the appeal, ished until 
 This proceeding led to the statute of 59 Geo. III., c. 46, by 
 which all appeals in criminal cases were finally abolished. 
 
 1 Forsyth, Trial by Jury, p. 138. * See Bracton, vol. ii. p. 425 seq. 
 
 3 As to its possible existence in Eng- 6 Stephen, Hist. Crim. Law, vol. i. 
 
 land at an earlier date, see Palgrave, pp. 248, 249. 
 
 Common-wealth, p. 225; Placita Ang.^ 6 I Bar. dr 3 Aid., 405. The case 
 
 Norm., p. 16. was argued by Mr. Chitty and Sir N. 
 
 8 Cf. Bigelow, Hist, of Procedure, p. Tindal, and the great authority relied 
 
 327. upon was Bracton.
 
 312 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Assize of 
 Arms, 1181. 
 
 Ancient 
 military 
 force of the 
 shire, 
 
 reorgan- 
 ized and re- 
 armed, 
 
 the militia 
 of modern 
 times. 
 
 Assize of 
 the Forest, 
 1184. 
 
 The two remaining measures of Henry II. touching the 
 provincial administration still to be noted are the Assize of 
 Arms, 1 issued in 1181, and the Assize of the Forest, 2 issued 
 in 1184. As has been heretofore pointed out, the primitive 
 Teutonic national assembly was simply a meeting of the 
 whole nation in arms ; it was " parliament, law-court, and 
 army in one." 3 The national assemblies, or folk-moots, of 
 the numberless petty states in which the Teutonic settlers 
 grouped themselves in Britain, did not depart from the conti- 
 nental original ; and when, in the process of aggregation, the 
 primitive petty state descended to the rank of a shire, and its 
 folk-moot became the shire-moot, there was still no material 
 departure from ancient traditions, the assembly of the shire 
 was still law court and army in one. 4 A meeting of the 
 whole free population of the shire under the presidency of 
 the sheriff, the bishop, and the ealdorman made up the court 
 of the shire ; the same freemen, marshalled under the com- 
 mand of the ealdorman, made up the military force of the 
 shire. 5 The ancient landfyrd, the militia of the shire, sur- 
 vived the Norman conquest, and its aid was more than once 
 invoked in great emergencies by the Conqueror and his sons. 
 The object of Henry's Assize of Arms was to reorganize and 
 rearm the ancient force as a body safer and more trustworthy 
 for national defence than the feudal host. This assize was 
 renewed and expanded by Henry III. in conjunction with 
 the system of watch and ward ; and through subsequent legis- 
 lation by Eadward I., Henry IV., Philip and Mary, and James 
 I., the ancient landfyrd, the constitutional force of the shire, 
 has been brought down in principle as the militia of modern 
 times. 6 
 
 As the folkland, the land of the people, silently passed into 
 terra regis, the wooded parts of the public domain, which had 
 been immemorially subject to the common use of the nation, 
 came to be regarded as a special possession for the king's 
 
 1 Hoveden, vol. ii. p. 261 ; Benedictus, 
 p. 278. 
 
 2 Benedictus, vol. ii. p. clix. 
 8 Essays in A. S. Law, p. I. 
 
 * " The folkmoot was, in fact, the 
 war host, the gathering of every free- 
 man of the tribe in arms." Green, 
 Making of England, p. 167. 
 
 6 In his character of leader of the 
 host the ealdorman was sometimes 
 styled in the charters heretoga. 
 Freeman, Norm. Conq., vol. i. p. 51 and 
 note K. 
 
 6 Select Charters, pp. 153-156.
 
 III.] THE PERIOD OF FUSION. 3 ! 3 
 
 exclusive profit and pleasure. That certain forests were Royal hunt- 
 
 11- i i i / / ing-grounds 
 
 royal hunting-grounds as early as the days of Cnut is mam- i n the days 
 fest from that provision in his genuine laws which concedes 
 to every man the right to hunt on his own ground, but which 
 severely forbids all trespass upon the royal hunting " under 
 penalty of the full wite." x But not until after the Norman 
 conquest were the uninclosed woodlands hedged about by a 
 definite system of stringent regulations, cruel alike to man 
 and beast. Large districts of country were afforested by the Forest reg- 
 Conqueror for purposes of the chase, 2 and the forest regula- the Norman 
 tions which are credited to him were made, under the admin- kings- 
 istration of Rufus, extremely vexatious and burdensome tor 
 all classes of the people. In the comprehensive reforms of 
 Henry I. a correction of the forest administration had no 
 place. After the issuance of his charter for the reform of all 
 other abuses, he declared that he would keep the forests in 
 his own hands, as his father had before him: 3 in his reign 
 the forest laws were enforced with the strictest severity. 
 The first forest code, the Assize of Woodstock, which was First forest 
 issued by Henry II. in 1184,* contains a set of stringent c< 
 ordinances, somewhat less severe, however, than the usages 
 which prevailed in the days of his grandfather. The forest 
 administration when fully organized consisted of a set of 
 special jurisdictions or franchises set up by the crown in 
 those shires in which the royal forests were situated, each 
 jurisdiction or franchise being governed by the special code 
 of forest laws which were administered in the forest courts. 6 
 " A forest is a certain territory of woody grounds and fruitful A forest a 
 pastures, privileged for wild beasts and fowls, fowls of forest risdktion 
 chase and warren, to rest and abide in the safe protection of 
 
 1 "And I will that every man be en- 8 Art. 10: " Forestas communi con- 
 titled to his hunting, in wood and in sensu baronum meorum in manu mea 
 field, on his own possession. And let retinui, sicut pater meus eas habuit." 
 every one forego my hunting : take no- Henry's charter, Ancient Laws and 
 tice where I will have it un trespassed Institutes, p. 215. 
 
 on, under penalty of the full wite." 4 Benedictus, vol. ii. p. clix. 
 
 Cnut, Secular Dooms, cap. 81. Cnut's 6 " It was a jurisdiction fenced in by 
 
 hunting code, which may be found in heavy penalties, denounced against 
 
 Thorpe's Ancient Laws (vol. i. p. 358), man and beast. Still it was a jurisdic- 
 
 is regarded as of very doubtful authen- tion ; it had a system of law, with courts 
 
 ticity. Norm. Conq., vol. i. p. 291, to administer it." Norm, Cong., vol. 
 
 note III. ; Select Charters, p. 156. v. p. 306. 
 
 2 Freeman, Norm, Conq., vol. v. pp. 
 82, 305.
 
 314 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 outside of 
 the com- 
 mon law. 
 
 Organiza- 
 tion of the 
 forest 
 courts. 
 
 Courts of 
 the Forest 
 of Knares- 
 borough. 
 
 Develop- 
 ment of 
 the itiner- 
 ant judica- 
 ture, and 
 the origin 
 of juries. 
 
 the king." 1 The boundaries of the territory thus described 
 marked the limits of the forest code, and the jurisdiction of 
 the forest courts. From the Dialogue of the Exchequer 2 we 
 learn that these courts which had exclusive jurisdiction of 
 all offences committed in the forests in violation of the king's 
 exclusive right of proprietorship 3 were outside of the 
 common law ; that they were not subject to the visitations of 
 the ordinary judges from the king's court ; and that they 
 were governed by their own laws and customs, which were 
 made rather in the interest of the beasts of the chase than 
 of the king's subjects. The organization of the courts of the 
 forest, like that of all other private jurisdictions, was modelled 
 after the ordinary popular tribunals ; in shires in which these 
 royal franchises existed, the same persons who were required 
 to attend the shire-moot were required to do suit at the forest 
 courts. 4 In the courts of the forest which still exist, as in the 
 other franchises which have lived on without being absorbed 
 into the general judicial system, may yet be found some of the 
 best remaining illustrations of ancient local customs. 5 From 
 the greatest living master of the English constitution we 
 learn that in the courts of the Forest of Knaresborough, in 
 the district of his own birth, each township or berewic is 
 still represented by the reeve and four men, the recog- 
 nized representatives of the townships in the very earliest 
 laws. 6 
 
 9. Having now drawn out the development of the Norman 
 system of central judicature as embodied in the curia regis 
 down to the reorganization of that court by Henry of Anjou, 
 and having traced in the same way the unbroken history of 
 the Old-English system of provincial judicature as embodied 
 in the courts of the shire and the hundred down to their 
 reorganization by the same king, the task remains to unfold 
 
 1 This is the definition of Manwood, 
 Forest Laws, p. 40. Cf. Stephen, Hist. 
 Crim. Law, vol. i. p. 135. 
 
 2 Dialogus de Scaccario, i. II. 
 
 8 Hen. I. c. 17 ; Bigelow, Hist. Pro- 
 cedure, p. 144. 
 
 4 Assize of the Forest, art. n. For 
 details as to the organization and pro- 
 cedure of the forest courts, see Ste- 
 phen, Hist. Crim. Law, vol. i. pp. 135- 
 138; Bigelow, Procedure, pp. 144-146. 
 
 6 " Certain it is that, within the for- 
 est jurisdictions, some of the old forms 
 of the ancient courts have gone on 
 with less change than they did in gen- 
 eral." Norman Conquest, vol. v. p. 
 306. 
 
 6 I refer of course to Bishop Stubhs. 
 See Const. Hist., vol. i. p. 107, in which 
 is cited Hargrove, Hist, of Knaresbor* 
 ough (ed. 1798), pp. 44, 45.
 
 III.] THE PERIOD OF FUSION. 315 
 
 the process through which the two systems were drawn to- 
 gether and finally amalgamated in one composite whole which 
 retains to this day the strongest elements of both. The visi- Typical 
 ble outcome of the union between the Norman curia and the i^court 
 Old-English shire-moot is the typical English law court of the product 
 
 ,..,... f the union 
 
 modern times, in which witnesses depose to facts, upon which of curia 
 the jury pass, under the guidance and direction of a judge moot 5 . ^ 
 learned in the law. Wherever the English legal system pre- 
 vails, this idea of a law court is so deeply imbedded in the 
 minds not only of laymen but of lawyers, that it is hard for 
 either class to realize the fact that it did not exist from the 
 very beginning of things, and that in its earliest form it did 
 not present the same aspect which it wears at the present 
 day. Until this delusion is discarded it is impossible to com- 
 prehend the process of change and of growth through which 
 the typical English law court was slowly evolved out of the 
 union of elements alien and antagonistic to each other. Un- 
 der the Old-English system, as the judicial powers of the oid-Eng- 
 
 ... ,. . , lish iudica- 
 
 witan were only exercised upon extraordinary occasions, and ture. 
 as the courts of the townships did not possess contentious 
 jurisdiction, the ordinary administration of law was confined 
 to the courts of the shire and the hundred. The whole ten- 
 dency of the ancient system was to discourage suitors from 
 seeking justice from a royal source: "the king and the 
 witan frowned upon every symptom of popular discontent 
 with the clumsy justice of popular tribunals, and forced suit- 
 ors back upon the local courts." 1 As no cause could be influence of 
 carried to the shire until it had first been heard in the hun- tribunals. 
 dred, so no cause could be carried to the king until it had 
 first been heard in the shire. It must not be supposed, how- 
 ever, that this arrangement embodied a system of appeal in 
 the modern sense of that term. The decision of each court 
 was final, and it was only in the event that a court failed to 
 decide in a prescribed time that the cause could be taken to 
 a higher tribunal. 2 In the light of this explanation it will be But little 
 
 . , , . . , . , f . . interference 
 
 easier to understand those instances which survive of inter- from the 
 ference by writ upon the part of the Old-English kings with authority. 
 the local administration of justice. In the days of ^Ethelred 
 the king sent his writ or insigel by the hands of Abbot ALlt- 
 
 1 Essays in A. S. Law (Boston, 1876), p. 25. 2 See above, p. 200.
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Centraliza- 
 tion of 
 justice 
 after the 
 Conquest. 
 
 The writ 
 process. 
 
 here to the shire-moot of Berkshire, bidding them to arbitrate 
 in a suit then pending between Wynflaed and Leofwine. 
 This instance illustrates the fact that the purpose of the 
 king's writ was not to remove the cause in question from the 
 local court to the king's court, but to stimulate the local 
 court into action. There is also evidence going to show that 
 the Old-English kings occasionally administered justice in 
 the local courts either in person or by deputy. It is recorded 
 among the merits of Alfred, Eadgar, and Cnut that they 
 either went about doing justice in their own persons, or else 
 sent forth justices to do justice in their names. It also ap- 
 pears that before the Conquest certain pleas of the crown 
 were specially set apart to be dealt with in the local courts 
 in the king's name, by the king's officers, and for the king's 
 profit. 1 
 
 Not until after the Norman conquest did the tendency to 
 the centralization of justice, which had but feebly manifested 
 itself before that event, grow strong enough to enable the 
 king's court to seriously encroach upon the local tribunals. 2 
 As soon as the principle was firmly established that the king 
 was the fountain of justice, and that all courts were the king's 
 courts, there was nothing to prevent the king from invading 
 any jurisdiction and withdrawing from it any cause whatsoever. 
 The means employed to accomplish this result was the king's 
 writ ; 3 but such a writ, issued by a Norman king to withdraw 
 a cause from a popular or franchise court into his own court 
 for trial, differed widely from the writ issued by an Old-Eng- 
 lish king commanding the local court to do justice. Through 
 the instrumentality of the writ process, in its various forms, 
 the curia regis persistently encroached upon the local and 
 franchise courts, until the main volume of judicial business 
 was finally withdrawn from them into the courts of the king. 
 
 1 Upon this subject, see above, p 
 
 257- 
 
 2 " In this way the predominant in- 
 fluence of the king in the judicial order 
 was established. This was a power- 
 ful instrument in producing centraliza- 
 tion and unity; and yet, as the royal 
 judges only interposed their services 
 as supplementary to the institution of 
 the jury, and did not substitute them 
 for it, for questions of fact and ques- 
 tions of right remained distinct, the 
 
 germ of free institutions; that existed 
 in the judicial order, was not entirely 
 destroyed." Guizot, Hist. Rep. Govt. 
 (Scoble's trans.), p. 297. 
 
 8 " Jurisdiction obtained by the king's 
 court in this way may be called the ex- 
 traordinary jurisdiction of the court. 
 It was acquired by direct usurpation, 
 in derogation of the rights of the pop- 
 ular courts and manorial franchises, 
 upon the sole authority of the king." 
 Bigelow, Hist, of Procedure, p. 78.
 
 III.] THE PERIOD OF FUSION. 3 ! 7 
 
 This statement, though strictly and technically true, is apt to 
 be misleading, unless the fact is borne in mind that the royal 
 courts into which the mass of business was so withdrawn 
 were the king's courts sitting in the shires under the presi- The king's 
 dency of a judge or other royal commissioner detached for 
 that purpose from the staff of the central tribunal. 1 Each shires - 
 local court so held in the king's name by a royal commis- 
 sioner or justice was held by virtue of a commission in which 
 the classes of cases to be tried, and the limits of the local 
 jurisdiction, were carefully designated. 2 There is evidence 
 going to show that royal courts were held in the shires, away 
 from the king's person, by the king's immediate justiciars, as 
 early even as the Conqueror's reign ; 3 but not until the latter 
 part of the reign of Rufus can there be found any record of 
 anything like a judicial iter by the royal justiciars in the mod- 
 ern sense of that term. In 1096 the Red King sent Bishop judicial iter 
 Walkelin and his chaplain, Flambard, into Exeter, Devon- ol 
 shire, and Cornwall to hold royal pleas. 4 From the single Pipe 
 Roll of the succeeding reign of Henry I. we learn that the 
 custom of sending itinerant justices through the shires was 
 then in full operation. 5 In Henry's reign the officers of the 
 exchequer were sent through the country to assess the reve- 
 nue, and while thus engaged in provincial business they sat in 
 the shire-moot, where judicial work soon followed in the path 
 of their fiscal duties. 6 It is reasonable to suppose that the 
 custom of sending out itinerant justices, which seems to have 
 been in full force in the thirty-first year of Henry I., con- 
 tinued until the whole system of central administration finally 
 broke down during the anarchy brought about by the strug- 
 gle between Stephen and Matilda. As soon as peace was 
 restored, as early in fact as the second year of Henry II. when 
 
 1 " The courts in which they (the sued by her Majesty in the present 
 Itinerant justices) preside are the an- day to the judges of the High Court ot 
 cient county courts, under new condi- Judicature." Stephen, Hist, of the 
 tions, but substantially identical with Crim. Law, vol. i. p. 99. 
 
 those of the Anglo-Saxon times." 8 Cf. Placita Ang.-Norm., pp. 4, 16, 
 
 Stubbs, Const. Hist., vol. i. p. 605. 22, 34. 
 
 " These were the king's courts held in * Bigelow, Hist, of Procedure, pp. 
 
 the counties." Bigelow, Hist, of Pro- 93, 94 ; Placita Ang.-Norm., p. 69. 
 
 cedure, p. 137. 8 Freeman, Norm. Cong., vol. v. p. 
 
 2 "These commissions were issued 300. 
 
 by the Conqueror and his sons, and by 9 Stubbs, Const. Hist., vol. i. pp. 
 Henry II., his son and grandson to 392, 393. 
 their 'jttstitiarii,' just as they are is-
 
 THE NORMAN CONQUEST. 
 
 [Ctt 
 
 Itinerant 
 
 system 
 
 became a 
 
 permanent 
 
 institution 
 
 under 
 
 Henry II. 
 
 Its com- 
 plete organ- 
 ization 
 generally 
 dated from 
 1176. 
 
 Arrange- 
 ment of 
 circuits. 
 
 Meaning of 
 the term 
 Nisi Prius. 
 
 the Pipe Rolls begin again, the system of iters or circuits was- 
 reestablished ; 1 during this reign the itinerant judicature 
 became a well organized and permanent institution. The 
 earlier iters, which seem to have been rather fiscal than judi- 
 cial, were generally held by the sheriffs, 2 who were only occa- 
 sionally superseded by justices from the curia regis. Not 
 until 1 1 66 the year in which the judges were charged with 
 the execution of the Assize of Clarendon did the system 
 of judicial eyres held by justices from the central tribunal 
 become annual and general. 3 But from the year 1176 is gen- 
 erally dated the complete organization of the itinerant system. 
 In that year, in a great council held at Northampton, was is- 
 sued an important assize whose execution was committed to 
 eighteen justices, 4 now called for the first time in the Pipe 
 Rolls "justitiarii itinerantes" a name which in its Anglicized 
 form of "justices in Eyre" has continued to the present day. 
 The eighteen justices of 1 176 were divided into six detach- 
 ments, and to each detachment of three justices a distinct cir- 
 cuit was assigned. By the Assize of Northampton the itin- 
 erant justices were instructed among other things to decide 
 all causes involving not more than half a knight's fee, unless 
 the matter was so important that it could not be determined 
 but before the king, or unless it were such that the justices 
 themselves, on account of its difficulty, chose to refer it to 
 the king, or, in his absence, to those who were acting for him. 5 
 In this instruction we have a general statement of the princi- 
 ple that all causes of any moment were cognizable in the cen- 
 tral court of the king, unless before (nisi prius) they could 
 be heard therein the itinerant justices should be sent to pass 
 upon them in the king's court sitting in the shire in which 
 they arose. 
 
 1 As to Henry's measures for the re- 
 establishment of provincial judicature, 
 see William of Newburgh, ii. c. i. 
 
 2 Bigelow, Hist, of Procedure, p. 94. 
 As royal justices the sheriffs " acted 
 under special writ, managed the pleas 
 of the crown, and conducted the tourn 
 and leet, or the courts which were af- 
 terwards so called." Stubbs, Const. 
 Hist., vol. i. p. 606. 
 
 8 Benedictus, pref., vol. ii. p. Ixiv. 
 
 4 Reeves, Hist, of Eng. Law, vol. i. 
 p. 273 ; Madox, Hist. Ex., vol. i. p. 18 ; 
 Stephen, Hist. Crim. Law, vol. i. p. 100. 
 
 6 " Item Justitiae faciant omnes 
 justitias et rectitudines spectantes ad 
 dominum regem et ad coronam suam, 
 per breve domini regis, vel illorum qui 
 in loco ejus erunt, de feodo dimidii mil- 
 itis et infra, nisi tarn grandissit querela 
 quod non possit deduci sine domino 
 rege, vel talis quam Justitae ei repor- 
 tent pro dubitatione sua, vel ad illos 
 qui in loco ejus erunt." Assize of 
 Northampton, art. 7. The admonition 
 as to difficult questions is repeated in 
 1178. See Benedictus, vol. i. p. 207.
 
 III.] THE PERIOD OF FUSION. 3 J 9 
 
 Prior to the definite arrangements of 1176 the judicial Decline of 
 functions of the sheriffs had already begun to decline. In powers of 
 1170, after the king's return from the Continent, in response the sherififs - 
 to a general complaint of their exactions, nearly every sheriff 
 in the kingdom was removed from office, and an inquiry or- 
 dered into their collections. 1 After this event, although a 
 few were restored to their old positions, 2 their authority be- 
 came more and more circumscribed. In 1194 it was provided 
 that the sheriffs should no longer sit as judges in their own 
 shires, and the holding of the pleas of the crown was com- 
 mitted to elective officers, the coroners of the thirteenth cen- 
 tury. 3 By the twenty-fourth article of the Great Charter the Twenty- 
 right of either sheriffs or coroners to hold pleas of the crown c e of the *~ 
 was taken away altogether. 4 Although this clause does not charter 
 seem to have been promptly enforced, 5 it led the way to the 
 final settlement of the principle that the sheriff was a mere 
 ministerial officer, and that judicial functions in the courts of 
 assize belonged exclusively to the justices sent by the king. 
 
 By the firm establishment of the system of itinerant judi- The courts 
 cature the Norman curia regis was at last brought into close distfn-" 
 and permanent union with the Old-English shire-moot. But f^the 
 the assemblies of the shires which were summoned by the ancient 
 
 re i ' county 
 
 sneritis to meet the royal justices in order to participate with courts, 
 them in the administration of justice, and in the transaction 
 of other public business, must not be confused with the ordi- 
 nary and ancient county courts which met from month to 
 month. 6 It is highly important that this distinction should 
 be kept steadily in view, for the reason that the king's courts 
 held in the counties, the courts of assize, have a history which 
 is entirely separate and distinct from that of the ancient 
 county courts, which, after having their powers transferred to 
 
 1 For the text of the " Inquest of 6 Stubbs, Const. Hist., vol. i. p. 607. 
 Sheriffs," see Select Charters, pp. 148- 6 For a full statement of this dis- 
 150. tinction, see Bigelow (Hist, of Proced- 
 
 2 Those who were restored revenged tire, p. 137), who says, " The courts held 
 themselves upon the people. Placita by these itinerant justices of the king 
 Ang.-Xorm., p. 216. possessed a dignity altogether above 
 
 8 Bigelow, Hist, of Procedure, p. 131. that of the ordinary judicial assembly 
 
 4 " Nullus vice-comes, constabularius, of the county. These were the king's 
 
 coronatores, vel alii ballivi nostri, tene- courts held in the counties." See, also, 
 
 ant placita coronae nostrae." The sher- Stubbs, Const. Hist., vol. i. p. 605 ; 
 
 iff's tourn, however, was not abolished ; Stephen, Hist. Crim. Law, vol. i. pp. 
 
 it was held for centuries. Cf. Stephen, 81-85, 97. 
 
 Hist. Crim. Lcrw, vol. i. p. 83.
 
 320 THE NORMAN CONQUEST. [Cn. 
 
 the royal tribunals, have kept up a shadowy existence down 
 almost to the present day. 1 The full assembly of the shire, 
 which was called together to meet the itinerant justices, em- 
 braced a far more perfect representation of the county than 
 the ordinary county court. Before the coming of the judges 
 a general summons was issued to the sheriffs commanding 
 them to summon all archbishops, bishops, abbots, priors, 
 counts, barons, knights, and freeholders of their entire baili- 
 wick, and of each vill four lawful men and the reeve, and of 
 each borough twelve lawful burgesses, and all others who by 
 duty and custom were bound to appear before the itinerant 
 A full rep- justices. 2 At this stage, then, of its development the king's 
 of S fhe ' * court held in the shire is a full representative assembly of the 
 venedto n ~ coun ty summoned by the sheriff to meet the itinerant jus- 
 meet the tices, in order to participate with them in the transaction of 
 all judicial and fiscal business given them in charge. 3 By 
 what process has the court thus constituted been transformed 
 into the modern court of assize, in which the itinerant justices 
 The county still preside, but in which the general assembly of the shire 
 is represented only by the grand and petty jurors who are 
 nly summone d by the sheriff for the trial of civil and criminal 
 grand and causes ? How are we to explain the fact that " by degrees 
 jurors. the old system of convening something like a county parlia- 
 ment, in which every township was represented by its reeve 
 and four men, fell into disuse, and the sheriffs fell into the 
 habit of summoning only a sufficient number of probi et lega- 
 tes homines to form a grand jury, and as many petty juries as 
 might be needed, for the trial of the civil and criminal cases 
 HOW this to be disposed of?" 4 How this result was finally brought 
 brou|ht was about can only be explained by tracing the process through 
 which one particular method of trial known as trial by jury 
 struggled into existence, and then swallowed up all other 
 methods of trial which prevailed in the popular courts. To 
 adequately explain the history of this process it will be neces- 
 sary to enter the domain of legal procedure. 
 
 1 As to the modern history of the before the itinerant justices, see the 
 ancient county court, see Freeman, agenda of the year 1194, Hoveden, vol. 
 Norm. Conq., vol. v. p. 312. iii. pp. 262-267 ; Select Charters, pp. 259- 
 
 2 See Bracton, Twiss ed., vol. ii. pp. 263. Cf., also, Bigelow, Hist, of Pro- 
 188, 234, 251. cedttre, pp. 138-141. 
 
 8 As an illustration of the nature * Stephen, Hist. Critn. Law, vol. i 
 and variety of the business carried on p. 253.
 
 III.] THE PERIOD OF FUSION. 321 
 
 At an earlier stage of this work an imperfect sketch was oid-Eng- 
 drawn of the archaic system of legal procedure, which, in the p^f^e. 
 pre-Norman period, regulated the administration of justice in 
 the popular courts of the shire, the hundred, and the private 
 franchises. The statement was then made that the primitive 
 Teutonic suit was a simple demand made by the actor on the 
 defendant for compensation. Whether the procedure was 
 civil or criminal, its introduction lay in the hands of the per- 
 son seeking justice, who was required to summon his oppo- 
 nent with prescribed and rigorous formalities, personal Private 
 summons being a private, extra-judicial act which the plain- Sl 
 tiff was always required to execute without the aid of a 
 judicial officer. To the demand, which the plaintiff was re- 
 quired to make at the court in a solemn traditional form, the 
 defendant opposed an equally solemn contradiction. The 
 demand and denial which thus made up the issue were unat- The issue, 
 tended by any allegations of fact in support of either. The 
 vitally important part of the procedure, which was conducted 
 throughout with an iron rigorism of form, was the question The burden 
 of proof. After the issue was made up, this question was pro ' 
 settled by the proof-judgment, pronounced at the issue term, 
 in which the court determined what kind of proof should be 
 given in the particular case, by whom it should be given, and 
 at what time it should be given. As a general rule, after the 
 rendition of the proof-judgment, the party upon whom the bur- 
 den fell gave security to furnish such proof as was required 
 of him at the second or trial term. Four distinct means of Fourmeans 
 proof were known to the customary law, compurgation, f n n of to 
 witnesses, documents, and the ordeal. By means of one of the custom- 
 
 ary law. 
 
 these methods the party having the right of proof was re- 
 quired to support the issue which in the particular case he 
 was called upon to maintain. 1 Such was the procedure and 
 such the means of proof that prevailed in the Old-English 
 popular courts, which, with their machinery unimpaired, sur- 
 vived the Norman conquest. 2 After that event a new means 
 
 1 For the authorities upon the sub- this, at least in its subordinate arrange- 
 ject of Old-English legal procedure, ments, the Conquest produced little 
 see above, pp. 204-207. change except in the substitution of 
 
 2 " The retention of this lower ma- Norman for English names and per- 
 chinery involved the retention of the sons." Preface to Benedictus, vol. ii. 
 ancient process of jurisdiction. In p. Iv.
 
 322 THE NORMAN CONQUEST. [Cn. 
 
 A new of proof was added to the ancient procedure : to the four ex- 
 ^oofadded isting methods of proof the Normans added trial by battle. 
 Normans After this innovation the issue was made up and the proof- 
 judgment rendered as before, and in such judgment the court 
 determined as of old, according to the circumstances of each 
 particular case, whether the trial should be had by compurga- 
 tion, by witnesses, by documents, by the ordeal, or by battle. 
 How the It was not, however, within the arbitrary discretion of the 
 triaTwasde- judges to order such a trial as they saw fit ; as a general rule 
 termined. the party who had made the last good pleading was entitled 
 to ask the court for a judgment according to law as to the 
 form of trial to be followed. 1 With the foregoing statement 
 of the scheme of procedure which prevailed in the popular 
 courts down to and after the Norman conquest clearly in 
 view, it will be possible to explain with greater clearness how 
 still another method of proof afterwards known as trial by 
 jury struggled into view, and finally superseded all other 
 methods of proof known to the customary law. The origin 
 and growth of this new method of proof will be considered 
 in the following sections. 
 
 Origin and The historical origin of trial by jury an institution which 
 \iries y f reac hed its full development only upon the soil of England 
 has been examined from every possible point of view by 
 scholars who represent the leading nationalities of the world. 2 
 By these various inquirers the origin of the institution has 
 been traced to every source which hypothesis or analogy 
 could plausibly suggest. The fruit of this investigation, car- 
 ried on for so long a time and by so many hands, has finally 
 expanded into a great literature, the mass of which has been 
 rendered practically worthless through the results of the 
 latest research. Not until a very recent period was the 
 thread of truth discovered which has led to the removal of 
 the endless difficulties and confusions which at one time arose 
 out of the application to the history of the jury of a mass of 
 false and misleading analogies. But even now that its true 
 history has been fully worked out, and the several stages of 
 
 1 Upon this whole subject, see Big- have been written by authors of vari- 
 elow, Hist, of Procedure, ch. viii., ous nationalities upon the history of 
 " The Medial Judgment." See, also, p. juries, see Brunner, Die Entslehung der 
 301. Schwurgerichtf, 
 
 2 For a catalogue of the works which
 
 III.] THE PERIOD OF FUSION. 3 2 3 
 
 its historical development clearly defined, it is still difficult to 
 unfold, within narrow limits, the processes of thought through 
 which the final result was at last attained. Upon the thresh- The trial 
 old of the inquiry let the conclusion be accepted that the product of 
 jury of judgment, the trial jury of modern times, has been ^Q"^^ . 
 slowly developed upon English soil out of the fusion of two lish and 
 distinct elements, one of which can be traced to Old- elements. 
 English, the other to Norman law. 1 In order, therefore, to 
 solve the problem involved in the historical development of 
 the jury, we must first ascertain the origin and character 
 of the elements out of which it arose ; next must be examined 
 the process through which these elements were blended ; and 
 finally the after-growth of the new creation. Before attempt- 
 ing, however, to trace the elements of the jury to the sources 
 from which they were drawn, it may be helpful to emphasize 
 the fact that, down to about the middle of the fifteenth cen- 
 tury, 2 jurors, in all the changing relations which they were Jurrs 
 
 .. , ... 11- originally 
 
 called upon to assume, were simply witnesses and nothing witnesses 
 more ; whatever report or verdict they made upon their oaths fng more, 
 was based, not upon the testimony of witnesses other than 
 themselves, but upon what they derived from their own per- 
 sonal knowledge or from reliable report. Not until after 
 jurors were relieved of their early character as witnesses did 
 they assume the character of judges, who were no longer re- 
 quired to furnish proof, but simply to pronounce judgment 
 upon proof brought before them. The historical develop- History of 
 ment of the jury may therefore be divided for convenience ^delfinto 1 " 
 into two epochs ; the first embracing the period in which the two epochs, 
 jurors were mere witnesses, the second embracing the period 
 in which they became judges of facts established in their 
 presence, without reference to their previous knowledge of 
 the case. The history of the jury, in the first period of its 
 development, involves then an examination of the process by 
 which definite issues of fact came to be submitted to organ- 
 ized bodies of witnesses whose unanimous deposition or report 
 as to the fact in question was conclusive of it. 
 
 The fact has been heretofore explained that proof by wit- 
 
 1 "That institution (the modern Normandy by William the Conquer- 
 
 iury) was purely Norman-English, hav- or." Bigelow, Hist, of Procedure, p. 
 
 mg come by direct lineage from the 334. 
 
 inquisition procedure introduced from a See above, p. 310.
 
 324 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 The bar- 
 baric theory 
 of proof. 
 
 Witnesses 
 swore only 
 to the as- 
 sertion of 
 their chief. 
 
 Transac- 
 tion wit- 
 nesses. 
 
 Community 
 witnesses. 
 
 They spoke 
 the voice of 
 the commu- 
 nity as to 
 the fact in 
 question. 
 
 nesses was one of the four leading methods of proof known 
 to the customary law. 1 Such proof, in the form in which it 
 appeared in the archaic procedure, does not satisfy, however, 
 the modern conception of legal testimony. The witnesses 
 of the customary law could only appear before the court 
 when produced by the party required to make proof, and 
 when thus produced they swore only to the truth of the as- 
 sertion made by their chief ; 2 they were neither required nor 
 allowed to respond to interrogatories propounded either by 
 the parties, or by the court itself. Their testimony was 
 offered in obedience to that barbaric theory which regarded 
 the proof given in a cause, not as a means of bringing con- 
 viction to the mind of the court, but as a satisfaction due to 
 the adversary in the forms prescribed by custom. 3 The wit- 
 nesses known to the Old-English customary law embraced 
 two distinct classes, transaction witnesses, who were in the 
 nature of official persons appointed in every town and hun- 
 dred to witness sales, gifts, exchanges, and the like ; 4 and 
 community witnesses. The latter class, whose very name 
 goes far to explain their real character, were persons selected 
 from the community or neighborhood who, by their long ac- 
 quaintance with the locality, could testify as to long contin- 
 ued relations, circumstances, and occurrences known to them 
 as neighbors, or members of the community. Such witnesses 
 were chiefly employed in causes touching the relationship 
 or status of an individual, or in suits in which the right to 
 land was in question. 6 And although such witnesses were 
 party witnesses, that is, witnesses produced by the party 
 to whose assertion they swore, still the assertion made by 
 them derived its force from the fact that it embodied the 
 voice or knowledge of the community as to the particular 
 
 1 See above, p. 205. 
 
 2 Brunner, Schwurg., pp. 50-53 ; Es- 
 says in A. S. Law, pp. 186, 187. 
 
 8 " It follows that in the barbarian 
 form of proof by witnesses, which was 
 merely one particular kind of proof, as 
 the ordeal was another, the producer 
 of the witnesses proposed not in the 
 least to convince the tribunal of his 
 own good right, but simply to produce 
 the fixed number of witnesses accord- 
 ing to the customary form, and these 
 
 witnesses were to corroborate by oath 
 the theme or statement prescribed for 
 them in the previous judgment which 
 had ordered the proof." North Amer- 
 ican Review, No. ccxliv. (July, 1874), 
 pp. 219, 220. 
 
 4 Eadgar's Laws, iv. 4, 5, 6 ; ^Ethel- 
 Stan, v. I, 5 , Forsyth, Trial by Jury, 
 pp. 84, 85. 
 
 6 Brunner, Schwurg., pp. 50-53 ; Es- 
 says in A. S. Law, pp. 186, 187 ; Bige- 
 low, Hist, of Procedure, p. 309.
 
 III.] THE PERIOD OF FUSION. 32$ 
 
 fact or right in question. 1 If this idea is kept steadily in 
 view, it will be possible to distinguish this important class of 
 witnesses through all the changes of form and of name 
 through which they pass. The principle that disputed ques- 
 tions of fact should be determined by the voice of sworn wit- 
 nesses taken from the neighborhood survived the Norman 
 conquest, and under the organizing hands of the conquerors 
 this form of proof was cast into a more definite and formal 
 shape, and was at the same time emancipated from much of 
 the rigorous formality which had surrounded it in the primi- 
 tive system. After the Conquest the community witnesses 
 of the customary law were brought into contact with, and 
 incorporated into, a new scheme of proof, the inquisitio Con< i uest - 
 per testes? an instrument of royal law whose introduction into 
 England can be traced directly to a Norman source. 
 
 No trace of the inquest of proof (inquisitip per testes) can The *?**- 
 be found in Old-English legal procedure; 3 it was purely a 
 Norman innovation, but by no means a Norman invention. N 
 It is admitted on all hands that the inquisitorial system was 
 introduced into England by the Normans, who derived it from the 
 directly from the Frank Capitularies, into which it was prob- whTprob 
 ably adopted from the fiscal regulations of the Code of Theo- 
 
 dosius, 4 a code which in 438 was promulgated as law in Theodosian 
 both the Eastern and Western Empires. 5 The inquest of 
 proof, in the form in which it appeared in the Frank system, 
 consisted of the instructions or special commissions issued by 
 the kings to their missi, or royal commissioners, commanding 
 them to make special inquiry into fiscal and judicial matters 
 by the oaths of sworn witnesses in the local courts. 6 An in- 
 quisition pure and simple was an official inquiry instituted 
 by royal authority, and executed by a judge or other royal 
 
 1 "The testimony of the neighbor- 4 Brunner, Schwurg.,\). 87, citing Cod. 
 hood was appealed to for the purpose Theod. x. 10. 1. ii; Ibid., 1. 29. Cf. 
 of deciding questions which related to Palgrave, Eng. Commonw., p. 271; 
 matters of general concern." For- Stubbs, Const. Hist., vol. i. p. 613. 
 syth, Trial by Jury, p. 92. 5 Cf. Smith's Dictionary of Greek 
 
 2 " From this class of proof (com- and Koman Antiquities, " Codex Theo- 
 munity witnesses) arose the ' inquisitio dosianus." 
 
 per testes ' in the Norman period, and 6 The roots of the Prankish inquest 
 
 the jury of English law." Essays in of proof " are not to be found in the 
 
 A. S. Law, p. 187. customary or folk law; it is a creation 
 
 8 Brunner, Zeugen und Inquisitionsbe- of new or royal law." North Amer~ 
 
 weis, p. 41. ican Review, July, 1884, p. 220.
 
 326 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 An inquisi- 
 tion a royal 
 inquiry ex- 
 ecuted in a 
 local court 
 through the 
 oaths of 
 witnesses. 
 
 Difference 
 between 
 customary 
 witnesses 
 and those 
 of the in- 
 quest. 
 
 Domesday 
 the result 
 of a vast 
 royal in- 
 quest. 
 
 officer in a local court through the oaths of sworn witnesses 
 who responded to interrogatories propounded by the judge 
 himself. 1 As to the number of witnesses, the judge could 
 use his own discretion ; according to the sources, the number 
 varied between two and five hundred. As every qualified 
 member of the community was a member of the local court, 
 the answers of the representative witnesses selected by the 
 officer charged with the execution of the inquiry embodied 
 the knowledge or belief of the community itself. But this 
 method of proof, which was a creation of new or royal law, 
 differed radically from the witness proof which existed in the 
 old customary or folk law. The customary witnesses were 
 narrowed down by a rule which required that they should 
 swear only to the assertion of their chief; while the witnesses 
 of the inquest were emancipated from the old rigor of form, 
 and were sworn to answer all such questions as the judge 
 should propound. The customary witnesses were jurors, the 
 witnesses of the inquest were jurati. The Prankish inquest 
 of proof found in Normandy a soil favorable to its develop- 
 ment. It was in use in the duchy before the Conquest, 2 and 
 it was there applied to both fiscal and judicial purposes. 
 The evidence is abundant to show that the inquest of proof 
 was a favorite instrument of law in the hands of the Con- 
 queror which he frequently applied to the transaction of both 
 fiscal and judicial business. The most comprehensive appli- 
 cation ever made of the principle, perhaps, was made by 
 William in the taking of the Domesday Survey, 3 which is 
 nothing but the fruit of a general inquiry conducted by 
 royal commissioners into the condition of every part of the 
 kingdom, in order to ascertain " how it was set and by what 
 men." The commissioners went into every shire, and before 
 them came representatives from every hundred and from 
 every township. Upon the deposition or verdict of these 
 representative jurors, together with the depositions of the 
 
 1 Brunner, Schwurg., p. 85. 
 
 2 Brunner, Schwurg., pp. 84, 381, 382. 
 But it was in England only that the 
 system reached its full development; 
 the witnesses of the Prankish inquest 
 were never transformed in Normandy 
 into the jury of judgment, the trial jury 
 of modern times. After the union of 
 
 Normandy with France, proof by in- 
 quest disappeared, little by little, until 
 it finally became extinct in Normandy, 
 as in the rest of France. 
 
 8 Stubbs, Const. Hist., vol. i. p. 385, 
 61 1 ; Freeman, Norm. Conq. t vol. iv. 
 p. 470, vol. v. p. 303.
 
 III.] THE PERIOD OF FUSION. 327 
 
 sheriff and all the barons and Norman landholders of the 
 shire, was drawn up a detailed history of every manor or 
 township in the kingdom. 1 This system of inquest by the Samesys- 
 oaths of local witnesses, which William thus applied on so di!rin! P 
 
 large a scale to the accurate assessment of the land over 
 
 which he was called to govern, was frequently applied during: trialof P r '- 
 
 . ^ J rr vate causes 
 
 his reign to the trial of private causes in which the right to involving 
 real property was drawn in question. Throughout the Nor- 
 man period it seems to have been a constant practice in suits 
 involving the right to land to decide the controversy by ap- 
 pealing to the knowledge of the community in which the 
 parties resided and the land lay. 2 The authority for the pro- 
 ceeding was the royal writ authorizing the inquiry, which was 
 executed by a judge or other royal officer through the an- 
 swers of witnesses who represented the vicinage, and who 
 stated upon their oaths to which contestant the right be- 
 longed. The case usually cited to illustrate the character of 
 a simple judicial inquisition of the Norman period is that one A simple 
 in which William, in one of the earliest English writs extant, o^the'Nor- 
 directed his justiciars to summon all the shire-moots that man P eriod 
 had taken part in a previous unsatisfactory trial as to lands 
 belonging to the church of Ely : that being done, they were 
 directed to choose a number of Englishmen who could state 
 how the title stood upon the day Eadward the Confessor 
 died ; the statement thus made by them was to be confirmed 
 by their oaths. The title as it was found to exist in the time 
 of Eadward was to prevail, except in the cases of gifts made 
 by the king since the Conquest. 3 In this proceeding we have 
 an example of a royal writ directed to the king's justices com- 
 manding them to inquire, upon the testimony of the vicinage, 
 into the truth of a disputed allegation in a suit in which land 
 was in question. 4 The writ which authorized the holding of 
 the inquiry was an instrument of royal law, while the commu- 
 nity witnesses who responded to the inquiry represented a 
 form of witness proof which finds its origin in the customary 
 
 1 See Ely Domesday, Dom. t vol. iii. * " The essential feature of this writ 
 p. 497. is the direction for an inquiry upon 
 
 2 Forsyth, Trial by Jury, p. 108. testimony of the vicinage concerning 
 8 Placita Ang.-Norm., p. 24 ; For- which had been the subject of an un- 
 
 syth, Trial by Jury, p. 99 ; Dugdale's satisfactory trial." Bigelow, Hist, of 
 Monasticon, vol. i. p. 478. Procedure, p. 176.
 
 328 
 
 THE NORMAN CONQUEST. . 
 
 [Cn. 
 
 The 
 
 now appear 
 
 in a new re- 
 
 lation. 
 
 whether 
 bya party 
 
 cer, they 
 
 somebody 
 
 fmen. 
 
 Recogni- 
 h'ow S th7y 
 
 simpie 
 
 -inquisition. 
 
 law. But the old customary witnesses now appear in a new 
 relation : they are no longer mere jurors who swear only to 
 t ^ e asse rtion of their chief; they are sworn men (jurati), 
 
 -^ . 
 
 who, being emancipated from the rigor of form that prevailed 
 in the ancient procedure, answer upon their oaths such ques- 
 tions as are propounded to them by the officer charged with 
 the execution of the inquiry. If this theory be the true one, 
 it clearly explains how the community witnesses of the cus- 
 tomary law were developed into the community jurata, whose 
 existence is clear from the time of the Conquest ; J it clearly 
 explains how the more perfectly organized method of proof 
 (inquisitio per testes), which the Normans introduced, was en- 
 grafted upon the undeveloped witness-proof of the customary 
 law. In the face of all the learned refinement upon the sub- 
 j ect > ^ is sa f e to sav that the community witnesses, whether 
 P r duced by a party in his own behalf, or convened to meet 
 the officer charged with the execution of the inquest, were 
 one and the same body of men, they were the representa- 
 tives of the vicinage through whose oaths the community 
 spake as to the particular fact in question. The simple judi- 
 cial inquisition of the Norman period may therefore be de- 
 fined to be an inquiry into the truth of a disputed allegation, 
 authorized by the king's writ, and directed to a judge, sher- 
 iff, or other royal officer, commanding him to ascertain the 
 right in question by the oaths of witnesses taken from the 
 neighborhood. Thus under the influence of the writ process 
 the community witnesses of the customary law were devel- 
 oped into the community jurata, whose existence in England 
 is clear from the time of the Conquest. 
 
 During the reign of Henry of Anjou there was introduced 
 into England a new species of the inquest of proof known as 
 the recognition. 2 The distinction between a simple inquisi- 
 tion and a recognition was that the former consisted of an 
 
 ... ,. i -i 
 
 inquiry into a disputed allegation conducted by a judge or 
 other royal officer, who propounded interrogatories to an in- 
 
 1 "Forms of the community-jurafa, 
 so often mentioned in the law-books of 
 the thirteenth century, had clearly been 
 in use in England ever since the Con- 
 quest ; such for instance as the simple 
 judicial inquisition ordered for the trial 
 
 of a cause by the king's writ." Bige- 
 low, Hist, of Procedure, p. 337. 
 
 2 Brunner, Schwurg., pp. 303, 304. 
 " On the assize as established by Henry 
 II.," see Forsyth, Trial by Jury, ch. 
 vi.
 
 III.] THE PERIOD OF FUSION. 329 
 
 definite number of witnesses taken from the body of the local 
 court ; while the latter consisted of an inquiry made by a 
 definite body of chosen witnesses, who, after being duly 
 chosen, were summoned by an officer of the law to make 
 inquiry into the matter in dispute, and then to report (recog- 
 noscere} the truth to the court itself. 1 In each proceeding, 
 inquiry was made by the oaths of witnesses, whose answers 
 were supposed to embody the knowledge of the community. 
 But in a simple inquisition the witnesses were a part of the 
 court, and as such were interrogated by the judge ; while the 
 recognitors sat apart from the court, and conducted their own 
 inquiry as a distinct body which stood between the parties 
 and the judge. The report of the recognitors was based 
 upon their own knowledge, and by knowledge, says Glanvill, 
 was meant what they had seen or heard from reliable re- 
 port. 2 There seems to be no doubt that the system of recog- 
 nition existed in Normandy before it was brought into Eng- 
 land. 3 The most authoritative view is that Henry II., who is 
 supposed to have introduced the recognitiones into Normandy 
 between 1150 and 1152, introduced them into England, upon introduced 
 his accession to the throne of that kingdom, under the name n. undeT 
 of assizes. 4 To the student of English law, the Great As- ^* f 
 size, and the assizes of novel disseisin, mart d'ancester and 
 darrein presentment, the leading recognitions in civil matters, 
 are the most familiar. The nature of the Great Assize Nature of 
 has been thus explained by a contemporary historian : " Now Assize!* 1 
 the Great Assize is a royal benefit indulged to the peo- 
 ple by clemency of the prince on the advice of the nobles, 
 whereby life and property are so wholesomely cared for that 
 men can avoid the chance of the combat, and yet keep what- 
 ever right they have in their freeholds. . . . This constitu- 
 tion arises from the highest equity, for the right which can 
 scarcely be proved by battle after many and long delays is 
 more conveniently and speedily acquired by the benefit of this 
 constitution. . . . Besides, this institution has in it more 
 
 1 Bigelow, Hist, of Procedure, p. 175, had a reflex influence on Normandy." 
 note 4, pp. 335, 336. Stubbs, Const. Hist., vol. i. p. 614, note 2. 
 
 2 Glanvill, lib. 2, c. 17, 4. 4 Brunner, Schwurg., pp. 303, 304. 
 8 " The system of recognition existed " The recognition by jurors was called 
 
 in Normandy before it was brought into an assise, because it was established by 
 England, but it was developed in Eng- an assisa, or statute of Henry II." 
 land, and that development probably Forsyth, Trial by Jury, p. 122, note I.
 
 330 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 A substi- 
 tute for trial 
 by battle 
 in suits for 
 freeholds. 
 
 Recogni- 
 
 tors mere 
 witnesses. 
 
 equity than trial by combat in proportion as more weight is 
 to be allowed in judgment to many fit witnesses than to one 
 alone." l The primary object, then, of this beneficent insti- 
 tution, organized by the legislation of Henry II. out of ele- 
 ments existing in the jurisprudence of the time, was to fur- 
 nish to those who were assailed in their freeholds a reasonable 
 and equitable method of trial by witnesses taken from the 
 neighborhood in lieu of trial by battle. When the right to a 
 freehold was drawn in question, and the demandant tendered 
 to the party in possession trial by combat, the defendant, 
 unless some valid objection could be taken by his adversary, 
 could escape from it by putting himself upon the Great As- 
 size. 2 This was accomplished by the defendant's obtaining 
 from the curia regis a writ to stop all proceedings in the local 
 court until a recognition could be had as to the right set up 
 by the claimant. 3 In order to obtain a trial the claimant was 
 then obliged to obtain a writ directed to the sheriff command- 
 ing him to summon four lawful knights of the neighborhood 
 wherein the disputed property lay, who were to choose twelve 
 lawful knights of the same neighborhood most cognizant of 
 the facts, who were upon their oaths to declare which of the 
 parties litigant had the greater right to the land in dispute. 4 
 The proceedings in the other assizes were substantially the 
 same, with the exception that the sheriff himself selected the 
 twelve recognitors from those best acquainted with the facts, 
 without the intervention of the four electors. 6 That the re- 
 cognitors were regarded as mere witnesses is manifest from 
 the procedure in the event that some of the number sum- 
 moned were found to be ignorant of the facts in question. 
 If any of the twelve did not possess the requisite knowledge, 
 or if they disagreed, others were summoned until at least 
 twelve were found who knew and agreed upon the facts. 6 It 
 required the concurrent testimony or verdict of twelve wit- 
 nesses or recognitors to be conclusive of the right. 7 Beyond 
 
 1 Glanvill, lib. ii. c. 7. 
 
 2 As to the details of the procedure, 
 see Stephen, Hist. Crim. Law, vol. i. p. 
 256; Forsyth, Trial by Jury, pp. 122- 
 
 120. 
 
 8 Glanvill, lib. ii. c. 8 ; Bigelow, Hist, 
 of Procedure, p. 269. 
 * Glanvill, lib. ii. c. 10. 
 
 6 Glanvill, lib. xiii. cc. i., 2 seq. ; 
 Stubbs, Const. Hist. t vol. i. p. 617 ; 
 Reeves, Hist. Eng. Law, vol. i. p. 443. 
 
 6 Cf. Forsyth, Trial by Jury, p. 127. 
 
 7 And no subsequent action could 
 be brought upon the same claim. 
 Glanvill, lib. ii. c. 18.
 
 III.] THE PERIOD OF FUSION. 33 I 
 
 this stage, in which the recognitors or jurors were mere wit- 
 nesses, the Norman jury did not advance. In Normandy, as 
 well as in the rest of France, the whole system of inquest by 
 proof was gradually superseded by the French enqufte, a 
 procedure partly Roman, partly canonical. 1 The remarkable in England 
 fact is that only on English soil did the jury of proof sur- 
 vive, and finally pass through the ultimate evolution which 
 has transformed it into the jury of judgment, the trial jury the jury of 
 
 ,,.,,.,.. judgment. 
 
 of modern times. The steps by which the trial jury, m 
 the form in which we now know it, was at last established, 
 may be briefly explained as follows : If any of the jurors 
 chosen were uninformed as to the matters concerning which 
 they were to swear, those who were informed were added to 
 or afforced until at least twelve were found who could unite 
 in a definite conclusion in favor of one side or the other. 2 
 By degrees this clumsy system was improved by separating 
 the afforcing jurors from the uninformed jurors, who, being 
 thus relieved altogether of their character as witnesses, be- 
 came judges of evidence detailed by others. From the account 
 given of juries by Fortescue in his treatise, written between 
 1460 and 1470, it is quite clear that this final stage in the 
 development of the trial jury in civil cases must have been 
 reached by the middle of the fifteenth century. 3 
 
 The attempt has now been made to unfold the process Trial by 
 through which a certain kind of witness-proof, whose germs %$ j^r- 
 were imbedded in the customary law, was slowly developed j^er meth- 
 upon English soil, first into the jury of proof, and finally into ods of trial, 
 the jury of judgment, the trial jury of modern times. The 
 four stages of growth in the historical development of the 
 jury are represented by the community witness of the custom- 
 ary law, the simple inquisition of the Norman period, the 
 recognitions of the Angevin period, 4 and the trial jury of to- 
 day. As heretofore explained, the simple judicial inquisition, 
 out of which the jury of proof directly arose, struggled into 
 
 1 " The enqulte, introduced by an * " The simple inquisition stands be- 
 ordinance of Louis IX. in 1260 first tween this mode of trial by witnesses 
 into the royal tribunals, afterwards and that species of the inquisition 
 took the place of the ancient inquisitio known as a recognition ; not in strict 
 both in France and in Normandy." chronological order, for all three ex- 
 North Am. Review, July, 1874, p. 221. isted side by side throughout the Nor- 
 
 2 Forsyth, Trial by Jury, p. 127. man period." Bigelow, Hist, of Pro- 
 8 See above, p. 310 and note 5. cedure, p. 335.
 
 332 THE NORMAN CONQUEST. [Cn. 
 
 existence after the Conquest, and took its place in the proce- 
 dure of the local courts alongside of compurgation, witnesses, 
 documents, ordeal, and battle. How in the process of time 
 and of growth this new method of trial gradually superseded 
 or absorbed all other methods of trial which had prevailed in 
 the popular courts is a question full of interest, but one which 
 belongs to the history of legal procedure. Suffice it here to 
 say that such was the final result of the development of the 
 jury in England, where, rather by the silent force of its own 
 intrinsic excellence than by the artificial stimulus of legisla- 
 tion, it gradually overshadowed and exterminated all other 
 methods of trial which had ever been employed for the settle- 
 ment of issues in which disputed facts were in question. By 
 AS the the force of the law of natural selection it outlived them all, 
 as tne fittest it survived. First employed in suits in which 
 rights to land were in question, the jury was gradually ex- 
 tended by the judges to the trial of other civil causes in 
 which rights to land were not involved. The decree of the 
 Lateran Council which led to the abolition of trial by ordeal 
 paved the way for the introduction of the trial jury into crim- 
 inal procedure. After ordeals were abolished in England, no 
 way remained of traversing the presumption of guilt which 
 arose out of the accusation made by the jury of presentment. 
 To remedy the evil by giving to the accused his constitutional 
 right to traverse in some form the presumption of guilt raised 
 against him, trial by petty jury was gradually introduced in 
 criminal cases. 1 Long after the jury had thus worked its 
 way to a position of supremacy in both civil and criminal 
 causes, some of its older rivals lived on in neglect and ob- 
 scurity until finally abolished by statute in the present cen- 
 tury. As late as 1818, in the case of Ashford v. Thornton, 
 before referred to, the judges held, after solemn argument, 
 that trial by battle in appeals of murder was still a part of 
 English criminal procedure : this decision led to its abolition 
 in the following year. 2 In the case of King v. Williams, 
 which occurred in 1824, the ancient method of trial by com- 
 purgation, in the form of " wager of law," was for the last 
 time actually put in force ; 3 ten years later a statute ended 
 
 1 See above, p. 310. 8 Probably the last case in which it 
 
 8 See above, p. 311. was employed was that of King v.
 
 III.] THE PERIOD OF FUSION. 333 
 
 its existence. As all other methods of trial except trial by 
 jury gradually fell into disuse, and as the king's courts held 
 in the shires were gradually relieved of all fiscal and admin- 
 istrative work, the county parliaments, which were originally 
 convened to meet the itinerant justices, were slowly trans- 
 formed into the modern courts of assize, in which the itin- 
 erant justices still preside, but in which the general assembly 
 of the shire is represented only by the grand and petty jurors 
 summoned by the sheriff for the dispatch of the civil and 
 criminal business to be disposed of. 
 
 Williams, 2 B. & C. 538. "Wager of c. 42, 13. Cf. Stephen, Hist. Crim. 
 law " was abolished by 3 & 4 Will. IV., Law, vol. i. p. 244, note 2.
 
 CHAPTER IV. 
 
 Growth of 
 the royal 
 authority 
 after the 
 Conquest. 
 
 THE WINNING OF THE CHARTERS. 
 
 I. IN the two preceding chapters the attempt was made to 
 emphasize the fact that, although the Norman conquest 
 brought with it a change of dynasty, the establishment of a 
 new nobility, and a sweeping confiscation through which 
 most of the great estates were transferred from English to 
 Norman hands, yet that it did not involve the displacement 
 of the English nation, nor a wiping out of the immemorial 
 laws and political institutions of the conquered race. The 
 Old-English system of local, self-governing communities 
 survived ; and upon that tenacious system as a substructure 
 the Norman system of central administration was superim- 
 posed. During the four Norman reigns, upon the immutable 
 foundations of Old-English local freedom was organized a 
 vigorous system of central administration with the source of 
 its strength in the royal authority. How the royal authority 
 itself was strengthened and consolidated through the results 
 of the Conquest has already been explained in the review 
 which has been heretofore made of the double origin of 
 William's kingship. It was no part of the Conqueror's plan 
 to remain simply a military chieftain wholly dependent upon 
 the jealous and exacting host by whose aid the Conquest had 
 been accomplished. With the prescience of a statesman, he 
 claimed to be the ruler of a nation in which Norman and 
 Englishmen were alike his subjects, and as such ruler he 
 claimed the possession of every royal right that had ever 
 belonged to any of the kings who had gone before him. The 
 sum of royal power which thus accrued to William as a 
 national king was augmented by the addition of every feudal 
 right which tended to increase the royal revenue or to 
 strengthen the royal authority. As a national king, William 
 claimed every kind of revenue, ordinary and extraordinary, 
 which had ever belonged to any of his English predecessors.
 
 THE WINNING OF THE CHARTERS. 335 
 
 As feudal lord, William firmly established the doctrine that 
 he was the supreme landlord, and that all lands were held by 
 grant from him. All landowners thus became tenants of 
 the king, and under William's successors the feudal revenue 
 which accrued from this source was enormous. 1 
 
 In order to exercise the vast powers, and to discharge the Centraiiza- 
 endless and intricate duties, which the growth of the royal tic" and 1 "* 
 power after the Conquest thus concentrated around the per- finance - 
 son of the king, it became necessary for the crown to organ- 
 ize, out of the main body of the great council, a smaller body 
 which could be charged under the king's direction with the 
 whole work of central or national administration. During 
 the reign of Henry I. this inner council, known as the curia 
 regis, was organized by Bishop Roger of Salisbury into a 
 strong judicial and ministerial body, whose methodical pro- 
 cedure imposed upon the despotic powers of the crown the 
 restraints at least of administrative routine. In this reign 
 the financial side of the curia, now called for the first time the 
 exchequer, was definitely organized, and before it the whole 
 financial administration of the kingdom passed in review. 2 
 The vast power thus consolidated in the hands of the crown 
 through the centralization of finance was soon augmented by 
 the centralization of justice. 3 Not until after the Norman 
 conquest did the tendency in that direction grow strong 
 enough to enable the king's court seriously to encroach upon 
 the ancient local and popular courts. Not until the principle 
 was firmly established that the king was the fountain of 
 justice, and that all courts were the king's courts, did it be- 
 come possible for the king to invade with his writ any juris- 
 diction and to withdraw from it any cause whatsoever. 
 Through the instrumentality of the writ process in its various 
 forms, the curia regis persistently encroached upon the pop- 
 ular and franchise courts, until the main body of judicial 
 business was finally withdrawn from them into the royal tri- 
 bunals. This vast concentration of powers around the person 
 of the king, this constant withdrawal of jurisdiction from the 
 local and popular courts into a single central and royal court, 
 
 1 As to the double origin of Wil- 8 For the history of the centralization 
 Ham's kingship, see above, pp. 232-234. of justice, see above, p. 257. 
 
 2 As to the growth of the inner 
 council, see above, p. 242.
 
 THE NORMAN CONQUEST. [Cn. 
 
 naturally and necessarily resulted in vesting in the Norman 
 
 system of central administration as embodied in the crown an 
 
 abnormal preponderance both in power and authority. Out 
 
 of this condition of things arose the gravest political problem 
 
 to which the constitutional growth of the English nation has 
 
 ever given birth. That problem was so to limit the royal 
 
 authority, so to combine the vigorous Norman system of 
 
 central administration with the laxer system of Old-English 
 
 local freedom, as to preserve the counterpoise between the 
 
 two, and at the same time retain in the new combination the 
 
 Origin and strongest elements of both. In the effort to work out this 
 
 thtstruggie result the prolonged and bitter struggle for the charters had 
 
 for the jj-g birth. But it must not be supposed that the leaders in 
 
 cnarters. . 
 
 this struggle upon the part of the nation against the crown 
 were political theorists intent upon bringing about a read- 
 justment of the forces of government upon abstract lines to 
 be drawn in paper constitutions. They were practical states- 
 men and patriots intent upon the redress of existing evils by 
 winning back under new forms a part at least of the ancient 
 freedom which the nation as a whole had lost. The struggle 
 for the charters did not grow out of any vague apprehension 
 of possible evils which might arise out of the unequal adjust- 
 ment of the Norman system of central administration to the 
 Old-English system of local freedom embodied in the town- 
 ship, the hundred, and the shire. Neither did it grow out of 
 the mere possession, by wise and politic princes of the type 
 of Henry I. and his grandson Henry II., of vast and unlim- 
 ited powers which were never deliberately employed for pur- 
 poses of oppression merely. Not until the grinding weight 
 of the central and royal authority was actually and wantonly 
 applied by careless despots to the oppression of all classes 
 and conditions of men did the collective people, in the per- 
 sons of the three estates, rise up as one man to grapple with 
 the crown in a struggle for the establishment of rights which 
 were made eternal. The two parties to the contest, whose 
 history is now to be recounted, are therefore the central or 
 royal authority upon the one hand, and the nation, marshalled 
 in the ranks of the three estates, upon the other. 
 
 2. Having briefly reviewed the growth of the royal author- 
 ity, it next becomes necessary to summarize the causes which
 
 IV.] THE WINNING OF THE CHARTERS. 337 
 
 led to the division and classification of the nation in three Rise of the 
 estates. The growth of the system of estates in England ta'tes, the 
 was simply a part of a general movement which constitutes ^(fnage, 6 
 an important epoch in the constitutional history of Europe. 1 and the 
 
 commons. 
 
 The causes which brought about the establishment of the 
 estate system were general in their operation, and in each 
 one of the European countries the result was reached about 
 the same time. The complete establishment of the system 
 is generally regarded by the historians as the work of the 
 thirteenth century. During that period was established in 
 Europe that type of a national assembly into which the 
 several classes or orders of society entered in the form of 
 definitely organized estates. 2 The estate system itself con- Estate 
 sisted of the division of a nation into definite classes or defined. 
 orders of men ; the outcome of the system was that type of 
 a national assembly in which each class or order appeared in 
 person or by representatives. 3 In each country the system 
 has its special or local history, but as a general rule in all of 
 the European constitutions the three political factors are 
 arranged upon substantially the same principle. In the 
 history of the English nation the three estates appear as the clergy, 
 clergy, the baronage, and the commons, and not, as is often a ndcom e ' 
 erroneously stated, as the king, lords, and commons. 4 In the t n kj n a g nd 
 language of the Lords' Report, " In England . . . the clergy lords - <* 
 
 , J commons. 
 
 have been esteemed one estate, the peers of the realm the 
 second estate, and the commons of the realm, represented in 
 parliament by persons chosen by certain electors, a third 
 estate." 6 According to no mediaeval theory of government 
 could the king be considered an estate of the realm. 6 The 
 
 1 See Comparative Politics, p. zysseq., representative of the commons of Eng- 
 and p. 233. land." Hallam, M. A., vol. iii. p. 102, 
 
 2 " Notwithstanding the difference and note 2. 
 
 of circumstances and the variety of re- * An argument in favor of this obso- 
 sults, it is to this period that we must lete view may be found in Whitelocke's 
 refer, in each country of Europe, the work on the Parliamentary Writ, vol. 
 introduction, or the consolidation, for ii. p. 43. 
 the first tune since feudal principles Vol. i. p. 1 18. 
 had forced their way into the machin- ' "The king is not an estate, be- 
 ery of government, of national assem- cause there is no class or order of 
 bhes composed of properly arranged kings, the king being one person alone 
 and organized estates." Stubbs, Const, by himself. The proper phrase is the 
 Hist., vol. ii. pp. 159, 168. king and the three estates of the 
 8 " The lower house of parliament is realm." Freeman, Growth of the 
 not, in proper language, an estate of English Constitution, p. 134 (Tauch- 
 the realm, but rather the image and nitz ed.).
 
 338 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 King not 
 an estate. 
 
 Estate of 
 the clergy. 
 
 Effects of 
 the Con- 
 quest on 
 the national 
 church. 
 
 several classes into which the nation was divided represented 
 the estates, and over all stood the king, not as a coordinate 
 political factor, but as the head of the state itself. As Chan- 
 cellor Stillington quaintly expressed it, in the /th of Edward 
 IV., "This land standeth by three states, and above that one 
 principal, that is, to wit, lords spiritual, lords temporal, and 
 commons, and over that state-royal, as our sovereign lord the 
 king." 1 
 
 As, in obedience to a pious courtesy, precedence was always 
 conceded to the clergy in the arrangement of estates, the 
 causes will be first examined which led to their withdrawal 
 from the main body of the nation, and to their organization 
 into a distinct estate or order. The fact has been more than 
 once pointed out that the distinctive feature in the history of 
 the church before the Conquest was its perfect oneness with 
 the state. Throughout the pre-Norman period the same leg- 
 islative and judicial assemblies dealt alike with ecclesiastical 
 and temporal business without the slightest jealousy or con- 
 flict of authority. The witan legislated for the church as it 
 did for the state, and in the witan the bishop as well as the 
 ealdorman was elected and deposed. In the shire-moot the 
 bishop and the ealdorman sat side by side as its constitu- 
 tional presidents, and in the ancient popular courts there 
 was no separation of secular from spiritual business. 2 The 
 natural result of the deposition of the native English bishops 
 which followed the Norman conquest, and the promotion of 
 foreign prelates to their vacant thrones, was to draw the 
 English church from its position of practical independence 
 and isolation into closer communion with the rest of West- 
 ern Christendom, and into more direct dependence upon the 
 see of Rome. Out of this closer connection with Rome 
 grew the tendency that now began to manifest itself to sever 
 the organization of the church from that of the state. 3 Upon 
 the papal throne now sat one of the greatest of the Roman 
 pontiffs, Gregory VII., the leading ideas of whose policy 
 were the complete establishment of the supremacy of the 
 
 1 Rot. Par/., vol. v. p. 622. The 
 treaty of Staples, in 1492 was to be con- 
 firmed "per tres status regni Angliae 
 rite et debite convocatos, videlicet per 
 prelates et clerum, nobiles, et coramu- 
 
 nitates ejusdem regni." Rymer, vol. 
 xiii. p. 508 ; Middle Ages, vol. iii. p. 103. 
 
 3 Upon this whole subject see above, 
 pp. 187, 200. 
 
 8 See above, p. 259.
 
 IV.] THE WINNING OF THE CHARTERS. 339 
 
 papacy within the church, and the supremacy of the ecclesi- Gregory 
 astical over the civil power. In order to make effectual the to make the 
 assertion of the supremacy of the church over the state, ^utmct 
 Gregory labored to bring about " the establishment of the order - 
 clergy as a distinct order, animated by one universal corpo- 
 rate spirit, and cut off from those ties of citizenship and kin- 
 dred which bind men together in earthly bonds." 1 Through 
 the agency of the foreign prelates the ecclesiastical policy 
 which was now impressing itself upon the whole of Western 
 Christendom was brought directly to bear upon the organiza- 
 tion of the English church. The new ecclesiastical policy Ecciesiasti- 
 organized by William and Lanfranc contemplated the com- of wm2m 
 plete severance of spiritual from temporal business through 
 the creation of distinct courts and councils in which the 
 church could judge and legislate upon its own affairs without 
 secular interference. By an express enactment William and 
 his witan decreed the separation of the spiritual from the 
 temporal tribunals. This ordinance, after declaring the epis- 
 copal laws which had previously been in force in England to 
 be bad and contrary to the sacred canons, forbade the bish- 
 ops and archbishops to bring any cause involving questions 
 of canon law, or questions concerning the cure of souls, be- 
 fore the courts of the hundred. Henceforth they are to hold 
 courts of their own, in which causes are to be tried, not by 
 the customary but by the canon law, and all interference by 
 laymen in spiritual causes is expressly forbidden. 2 In this 
 way was brought about the organization of a distinct system 
 of ecclesiastical courts whose jurisdiction was destined to 
 grow and widen with the growth of the canon law. 3 The Growth of 
 growth of this new system of law not only gave to the clergy 
 
 1 Freeman, Norm. Cong., vol. iv. p. law is of no intrinsic obligation in Eng- 
 287. land. " All the strength that either the 
 
 2 As to the ordinance separating the papal or imperial laws have obtained in 
 spiritual from the temporal courts, see this realm, or indeed in any other king- 
 above, p. 260. dom in Europe, is only because they 
 
 8 For the general history of the have been admitted and received by 
 
 canon law in England, cf. Hale's Hist, immemorial usage, ... or else because 
 
 of the Common Law, ch. ii. ; Reeves' they are in some cases introduced by 
 
 Hist, of the English Law, chs. xxv., consent of parliament." Blackstone, 
 
 xxvi. (Finlason ed.) ; Burn's Ecclesiasti- Com., vol. i. pp. 79, 80. And yet it is 
 
 col Lena ; Phillimore's Ecclesiastical one of the sources of the common law ; 
 
 Law of the Church of Eng. ; Stubbs, from it has been drawn, for instance, the 
 
 Const. Hist., vol. i. p. 284; vol. ii. pp. rules regulating the descent of real 
 
 170, 171 ; vol. iii. p. 321. The canon property.
 
 340 
 
 THE NORMAN CONQUEST. 
 
 [Cn. 
 
 Ecciesiasti- 
 
 a more distinct civil status than they had ever possessed be- 
 fore, but it ultimately drew into the spiritual courts a mass 
 of business with which the church had heretofore had only a 
 remote connection. Out of this new order of things soon 
 grew up claims upon the part of churchmen to exemption 
 from all temporal jurisdiction, and to the right of appeal to 
 Rome, claims which led after bitter strife to the adoption 
 in the reign of Henry II. of the restraining measures em- 
 bodied in the Constitutions of Clarendon, whose leading pro- 
 visions have heretofore been drawn out. 1 By the adoption 
 of the Constitutions, the jurisdiction of the ecclesiastical 
 courts was distinctly defined, and a way was found to keep 
 them within proper limits by means of the writ of prohibi- 
 tion issued from the king's courts of law or equity. 2 
 
 The ordinance of William led directly to the establishment 
 ^ a distinct system of spiritual courts, whose difficult history 
 cannot be at all clearly explained without reference to the 
 ecclesiastical divisions into which the kingdom as a whole 
 is subdivided. Ecclesiastically England is divided into the 
 two provinces of Canterbury and York, whose subdivisions 
 closely coincide with the subdivisions of the kingdom itself. 
 As the shire is the largest and most important division of 
 the diocese the kingdom, so the diocese is the largest and most impor- 
 tant division of the province. 3 And as the shire-moots were 
 the most important local courts in the kingdom, so the dio- 
 cesan councils were the most important local courts in the 
 church. " These were the county courts and the burghmots 
 of the church, and were composed of the bishop and his su- 
 perior clergy, the archdeacon, abbots, deacons, and sometimes 
 of 'all the clerici' and the laity." 4 As out of the ancient 
 county court held by the king's judges in the shire was 
 slowly developed the modern court of assize, so out of the 
 diocesan council was developed, by a process whose history 
 is somewhat obscure, the consistory court held by each dio- 
 
 kingdom: 
 
 theprov- 
 
 1 As to the concordat embodied in 
 the Constitution see above, p. 287. 
 
 2 Bigelow, Hist, of Procedure, pp. 52, 
 53. " From this time an inveterate 
 animosity subsisted between the two 
 courts, the vestiges of which have only 
 been effaced by the liberal wisdom of 
 
 modern ages." Hallam, M. A., vol. 
 iii. p. 129. 
 
 8 As to the early history of the ec- 
 clesiastical divisions, see above, pp. 
 260, 261. 
 
 * Bigelow, Hist, of Procedure, p. 
 28 ; Smith, Diet. Christ. Antiq., title 
 "Council."
 
 IV.] THE WINNING OF THE CHARTERS. 341 
 
 cesan bishop for the trial of all ecclesiastical causes arising 
 in his diocese. 1 The subdivisions of the diocese roughly cor- 
 respond with those of the county. As each county is divided 
 into hundreds, and each hundred into townships, so each dio- 
 cese is divided into archdeaconries, each archdeaconry into 
 rural deaneries, and each deanery into parishes. The unit of 
 organization in each is the same, the parish, as a general rule, 
 simply representing the township in its ecclesiastical aspect. 2 
 
 The most inferior court in the ecclesiastical system is the Archdea- 
 archdeacon's court, the hundred court of the church, whose c< 
 jurisdiction is sometimes concurrent with, and sometimes 
 exclusive of, the jurisdiction of the consistory court. From 
 the archdeacon's court an appeal lies to the bishop's court. 3 
 
 Next in the ascending scale is the consistory court held by The bish- 
 each diocesan bishop for the trial, as before stated, of all ec- 
 clesiastical causes arising in his diocese. In this court the 
 bishop's chancellor or commissary is the judge, from whose 
 decree an appeal lies to the archbishop's court. 4 
 
 In the province of Canterbury the archbishop's court is The arch- 
 known as the court of the arches, from the name of the C ourt. ps 
 church (Sancta Maria de arcubiis) in which the court was an- 
 ciently held. The judge of this court the dean of the 
 arches hears and determines appeals from all inferior courts 
 in the province. The court of peculiars is a branch of the Court of 
 court of arches, whose jurisdiction extends over all those p 
 parishes in the province of Canterbury which are exempt from 
 the bishop's jurisdiction and subject to the metropolitan only. 
 
 From the archbishop's court, after the final extinction of court of 
 the right of appeal to Rome, an appeal lay to the king in dele s ates 
 chancery, that is, to a court of delegates appointed by the 
 king's commission under the great seal, by virtue of the stat- 
 ute 25 Henry VIII., c. 19, until the partial repeal of that 
 statute by statute 2 & 3 Will. IV., c. 92, whereby such ap- 
 peals were transferred to the king in council. 5 The ecclesias- 
 
 1 " The history of the development parish and the township, see above, p. 
 of these councils, and of the settlement 143. 
 
 of their judicial functions, resulting in * By virtue of the statute 24 Hen. 
 
 a fixed tribunal of the English consti- VIII., c. 12. Cf. Blackstone, Com., bk. 
 
 tution, is very obscure." Bigelow, iii. p. 64. 
 
 Hist, of Procedure, p. 28. 4 Ibid. 
 
 2 As to the relations between the 6 See Wendell's Blackstone, bk. iii. 
 
 p. 66, note 5.
 
 342 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 System of 
 appeal. 
 
 Matrimo- 
 nial and 
 testamen- 
 tary causes. 
 
 The new 
 system of 
 ecclesiasti- 
 cal coun- 
 cils. 
 
 tical system of appeal as thus finally settled corresponds with 
 the scheme contained in the eighth chapter of the Constitu- 
 tions of Clarendon, wherein it was provided that appeals in 
 spiritual causes ought to be from the archdeacon to the 
 bishop, from the bishop to the archbishop, and from the arch- 
 bishop to the king, without whose special license they could 
 proceed no further. 1 
 
 One of the most important elements of jurisdiction imme- 
 morially vested in the ecclesiastical courts was the right to 
 hear and determine matrimonial and testamentary causes. 2 
 This jurisdiction was taken away from them and vested in 
 other tribunals by statutes 20 & 21 Viet., c. 77, 3, c. 85, 
 2; 21 & 22 Viet, c. 95, whereby the judicial authority of 
 the spiritual courts was reduced to the consideration of such 
 matters only as legitimately arise out of the administration of 
 the affairs of the national church. 
 
 The same general causes which led to the organization of 
 a distinct system of ecclesiastical courts led to the organiza- 
 tion of a distinct system of ecclesiastical councils. Such a 
 severance had occasionally occurred before the Conquest, but 
 the custom was looked upon with such disfavor as to evoke 
 in the reign of ^thelred a solemn condemnation in a formal 
 decree of a national assembly. 8 Under the new theories to 
 which the Conquest gave birth, the holding of distinct eccle- 
 siastical councils, so far from exciting condemnation, received 
 open and positive approval. During the primacy of Lanfranc 
 the holding of such councils, which were held at the same 
 time as the regular gemots, became frequent. It was, how- 
 ever, no part of William's policy to allow to these ecclesias- 
 tical assemblies the right to legislate without limitation ; he 
 did not permit such assemblies " to enact or prohibit any- 
 thing but what was agreeable to his will and had first been 
 ordained by him." Under these circumstances, and subject 
 to such limitations, the national councils of the English 
 
 1 " De appellationibus si emerserint, 
 ab archidiacono debent procedere ad 
 episcopum, ab episcopo ad archiepisco- 
 pum. Et si archiepiscopus defecerit in 
 justitia exhibenda, ad dominum regem 
 perveniendum est postremo, ut prae- 
 cepto ipsius in curia archiepiscopi con- 
 troversia terminetur, ita quod non de- 
 
 bet ulterius procedere absque assensu 
 domini regis." 
 
 2 See Bigelow, Hist, of Procedure, 
 PP- S'-SS ! Placita Ang.-Norm. t p. 
 3" 
 
 8 Laws of jEthelred, 36, 37, 38; 
 Thorpe, vol. i. p. 340 ; Freeman, Norm. 
 Cong., vol. i. p. 248.
 
 IV.] THE WINNING OF THE CHARTERS. 343 
 
 church became distinct bodies from the national parliaments. 1 
 It must not be supposed, however, that it was only in na- 
 tional councils that the clergy met together for the purpose 
 of deliberation and action. In fact the existence of such National 
 councils was of but short duration. Owing to the jealousy shortlived, 
 and strife existing between Canterbury and York, the assem- 
 bling of general councils of the whole church, after the inde- 
 pendence of York had been vindicated by Thurstan, became 
 practically impossible. 2 The government of the church thus Provincial 
 passed to the two provincial convocations of York and Can- tions'fcan- 
 terbury, which, as constitutional assemblies of the English y rk. ryand 
 clergy, have suffered no material change of organization from 
 the reign of Edward I. to the present day. Each convoca- 
 tion is called by the writ of the archbishop directed to each 
 bishop in his province, commanding him to cause the clergy 
 of his diocese to assemble at a certain time and at a certain 
 place in order to select two proctors in the name of the 
 clergy, and one proctor for each cathedral and collegiate chap- 
 ter, to appear in convocation as representatives. 3 The convo- 
 cation of the province of Canterbury originally including 
 bishops, abbots, priors, deans of cathedral and collegiate 
 churches, heads of religious houses, archdeacons, and proc- 
 tors is divided like the parliament into two houses. In the 
 upper house the great ecclesiastical magnates appear in their 
 own right ; in the lower, appear the representatives of the 
 chapters and the clergy at large. As Blackstone has well ex- Convoca- 
 pressed it, " the convocation is the miniature of parliament, mni at ure 
 wherein the archbishop presides with regal state ; the upper 
 house of bishops represents the house of lords ; and the 
 lower house, composed of the representatives of the several 
 dioceses at large, and of each particular chapter therein, re- 
 sembles the house of commons with its knights of the shire 
 
 1 See above, pp. 261, 262. kins, Concilia, ii. 93. The rule then 
 
 2 " Only when the authority of a leg- adopted was soon after accepted as a 
 ate superseded for the moment the or- canon. Ibid., ii. 49. But the writs 
 dinary authority of both, were any through which the metropolitans con- 
 national councils of the church sum- vene the provincial convocations must 
 moned." Stubbs, Const. Hist., vol. ii. not be confounded with the king's 
 p. 198. writs to the bishops individually, com- 
 
 8 The rule which finally determined manding through the " prcemunientes " 
 
 the basis of representation was em- clause the attendance of the proctors 
 
 bodied in the writ through which was in parliament. See Hody's History of 
 
 called a convocation which met at the Convocations, p. 12. 
 New Temple after Easter, 1283. Wil-
 
 344 THE NORMAN CONQUEST. [Cn. 
 
 and burgesses. " l The practice of representation makes its 
 appearance about the same time in the church councils and 
 in the parliament, 2 and the two systems of representation de- 
 its power velop side by side. From the Conquest down to the Refor- 
 i legislate. mat i onj t h e clergy as a spiritual organization, when assembled 
 in convocation, possessed the power to legislate for the general 
 government of the church, subject to such restrictions, limita- 
 tions, or warnings as the king or the parliament might from 
 time to time impose. Through the vicissitudes of the Refor- 
 mation the English church passed with its legislative power 
 Mr. Glad- substantially unimpaired. In the words of Mr. Gladstone : 
 ^" e ' s " The Reformation statutes did not leave the convocation in 
 
 VlcW. 
 
 the same condition relatively to the crown as the parliament. 
 It was under more control, but its inherent and independent 
 power was thereby more directly recognized. The king was 
 not head of convocation ; it was not merely his council. The 
 archbishop was its head, and summoned and prorogued it. It 
 was not power, but leave, that this body had to seek from the 
 crown to make canons. A canon without the royal assent 
 was already a canon, though without the force of law ; but a 
 bill which has passed the two houses is without a force of 
 any kind until that assent is given. Again, the royal assent 
 is given to canons in the gross, to bills one by one, which well 
 illustrates the difference between the control in the one case 
 and the actuating and moving power in the other." 3 
 Election of As the administration of the vast powers which were vested 
 bishops. i n t h e se p ara te courts and councils of the mediaeval church 
 was substantially controlled by the bishops themselves, who 
 also possessed no inconsiderable weight in the councils of the 
 king, it is by no means strange that the right of appointment 
 to the episcopal office should have become the subject of ear- 
 nest contention between the crown, the papacy, and the clergy 
 of the national church. In the early days of Christianity 
 
 1 Com., bk. i. p. 279. integral part of the system of convoca- 
 
 2 As early as 1255 proctors of the tion." He considers that the rule for 
 parochial clergy appear in parliament representation in convocation was first 
 at Westminster. Ann. Burton, p. 360. definitely fixed by the action of Arch- 
 See Hody's Hist, of Convocations, p. bishop Peckham in 1283. Const. Hist., 
 345; Hallam, M. A., vol. iii. p. 126. vol. ii. p. 197. 
 
 Bishop Stubbs does not think it clear, 8 See Gladstone on the Royal Su- 
 however, that the representative prin- premacy, p. 31. 
 ciple was at that time regarded " as an
 
 IV.] THE WINNING OF THE CHARTERS. 345 
 
 the right to elect a bishop was, as a general rule, jointly 
 vested in the clergy and people belonging to the city or dio- 
 cese over which he was called to rule. By degrees the laity 
 were excluded from any real participation, first in the Greek 
 and finally in the Western church. 1 The right to join in the Origin of 
 election which was thus withdrawn from the people was not c iap ei 
 vested in the general body of the diocesan clergy, but in the 
 council of priests and deacons, which originally stood in the 
 closest relation to the bishop, constituting what came to be 
 known as the chapter of the cathedral church. 2 By the 
 twelfth century these little senates or councils annexed to the 
 cathedral churches had succeeded in winning for themselves 
 throughout Christendom a monopoly of the right to make 
 .episcopal appointments. 3 In the English kingdom during the Election of 
 entire pre-Norman period the bishops were elected by the 
 clergy and the laity acting conjointly in the national assembly, 
 it being the joint right of the king and the witan to ap- 
 point prelates to vacant sees. 4 During the latter part of this 
 period, however, instances occur of the assertion of the right 
 of capitular election. In the case of ^Elfric and Robert in 
 1050 it is clear that the monks and canons of a cathedral 
 church made an election in canonical form, and then peti- 
 tioned the king and his witan to confer the bishopric upon 
 their nominee. 5 Although at the time of the Conquest the 
 tendency was in another direction, it suited the first two Nor- 
 man kings to cling to the earlier custom. Not until the reign 
 of Henry I. did the right to elect the bishops finally pass 
 from the king and the witan to the chapters of the cathedral 
 churches. 6 The right of election which thus passed to the 
 
 1 Marca, De Concordantia, etc., 1. vi. rule to be this : " The king and the wi- 
 c. 2; Schmidt, t. iv. p. 173; Hallam, tan had power to appoint prelates to 
 M. A., vol. ii. p. 172 and notes. The vacant sees." Saxons in Eng., vol. ii. 
 clergy no doubt took the leading part p. 221. As to the actual practice in 
 in the election, but the ratification of particular cases, see Stubbs, Const. 
 the people was necessary to render it ffist..\o\. L p. 134. 
 
 valid. See Father Paul on Benefices, 5 As to the history of this case, see 
 
 c. 7. Freeman, Norm. Cong., vol. ii. p. 386 
 
 2 As to the origin of chapters, see (Appendix I). In this appendix the 
 Rev. Canon Venable's article on " Ca- whole question of the appointment of 
 thedrals," in Enc. Brit., vol. v. p. 227, bishops and abbots in the early days is 
 gth ed. fully discussed. 
 
 Fr. Paul's treatise on Benefices, 6 " The struggle between Henry I. 
 c. 24; Middle Ages, vol. ii. p. 183 and and Anselm on the question of investi- 
 note 2. ture terminated in a compromise which 
 
 * Kemble's sixth canon states the placed the election in the hands of the
 
 346 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Their elec- 
 tion after 
 the Con- 
 quest. 
 
 The ques- 
 tion of in- 
 vestiture. 
 
 Concordat 
 of Worms, 
 
 1 1 22. 
 
 chapters was coupled with a serious limitation in favor of the 
 royal authority. It was required that the choice of the chap- 
 ter should be preceded by the royal license, and that it should 
 be followed by the presentment of the bishop-elect for the 
 royal approval. The necessity for the royal license preserved 
 in substance to the crown the right of nomination. Under 
 the old system the crown possessed the right to press its 
 nominee upon the witan ; under the new, to press its nominee 
 upon the chapter. But the bishop-elect, even after his due 
 appointment by the chapter, and after the giving of the royal 
 assent to his consecration, could not enter into the possession 
 of the temporalities attached to his office without the act of 
 the king as his feudal lord and sovereign. As the process of 
 feudalization advanced, the estates of a bishop or abbot came 
 to be looked upon as a fief or benefice held of the king by 
 the tenure of military service. 1 It therefore became neces- 
 sary under feudal ideas that the bishop-elect should be in- 
 vested (from "vestire" to put in possession) by his lord with 
 the feudal estates annexed to his office. Upon the death of 
 a bishop the ring and staff, the symbols of episcopal jurisdic- 
 tion, were delivered to the king by a deputation from the 
 chapter. When the vacancy was filled, these symbols were 
 returned to the new incumbent as evidence of the fact that 
 he had been fully invested by the king with his temporal pos- 
 sessions. Such was the general rule of investiture which 
 prevailed throughout Christendom down to the famous con- 
 troversy between the pope and the emperor which was finally 
 settled by the concordat of Worms (1122), wherein it was 
 agreed, " on the one hand, that the emperor should surrender 
 to the church the right of investiture by ring and staff, grant 
 to the clergy throughout the empire the right to free election, 
 and restore the possessions and feudal sovereignties which 
 had been seized during the wars in his father's time and his 
 own ; while on the other hand it was conceded by the pope 
 that all elections of bishops and abbots should take place in 
 the presence of the emperor or his commissioners, and that 
 every bishop-elect in Germany should receive, by the touch 
 of the sceptre, all the temporal rights, principalities, and posses- 
 
 chapters of the cathedrals," etc. 
 Stubbs, Const. Hist., vol. iii. p. 295. 
 
 1 See above, p. 271.
 
 IV.] THE WINNING OF THE CHARTERS. 347 
 
 sions of the see, excepting those which were held immediately 
 of Rome." l The continental quarrel upon the subject of inves- 
 titures which was thus settled by the concordat of Worms 
 was fought out in England between Anselm and Henry I. Anselm and 
 Under the influence of the decrees of the Lateran Council Henry L 
 (1099) Anselm felt obliged to refuse to do homage to Henry, 
 or to consecrate the bishops whom Henry had invested ac- 
 cording to the ancient custom. After years of serious con- 
 troversy a compromise was reached in 1107 wherein it was 
 agreed that the king should give up the right of investiture by 
 the ring and staff, symbols of spiritual jurisdiction, and 
 should accept in lieu thereof from the bishop a promise of 
 fealty and homage before he should receive the temporalities 
 of his office. It was further agreed that the election of bish- 
 ops should be vested in the chapters of the cathedral churches, 
 subject to the royal right of license or nomination. 2 This 
 right of canonical election, which was confirmed by Stephen 
 at his accession, 3 was recognized in turn by Henry II. and 
 Richard I., and finally by John in a charter issued to the 
 church a short time before the granting of the Great Charter 
 itself. 4 
 
 An archbishop, even after his election by the cathedral Rome and 
 chapter, and after the reception of the temporalities from the P alUum - 
 the king as feudal lord, could not consider himself fully in- 
 ducted into office until his right had finally been confirmed 
 by the see of Rome. The right of the papacy to a voice or 
 influence in episcopal appointments was first asserted in the 
 case of archbishops, who in early times were expected to make 
 a journey to Rome for the purpose of being invested with the 
 pallium, the emblem of metropolitan power, without which 
 no archbishop could safely venture to perform the highest 
 functions of his office. 5 Upon the receipt of the pallium the 
 metropolitan took an oath of obedience to the pope, with 
 
 1 See Enc. Brit., vol. xiii. p. 201, ar- * For John's charters, see ibid. p. 5. 
 tide on " Investiture." 6 Lingard, Anglo-Saxon Church, p. 
 
 2 For the history of the quarrel be- 205. Gregory and his immediate suc- 
 tween Henry and Anselm, see Free- cessor excused the English metropoli- 
 man, Norm. Conq., vol. v. pp. 95, 127, tans from so long a journey, and sent 
 146, 237 ; Stubbs, Const. Hist., vol. iii. the pall by messengers. Wilkins, 
 pp. 295, 296. Concilia, pp. 32, 35. See, also, Stubbs, 
 
 8 For Stephen's charter see Statutes Registrum Sacrum Anglicanum, pp. 
 of the Realm : Charters of Liberties, 140, 141. 
 P-3-
 
 348 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Appeals to 
 the papal 
 court in dis- 
 puted elec- 
 tions. 
 
 John and 
 Innocent 
 III. 
 
 Summary. 
 
 whom he entered into the closest relations. Not until the 
 thirteenth century was the papal influence brought to bear 
 directly upon appointments to suffragan sees. This influence 
 was chiefly asserted through the medium of appeals to the 
 papal court in disputed elections, which constantly arose, not 
 only out of disputes between the clergy themselves, but out 
 of the attempts upon the part of the crown to force upon the 
 chapters the selection of royal nominees. In such cases, 
 prior to the famous controversy which followed the death 
 of Archbishop Hubert Walter, the popes had contented 
 themselves with rejecting unfit candidates, and with passing 
 upon the canonical validity of elections. 1 Upon the death of 
 Hubert a controversy as to the future incumbent of Canter- 
 bury was brought on between John and Innocent III., which 
 led to the assertion upon the part of the papacy of claims of 
 a far more aggressive character. The bearings of this famous 
 controversy will be considered hereafter. 
 
 The causes have now been briefly reviewed which brought 
 about in England after the Conquest the establishment of the 
 clergy as a distinct and privileged " body completely organ- 
 ized, with a minutely constituted and regular hierarchy, pos- 
 sessing the right of legislating for itself and taxing itself, 
 having its recognized assemblies, judicature, and executive, 
 and although not as a legal corporation holding common prop- 
 erty, yet composed of a great number of persons each of whom 
 possesses corporate property by a title which is either con- 
 ferred by ecclesiastical authority or is not to be acquired with- 
 out ecclesiastical consent. Such an organization entitles the 
 clergy to the name of a ' communitas,' although it does not 
 complete the legal idea of a corporation proper." 2 The prin- 
 ciple of cohesion which thus united the church as a spiritual 
 organization grew out of that universal corporate spirit which 
 was everywhere animating the clergy of Western Christen- 
 dom. The force of that corporate spirit was organized and 
 strengthened by the growth of the canon law, in which the 
 expanding claims of the clergy were distinctly defined, and 
 by the application of that system by the clergy themselves, 
 in their own courts and councils, to the maintenance and 
 
 1 See Stubbs, Const, ffist., vol. iii. 
 PP- 303-305- 
 
 8 Stubbs, Const. History, vol. iii. p. 
 290.
 
 IV.] THE WINNING OF THE CHARTERS. 349 
 
 advancement of the rights and privileges of their order. 
 Thus organized and equipped for action, the clergy entered 
 as one of the leading constitutional factors into the prolonged 
 struggle for the charters. In that struggle, as we shall see 
 hereafter, while the clergy as a body were intent upon the 
 assertion of their special rights and immunities, foremost 
 among which was the right to tax themselves in their own 
 councils, they were at the same time animated by a broad 
 spirit of generous patriotism. Throughout the struggle of 
 the nation against the crown, in the corporate person of the 
 church, English freedom found a stern and resolute defender. 
 "The historians of the age, all of them churchmen, most of 
 them monks, are all but unanimous on the popular side. 
 Prelates like the Primate Stephen, like Robert Grosseteste of 
 Lincoln and Walter Cantelupe of Worcester, were foremost 
 in the good cause ; the two latter were among the closest 
 friends and counsellors of the patriot earl," * Simon of 
 Montfort. 
 
 Having stated the causes which impelled the clergy to Estate of 
 withdraw from the main body of the nation, and to incorpo- age, b n 
 rate themselves into a spiritual organization which finally 
 takes, for a time at least, its constitutional place as an estate 
 of the realm ; or, in other words, having explained how the 
 line was drawn between the clergy and the laity, the more 
 difficult task remains to draw out the causes which led to the 
 division of the laity themselves into the two estates of the 
 baronage and the commons. From the reign of Edward I. 
 down to the present day, the estate of the baronage or peer- identical 
 age has been identical with the house of lords. 2 The hered- 
 itary and official counsellors of the crown who constitute lords - 
 the upper house of parliament represent in their own persons 
 the entire estate of the baronage, they do not represent a 
 wider noble class or caste of which they themselves are but 
 
 1 Freeman, Growth of the Eng. Con- constituted ; that they at length con- 
 stitution, p. 112. sisted, as they now consist, of two dis- 
 
 2 The Lords' committee conclude, tinct bodies, having different charac- 
 " that from the twenty-third of Edward ters, rights, and duties, and generally 
 the First to the fifteenth of Edward the distinguished by the appellations Lords 
 Second, the legislative assemblies of the and Commons ; the lords being all per- 
 country appear to have been generally, sonally summoned by special writs, but 
 but not always, constituted nearly in the distinguished among themselves as 
 manner in which the assembly in the spiritual and temporal." Report on 
 twenty-third of Edward the First was the Dignity of a Peer, vol. i. p. 390.
 
 350 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Distinction 
 between 
 English 
 and conti- 
 nental no- 
 bility. 
 
 The witan 
 survives as 
 the house 
 of lords. 
 
 a part. The only nobleman known to English law is he who 
 holds the hereditary office of a peer. The right to inherit 
 such an office the law concedes to the peer's eldest son, but 
 it concedes no other rights to his children. The children of 
 a peer even the future holder of the peerage himself while 
 the father lives are, in the eyes of the law, commoners and 
 nothing more. The crown may ennoble any one, but the 
 nobility so granted belongs only to that member of the family 
 so ennobled, to the actual owner of the peerage himself. 
 In this fact lies the marked distinction between nobility as it 
 has existed in England and nobility as it has existed in those 
 continental lands in which the privileges of the noble were 
 permitted to extend to all his children and their children for- 
 ever. The theory that mere nobility of blood conveys po- 
 litical rights or privileges has never been recognized in the 
 English system. 1 As the hereditary peers of the realm, in 
 conjunction with the lords spiritual, whose special status 
 will hereafter be explained, constituted the entire estate of 
 the baronage, and as the estate of the baronage is identical 
 with the house of lords, it follows that the history of the one 
 is the history of the other. 
 
 It is a distinctive feature in the political history of the 
 English nation that there has never been a time when it has 
 been without a national assembly ; the ancient witenagemot 
 has never ceased to exist ; it has never lost its corporate iden- 
 tity. Despite the changes of constitution and of name 
 through which it has passed, it still survives in the person 
 of the house of lords. In the language of one of the masters 
 of English history, "the house of lords not only springs 
 out of, it actually is, the ancient witenagemot." 2 The fact of 
 this corporate identity can only be grasped through an exami- 
 nation of the process through which the Old-English national 
 assembly was transformed into the feudal councils of the 
 Norman and Angevin reigns ; then by a further examination 
 of the process through which, out of these Norman and An- 
 gevin councils, was finally developed, by the practice of sum- 
 
 1 For a full statement of the differ- 
 ence between English and foreign no- 
 bility, see Freeman, Growth of the Eng. 
 Constitution, pp. 125-129; Stubbs, 
 Const. Hist., vol. ii. pp. 176-178. 
 
 2 Freeman, Growth of the Eng. Con- 
 stitution, p. 91. See, also, Comparative 
 Politics, p. 232.
 
 IV.] THE WINNING OF THE CHARTERS. 35 1 
 
 mons, the hereditary chamber of the national parliament. 
 
 An examination has been heretofore made of the history of 
 
 the witan, whether considered as the supreme council of an 
 
 heptarchic state, or as the supreme council of the whole Eng- 
 
 lish nation when finally united in a single consolidated king- 
 
 dom. 1 After the coming of William the continuity of the old Continuity 
 
 national assembly went on unbroken ; the witan remained as 
 
 before the national council of the king, and during William's 
 reign it retained much of its earlier character. 2 Of the con- 
 stitution of the witan, either before or after the Conquest we 
 have no direct or formal account, but the highest authorities 
 substantially agree in the conclusion that on all ordinary oc- 
 casions the witan was a comparatively small gathering of 
 great men, while on extraordinary occasions the assembly 
 was sometimes reinforced by large popular bodies from every 
 part of the kingdom. " According to one view, the assembly 
 was in theory open to every freeman, but in practice only a 
 small class habitually attended. According to the other view, 
 it was in theory confined to a small class, but in practice it 
 was ever and anon thrown open to large classes of men be- 
 sides its usual members. . . . The practical aspect of the two 
 doctrines is the same." 3 But although the witan, under the 
 name of the great council, outlived the Conquest, and although 
 in legal theory it retained all of its old powers, yet the fact 
 remains that the constitution of the assembly underwent a 
 great practical transformation. At the beginning of Wil- practical 
 Ham's reign, those who composed the council that ordinarily n^"^ 
 gathered around the king were a body of Englishmen ; by wrought by 
 the end of his reign this body had gradually changed into an quest. 
 assembly of Normans, among whom an Englishman here and 
 there held his place. This change naturally resulted from 
 the character of the Conquest itself. Through William's 
 policy of confiscation and regrant, nearly all of the great es- 
 tates passed from English to Norman hands ; and in the 
 same way all of the great offices in church and state were 
 parcelled out among his followers. The king's thegns thus 
 
 1 See above, pp. 147, 148. Stubbs, as to the constitution of the 
 
 2 See above, p. 241. witenagemot. See Norm. Conq., vol. 
 8 Mr. Freeman thus states the differ- v. p. 273. For the Bishop's views, see 
 
 ence, if* difference there be, between Const, Hist., vol. i. p. 121. 
 his own views and those of Bishop
 
 352 THE NORMAN CONQUEST. [Cn. 
 
 became his tenants-in-chief, holding their lands from him as 
 The ancient their lord. Through this feudalizing process the ancient 
 becomes national assembly of great men gradually became the king's 
 
 court f feudal vassals, whose right to exercise power was 
 feudal vas- made to depend practically upon the king's pleasure. 1 Under 
 Henry II. and his sons, the national council, which was now 
 summoned at regular intervals, attained to a definiteness of 
 organization which it had never possessed before. Its com- 
 position was that of a perfect feudal court, an assembly of 
 archbishops, bishops, abbots, priors, earls, barons, knights, 
 and freeholders. The constituent members of the assembly 
 are the same as under the Norman kings, but greater promi- 
 nence and a more definite position is now assigned to the 
 minor tenants-in-chief. In the days of Henry of Anjou, as 
 in the days of Eadward and of William, an ordinary meeting 
 of the national assembly embraced only the witan, the great 
 men of the kingdom ; while on an extraordinary occasion it 
 might embrace, besides these, not only the tenants-in-chief, 
 Theprac- but the whole body of freeholders. Through the influence 
 monsf SUm " f tne practice of summons, to whose origin an exact date 
 cannot be assigned, the tendency was fast gaining ground to 
 limit the national assembly to those only who were summoned 
 by the king's writ either personally or in a body. 2 The writs 
 of summons were of two kinds : first, such as were specially 
 addressed to those great personages whose presence was nec- 
 essary, and who were summoned as a matter of course ; 
 second, such as were addressed generally to the sheriff of 
 each shire, requiring him to summon in a body the lesser 
 landowners. How far this practice of summons, which was 
 in active operation in the time of Henry II., had developed 
 up to the sixteenth year of the reign of John, can be defi- 
 as defined nitely ascertained from the fourteenth article of the Great 
 G^eaTchar- Charter, which provides that, "to have the common counsel 
 ter - of the kingdom, we will cause to be summoned the arch- 
 
 bishops, bishops, abbots, earls, and greater barons singly by 
 our letters ; and besides we will cause to be summoned in 
 general by our sheriffs and bailiffs all those who hold of us in 
 chief." 8 By this clause, which no doubt expressed the then 
 
 1 See above, p. 242. 8 The Lords' Committee report, 
 
 2 See above, pp. 289-291. " That the Great Charter of John is
 
 IV.] THE WINNING OF THE CHARTERS. 353 
 
 existing practice, the qualification for membership in the na- 
 tional assembly was at last distinctly defined, and that quali- 
 fication naturally assumed a feudal shape. No one was ex- 
 pected to attend unless he was summoned, and no one was 
 summoned unless he was a tenant-in-chief. By the form of 
 the summons, a line was also distinctly drawn between two 
 different classes of men, between the magnates, who were 
 entitled to a personal summons, and the main body of tenants- 
 in-chief, who were summoned generally in the shires : in this 
 way the distinction between lords and commons begins. 
 
 The greater tenants-in-chief, who received personal sum- Every peer 
 
 , Mii , i supposed to 
 
 mons to the national council, and whose right to receive such hold a bar- 
 
 personal summons became hereditary, represent, together Q" 
 with the lords spiritual, the peerage of England. 1 Every 
 peer, whether temporal or spiritual, holds, or is supposed to 
 hold, an ancient barony directly of the king. 2 The theory is 
 that the holding of an estate by the peculiar tenure of barony 
 was the original qualification which entitled the tenant-in- 
 chief to the right of personal summons, 3 "the baronage of 
 the thirteenth century was the body of tenants-in-chief hold- 
 ing a fief or a number of fiefs consolidated into a baronial 
 honor or qualification." 4 The difficult matter, in the absence 
 of any early enfeoffment of a barony, is to determine what 
 elements were necessary to constitute the baronial honor or 
 estate. Although the characteristics and attributes of the Nature of 
 baronial tenure have been made the subject of special investi- tenure. 
 gations by Selden, 6 Madox, 6 Hallam, 7 and Stubbs, 8 no precise 
 or satisfactory definition of a barony has resulted from the 
 
 the earliest document of which au- 2 But the simple holding by barony 
 
 thentic evidence remains, from which was not of itself a sufficient ground for 
 
 the constitution of that legislative as- requiring attendance in parliament ; a 
 
 sembly called the king's great council, writ of summons did not necessarily 
 
 or the great council of the realm, can follow tenure by barony. Lords' Re- 
 
 be, with any degree of certainty, col- port, vol. i. pp. 326, 342. Cf. Black- 
 
 lected ; . . . that that assembly con- stone, bk. i. p. 1 56, as to the baronial 
 
 sisted of certain persons who by that tenure of the lords spiritual. 
 
 charter were required to be personally 8 Hallam, Middle Ages, vol. iii. pp. 
 
 summoned by the king's writ, and of 9, 117. 
 
 other persons who by that charter were * Stubbs, Const. Hist., vol. ii. p. 778. 
 
 allowed to be summoned generally, and 6 Selden's Works, vol. iii. pp. 713- 
 
 not personally." Lords' 1 Report, vol. i. 743. 
 
 p. 389. Baronia Anglica. 
 
 1 No reference is here made to life 7 Middle Ages, vol. iii. pp. 9-14, 117- 
 
 peerage, which will be separately con- 1 19. 
 
 sidered hereafter. Const. Hist., vol. ii. pp. 178-184.
 
 354 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Barony by 
 summons. 
 
 Feudal rule 
 of primo- 
 geniture. 
 
 The right 
 to be sum- 
 moned be- 
 comes 
 hereditary. 
 
 The lords 
 spiritual. 
 
 inquiry. The writer last named cautiously concludes that 
 the definitions of law recognize rather than create the char- 
 acter of barony ; that that estate, however acquired, was a 
 barony which entitled its owner to a personal summons to 
 the council of the king ; that the baronage was ultimately 
 defined and recognized as an estate of the realm by the royal 
 action in summons, writ, and patent. But the status of the 
 peer was not fully established by the mere reception of the 
 king's writ ; it was upon the hereditary right to receive the 
 writ that the status of the peer ultimately depended. The 
 hereditary right to receive the king's writ, rather than the 
 tenure which was the original qualification for the writ, rep- 
 resents the constitutional basis upon which the peerage now 
 reposes. As the process of feudalization advanced, the in- 
 herent power of the crown to determine who should be sum- 
 moned as barons gradually became subject to the limitation 
 imposed by the feudal rule of primogeniture. It is generally 
 conceded that certainly during the reign of Edward I. the 
 right of a baron whose ancestor had once been summoned 
 and had once sat in parliament to claim the hereditary 
 right to be so summoned was clearly and definitely estab- 
 lished. The peers of the realm who thus acquired the hered- 
 itary right to be summoned, together with the lords spiritual, 
 constitute the estate of the peerage which is identical with 
 the house of lords. 1 
 
 The political status of the lords spiritual, which was at one 
 time involved in some confusion, has of late years been 
 placed upon a broad and rational basis. It was for a long 
 time contended that the spiritual lords sat in parliament by 
 virtue of their baronial tenures only, and not by virtue of that 
 older and higher right upon which the baronial status was 
 simply superimposed. The fact has been pointed out over 
 and over again that in the Old-English witan the prelates sat 
 with the other magnates of the realm as constituent elements 
 in the national assembly. The Conquest wrought no formal 
 change in this condition of things, apart from that general 
 process of change through which the witan itself was silently 
 transformed into a feudal council. In the process of feudal- 
 ization the church in its temporal relations was directly in- 
 
 1 Courthope, Hist, Peerage, p. xli. ; Stubbs, Const, ffist., vol. ii. p. 184.
 
 IV.] THE WINNING OF THE CHARTERS. 355 
 
 volved. The system of feudal law which Flambard seems to 
 have worked into a definite and formal shape was applied by 
 him with equal severity to all feudatories, temporal and spir- 
 itual. The estate of a bishop or abbot came to be regarded Estate of a 
 as a fief or benefice held personally of the king by the tenure ^ t p r " 
 of military service. When a vacancy occurred, as there was garded as a 
 no heir who could demand seisin, the king took the fief into 
 his own hands until he saw fit to admit a successor. The 
 profits of the vacancy and the payment from the successor 
 were the equivalents which the church paid for being exempt 
 from the ordinary feudal exactions which fell upon the estates 
 of laymen. 1 In this way the bishops and abbots were made 
 to assume the relation of tenants-in-chief, holding baronies 
 of the crown " sicut barones ceteri" and in this way the idea 
 grew up that the bishops and abbots sat in parliament by 
 virtue of their baronial tenure only. 2 But the sounder view 
 seems to be that, as a part of the witan of the realm, the 
 prelates never lost their immemorial right to sit in the na- 
 tional assembly. To this ancient right was simply added the 
 new right growing out of their feudal relations ; the title of 
 "barones" was simply added to that of "sapientes"* That Title of 
 the ancient right was never forfeited is evidenced by the fact added t"" 
 that the eruardian of the spiritualities of a vacant see, who that of 
 
 r " sapien- 
 
 could not pretend to a baronial qualification, received the /." 
 formal summons; 4 and by the further fact that even now, 
 when the bishops no longer hold baronies, they are still sum- 
 moned to the house of lords. 
 
 If we subtract from the English nation as constituted in The estate 
 the thirteenth century the estate of the clergy and the estate * com ' 
 of the baronage, the remainder represents, although in a very 
 vague and general sense, the third estate, the estate of 
 the commons. From the very variety and diversity of the 
 
 
 1 See above, p. 271. parliament, because his right to a seat 
 
 2 As an illustration of this view see m parliament is a franchise annexed to 
 the Lords' Report (vol. i. p. 393), in the temporalities of his see, and not 
 which the statement is made that the inherent in his spiritual dignity of 
 " dignity of bishop arises from his bishop." 
 
 consecration ; but he does not become 8 Freeman, Norm. Conq., vol. v. p. 
 
 a lord of parliament until invested with 279 ; Stubbs, Const. Hist., vol. ii. pp. 
 
 the temporalities of the see to which 169, 170; Hody, Hist, of Convocations, 
 
 he is promoted, and until then he can- p. 126. 
 
 not have a writ of summons to parlia- * Hallain, M. A., vol. iii. p. 9. 
 ment to enable him to take his seat in
 
 356 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 The term 
 " com- 
 mons " as 
 understood 
 upon the 
 Continent ; 
 
 as under- 
 stood in 
 England. 
 
 Represen- 
 tatives of 
 the shires 
 and towns 
 unite in the 
 house of 
 commons. 
 
 elements that entered into its constitution, the commonalty 
 necessarily lacked that force of internal cohesion, that sense 
 of corporate identity and oneness, which bound together the 
 clergy and the nobles. No mediaeval politician would have 
 thought of defining the third estate to be a union into one 
 corporate body, conscious of its own identity, of all orders of 
 men below the nobility and the clergy. Any such compre- 
 hensive definition would have been at utter variance with the 
 facts. As an illustration of the narrow view of the "com- 
 mons " that existed on the Continent in mediaeval times, the 
 fact may be cited that in France and Spain the term was 
 then understood to embrace only the citizens of privileged 
 towns, or of chartered communities of kindred municipal 
 origin. 1 In England, however, the term has always borne a 
 wider signification ; it has there embraced not only freemen 
 incorporated in towns, but freemen incorporated in shires. 
 The term "commons," as it appears in the English political 
 system, must therefore be understood to include all freemen 
 organized and incorporated for government in the two lead- 
 ing classes of local communities, towns and shires. 2 In the 
 English system the commonalty as organized in shires were 
 the first to send representatives to parliament in the persons 
 of the knights of the shire, who appeared as the representa- 
 tives of all the freeholders in their respective counties. 
 Their example was soon followed by the commonalty as 
 organized in communities of cities and boroughs. Out of 
 the union of the knights of the shire, who represented the 
 lesser landowners, with the citizens and burgesses, who 
 represented the commercial interests of the towns, has 
 grown the house of commons in which is now embodied a 
 
 1 As to France, cf. Thierry, History 
 of the Tiers-tat, vol. i. p. 56 (Eng. 
 trans. ) ; Savaron, tats gtntraux, p. 
 74. As to Spain, cf. Schafer, Spanien, 
 vol. iii. pp. 215, 218; Zurita, t. i. fol. 
 71, 74. On the Aragonese cortes, see 
 Middle Ages, vol. ii. p. 58 and notes. 
 The term "commons" originally bore 
 the same meaning in the constitution 
 of Scotland. For the history of that 
 constitution, and of the change made in 
 it in 1427, whereby commissioners of 
 shires were permitted to appear in par- 
 liament as the representatives of the 
 minor tenants-in-chief, see Lords' e- 
 
 port, vol. i. pp. 111-124. 1 the l an - 
 guage of the Report, the change then 
 made " bearing resemblance, so far as 
 it extended, to the system of represen- 
 tation long before adopted in Eng- 
 land." P. 114. 
 
 2 " The commons are the ' commu- 
 nitates ' or ' universitates,' the organ- 
 ized bodies of freemen of the shires 
 and towns ; and the estate of the com- 
 mons is the ' communitas communita- 
 tum,' the general body into which for the 
 purposes of parliament those commu- 
 nities are combined." Stubbs, Const, 
 ffist,, vol. ii. p. 1 66.
 
 IV.] THE WINNING OF THE CHARTERS. 357 
 
 real representation, not of any single order or class, but of 
 the whole English nation. This system of representation, 
 which has grown and widened from humble beginnings until 
 it has become the dominant force in the constitution, derived 
 its original vitality from the fact that the representatives of 
 the lesser landholders, who were for a long time the strength 
 of the country, severed themselves from the baronage, 1 and 
 then united upon equal terms with the representatives of the 
 towns in the formation of the third estate. The third estate 
 in England thus acquired a vital element of strength which 
 in continental lands it did not possess. How the representa- 
 tives of the shire and town communities were chosen, and 
 how they were drawn together and happily united in a single 
 chamber, are questions which must be worked out hereafter 
 in connection with the growth of parliament. 
 
 From what has now been said, the fact appears that, al- Summary, 
 though the elements out of which the three estates were 
 organized existed from the very earliest times, the causes 
 through which these elements were finally worked into a 
 definite and formal shape sprang directly from the Norman 
 conquest. The forces which the Conquest put in motion 
 brought about not only the severance of the clergy from the 
 laity, but the division of the laity themselves into the two 
 estates of the baronage and the commons. The process of 
 definition which begins with the Conquest is completed by 
 the end of the reign of Edward I. The parliaments of Ead- 
 ward were assemblies of estates ; in them each estate or order 
 appeared in person or by representatives. But the process 
 of definition was by no means complete when the struggle 
 for the charters begins. It was in the course of that strug- 
 gle, in which each class or order was fighting primarily to 
 establish its own special rights and privileges, that the cor- 
 porate identity of each estate was definitely and permanently 
 defined. 
 
 3. The statement has heretofore been made that the strug- 
 gle for the charters did not grow out of the mere possession 
 by wise and politic princes of the type of Henry I., and of 
 
 1 " In most other countries the class the estate of the nobles." Freeman, 
 
 of men who were returned as represen- Growth of the English Constitution, p, 
 
 tatives of the counties, the knights of 130. 
 the shire, would have been members of
 
 358 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Pressure of 
 the royal 
 authority 
 upon every 
 class in the 
 reign of 
 Richard I. 
 
 Taxation 
 under 
 Henry II. 
 
 Land 
 taxes : 
 
 hidage; 
 
 scutage. 
 
 Taxation 
 of personal 
 property. 
 
 his grandson Henry II., of vast and practically unlimited 
 powers which were never deliberately employed for purposes 
 of oppression merely. Not until the grinding weight of the 
 royal authority was heedlesly and wantonly applied by care- 
 less despots to the oppression of all classes and conditions of 
 men did the collective people, in the persons of the three 
 estates, rise up to grapple with the crown in a struggle for 
 the establishment of rights which were made eternal. With 
 the wanton and irritating pressure of the royal authority 
 upon every class in the reign of Richard I., the struggle for 
 the charters really begins. The royal statesman and finan- 
 cier who preceded Richard, while engaged in the work of re- 
 organizing the general system of administration, remodelled 
 and expanded with special care the machinery of taxation. 
 Until the latter part of the reign of Henry II. all taxation, 
 excepting the customs, fell upon the land, and consisted (i) 
 of the ancient customary dues, and the tax on the hide, sur- 
 vivals of the Old-English system ; and (2) of the feudal inci- 
 dents, and the scutage or tax on the knight's fee, products 
 of the new system of military tenures. Leaving out of view 
 the ancient customary dues and the feudal incidents, the two 
 land taxes that stand prominently forth are the Old-English 
 tax on the hide, whether known as aid, hidage, carucage, or, 
 in the case of towns, talliage ; and the new feudal tax on the 
 knight's fee known as scutage. These two taxes affected 
 two distinct classes of land-owners : the scutage was the tax 
 assessed upon the lands of the tenants-in-chivalry, the hidage 
 or carucage upon the lands of the freeholders. Only on rare 
 occasions were both of these taxes imposed at once ; as a 
 general rule, a year marked by grant of a scutage was not 
 marked by the grant of a carucage. But as Henry's reign 
 drew to a close, tempted by the great development in na- 
 tional wealth which had followed his policy of reform and 
 order, he determined to widen the basis of taxation by a 
 marked innovation. With the consent of a great council 
 held at Geddington in 1188, Henry brought taxation to bear 
 directly upon personal property by decreeing a tithe of a 
 tenth of movables to aid the common host of Christendom 
 in retaking the Holy City from Saladin. In order fairly to 
 assess the tithe, Henry resorted to his favorite institution of
 
 IV.] THE WINNING OF THE CHARTERS. 359 
 
 inquest by the oaths of local jurors. Whenever any one was 
 suspected of contributing less than his share, four or six law- 
 ful men of the parish were chosen to declare on oath what he 
 should give. In this way the representative principle is first 
 brought into contact with the system of taxation. 1 The fruit 
 of this enlarged and improved system, embracing not only 
 land but personal property, was a gross receipt from all 
 sources, in the last year of Henry's reign, of 48,000? And 
 according to one chronicler, his treasure at the time of his 
 death amounted to the improbable sum of ^9OO,ooo. 3 At 
 the death of Henry the vigorous system of taxation which he 
 had constructed with care and wielded with moderation 
 passed into the hands of a spendthrift knight-errant, who 
 from the beginning to the end of his reign strained it to the 
 limit of its capacity to support brilliant adventures in foreign 
 lands in which his people had little or no real concern. From Taxation 
 a constitutional standpoint, the reign of Richard I. is chiefly Richard I. 
 interesting in so far as it illustrates the improvements in the 
 system of taxation suggested by its constant use, and the 
 oppressions which arose out of its incessant application to all 
 classes and conditions of men. Richard's first act after his 
 accession was to seize upon his father's treasure, which he 
 augmented by the sale of every available species of property, 
 or office, or feudal right for which he could find a purchaser, 
 from the disposal of the royal wards in marriage up to the 
 sale of the supremacy over Scotland. 4 With the money thus 
 hastily accumulated during the few months of his sojourn in 
 his English kingdom, he sailed in December, 1189, for Pales- 
 tine. During his absence, which, with the exception of his 
 sojourn after his captivity, was coextensive with his reign, the 
 administration of the kingdom was committed in turn to four ciars - 
 justiciars, 6 who would no doubt have wielded the royal au- 
 
 1 For the authorities upon the sub- millia marcarum." Vol. iii. p. 8 ; see 
 ject of taxation as it existed in the note 2, R. S. 
 
 reign of Henry II. see above, p. 298. * Benedictus, vol. ii. pp. 90,91. " Wil- 
 
 2 Cf. Pipe Roll of the ist Richard I. lelmus rex Scottorum dedit Ricardo 
 for the year ending at Michaelmas, 1189. regi Angliae decem millia marcarum 
 
 8 " Et inventa fuerunt et numero et sterlingorum." Ibid., p. 98. 
 
 pondere plusquam nongenta millia li- 6 " The English history of the reign 
 
 brarum in auro et argento." Bene- is, then, the history, not of Richard, but 
 
 dictus, vol. ii. pp. 76, 77. Hoveden of his ministers ; of the administrations 
 
 makes a much smaller estimate, "ex- of his four successive justiciars, Wil- 
 
 cedens numerum et valentiam centum liam Longchatnp, Walter of Coutances,
 
 360 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 The effort 
 to raise 
 100,000 
 for Rich- 
 ard's ran- 
 som. 
 
 Richard's 
 second and 
 last visit to 
 England. 
 
 thority with wisdom and moderation had it not been for the 
 increasing pecuniary demands of their reckless master. In 
 1192, during the justiciarship of the archbishop of Rouen, 
 Richard made his first great demand for money from the 
 prison of the duke of Austria, who held him for a ransom of 
 ; 1 00,000, double the whole revenue of his kingdom. 1 Hu- 
 bert Walter, who visited his master in captivity, was appointed 
 to the then vacant see of Canterbury, 2 and sent home to aid 
 the justiciar in raising the ransom. Although the machinery 
 of taxation was strained to the utmost by the taking of an 
 aid of 2os. on the knight's fee, by the imposition of a caru- 
 cage and talliage which fell upon all other lands, by the seiz- 
 ure of the wool of the Cistercians and the treasures even 
 the chalices of the churches, and by the exaction of one 
 fourth of movables, still the whole sum demanded could not 
 be raised. 3 By the payment of what could be raised, and by 
 surrendering his kingdom into the hands of the emperor and 
 receiving it back again as a fief, 4 Richard purchased his re- 
 lease from captivity, which was followed in March I IQ4, 5 by 
 his second and last visit to England. 
 
 The second visit, like the first, was for the purpose of put- 
 ting everything salable to auction, and of collecting throbgh 
 the machinery of taxation every shilling that could be wrung 
 out of every class of tax-payers. In a great council held at 
 Nottingham in April, after putting up the offices for sale, he 
 asked for a carucage, for a third part of the service of the 
 knights, and for the wool of the Cistercians. 6 In addition to 
 these demands, he directed the justices to make a visitation 
 of the shires under a commission which contemplated a gen- 
 eral review of the whole system of local administration. 7 
 Under the itinerant system as then organized, the justices 
 
 Hubert Walter, and Geoffrey Fitz 
 Peter." Preface to Hoveden, vol. iii. 
 p. xxii., R. S. 
 
 1 Hoveden, vol. iii. pp. 208, 210, 217, 
 222. See, also. Preface to Hoveden, 
 vol. iv. p. Ixxxiii., K. S. 
 
 2 Elected to Canterbury, May, 1 193. 
 Hoveden, vol. iii. p. 213; becomes jus- 
 ticiar at Christmas, 1193. R. Diceto, c. 
 671. 
 
 8 See Stubbs, Const. 'Hist., vol. i. p. 
 501, and note i. 
 * Hoveden, vol. iii. p. 202. Hove- 
 
 den adds that the emperor on his 
 death-bed released him from the trib- 
 ute of .5,000 a year. 
 
 6 Lands at Sandwich, March 13, 1194 
 (Hoveden, vol. iii. p. 235), and sails for 
 Normandy May 12 of the same year 
 (Ibid., p. 251). 
 
 6 For the proceedings of the council, 
 see Hoveden, vol. iii. pp. 240-243. 
 
 7 As to the history of the important 
 Iter of 1 194, see Hoveden, vol. iii. pp. 
 262-267 ; Gervase, c. 1 588 ; and also 
 Select Charters (zd ed.), p. 258.
 
 IV.] THE WINNING OF THE CHARTERS. 361 
 
 were charged under their commissions not only with judicial visitation 
 but fiscal business. It was their duty not only to hear t/ceshi" 5 
 causes, but, as a local court of exchequer, to inquire into and "94- 
 enforce the rights of the crown to all dues arising out of ward- 
 ships, marriages, advowsons, escheats, sergeantries, measures, 
 wines, franchises, and coinage, markets and tolls, together 
 with all other proprietary and feudal rights to which the king 
 was entitled. The sums which arose from these sources, 
 added to the fines, amercements, and forfeitures which re- 
 sulted from the administration of the criminal law, consti- 
 tuted a very material item in the royal revenue. 1 The " Iter 
 of 1194" is memorable not only for the relation which it 
 bears to the constitution of the grand jury, as heretofore ex- 
 plained, but for its comprehensive and oppressive character. 
 Among other things, the justices were commanded to collect 
 a talliage from all cities, towns, and demesnes of the king. 2 
 In 1 196 the king, being impatient at the delay in the progress 
 of the visitation, sent over new agents to impart fresh energy 
 to the work. 3 In this year it was that the poorer citizens of 
 London, under the leadership of William Fitz-Osbert, broke Popular 
 out into open revolt at the manner in which the talliage was " 
 collected. The poorer people contended that as the talliage 
 was collected by poll, instead of being assessed according to 
 the property of each tax-payer, an unequal part of the burden 
 fell upon them. 4 Although Fitz-Osbert was slain and the 
 outbreak put down, without apparent benefit to those who 
 were engaged in it, the occurrence serves to indicate the se- 
 verity of the distress among the people at large resulting 
 from the continuous and persistent pressure of royal tax- 
 ation. 
 
 Two years later a fresh demand for money from the bar- opposition 
 onage led to a revolt in a higher sphere. In a council held ^ n ^l ^ r " 
 
 at Oxford in 1198, the king demanded from the baronage taxation in 
 
 y 1198. 
 
 through the justiciar that they should furnish him for his war 
 
 in Normandy three hundred knights to serve for a year at 
 
 1 All this is clearly explained by Sir 8 Ibid, vol. iv. p. 5 ; William of New- 
 James Fitz- James Stephen in his great burgh, v. c. 19. 
 
 history of the Criminal Law, vol. i. p. * For the history of the rising, see 
 
 101 seq. Will. Newb. v. c. 20 ; R. Diceto, c. 691 ; 
 
 2 " (XXII.) Praeterea tailleantur om- Hoveden, vol. iv. pp. 5, 6, and preface, 
 nes civitates, et burgi, et dominica dom- vol. iv. p. Ixxxix. See, also, Palgrave's 
 ini regis." Hoveden, vol. ill p. 264. preface to the Rotuli Curia Regis.
 
 362 THE NORMAN CONQUEST. [Cn. 
 
 the daily pay of three shillings each. 1 This great and unpre- 
 cedented demand led to fierce opposition and high debate. 
 There were some in the assembly who dared to maintain the 
 principle that taxes were not to be imposed simply by the 
 royal will, that the right to consent to a grant necessarily 
 The patriot implied the right to refuse it. In the person of Hugh of Ava- 
 LTncohi? l n > bishop of Lincoln, the opposition found a spokesman and 
 a leader who was as ready to resist the demands of Richard 
 as Thomas had been in the preceding reign to resist the de- 
 mands of Henry of Anjou. To the demand of the king for 
 English money to pay a military force in a foreign war, the 
 patriot bishop of Lincoln answered that his church and its 
 pastor were bound to render military service to their lord the 
 king within the realm, but that they owed him neither men 
 nor money for wars in foreign lands. 2 Hugh, supported by 
 the bishop of Salisbury, held his ground, and the demand 
 was withdrawn by the justiciar Hubert, who shortly after- 
 wards resigned. 3 
 
 Clerical op- This unsuccessf ul attempt to tax the baronage was followed 
 taxation* i n the same year by the imposition of a carucage Upon the 
 lands of the freeholders at the heavy rate of five shillings on 
 each carucate or hide. 4 The imposition of this tax is impor- 
 tant in view of the method employed for its assessment. In 
 the latter part of the preceding reign, when personal property 
 became subject to taxation, Henry II. invoked the aid of his 
 favorite institution of inquest by the oaths of local jurors in 
 Assessment order to ascertain how much each one should give. 6 With 
 property, the imposition of the carucage of 1 198 the same embryonic 
 system of representation was for the first time extended to 
 
 1 Ei trecentos milites uno anno mora- Hoveden, p. Ixxxi. ; Norm. Conq.,vo\. 
 turos secum in servitio suo, vel tantam v. p. 465 ; Stubbs, Const. Hist., vol. i. 
 pecuniam ei darent, unde ipse posset pp. 509, 510. 
 
 per unum annum trecentos milites in 4 Hoveden, vol. iv. p. 46. " In some 
 
 servitio suo retinere, videlicet unicuique cases the carucate seems to be identi- 
 
 militi tres solidos Anglicanae monetae cal with the normal hide of 120 acres, 
 
 de liberatione in die." Hoveden, vol. but other instances show that the caru- 
 
 iv. p. 40. cate varied in area. It is the land cul- 
 
 2 " Scio equidem ad militare servi- tivated by a plough-team ; varying in 
 tium domino regi, sed in hac terra so- acreage, therefore, according to the 
 lummodo, exhibendum Lincolniensem lightness or heaviness of the soil, and 
 ecclesiam teneri ; extra metas vero according to the strength of the team." 
 Angliae nil tale abeadeberi." Magna Seebohm, Eng. Village Community, 
 Vita S. ffugonis, p. 248. p 40. 
 
 8 As to the constitutional importance 6 See above, p. 298. 
 of this event, see preface to vol. iv.
 
 IV.] THE WINNING OF THE CHARTERS. 363 
 
 the assessment of real property. The officers who were sent 
 out to collect it were commanded, with the aid of the sheriff 
 in each county, to call before them the members of the 
 county court, lords and bailiffs, the stewards of barons, the 
 reeve and four men of each township, and two knights from 
 each hundred, who were to be sworn to declare how many 
 carucates, or what wainage for ploughs, there were in each 
 township. 1 Whether the assessment or survey was fully car- 
 ried out is not known, 2 but it is quite clear that the collection 
 of the tax itself, which was excessive in amount, met with 
 resistance. The religious houses opposed it in such a spirit 
 as to bring upon the clergy a royal proclamation which put Clergy 
 them practically outside of the law. The effect of this meas- Swed. y 
 ure was to force the monks to purchase a reconciliation. 3 
 Thus, by the steady and persistent pressure of taxation upon 
 every class during the reign of Richard I., the clergy, the 
 baronage, and the commons were each in turn aroused to more 
 or less positive resistance. The poorer part of the commons 
 of London break into open revolt under the leadership of 
 William Fitz-Osbert ; the barons refuse a grant under the 
 lead of Hugh of Avalon ; while a part of the clergy go far 
 enough to bring upon themselves a denunciation which 
 amounts practically to outlawry. By this severe preliminary 
 discipline, under which every class and condition of men 
 were made to feel the nature of the wrongs that were to be 
 righted, the nation was trained for action in the darker days 
 that were yet to come. 
 
 4. The sudden death of the childless Richard, which oc- From the 
 curred in April, 1 199, brought face to face two hostile oUohnlo 
 claimants to his continental provinces and to his island king- ^ormandy 
 dom, at a time when the principles regulating the right of in I2 4- 
 succession to the royal office were still in a state of transition 
 from the ancient rule of elective kingship to the new feudal 
 rule of hereditary right. If the growing feudal doctrines of 
 primogeniture and representation had been universally recog- 
 nized, the right of Arthur, the son of Richard's deceased 
 
 1 " Quot carucarum wanagia fuerint 2 As to the resemblance of this in- 
 
 in singulis villis ; quot scilicet in domi- quest to that of Domesday, see Stubbs, 
 
 nico, quot in vilenagia, quot in elee- Const. Hist., vol. i. p. 510. 
 
 mosynis viris religiosis collatis." 8 Hoveden, vol. iv. p. 66. 
 Hoveden, vol. iv. p. 46.
 
 364 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Hubert. 
 
 elder brother, would have been clearly superior to that of 
 The right John. Upon the Continent, where the new feudal notions 
 na d taken the deepest root, Arthur's right was admitted in 
 Anjou, while Philip received his homage as duke and count 
 of all the provinces which Richard had held of the French 
 crown. 1 In Normandy and England, however, John, to whom 
 Richard had bequeathed, as far as he had the right to be- 
 queath, his island realm, with all his other lands, 2 entered 
 into quiet possession of dukedom and kingdom without oppo- 
 sition in favor of Arthur's title. To the kingship of England 
 John was elected according to the ancient custom, and, if the 
 Coronation story told by Matthew Paris can be accepted, Archbishop 
 Hubert, before he poured the consecrating oil upon the head 
 o f ^g king-elect, reminded him that no man had by virtue 
 of his birth a right to the kingship of England ; that that 
 right was conferred through the election of the nation after 
 invoking the aid of .the Holy Ghost ; that the only limit upon 
 the elective right thus vested in the nation was the right of 
 the royal house to have the choice made of some one of its 
 own members, provided one could be found eminently fit for 
 the kingly office. Richard having died without an heir, and 
 John being of the royal house, and possessing the other nec- 
 essary qualifications, was declared elected ; and the cry of 
 "Vivat Rex" was the response of the assembled multitude. 3 
 Thus secure in the possession of his English kingdom, John 
 set himself to work to wrest from his nephew such of his 
 continental lands as Arthur, by the aid of the king of the 
 French, had been able to withhold from him. After two 
 years and more of war and diplomacy between Philip and 
 John, the latter in a sudden fit of energy surprised Arthur 
 while he was besieging his grandmother in the castle of Mira- 
 bel, and took him prisoner to Rouen, where he was murdered 
 in the spring of 1203, as all the world believed, by his uncle's 
 
 " r 3 der 
 
 1 Hoveden, vol. iv. pp. 86-94. See, 
 also, Freeman, Norm. Cong., vol. v. p. 
 466. 
 
 2 Hoveden, vol. iv. p. 83. " Divisit 
 Johanni fratri suo regnum Angliae, et 
 omnes alias terras suas." 
 
 8 Matthew Paris, vol. ii. p. 80, JR. S. ; 
 and in a shorter form in Chr. Maj., 
 p. 197. "This speech has been much 
 
 criticised, and its authenticity ques- 
 tioned, but it is directly referred to by 
 Prince Louis of France in 1216, in a 
 public document printed in Rymer's 
 Faedera." Preface to M. Paris, vol. iii. 
 p. xli., R. S. For Mr. Freeman's view 
 of the speech, see Norm. Conq. t vol. L 
 p. 404, vol. v. p. 466.
 
 IV.] THE WINNING OF THE CHARTERS. 365 
 
 hand. In the midst of the indignation aroused by this dark 
 and bloody deed, Philip, after having first cited John to appear 
 before his court to be tried by his peers upon an accusation 
 of murder made by the barons of Brittany, 1 declared that his 
 guilty and contumacious vassal had forfeited all the fiefs which 
 he held of the crown of France. In the execution of his own LOSS of 
 sentence Philip at once marched on Normandy. Castle after Normand y' 
 castle fell before him, city after city surrendered at his mere 
 summons, until the whole land, without any show of serious 
 resistance, passed into his hands, to be united at last to his 
 dominions as one of the most faithful provinces of France. 
 By midsummer of 1204 Philip was master not only of Nor- 
 mandy, but of Maine, Anjou, and Touraine, and of nearly all 
 of Aquitaine north of the Garonne. 2 As a punishment for 
 his great crime, John was thus stripped at a blow of all of his 
 continental dominions, with the exception of the fragment 
 which he retained of his mother's inheritance. 
 
 By the breaking up of the vast empire of which England Political 
 was only a part, although the greater part, John was brought the^osVof 
 into more dependent relations with the English nation than Normand y- 
 had ever been imposed upon any of his Norman or Angevin 
 predecessors. But the change which was thus brought about 
 in the attitude of the king was no more marked than the 
 change which the loss of Normandy brought about in the 
 attitude of the baronage. By this time the great baronial 
 houses of the Conquest had to a very great extent either died 
 out or had been humbled by the overshadowing power of the 
 crown which had raised up in their places a new ministerial The new 
 nobility which had waxed strong in the sunshine of royal lability?* 
 favor. The new nobility which had thus grown to greatness 
 on English soil, although in the main no doubt of Norman 
 descent, were in feelings and interests far more English than 
 Norman, and far less closely connected with the Norman 
 duchy than had been the older nobility. 3 With the conquest 
 
 1 On this subject, see Sismondi, to deprive his guilty vassal of all his 
 
 Histoire des Franfais, vol. iii. p. 489; lands which owed homage to the crown 
 
 Le Baud, Hist. Bret., p. 210; R. Wen- of France." Norm. Conq., vol. v. p. 
 
 dover, iii. p. 273 ; Fcedera, i. p. 140. 469. 
 
 Mr. Freeman says : " The French king 2 Green, Hist. Eng. People, vol. i. pp. 
 
 cunningly devised for himself a juris- 189, 190 
 
 prudence out of the romances of Char- * See Select Charters^ 2d ed. p. 269. 
 lemagne ; and by its help he professed
 
 366 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 The bar- 
 onage as- 
 sumes the 
 leadership 
 of the na- 
 tion. 
 
 From the 
 loss of Nor- 
 mandy to 
 the signing 
 of the Great 
 Charter at 
 Runny- 
 mede. 
 
 The char- 
 acter of 
 John. 
 
 of Normandy by Philip, the last direct connection of the bar- 
 onage of England with the land of their fathers passed for- 
 ever away. An election had now to be made between Philip 
 and John, and under the pressure of this necessity those 
 families that still retained estates on both sides of the Chan- 
 nel either split into two branches, each of which made terms 
 for itself, or, renouncing their interests in one kingdom, cast 
 their fortunes with the other. 1 This complete severance of 
 all connection with the Continent, whereby the barons of 
 Norman descent who had grown up on English ground were 
 finally transformed into Englishmen, was the completion of 
 the great work which had been steadily going on since the 
 Conquest, the work of building up a united English nation. 2 
 At the head and front of the united nation, which thus arose 
 out of the assimilation of the smaller mass of the conquerors 
 by the greater mass of the conquered, the baronage Nor- 
 man in descent, but English in interest and in feeling held 
 its place throughout the prolonged struggle in which the 
 Great Charter was won. 
 
 5. After John had been reduced by the loss of his conti- 
 nental dominions to the kingship of England, he set himself 
 to work to illustrate to his English subjects, with whom he 
 was now brought face to face, how far, in the absence of 
 positive guarantees, the royal authority might be applied to 
 the wanton oppression of all classes and conditions of men, 
 when that authority happened to be wielded by the vilest, the 
 craftiest, the ablest of despots. " His worst enemies owned 
 that he toiled steadily and closely at the work of administra- 
 tion. . . . His plan for the relief of Chateau Gaillard, the 
 rapid march by which he shattered Authur's hopes at Mira- 
 bel, showed an inborn genius for war. In the rapidity and 
 breadth of his political combinations he far surpassed the 
 statesmen of his time. . . . The closer study of John's history 
 clears away the charges of sloth and incapacity with which 
 men tried to explain the greatness of his fall. The awful 
 lesson of his life rests on the fact that the king who lost 
 
 1 Hallam, M. A., vol. iii. p. 154; 
 Stubbs, Const. Hist., vol. i. p. 518. 
 
 2 " The loss of Normandy thus once 
 more called into being an united Eng- 
 lish nation. It was well at such a mo- 
 
 ment that England had a king whose 
 reign was one long series of wrongs 
 and insults done to the English nation." 
 Norm. Conq. t vol. v. p. 470.
 
 V.] THE WINNING OF THE CHARTERS. $6? 
 
 Normandy, became the vassal of the pope, and perished in a 
 struggle of despair against English freedom, was no weak and 
 indolent voluptuary, but the ablest and most ruthless of the 
 Angevins." 1 By the scourge of oppression in the hands of Poweriess- 
 such a master the English nation was aroused not only to a ^ownwhlfn 
 sense of its oneness, but to a sense of the utter weakness of ppsed by 
 the royal authority, even in the hands of the ablest and estates, 
 craftiest of despots, when steadily opposed by a united people 
 marshalled in the ranks of the three estates. The great 
 lesson which the struggle for the Charter teaches is embodied 
 in the fact that, while the royal authority which towered so 
 high over the land was more than a match in a single-handed 
 contest with any one order in the state, it became perfectly 
 powerless in the presence of an offensive alliance between 
 the three. As soon as the united nation was aroused to a 
 realization of this fact, by the persistent warfare waged by 
 John against the estates in detail, the royal authority was 
 broken and the cause of the king was lost. 
 
 The constitutional struggle, which pauses for a moment with The great 
 the winning of the Great Charter, actively begins with the fa- ^erttie 
 mous ecclesiastical quarrel which brought John into conflict appoint- 
 not only with the clergy of his own realm, but with the great- primate, 
 est of all the popes, Innocent III. The break between John 
 and the clergy grew out of the death of Hubert Walter, arch- 
 bishop of Canterbury, which took place in July, 1205. The 
 right to fill the vacancy thus created in the primacy of the 
 kingdom gave rise to an angry controversy between the monks 
 of Christchurch, the bishops of the primatial province, and 
 the king. 2 The monks upon their part claimed the right to 
 exercise all of the powers of the cathedral chapter of Canter- 
 bury ; the bishops upon their part, while they conceded the 
 right of capitular election, claimed that they should at least 
 concur with the monks in the choice of the metropolitan ; 
 the king upon his part claimed that no valid election could be 
 made by either or both without the royal license. As soon 
 as the death of Hubert was known, the junior part of the 
 
 1 Green, Hist. Eng. People, vol. i. pp. of no modern historian who has stated 
 229, 230. the whole matter with more clearness 
 
 2 For a general statement of the than Lingard. Hist. Eng., vol. ii. pp. 
 controversy, see M. Paris, vol. ii. pp. 40-47. 
 
 104-107, vol. iii. p. 222, R. S. I know
 
 368 THE NORMAN CONQUEST. [Cn. 
 
 monks 1 met clandestinely at night, and without the royal 
 license, and without the concurrence of the suffragan bishops 
 of the province, elected Reginald, their sub-prior, to the 
 metropolitan office. In the hope of sustaining this rash and 
 irregular proceeding, Reginald was dispatched to Rome to 
 seek the confirmation of the apostolic see. After his depart- 
 ure the wiser part of the brotherhood resolved to ignore 
 what had been done, and, having obtained the royal license, 
 proceded to hold an open and regular election. At the king's 
 dictation the chapter elected John de Gray, bishop of Nor- 
 wich, who was at once put into possession of the archbishop- 
 ric, and a delegation of twelve monks was sent to Rome to 
 Decision of support his title. After a year's delay Innocent first decided 
 2nt< the dispute between the suffragan bishops and the monks in 
 favor of the exclusive claim of the latter. 2 This question 
 being removed from the controversy, the pope proceeded to 
 pass upon the validity of the two elections which the monks 
 themselves had made, and, to the disappointment of both 
 parties, quashed them both. 3 The election of Reginald was 
 annulled upon the ground that it was uncanonical ; that of 
 John de Gray, upon the ground that it was improperly held 
 while the validity of the first election was a pending question. 
 These judgments of Innocent, which seem to have been in 
 accordance with the jurisprudence of the age, were followed 
 by the assertion of a papal claim of a startling character. 
 The primatial see being vacant, and the representatives of 
 the chapter having the right to fill the vacancy being present 
 in Rome with authority to enter into a new election, the 
 pope proceeded to end the controversy by assuming to him- 
 self the royal right of nomination. In the exercise of this 
 assumption, which was contrary to all English precedent, 4 
 
 1 " Several of the cathedral churches more than reject unfit candidates or 
 had been originally settled in monas- determine the validity of elections; 
 teries, and still continued to be served now he himself proposed a candidate, 
 by monks, who claimed and exercised pushed him through the process of 
 all the rights of the chapters." Lin- election, and confirmed the promotion, 
 gard, vol. ii. p. 41. although the royal assent was with- 
 
 2 "Post multas tandem hinc inde held." Stubbs, Const. Hist., vol. iii. 
 disceptationes, tandem a domino papa p. 305. The pope promised that, if 
 pronunciata est pro monachorum parte John would acquiesce, the appointment 
 contra episcopos sententia diffinitiva." should not be converted into a prece- 
 M. Paris, vol. ii, p. 107. dent injurious to the English crown. 
 
 8 Ibid., p. in. See Lingard, vol. ii. p. 43. 
 
 * "Hitherto the pope had done no
 
 IV.] THE WINNING OF THE CHARTERS. 
 
 Innocent commanded the monks to elect in his presence He claimed 
 Stephen Langton, an English scholar of eminence, who had no'mTna- 
 been raised to the rank of cardinal, and who was then present tlon * 
 at the papal court. Without conceding to John even the 
 right to confirm the election, the archbishop-elect was conse- 
 crated by the pope himself at Viterbo in June, 1207. 
 
 As the theories and relations of mediaeval times cannot be Theory of 
 measured by the standards of to-day, it is impossible to 
 understand the changing phases of the bitter and prolonged 
 conflict which ensued between Innocent and John without 
 some insight into that shadowy yet supreme overlordship 
 which the Roman pontiffs then claimed and exercised over 
 all the princes of the Christian world. The theory of the 
 mediaeval empire rested upon the magnificent notion of a vast 
 Christian monarchy whose sway was absolutely universal. 1 
 The chiefs of this comprehensive society were the Roman em- 
 peror and the Roman pontiff, the one standing at its head in 
 its temporal character as an empire, the other standing at its 
 head in its spiritual character as a church. The theory was 
 that each chief in his own sphere ruled by divine right as the 
 direct vicegerent of God, and that each possessed the hearty 
 sympathy and support of the other. The Roman Empire Roman em. 
 and the Catholic Church were, according to mediaeval ideas, c 
 two aspects of a single Christian monarchy whose mission it 
 
 was to shelter beneath its wings all the nations of the earth, single 
 
 , ,. . . Christian. 
 
 Although this magnificent theory was never fully carried out, monarchy. 
 although the universal monarchy never extended its dominion 
 over all mankind, or even over the whole of Christendom, yet 
 the fact remains that the ideal empire did for ages so far Continuous 
 influence the thoughts and actions of men that it is impos- ^oman^m- 
 sible to understand the history of mediaeval Europe if we fail f ir m e^ a key 
 to grasp the theory of its existence. No part of the system vai history. 
 was less faithfully carried out in practice than the require- 
 ment that the pope and the emperor should exercise their 
 concurrent sway without conflict of jurisdiction. It could 
 hardly have been otherwise, for the reason that the very 
 
 1 The outline here given of the in 1864 ; and from the brilliant review 
 
 theory of the mediaeval empire is drawn of that work by Mr. E. A. Freeman. 
 
 in the main from the famous work of The review may be found among Mr. 
 
 Mr. James Bryce, entitled The Holy Freeman's select historical essays. 
 Roman Empire, published at Oxford
 
 370 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Dante and 
 Saint 
 
 Thomas as 
 disputants. 
 
 Mediaeval 
 claim of 
 papal su- 
 premacy 
 as restated 
 by Cardinal 
 Manning. 
 
 The papal 
 
 supremacy 
 
 naturally 
 
 assumed a 
 
 feudal 
 
 shape. 
 
 structure of the dual fabric necessarily provoked a struggle 
 for supremacy between the temporal and the spiritual power. 
 When this struggle grew into overshadowing prominence 
 during the thirteenth and fourteenth centuries, while the dis- 
 putants admitted that the papacy and the empire were both 
 ordained of God, and that each in its own sphere had universal 
 jurisdiction, they failed to agree upon the relations of the two 
 jurisdictions to each other. Whether the supreme temporal 
 ruler, who was admitted into his high office through conse- 
 cration at the hands of the spiritual chief of Christendom, 
 was in the last resort subordinate to the latter as the lesser 
 to the greater light, or whether their dignities were coordi- 
 nate and coequal, were the questions over which was fought 
 the great battle between pope and emperor in the days of the 
 world's wonder, Frederick II. 1 The contention which Fred- 
 erick left unconcluded was continued in the next age by two 
 famous disputants. Saint Thomas of Aquin, in his treatise, 
 "Of the Government of Princes," 2 defended the supremacy 
 of the papacy on the one hand ; while Dante, in his treatise 
 "De Monarchia," maintained the independence of the empire 
 on the other. 3 
 
 The mediaeval claim of papal supremacy has thus been re- 
 stated in our own time by a great English cardinal: "The 
 supreme civil power of Christendom was dependent on the 
 supreme spiritual authority. The pontiffs created the Em- 
 pire of the West : they conferred the imperial dignity by 
 consecration; they were the ultimate judges of the emperor's 
 acts, with power of deprivation and deposition." 4 This su- 
 premacy, which the pope claimed not only over the emperor 
 but over all other Christian princes, taking its color from the 
 prevailing jurisprudence, naturally and necessarily assumed a 
 feudal shape. The theory was that all Christian princes stood 
 to the Roman pontiff as great vassals to a supreme lord or 
 suzerain, and as such supreme lord the pope claimed the right 
 to enforce the duties due to him from his feudal subordinates 
 
 1 See Pollock's Hist, of the Science " I it was who held 
 of Politics, p. 14 (Humboldt Library). Both keys to Frederick's heart, and turned the 
 
 2 As to the authorship of the De 
 
 Regimine Principum, see Reformateurs 4 See a monograph by Cardinal 
 
 et Publicities de ? Europe, Paris, 1864. Manning entitled The Pope and Magna 
 
 8 Uante, however, puts Frederick Carta, lately published in England, and 
 
 among the unbelievers in the Inferno, reprinted in Baltimore in 1885. 
 Canto xiii. 60-68 :
 
 IV.] THE WINNING OF THE CHARTERS. 3/1 
 
 through an ascending scale of penalties which culminated at 
 last in the absolution of the subject from the bonds of alle- 
 giance, and in the deposition of the sovereign himself. Such 
 were the claims of the papal power, and such its resources, 
 when John entered the lists against Innocent III. 
 
 With the consecration of Langton the trial of strength be- John re- 
 tween the pope and the king openly began. John at once de- recemTthe 
 clared that Stephen should never set foot in England in his ne _P ri ' 
 character as primate, while the monks who had taken part in 
 his election were made the special objects of the royal ven- 
 geance. They were despoiled of their lands and driven across 
 the sea. 1 In vain did Innocent attempt to appease the wrath 
 of John by the promise that, if he would acquiesce in what had 
 been done and receive the primate, the election itself should 
 not be converted into a precedent injurious to the preroga- 
 tives of the English king. When John refused to listen to 
 such proposals Innocent threatened to lay the whole land 
 under interdict 2 if Langton were longer kept out of his see. 
 John responded with a counter threat that, in the event of an 
 interdict, he would banish the clergy, and mutilate every 
 Italian he could find in the realm. Thus defied, Innocent pro- 
 ceeded to compel his contumacious vassal to obedience by ap- 
 plying to his kingdom the coercive machinery incident to his 
 supreme spiritual authority. On the day appointed, March Theinter- 
 23, 1208, the interdict which had been threatened fell upon f*\ll% ch 
 the land. 3 The churches were closed ; the church bells were 
 silent ; the administration of the sacraments, save to the new- 
 born and the dying, were suspended ; the dead were silently 
 buried in unconsecrated ground. In the midst of the general 
 gloom John, who mocked at the pope's resentment, vented 
 his wrath upon the clergy by banishing the bishops who pro- 
 claimed the interdict, by confiscating the estates of those who 
 observed it, and by subjecting them to the jurisdiction of the 
 king's courts in spite of their privileges. 4 Thus ended in an- John breaks 
 ger that long alliance between the king and the clergy which ^ergy!" 5 
 William and Lanfranc had built up, and which the quarrels of 
 
 1 M. Paris, vol. ii. pp. 112, 113; vol. pope to make the threat. M. Paris, 
 iii. p. 223. vol. ii. p. 114. 
 
 2 The bishops of London, Ely, and 8 Ibid., pp. 115, 116. 
 
 Worcester were commanded by the * Cf. Green, Hist, of Eng. People, 
 
 vol. i. p. 232.
 
 372 THE NORMAN CONQUEST. [Cn. 
 
 Anselm and of Thomas had never completely broken down. 
 The church, so long the steadfast support of the royal author- 
 ity against the baronage, was now changed from a faithful ally 
 into a dangerous enemy. John remaining obdurate under the 
 interdict for a whole year, Innocent proceeded to inflict upon 
 Theexcom- him a still more serious punishment : in 1209 he was cut off 
 mumcauon, rom t h e p a ] e o tne c h urc h by a sentence of excommunica- 
 tion, which, under the papal procedure, was the natural prelude 
 to a sentence of deposition. Three years elapsed, however, 
 before the pope resorted to the supreme and final exercise of 
 his authority. During the interval many of the bishops fled 
 from the kingdom, while those who remained appealed to 
 Rome for protection for themselves and their clergy against 
 the cruelties and oppressions to which they were subjected. 
 In vain did Innocent seek to renew negotiations with John, 
 who was now carrying on military expeditions in Wales and 
 Ireland by means of the vast sums which the plunder of the 
 church had placed at his disposal. Not until all attempts to 
 renew negotiations had failed did Innocent take the final step. 
 Thedeposi- In 1 2i 2 the bull of deposition was issued against John, absolv- 
 ing his subjects from their allegiance, and exhorting all Chris- 
 tian princes to unite in dethroning him. 1 What gave alarm- 
 ing significance to the final sentence was the fact that its 
 execution was specially committed by the pope to John's arch 
 adversary, the king of France, who at once gathered a great 
 host for the purpose of an invasion. These dangers from 
 without were soon followed by a menace from within. The 
 Welsh princes, who had just been forced into submission, again 
 rose in rebellion. 2 The universal discontent which prevailed 
 throughout the host which John gathered for a fresh invasion 
 of Wales revealed the fact that there was scarcely a man 
 Defection upon whose loyalty the king could depend. The barons, too 
 onage. *' timid as yet to lead the nation in an open attack upon the 
 crown, were conspiring in secret ; some of them had even gone 
 so far as to promise to go over to Philip upon his landing. 3 
 
 1 M. Paris, vol. ii. p. 130. weeks he arrested some of the barons 
 
 2 M. Paris, vol. ii. p. 128. and seized their castles. Walter of 
 8 When John discovered the con- Coventry, vol. ii. p. 207. Some of the 
 
 spiracy he disbanded his host, and nobles took refuge in France. M. 
 sheltered himself in the castle of Not- Paris, vol. ii. p. 128. 
 tingham. After an interval of two
 
 IV.] THE WINNING OF THE CHARTERS. 373 
 
 Thus menaced by conspiracies in his own ranks, John with 
 consummate craft dealt a stunning blow to the adversaries 
 combined against him by winning to his side as an ally the 
 cohesive force by which they were united and directed. Be- 
 hind Philip, the clergy, and the baronage stood the power of 
 Rome ; at the feet of that power John now sought deliver- 
 ance from the hands of his enemies. On the ijth of May, Johnsub- 
 1213, he made an unqualified submission to Innocent, in which ^dcent , Jl 
 he agreed that Langton should be received as primate; that May > I2I 3- 
 the exiles, clerical and lay, should return and be restored to 
 their lands and offices ; and that full restitution should be 
 made to the clergy for the seizures to which they had been 
 subjected. 1 On the fulfilment of these terms and conditions 
 the sentences of interdict and excommunication were to be 
 revoked. But this was not all. On the I5th of May John surrenders 
 knelt before the legate Pandulf and surrendered his kingdom 
 
 to Innocent, to be held of him and his successors in the Ro- takes the 
 man see at the annual rent of a thousand marks. John then fealty; 
 took the oath of fealty to the pope in the form usual between 
 lord and vassal. 2 As the man of the pope, John was now en- 
 titled to his protection, and to a consequent revocation of the 
 authority under which the French king was threatening to 
 invade his dominions. Under these changed conditions the*and is de- 
 French army was withdrawn to face another enemy, while fl^his 
 Philip's dream of winning the English crown passed for the enemies - 
 moment away. John's sudden and abject submission to In- 
 nocent, which entirely frustrated the plans of his enemies, 
 was looked upon at the time as a complete settlement of all 
 the difficulties in which he was involved. There is little or 
 nothing in the contemporary accounts of the transaction to 
 show that it excited anything like a feeling of national hu- 
 miliation. 3 It certainly was not without precedent. John's 
 own father, Henry II., had become the feudatory of Alexan- 
 der III.,* while his brother, the lion-hearted Richard, had 
 
 1 M. Paris, vol. ii. p. 135; Fccdera* 8 Green, Hist. Eng. People, vol. i. p. 
 i. p. 170. 236. 
 
 2 M. Paris, vol. ii. p. 135. The char- 4 See Lingard, vol. i. p. 417, note I, 
 ter placed by John in Pandulf's hands in which reference is made to a let- 
 is in Rymer, Feeder a, i. p. in. The ter written to the pope by Henry and 
 homage is renewed to Nicholas, bishop preserved by his secretary, Peter of 
 of Tusculum, at London, on the 3d Oc- Blois. 
 
 tober. Feeder a, i. p. 115.
 
 374 THE NORMAN CONQUEST. [Cn. 
 
 become the man of the emperor. 1 The idea that the English 
 nation thrilled with a sense of shame and degradation when 
 John became the vassal of Innocent seems to have been the 
 afterthought of a later time. 
 
 John's The respite which John won from the attacks of his ene- 
 
 witnThe mies by his sudden submission to the pope was only of a mo- 
 nobies. ment's duration. The defection of the baronage, which had 
 crushed his hopes in the presence of Philip, still stood as a 
 menace before him. The causes of this defection reached 
 back to the very beginning of the reign. At his accession 
 John had won the adhesion of the nobles by the promise that 
 the demands made by them for the redress of grievances suf- 
 fered in the preceding reign should be satisfied. 2 The per- 
 formance of this promise John had neglected ; and when in 
 1201 the barons refused to follow him to Normandy until his 
 pledge should be kept, he responded by seizing their castles 
 and their children as hostages for their loyalty. 3 The breach 
 thus opened through John's faithlessness was widened and 
 deepened in each succeeding year by the shameless pressure 
 of taxation, by acts of wanton despotism in individual cases, 
 and by an endless number of lustful assaults upon the honor 
 Taxation of of the proudest of the baronial families. 4 In the first year of 
 ag|. bal the reign the scutage the tax which specially affected the 
 tenants-in-chivalry was increased from a pound to two marks 
 on the knight's fee; in 1203 a seventh of the movable prop- 
 erty of the barons was exacted ; 5 in 1 204 an aid was taken 
 from the knights ; 6 and in 1207 a thirteenth of movables from 
 the whole country. 7 And apart from the pressure of taxation 
 which these demands illustrate, the baronage were constantly 
 Military harassed by demands for military service in fruitless expe- 
 ice * ditions which were never carried out. In 1201, in 1202, in 
 1203, and in 1205 armies were assembled for the ostensible 
 purpose of foreign service, and when the time for action came 
 the king, either from caprice or mistrust, refused to fight; 
 
 1 See above, p. 360. alienation of his barons." Lingard, 
 
 2 Hoveden, vol. iv. p. 88. vol. ii. p. 78. 
 
 8 Hoveden, vol. iv. p. 161 ; Stubbs, 6 M. Paris, vol. ii. p. 98. "Cepitabeis 
 Const. Hist,, vol. i. p. 522. septimam partem mobilium suorum." 
 
 4 " The licentiousness of his amours 6 Ibid., p. 100. 
 
 is reckoned by every ancient writer 7 " Cepit pertotam Angliam tertiam- 
 among the principal causes of the decimam partem ex omnibus mobilibus 
 
 et rebus aliis." Ibid., p. 108.
 
 IV.] THE WINNING OF THE -CHARTERS. 375 
 
 and, after first accepting money from the forces, permitted 
 them to disperse. 1 But from his accession down to the event- 
 ful year 1213 the baronage sullenly yet silently submitted to 
 every insult and oppression that John saw fit to put upon 
 them. While the church was being plundered, the nobles 
 simply stood by without offering to make the cause of the 
 clergy their own. Not until the quarrel between John and 
 the church had ended in a submission, in which it was stipu- 
 lated that the clergy should be indemnified for all losses to 
 which they had been subjected, did the redress of the wrongs 
 which the baronage had suffered become a practical question. 
 Open resistance upon the part of the nobles begins with their 
 refusal in the summer of 1213 to follow John to France upon 
 the ground that he was still excommunicate. That objection 
 being removed by a formal absolution pronounced by Lang- 
 ton on the 2Oth of July, 2 John made a second demand upon 
 the baronage to follow him. All admitted his right to call The barons 
 upon them for service at home, but the northern barons, the jj^"| e t( 
 barons who had sprung to greatness upon the ruins of the abroad - 
 great houses of the Conquest, now openly maintained that 
 their tenure did not compel them to serve abroad, and there- 
 fore they refused to follow the king. 3 In a storm of rage at 
 their defiance John, on the 25th of August, marched rapidly 
 northward to force them to submission. At Northampton he 
 was overtaken by Archbishop Langton, who reminded him 
 that it was the right of the accused to be heard in the king's 
 court, that not until all legal methods of redress had been 
 appealed to in vain did he have the right to make war upon 
 them. 4 John continued his march, but before proceeding to 
 extremities he yielded to Langton's suggestion, and sum- 
 moned the revolting barons to appear on a certain day before 
 the king or his justices. 5 
 
 1 Upon this whole subject of taxa- Paris attributes this second refusal to the 
 tion and military service, see Stubbs, poverty of the baronage (vol. ii. p. 140), 
 Const. Hist., vol. i. p. 523. but Bishop Stubbs prefers to assign to 
 
 2 The patriot primate required John this second refusal the reason which 
 at the same time to swear not only to Ralph gives. Const. Hist., vol. i. pp. 
 maintain the church, but to observe 524, note 3, 525, note i. See, also, 
 the laws of King Eadward, "quod- Walter of Coventry, vol. ii. p. 212. 
 que bonas leges antecessorum suorum, * " Si absque judicio curiae suae con- 
 praecipue sancti ^dwardi, revocaret, tra quempiam, nedum suos homines 
 singulis reddens sua jura." M. Paris, geniales, bellum moveret." M. Paris, 
 vol. ii. p. 140. vol. ii. p. 142. 
 
 8 R. Coggeshale, pp. 242, 243. M. 6 Ibid., p. 143.
 
 376 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Council at 
 St. Alban's, 
 Aug. 4, 
 1213. 
 
 Represen- 
 tatives 
 from town- 
 ships sum- 
 moned. 
 
 Geoffry 
 Fitz-Peter 
 recurs to 
 the laws of 
 Henry I. 
 
 In the 
 council at 
 St. Paul's 
 Langton 
 reads the 
 charter of 
 Henry I. 
 
 Three weeks prior to the beginning of John's march to the 
 north, a memorable council was held at St. Alban's, to which 
 were summoned not only the bishops and barons, but also the 
 reeve and four legal men as representatives from each town- 
 ship on the royal demesne. 1 Although the reeve and four 
 men were summoned no doubt simply to assess the damages 
 due to the clergy, 2 the incident is important as the first illus- 
 tration of which there is any historical proof of representa- 
 tives being summoned to a national council. The gathering 
 at St. Alban's, although called simply to assess the damages 
 due to the church, assumed in its deliberations a far wider 
 scope. The resolves of the assembly, which were cast in the 
 form of royal proclamations, threatened with the severest 
 punishment all royal officers who should practise illegal exac- 
 tions. But what was far more important, the laws of Henry 
 I. the embodiment of the laws of King Eadward as amended 
 by King William were brought to the attention of the as- 
 sembly by the justiciar Geoffry Fitz-Peter, and proclaimed as 
 the basis upon which the liberties of the nation were to 
 be reestablished. 3 The significance of the then almost for- 
 gotten laws of Henry I., brought to light by the patriot justi- 
 tiar, was emphasized by the patriot primate in a second gath- 
 ering of the barons held at St. Paul's in London on the 25th 
 of the same month. In the council at St. Paul's Langton 
 produced and read the charter of Henry I., which was warmly 
 accepted as the basis of national action. 4 The claims of the 
 councils of St. Alban's and St. Paul's were then laid before 
 the king by the justiciar, who died almost immediately there- 
 after, 5 leaving the guidance of the baronage to Langton, un- 
 der whose leadership they united, upon the basis of Henry's 
 charter in an open demand for a definite and positive scheme 
 of national reform. On the /th of November the king called 
 
 1 " In crastino autem misit rex litte- 
 ras ad omnes vicecomites regni Angliae, 
 praecipiens ut de singulis dominicorum 
 suorum villis quatuor legates homines 
 cum praeposito upud Sanctum Albanum 
 pridie nonas August! facerent conve- 
 nire." M. Paris (ed. Wats), p. 239. 
 
 2 " De damnis singulorum episcopo- 
 rum et ablatis certitudinem inquireret, 
 et quid singulis deheretur." Ibid. 
 
 8 " Galfridus Filius Petri et episco- 
 
 pus Wintoniensis cum archiepiscopo et 
 episcopis et magnatibus regni, ubi 
 cunctis pace regis denunciata ex ejus- 
 dem regis parte firmiter prasceptum est, 
 quatenus leges Henrici avi sui ab om- 
 nibus in regno custodirentur, et omnes 
 leges iniquae penitus enervarentur." 
 Ibid., p. 239. 
 
 4 Ibid., p. 240; Ann. Waverl. p. 178. 
 
 6 M. Paris, p. 243; Walter of Cov- 
 entry, vol. ii. p. 215.
 
 IV.] THE WINNING OF THE CHARTERS. 377 
 
 a council at Oxford, to which the sheriffs were directed to 
 summon, besides the armed force of the knights, four discreet 
 men from each shire, to share * " in the king's deep speech First repre- 
 touching the affairs of his kingdom, to form, in short, the p^iiament. 
 first representative parliament." 2 
 
 The demands for reform which were made by the represen- The years 
 tatives of the church, the baronage, and the people in the I2I4> I2I5< 
 council at St. Alban's, and which were repeated in firmer tones 
 in the council at St. Paul's, were permitted to lie without ac- 
 tion from October, 1213, when they were presented to the 
 king by the justiciar, until October in the following year. 
 During the interval John set himself to work to so strengthen 
 his position as to make it possible for him not only to set the 
 demands pressed upon him by the baronage at defiance, but 
 also to pursue their authors with his vengeance. In further- 
 ance of this design John deemed it expedient to cement more 
 closely his alliance with the papacy, and at the same time to 
 attempt to crush upon the fields of France the military power 
 of Philip, to whom the baronage looked not only as a possible 
 ally, but as a possible sovereign. With this end in view John John's ex- 
 in the spring of 1214 sailed to the coast of Poitou with such poitou. nt< 
 English forces as would follow him. After drawing to his 
 standard a large number of the Portevin nobles 3 John crossed 
 the Loire in triumph, and won back the city of Angers. 
 Here it was he was informed by messengers from Rome that, 
 in consideration of his acceptance of the papal award of dam- 
 ages to be paid to the bishops, the interdict which had now 
 lasted for over six years should be finally removed. 4 But in 
 the very month in which John's reconciliation with Rome was 
 consummated by the removal of the interdict, his hopes of 
 military glory were shattered by Philip upon the field of Defeat at 
 Bouvines, where the English forces under the Earl of Salis- f^truce 
 bury were, together with their allies, completely routed. Thus with Philip, 
 broken by defeat, John sought and obtained a five years' truce 
 from Philip, after which he returned from France in October 
 
 1 " Quatuor discretes homines de 2 Norm. Conq., vol. v. p. 474. 
 
 comitatu tuo illuc venire facias ad nos " Again, however, the historians forsake 
 
 ad eundem terminum ad loquendum us, and we do not even know that the 
 
 nobiscum de negotiis regni nostri." assembly was ever held." Stubbs, 
 
 The summons to the Oxford council Const. Hist., vol. i. p. 528. 
 
 may be found in the Lords' Report, 3 M. Paris, vol. ii. p. 148. 
 
 App. i. p. 2. 4 Lingard, vol. ii. p. 57.
 
 378 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Meeting of 
 
 at e st a Ed- s 
 mund's, 
 
 Reassem- 
 
 1215, and 
 truce until 
 t er er 
 
 to renew the struggle with adversaries made stronger by his 
 discomfiture. 1 The coming of the storm was now greatly 
 accelerated by the king's demand of a scutage from those of 
 the baronage who had refused to follow him to Poitou. 2 The 
 northern barons, against whom this demand was mainly di- 
 rected, were already on the alert and ready for action. In the 
 latter part of November these barons, under the pretext of a 
 pilgrimage, had assembled secretly at the abbey of St. Ed- 
 mund for the purpose of casting into a definite and final 
 shape the schedule of liberties which they had resolved to 
 force upon the king. They parted to meet again after Christ- 
 ma's, after having first sworn on the altar to withdraw their 
 allegiance from John, and to make war upon him until their 
 demands should be complied with. 3 In the presence of such 
 dangers the king was not inactive. He not only garrisoned 
 his castles, and brought mercenaries from Poitou, but he also 
 attempted to break the coalition between the clergy and the 
 baronage by spontaneously granting to the former the right 
 to free election which had so long been withheld from them. 4 
 But this act of royal diplomacy failed of its purpose. Early 
 in January, 1215, the united baronage, faithful to the pledge 
 made at St. Edmund's, met in arms to press their demands 
 upon the king. On the feast of the Epiphany John received 
 a deputation from his adversaries at the Temple, and after 
 listening to what was demanded of him he asked for a truce 
 until the first Sunday after Easter. 5 During the interval the 
 crafty despot made a desperate and final effort to dissolve the 
 confederacy arrayed against him by attempting to secure the 
 allegiance of one or more of three estates. He strove to win 
 the adhesion of the clergy by a reissue to the church of the 
 charter of free elections, 6 he attempted to strengthen his hold 
 upon his tenants-in-chief by a renewal of their homage, while 
 
 1 For a general description of the 
 campaign, see Green, Hist. .ng. Peo- 
 pie, vol. i. p. 239 seq. 
 
 2 " Dissensio orta est inter Johannem 
 regem Angliae et quosdam de proceri- 
 bus pro scutagio quod petebat ab illis 
 qui non ierant, nee miserant cum ipso 
 in Pictaviam." Walter of Coventry, 
 vol. ii. p. 217. 
 
 8 M. Paris, vol. ii. p. 153; R. Cogge- 
 shale, p. 246. 
 
 4 For the charter containing the 
 grant of freedom of election to the 
 church, see Statutes of the Realm : 
 Charters of Liberties, p. 5. This char- 
 ter was reissued I5th January, 1215, 
 and confirmed by the pope. See Se* 
 lect Charters, 2d ed., p. 287. 
 
 6 See Stubbs, Const, Hist,, vol. i. p. 
 529. 
 
 6 This was the reissue of January 
 ifi, 121 5.
 
 IV.] THE WINNING OF THE CHARTERS. 379 
 
 he sought to draw to himself the main body of the people by 
 demanding that a general oath of fealty and allegiance should 
 be taken throughout the realm. 1 But his efforts were all in 
 vain. The clergy were unwavering in their devotion to the 
 popular cause, the baronage were unshaken in their true alle- 
 giance, while the commissioners who were sent to the shire 
 courts brought back the news that the "commons" were with 
 the barons and against the king. 2 In Easter week the baron- in Easter 
 age again assembled in arms at Stamford, and as soon as the meet again 
 truce expired they marched to Brackley in Northamptonshire. 3 * * r | tam ~ 
 The king, who was at Oxford, sent Langton and William Mar- 
 shall to ascertain their demands, and when the commissioners 
 brought back the same list of grievances that had been pre- 
 sented to him before, John cried out in anger, " Why do they 
 not demand my kingdom? I will never grant them liberties 
 that will make me a slave." The king's passionate refusal 
 aroused the nation. The baronage, when informed of it, pro- Army of 
 ceeded at once to London with their forces arrayed under the Hof y and 
 leadership of Robert Fitz- Walter as "Marshal of the Army church" 
 
 * marches 
 
 of God and Holy Church." On the 24th of May London upon Lon- 
 threw open her gates to the patriot host, and Exeter and 
 Lincoln followed her example. The occupation of the capi- 
 tal was followed by a summons from the confederates to all 
 barons and knights who had so far stood aloof to unite them- 
 selves with the national cause, under the penalty, if they re- 
 fused, of being treated as public enemies. Nearly all of the 
 nobles who had as yet clung to the king yielded to this final 
 summons, thus leaving John with a mere handful of retainers 
 to face a nation in arms. Among those who still remained 
 with the king, rather as mediators than as supporters, were 
 Archbishop Langton ; Pandulf, the papal envoy ; Ranulf, earl 
 of Chester, and William Marshall, earl of Pembroke, all of 
 whom urged upon the king the acceptance of the charter. 
 Thus overcome by force from without and pressure from John's sur 
 within, John yielded with affected cheerfulness to a necessity " 
 which he could no longer withstand. In order to save him- 
 self from the final humiliation of unconditional surrender, he 
 
 1 " Fecit sibi soli contra omnes horn- 2 Cf. Green, Hist. Eng. People, vol. i. 
 
 ines per totam Angliam fidelitatem ju- p. 242. 
 
 rare et homagia renovare." M. Paris, 8 M. Paris, vol. ii. p. 155. 
 vol. ii. p. 1 55.
 
 38o 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Great Char- 
 ter signed 
 at Runny- 
 ni ede, June 
 15, 1215. 
 
 Analysis of 
 the Great 
 Charter. 
 
 A compact 
 between the 
 crown and 
 the es- 
 tates, 
 
 a national 
 act, 
 
 the con- 
 summation 
 of the work 
 of union, 
 
 attempted to conceal the real nature of the submission about 
 to be made under the cloak of a negotiation. With this end 
 in view he invited the barons to a conference on an island in 
 the Thames between Windsor and Staines, 1 near the meadow 
 of Runnymede. On the I5th of June the delegates met on 
 this island in view of the opposing forces encamped on either 
 bank of the river, and after going through the form of a nego- 
 tiation agreed upon the Great Charter of liberties in a single 
 day. 2 
 
 6. An analysis of the Great Charter, when made in the 
 light of the circumstances attending its execution, clearly re- 
 veals the fact that, although it was issued in the form of a 
 royal grant, it was in substance a treaty or compact 3 entered 
 into between the royal authority on the one hand and the 
 nation marshalled in the ranks of the three estates on the 
 other. As the clergy, the baronage, and the general com^ 
 monalty of freemen all participated in the movement which 
 brought about the making of the convention, and as all three 
 orders participated equally in its fruits, the great act at Run- 
 nymede was in the fullest sense of the term a national act, 
 and not the mere act of the baronage in behalf of their own 
 special privileges. There is nothing in the provisions of the 
 charter to recall obsolete distinctions of English and Norman 
 blood ; there is nothing to suggest differences of English and 
 Norman law. Upon the contrary, the very absence of such 
 provisions clearly shows that such distinctions had passed 
 forever away. It is clear that the process of assimilation, 
 through which the lesser mass of the conquerors had been 
 absorbed by the greater mass of the conquered, had been 
 fully worked out before the Great Charter was won. The 
 winning of the charter was in fact the final consummation of 
 
 1 " Data per manum nostram in prato 
 quod vocatur Runingmede, inter Win- 
 delesorum et Stanes." Magna Carta, 
 63- 
 
 2 For the general history of the cri- 
 sis, see M. Paris (ed. Wats), pp. 252- 
 255 ; Walter of Coventry, vol. ii. pp. 
 219-229. The best modern statements 
 of the transaction are to be found in 
 Blackstone's preface to Magna Carta ; 
 Stubbs, Const. Hist., vol. i. pp. 519-530; 
 Green, Hist. Eng. People, vol. i. pp. 
 230-244. 
 
 8 M. Boutmy, in his comments on the 
 " Constitution Anglaise," has this to 
 say : " Les pactes sont au nombre de 
 trois : la grande Charte (1215), . . . 
 Le caractere de cet acte est aise a de- 
 finir. Ce n'est pas precisement un 
 traite, puisqu'il n'y a pas ici deux 
 souverainetes legitimes ni deux nations 
 en presence ; ce n'est pas non plus une 
 loi ; elle serait entachee d'irregularite 
 et de violence ; c'est un compromis ou 
 un pacte." Etudes de droit constitu- 
 tionnel, pp. 39-41 (Paris, 1885).
 
 IV.] THE WINNING OF THE CHARTERS. 3 Sl 
 
 the work of union. In the words of the masters : " It is the 
 first great act of the English nation after the descendants of 
 Norman conquerors and Norman settlers had fully become 
 Englishmen, after all thought of any distinction between the 
 king's men, French and English, had passed away from the 
 thoughts of men." 1 "The Great Charter is, then, the act of 
 the united nation, the church, the barons, and the commons, 
 "for the first time thoroughly at one." 2 This first great act of 
 the united nation was not in the path of political experiment. 
 The provisions of the charter embody no abstract theory of 
 government : they consist simply of a summing up of the tra- a summing 
 ditional liberties of the English nation, with such modifica- traditional 
 tions as those liberties had suffered through the results of the 
 Norman conquest. The fact has again and again been drawn nation, 
 out, that the Conquest involved neither a displacement of the 
 English nation nor a wiping out of the immemorial laws and 
 political institutions of the conquered race. The Old-English 
 system of local self-governing communities, together with the 
 customary law, survived ; and upon that tenacious system as 
 a substructure the Norman system of central or national ad- 
 ministration was superimposed. During the century and a 
 half which followed the Conquest, this new system of central 
 administration, with the source of its strength in the royal 
 authority, grew and widened until it became the dominant 
 force in the constitution. While the growth of the royal 
 authority was thus advancing and overshadowing the tradi- 
 tional liberties of the kingdom, the causes were at work which 
 finally brought about the division and classification of the na- 
 tion in three estates. By the thirteenth century the estate Completion 
 system had reached its completion, and the royal authority tate system 
 the limit of its growth. 3 The tendency of that growth was 
 to withdraw, through the centralization of justice and finance, 
 the administration of all rights from the local and popular 
 courts, whose procedure was regulated by that ancient code 
 of Teutonic law which found its source in the customs of the 
 people, into a single central or royal court whose procedure 
 was regulated by the new code of royal law which found its 
 source in the will of the king. The royal authority reached 
 
 1 Freeman, Norm. Conq., vol. v. p. 2 Stubbs, Const. Hist., vol. i. p. 543. 
 475. See above, p. 337.
 
 382 THE NORMAN CONQUEST. [Cn. 
 
 Richard the limit of its growth when both Richard and John, accept- 
 ing the imperialist theories of Glanvill, held that the will of 
 ^ e P rmce was tne l aw f tne land. 1 The reckless attempts 
 prince was made by John to enforce that theory finally brought about 
 the land? the armed conflict between the nation and the king. Upon 
 The nation the part of the nation it was claimed that the law of the 
 thaTlt was land was not the will of the prince, but the immemorial laws 
 EadwrrYas of the English kingdom, with such modifications and amend- 
 amendedby ments as those laws had suffered through the results of the 
 
 William. ... T A r i < > t~> 
 
 Norman conquest. Alter the coming of the Conqueror, the 
 Old-English system of customary law was generally appealed 
 to as "the laws of good King Eadward," while the changes 
 which it suffered through the results of the Conquest were 
 generally described as the amendments made by King Wil- 
 liam. This statement is clearly illustrated by that clause in 
 the famous charter of Henry I. in which the king promises 
 to restore the laws of Eadward, with the amendments which 
 his father had made. 2 It is therefore plain that when the 
 barons seized upon Henry's charter as the basis of national 
 action, and demanded of the king that he should enter into 
 a treaty with the nation upon the lines which it defined, 3 it 
 simply amounted to a demand upon their part that the legal 
 and constitutional relations between the king and the nation 
 should henceforth be regulated by the Old-English code of 
 customary law, subject to such changes in that code as the 
 results of the Conquest had brought about. There is no 
 attempt in the charter to wipe out the irrevocable effects of 
 the Conquest ; the new system of central administration and 
 the system of feudal tenures are both recognized as abiding 
 The effort elements in the constitution. The effort is to fix the limits 
 limitl of 6 f innovation, to define the extent to which the centralizing 
 innovation. anc j feudalizing processes to which the Conquest gave birth 
 shall be permitted to abridge the immemorial freedom in the 
 time to come. In this vital question each estate is interested 
 as a corporate entity, and the nation as a whole is also inter- 
 ested as a corporate entity. Upon the basis of these several 
 interests the treaty is made. Each estate enters into a cov- 
 
 1 See Green, Hist, of the English meus earn emendavit consilio baronum 
 People, vol. i. p. 243. suorum." Art. 13. 
 
 2 " Lagam Edwardi regis vobis reddo 8 See above, p. 376. 
 eum illis emendationibus quibus pater
 
 IV.] THE WINNING OF THE CHARTERS. 383 
 
 enant with the king as to its own special rights and privileges, Each estate 
 while the nation in its corporate person covenants as to those for uTspe- 
 general rights and immunities which are to be secured to the ^hlie^the 5 ' 
 whole body of freemen irrespective of their division into es- nation cove- 
 
 . . r i / /, nants for 
 
 tates or orders. The provisions of the Great Charter, there- thecom- 
 fore, fall naturally into two broad divisions : first, those that o^^ii nghts 
 specially relate to the rights and privileges of the three es- 
 tates ; second, those that relate to the rights and privileges 
 of the nation as a whole. In the following statement of 
 the contents of the charter, its leading provisions will be 
 grouped, as near as may be, in the order which this division 
 suggests. 
 
 To the estate of the clergy the king promised that the The church 
 Church of England should be free, and that she should have ^\]^ d 
 her whole rights and liberties inviolable. 1 The right to hold tions - 
 free elections, which was considered first and indispensable, 
 and which had lately been guaranteed in a charter twice 
 issued, 2 was for the third time repeated and confirmed. 
 
 To the estate of the baronage, which consisted of the The bar- 
 greater tenants-in-chief who held directly of the crown, the 
 charter guaranteed many limitations and safeguards in miti- jJaYb 
 gation of the feudal duties and services due by virture of their b y the 
 
 ... , . ,, crown. 
 
 tenures to the king as supreme lord or suzerain. But it must 
 not be supposed that the barriers which the greater tenants- 
 in-chief thus interposed between themselves and the king 
 were designed for their own protection merely. Animated 
 by a broad spirit of generous patriotism, the barons stipu- 
 lated in the treaty that every limitation imposed for their 
 protection upon the feudal rights of the king should also be The same 
 imposed upon their rights as mesne lords in favor of the 
 under-tenants who held of them. Upon this all-important 
 question the charter provides that "all the aforesaid cus- 
 toms and liberties that we have granted to be held in our 
 kingdom, so far as pertains to us, with reference to our vas- 
 sals, all men of our kingdom, as well clerk as lay, shall ob- 
 serve so far as pertains to them, with reference to their 
 men." 3 In this way the feudal burdens are limited not only 
 
 1 " Anglicana ecclesia libera sit, et 2 See above, p. 378. 
 habeat jura sua integra, et liber tates 8 Art. 60. 
 suas illaesas." Art. i.
 
 384 
 
 THE NORMAN CONQUEST. 
 
 [Ctt 
 
 Aid and 
 scutage 
 limited. 
 
 Relief, 
 
 wardship, 
 and mar- 
 riage regu- 
 lated 
 
 in favor of the baronage as against the king, but also in favor 
 of all under-tenants as against the mesne lords themselves. 
 The best illustration of this statement may be found in the 
 following clauses touching the exactions of aids and scu- 
 tages. As between the king and the baronage the stipulation 
 is, that " No scutage or aid shall be imposed in our kingdom, 
 unless by the general counsel of the nation, except for ran- 
 soming our person, making our eldest son a knight, and once 
 for marrying our eldest daughter ; and for these there shall 
 be taken a reasonable aid." ] As between the barons and 
 their tenants the stipulation is, that " 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 reasonable aid." 2 The feudal 
 clauses which stand next in importance are those which im- 
 pose restraints upon the exactions of lords in the matter of 
 reliefs, wardships, and marriages. These clauses, seven in 
 number, provide in substance that upon the death of a tenant- 
 in-chief, whether earl, baron, or knight, the heir if of full age 
 shall have his inheritance upon the payment of a fixed sum 
 which is referred to as the " ancient relief." 3 If the heir is 
 under age and the right of wardship is exercised, then, upon 
 his majority, he shall have his inheritance without relief and 
 without fine. 4 In the event of a wardship stringent pro- 
 visions are imposed for the protection of the ward against 
 the waste and improvidence of the keeper of his lands. 5 Ex- 
 press provision is made that heirs shall be married without 
 disparagement ; and that widows shall be endowed, and shall 
 marry again, or refuse to marry, without being compelled to 
 pay to their lords unreasonable sums for the privilege. 6 It 
 was further provided that no man shall be constrained to per- 
 form more service for a knight's fee, or other free tenement, 
 
 1 Art. 12. 
 
 2 Art. 15. 
 
 And Art. 16 provides 
 that " No man shall be distrained to 
 perform more service for a knight's fee, 
 or other free tenement, than is due 
 from thence." 
 
 8 Art. 2. Cf. Reeves, History of 
 English Law, vol. ii. p. 20 ; vol. i. p. 
 382. 
 
 * Art. 3. 
 
 6 Arts. 4 and 5. Upon the subject 
 of waste, see Reeves, vol. ii. pp. 21, 
 22. 
 
 6 Arts. 6 and 7. As to the older 
 feudal law which forbade a woman to 
 be endowed or to marry without the 
 payment of a fine in one case, and with- 
 out obtaining a license in the other, see 
 Blackstone, Com., bk. ii. p. 135.
 
 IV.] THE WINNING OF THE CHARTERS. 385 
 
 than is due from thence. 1 These provisions, designed to 
 relax the system of military tenures, were followed two years 
 later by a clause which tended directly in the opposite direc- 
 tion. In order to increase the hold of lords upon their vas- A restraint 
 sals it was provided in the second reissue of the Great atlon,*^ 
 Charter in 1217 that no tenant should give or sell to an- 
 other so much of his land as would render the remainder 
 insufficient to answer the services due to the lord of the fee. 2 
 This restraint upon the power of alienation was designed to 
 check the growing practice of subinfeudation, which, as it 
 diminished the power of the mesne lords to perform their 
 services, tended directly to undermine the whole fabric of 
 feudal obligation. 3 
 
 As the constitution of the commons as organized in the The corn- 
 thirteenth century can be defined only in broad and general m 
 terms, it is difficult to point out definitely and precisely 
 those provisions of the Great Charter which relate exclu- 
 sively to the third estate. As heretofore explained, according 
 to no mediaeval theory could the "commons" be defined to 
 be a union into one corporate body, conscious of its own 
 identity, of all classes or orders of men below the nobility 
 and the clergy. The term "commons," as understood on the 
 Continent, bore a far more restricted meaning. In France 
 and Spain the term embraced only the citizens of the privi- 
 leged towns, or of chartered communities of kindred municipal 
 origin. The third estate in England differed, however, from 
 the same estate in the continental constitutions in that it 
 embraced not only citizens of towns, but also all landowners 
 below baronial rank, many of whom in continental lands 
 would have belonged to the estate of the nobles. The middle The Eng- 
 class in England consisted not only of the citizens of towns, cTass^em- e 
 but also of the lesser landowners dispersed throughout the | 3raced *" 
 
 freemen be- 
 
 shires. The term " commons," as it appears in the English low baro- 
 political system, must therefore be understood to include all 
 freemen, below baronial rank, organized and incorporated for 
 
 1 Art. 16. 8 As to the place of this provision in 
 
 2 " Nullus liber homo de cetero det the history of restraints upon aliena- 
 amplius alicui vel vendat de terra sua tion, see Digby, Law of Real Property, 
 quam ut de residue terrae suae possit suf- pp. 118, 136, 199; Reeves, Hist. Eng. 
 ncienter fieri domino feodi servitium ei Law, vol. iL p. 24. 
 
 debitum quod pertinet ad feodum illud." 
 Magiia Carta (1217), art. xxxix.
 
 386 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Privileges 
 of London 
 and of all 
 other cities 
 and towns 
 guaranteed. 
 
 Rights of 
 the shire 
 communi- 
 ties. 
 
 The mer- 
 chant class, 
 
 The simple 
 freeman. 
 
 Provisions 
 which re- 
 late to the 
 nation as a 
 whole. 
 
 government not only in towns, but in shires. 1 Guided by 
 this definition it will be possible to collate, with approximate 
 correctness, those provisions of the charter which specially 
 relate to that great body of freemen, generally known as the 
 middle class, that entered so largely into the composition of 
 the shire and town communities. 2 First among these pro- 
 visions must be cited that clause which provides that the city 
 of London shall have all of its ancient liberties and free cus- 
 toms, as well by land as by water ; and further, that all other 
 cities, boroughs, towns, and ports shall have all of their 
 liberties and free customs. 3 In this provision we have a 
 definite recognition of the rights of the "commons" as orga- 
 nized in town communities. In the clause which provides 
 that all "counties, hundreds, wapentakes, and tithings shall 
 stand at the old rent, without any increase, except in manors 
 on the royal demesne," we have a recognition of the rights 
 of the "commons" as organized in "shire communities." 4 
 " Neither town nor tenant shall be distrained to make bridges 
 or banks, unless that anciently of right they are bound so to 
 do." 5 From such recognitions of the rights of the "com- 
 mons " in their corporate relations we naturally pass to those 
 provisions touching the rights of individuals who are unmis- 
 takably embraced in the ranks of the third estate. In behalf 
 of the merchant class it is provided that, except in time of 
 war, they shall come in and go out of the kingdom without 
 paying more than the ancient and allowed customs. 6 In the 
 event of war, the rights even of foreign merchants are to be 
 carefully respected. 7 The rights of the simple freeman are 
 also specially remembered. His horse and cart are, by an 
 express provision, protected against the forcible requisition 
 even of the sheriff himself. 8 
 
 Having now referred to those parts of the Great Charter 
 which specially relate to the three estates, the task remains 
 to collate those clauses which set forth the rights and immu- 
 
 1 For the authorities upon this sub- 
 ject, see above, p. 356. 
 
 2 " But in England the middle class 
 was not confined to the towns; it 
 spread itself, in the form of a lesser 
 gentry and a wealthy yeomanry, over 
 the whole face of the land." Free- 
 man, Growth of the Eng. Const., p. 131. 
 
 8 Art. 13. 
 
 4 Art. 25. 
 6 Art. 23. 
 
 6 Art. 41. 
 
 7 Ibid. Montesquieu has praised 
 the framers of the charter for having 
 thus made the protection of foreign 
 merchants an article of their national 
 liberty. Spirit of Laws, vol. i. p. 349. 
 
 8 Art. 30.
 
 IV.] THE WINNING OF THE CHARTERS. $87 
 
 nities of the people as a whole, regardless of their division 
 into classes or orders. First among the provisions of this 
 latter class stand out the great constitutional clauses which 
 relate to the organization and powers of the national coun- 
 cil, to the procedure of the king's court, and to the general 
 administration of justice. The process has already been 
 drawn out through which the Old-English national assem- 
 bly was gradually and silently transformed, during the Nor- 
 man and Angevin reigns, into a council of feudal tenants-in- 
 chief. The definite results of this process of change are 
 clearly set forth in a legal shape in that part of the Great 
 Charter which describes the elements of which the common 
 council of the kingdom shall be composed, and the method 
 by which those elements shall be brought together for 
 national action. The constituent elements of the national Theconsti- 
 council are defined to be the whole body of the king's tenants- 
 in-chief. Out of this body the archbishops, bishops, abbots, 
 earls, and greater barons shall be summoned by a royal writ 
 directed to each one personally ; the remainder the lesser 
 tenants-in-chief shall be summoned in a body by a general 
 writ addressed to the sheriff of each shire, in which writ 
 shall be stated the time and place at which, and the cause for 
 which the national council shall be called together. 1 The 
 right of the council thus organized to consent to taxation is NO taxa- 
 clearly and distinctly recognized. No scutage or aid, other 
 than the three regular feudal aids, shall be imposed but by sent> 
 the common counsel of the nation ; 2 and this common coun- 
 sel can only be taken in a national assembly summoned in 
 the manner which the law directs. 8 The immemorial right 
 of the national assembly to join with the king in ordaining 
 taxes a right which even during the Norman and Angevin 
 reigns had never been entirely ignored was thus stated 
 with a precision and clearness for which the nation itself 
 seems to have been hardly prepared. In the many confirma- 
 tions of the charter which followed during the succeeding 
 reign, these vital clauses as to taxation and the national coun- 
 
 1 Art. 14. mune consilium regni nostri," etc. 
 
 3 " Nullum scutagium vel auxilium Art. 12. 
 
 ponatur in regno nostro, nisi per com- 8 That direction is embodied in art 
 
 14.
 
 388 THE NORMAN CONQUEST. [CH. 
 
 cil were invariably omitted. 1 Not until the latter part of the 
 reign of Eadward I. was the right of self-taxation which they 
 embodied finally restored, as a part of the " Confirmatio 
 Cartarum," to a permanent place in the constitution. 
 Reforms in The fact that the king's court was held in no fixed place 
 inflicted the greatest possible inconvenience and expense upon 
 those suitors involved in common pleas who were obliged to 
 follow its migrations. In the history 2 of the plea of Richard 
 d'Anesty, which "followed the person of the king" for five 
 years, and which imposed on D'Anesty nearly thirty different 
 journeys, may be found, perhaps, an extreme illustration of 
 the evils to which suitors were exposed. To remedy these 
 evils, the charter provides that common causes between party 
 and party shall be tried in some fixed place ; that common 
 pleas shall no longer follow the person of the king. 3 In 
 order to expedite the administration of justice in the shires, it 
 was also provided that two justices shall be sent four times 
 a year through each county, who, together with four knights 
 chosen by each county court for that purpose, shall take the 
 recognitions of novel disseisin, mort d'anccster, and darrein 
 presentment in their proper counties. 4 It was further pro- 
 vided that no sheriff, constable, coroner, or bailiff of the king 
 shall hold pleas of the crown ; 5 and that no one shall be ap- 
 pointed a justice, constable, sheriff, or bailiff except such as 
 are learned in the law and intend duly to observe it. 6 The 
 double purpose of these provisions was to strip the sheriffs of 
 judicial functions/ and at the same time to save those charged 
 with criminal offences from trial before unfair and incom- 
 petent officers. In addition to these provisions touching the 
 character and appointment of judicial officers, the framers of 
 the charter were careful to announce a series of practical 
 rules, both general and special, for the government of all 
 courts in the administration of justice. First among these 
 general rules stand the famous clauses which provide that 
 
 1 Cf. Stubbs, Const. Hist., vol. i. p. the curia re<m, see Madox, Hist. Exck., 
 534. vol. i. ch. xix. pp. 787-801; Reeves, 
 
 2 See Palgrave, Eng. Commonw., vol. ii. pp. 30-33 and notes, 
 vol. ii. pp. ix.-xxvii; Sir James F. Ste^ * Art. 18. 
 
 phen,Siist. Crim. Law, vol. i. p. 88 seq. 6 Art. 24. 
 
 8 "Communia placita non sequantur 8 Art. 45. 
 
 curiam nostram sed teneantur in ali- 7 Upon this interesting subject, see 
 
 quo loco certo." Art. 17. As to the Bigelow, Hist. Procedure, pp. 99, 131, 
 
 history of this clause in its relation to 137, and note.
 
 IV.] THE WINNING OF THE CHARTERS. 
 
 "no freeman shall be taken, or imprisoned, or disseized, or General 
 outlawed, or exiled, or anywise destroyed ; nor will we go to gov 
 upon him, nor send upon him, but by the lawful judgment of l 
 his peers or by the law of the land. To none will we sell, to jstice. 
 none will we deny or delay, right or justice." 1 Among the 
 special provisions touching particular branches of judicial 
 administration, the following clauses may be cited. In order 
 to restrain the king from the wanton or tyrannical imposition Amerce- 
 of amercements, the pecuniary fines laid on those who had m 
 offended against the royal prerogative, it was provided that 
 the freeman shall only be amerced according to his fault, 
 saving to him the means of maintenance ; and in like man- 
 ner the merchant, saving to him his merchandise ; and also 
 the villein, except he be the king's villein, saving to him his 
 wainnage. No amercement shall be assessed in any case but 
 by the oaths of honest and lawful men of the neighborhood. 2 
 Clerks shall only be amerced in proportion to their non- 
 ecclesiastical property. 3 Earls and barons shall be amerced 
 according to the offence, but only by the judgment of their 
 peers. 4 As a protection to the local jurisdictions it was pro- writ of 
 vided that the use of the writ of praecipe should be limited. 6 P raeci P e - 
 In a case involving life or limb, nothing shall be given or Writ of in- 
 taken for the writ of inquisition, which shall be granted q 
 freely. 6 No bailiff shall henceforth force a man to compurga- Criminal 
 tion or ordeal unless the accusation is supported by credible a< 
 witnesses. 7 No man shall be taken or imprisoned upon the 
 
 1 " Nullus liber homo capiatur, vel parium suorum." In the so-called laws 
 
 imprisonetur, aut dissaisiatur, aut ut- of Henry I. the principle is thus ex- 
 
 lagetur aut exuletur, aut aliquo modo pressed : " Unusquisque per pares suos 
 
 destruatur, nee super eum ibimus, nee judicandus est et ejusdem provinciae." 
 
 super eum mittimus, nisi per legale See Forsyth, Trial by Jury, p. 91 and 
 
 judicium parium suorum vel per legem note I et seq. (2d ed.) ; Stephen, Hist. 
 
 terrae." Art. 39. Crim. Law, vol. i. p. 162. 
 
 " Nulli vendemus, nulli negabimus, 2 Art. 20. 
 
 aut differemus, rectum aut justiciam." 8 Art. 22. 
 
 Art. 40. The "judicium parium" * Art. 21. Upon this whole subject 
 
 does not refer, as has been erroneously of amercements, see Reeves, Hist. Eng. 
 
 supposed, to trial by jury, but to trial Law, vol. ii. pp. 35-39. 
 
 by members of the feudal and county 6 Art. 34. For the history of this 
 
 courts. In this formula was embodied writ see Bigelow, Hist. Procedure, pp. 
 
 a principle which lay at the foundation 77, 78, 83. 
 
 of all Teutonic law ; a principle which 6 Art. 36. The writ here referred 
 
 two centuries before had been an- to de odio et atid was in those days 
 
 nounced, in an edict of Conrad II., in one of the great securities of personal 
 
 these terms : " Nemo beneficium suum liberty. Cf. Reeves, vol. ii. p. 47 seq. 
 
 perdat, nisi secundum consuetudinem 7 Art. 38. 
 antecessorum nostrorum et per judicium
 
 390 THE NORMAN CONQUEST. [Cn. 
 
 appeal or accusation of a woman for the death of a man 
 intestates, other than her husband. 1 When any freeman shall die intes- 
 tate his chattels shall pass to his next of kin, subject to the 
 claims of the church and the rights of his creditors. 2 In 
 Collection order to restrain the severity with which debts due to the 
 king's crown were exacted, it was provided that less oppressive 
 debts. means should be used for their collection ; 3 and also for the 
 collection of debts due to the Jews, in which debts the crown 
 possessed a contingent interest. 4 If, however, the king's 
 debtor dies, no part of his chattels shall be removed until the 
 royal demand is fully satisfied. 5 In mitigation of abuses 
 The forest which arose out of an undue expansion of the forest code, it 
 was provided that the forest courts should not compel the 
 attendance of those who were not directly concerned in the 
 forest jurisdiction. 6 
 
 Misceiiane- As a limitation upon the royal right of purveyance it was 
 vision's " provided that the royal officers shall pay cash for all provi- 
 sions taken by requisition; 7 and that neither sheriff nor 
 bailiff shall take a man's, horse or cart, or his wood, for the 
 king's use, without the consent of the owner. 8 Weights and 
 measures shall be uniform throughout the kingdom. 9 All 
 forests made in the present reign shall forthwith be disfor- 
 ested, and all rivers placed in fence shall be thrown open. 10 
 All weirs in the Thames and Medway, and throughout Eng- 
 land, except upon the seacoast, are to be removed. 11 All evil 
 customs concerning forests and foresters, sheriffs and their 
 officers, rivers and their keepers, shall be inquired into in 
 each county by twelve sworn knights, and forthwith abol- 
 ished. 12 
 
 Articles of In addition to the clauses of a general and permanent 
 rary'nature. nature which have now been summarized, the charter con- 
 tained others of a temporary character, designed to remedy 
 special abuses which had arisen out of recent events. All 
 hostages and charters given to the king by his English sub- 
 jects as securities for the peace shall be given up; 13 and, as 
 
 1 Art. 54. " Appeal " is here used in 7 Art. 28. 
 
 the sense of accusation. 8 Arts. 30, 31. 
 
 2 Art. 27. 9 Art. 35. 
 8 Art. 9. 10 Art. 47. 
 4 Art. 10. This clause was omitted n Art. 33. 
 
 in the first reissue of the charter. 12 Art. 48. 
 
 6 Art. 26. is Art. 49. 
 
 8 Art. 44.
 
 of the char- 
 ter. 
 
 IV.] THE WINNING OF THE CHARTERS. 39 1 
 
 soon as peace is restored, all foreign mercenaries shall be 
 sent out of the kingdom, 1 and all who have been disseized or 
 exiled shall be forgiven and recalled. 2 To the Welsh, who 
 have been illegally disseized or dispossessed, restitution shall 
 be made and justice done according to law. 3 The Welsh 
 princes held as hostages shall be released, and the rights of 
 the king of Scots shall be recognized. 4 
 
 That the nation was fully impressed with John's faithless- Guarantees 
 ness, is made manifest by the provision for the enforcement 
 of the treaty in the event of a breach of any of its provisions 
 upon the part of the king. The enforcement of the charter 
 is committed to twenty-five nobles to be chosen from the 
 whole baronage. In the event of a failure upon the part of 
 the crown or its officers to perform any of its terms, the duty 
 is cast upon four barons, to be chosen out of the five-and- 
 twenty, forthwith to lay the grievance before the king. If 
 he shall fail to do justice in due time, then the twenty-five 
 barons, together with the community of the whole realm, 
 " communa totius terra" are authorized to levy war upon 
 him, to distrain and distress 6 him, until the compact is kept 
 and justice done. 6 The charter concludes with an oath upon Conclusion, 
 the part of the barons and upon the part of the king, that all 
 the articles of the agreement shall be observed in good faith, 
 and according to their true meaning. 
 
 The coalition which coerced John into the execution of the 
 charter trusted but little, however, to the good faith of a 
 king whom no oath could bind. The only real guarantee 
 that the principles which the charter defined should enter 
 into the actual administration of government lay in the fact 
 that, in the event of a breach of the compact upon the part of 
 the king, the legal right of resistance remained to the nation 
 in arms. The great act of the " Parliament of Runnymede " 
 marks the beginning, not the end, of a conflict. 7 It embodies, flict. 
 
 1 Art. 51. 6 Art. 61. 
 
 2 Art. 52. ' " For eighty years from the ' par- 
 8 Art. 56. liament of Runnymede," the history of 
 * Arts. 58, 59. England is the narrative of a strugle of 
 5 " A contractual right of distress the nation with the king, for the real 
 
 was so bound up with the legal customs enjoyment of the rights and liberties 
 
 of the Middle Ages, that the Commit- enunciated in the charter, or for the 
 
 tee of Resistance almost loses thereby safeguards which experience showed to 
 
 its apparently revolutionary character." be necessary for the maintenance of 
 
 Gneist, The Eng. Parliament, p. 85 those rights." Stubbs, Const. Hist., 
 
 (Shee's trans.). vol. ii. p. I.
 
 3Q2 THE NORMAN CONQUEST. [Cn. 
 
 not a final statement of concessions to the nation from the 
 crown, but rather a definite programme of reform which the 
 nation resolves to persevere in until it is finally accepted by 
 
 struggle the crown as an irrevocable basis of government. During a 
 period of more than eighty years the crown resists the right 
 ^ tne nat i n to enter into the full enjoyment of the rights 
 and liberties which the charter defines. The struggle ends 
 at last with the final confirmation of the charters at the close 
 of the reign of Edward I. The absolute good faith with 
 which Edward finally accepted the programme of reform 
 announced at Runnymede closed forever the strife which 
 
 Duplicity finds a fresh beginning in the duplicity of John, whose one 
 >hn> thought in the execution of the treaty was to violate its 
 terms, and at the same time to crush in detail the elements 
 which had so successfully combined against him. To accom- 
 plish these ends John resorted again to the tactics which he 
 had so brilliantly employed in 1213, when by a sudden appeal 
 to the pope he delivered himself in a moment of despair from 
 difficulties which seemed to be insurmountable. 1 From the 
 scene at Runnymede John dispatched envoys to Rome to 
 plead for the condemnation of the Charter upon the ground 
 that it had been extorted by rebellion, and in defiance of the 
 suzerainty of the Holy See. 2 While his messengers were 
 gone the king was busily employed in fortifying his castles, 
 in borrowing money, in placing the county administrations in 
 the hands of his own creatures, and in hiring mercenaries to 
 fight under the royal standard. 3 In due time the desired 
 
 The barons answer came. In August, 1215, letters were received from 
 ^ e PP e condemning the barons, and exhorting them to 
 respect the royal authority, and to lay their claims before a 
 council to be held^at Rome. 4 The archbishop was com- 
 manded to excommunicate the disobedient, and upon his 
 refusal to do so he was suspended from the exercise of his 
 archiepiscopal functions. The sentence of excommunication 
 which Langton refused to proclaim was published, however, 
 by the bishops in the presence of the baronial army on August 
 the 26th. 5 On the day before was issued the bull in which 
 
 1 See above, p. 373. * Fcedera, i. pp. 203, 204. 
 
 2 Fcedera, i. p. 202. 5 M. Paris, p. 270; W. Coventry, ii. 
 8 M. Paris, p. 264 ; W. Coventry, ii. pp. 223, 234. Cf. Stubbs, Const. Hist. t 
 
 P- 222. vol. ii. p. 7, and note 6.
 
 IV.] THE WINNING OF THE CHARTERS. 393 
 
 "the pope, after deliberation at his will, by a definite sen- The pope 
 tence condemned and annulled the oft-named Charter of and annuls 
 Liberties of England." 1 In December a second sentence of the charter - 
 excommunication was issued, in which the leaders of the 
 national cause were mentioned by name, and the city of 
 London laid under interdict. 2 The open espousal of John's 
 cause upon the part of the pope ended the hollow truce, and 
 reopened the conflict between the nation and the king. In 
 September the foreign auxiliaries had arrived from over sea, 
 and with the royal standard thus strengthened, John began 
 hostilities in October by laying siege to the castle of Roch- The king 
 ester, which fell on the 3Oth of November. 3 After the fall of struggle. e 
 Rochester John intrusted the conquest of the midland coun- 
 ties to the Earl of Salisbury, while he marched northward, 
 ravaging the land as far as Berwick. After reducing the 
 north to subjection, he returned to the south and joined the 
 forces besieging Colchester, which fell in March, 1216.* 
 While John was harrying the shires of the north as they had 
 never been harried since the days of the Conqueror, the 
 barons in their desperation resolved, as a last resort, to re- 
 nounce their allegiance to their faithless master and to offer 
 the crown to Lewis, the son of Philip of France. 5 In spite 
 of a threat of excommunication from the legate Gualo, the 
 tempting offer was accepted in April, and in May Lewis The French 
 landed in Kent with a formidable army. 6 John, who was Mlyf 
 waiting on the coast to intercept him, now discovered that 
 the French mercenaries who composed his array could not be 
 
 1 M. Paris, p. 162 ; Fadera, \. p. 136. Lingard does this much more success- 
 Cardinal Manning, in a monograph fully by condemning the act of Inno- 
 entitled The Pope and Magna Carta, cent as a purely personal act entirely 
 has made a great effort to show " that outside of his ecclesiastical jurisdic- 
 the Pope condemned not the charter, tion : " The control of ecclesiastical 
 but the barons ; not the laws and liber- matters only had been intrusted by 
 ties set down in the charter, but the Christ to Peter and Peter's successors." 
 way and action by which the barons See Lingard, Hist. Eng., vol. ii. p. 72. 
 had wrung it from their sovereign." 2 M. Paris, p. 277; Fcedera,\. p. 139. 
 p. 21. His Eminence clearly perceives, 8 M. Paris, p. 270. 
 however, the difficulty arising out of * For the movements of John, see 
 the fact that Innocent denounced the Sir T. D. Hardy's Itinerary of John in 
 charter, in his letter of cassation, as the Introduction to the first volume of 
 " compositio vilis et turpis, verum etiam the Patent Rolls. 
 
 illicita et iniqua et merito ab omnibus 6 Ann. Waverley t p. 283 ; M. Paris, 
 
 reprobanda." The purpose of the car- p. 279. The date of election of Lewis 
 
 dinal was to defend the Catholic Church is not given. 
 
 against the charge of being " the friend 6 Ann. Waverley, p. 285 ; W. Coven- 
 
 of despotism and the enemy of liberty." try, ii. p. 228.
 
 394 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 John dies, 
 October 19, 
 1216. 
 
 Outline of 
 the consti- 
 tutional 
 struggle 
 during the 
 reign of 
 Henry III. 
 
 First re- 
 gency since 
 the Con- 
 quest. 
 
 William 
 Marshall 
 appointed 
 regent. 
 
 Reissue of 
 the charter 
 with certain 
 serious 
 omissions. 
 
 relied upon to fight against their sovereign. Thus shorn of 
 the power of resistance, the baffled tyrant was forced to fall 
 rapidly back upon the Welsh Marches, while Lewis marched 
 triumphantly into London, where he received the homage of 
 the barons on the 2d June. 1 After four months more of war- 
 fare and devastation John died, either from poison or debauch, 
 at Newark, 2 on the igth of October, leaving Lewis in posses- 
 sion of the greater part of his kingdom. 
 
 7. The death of the king wrought a marked revulsion of 
 feeling in favor of the royal cause, whose hopes now centred 
 in John's infant son, Henry of Winchester, who had just 
 completed his tenth year. The very helplessness and inno- 
 cence of the boy-king forbade that the righteous wrath which 
 the crimes of the father had aroused in the heart of the na- 
 tion should be visited upon the head of the son. For the 
 first time since the days of the second ^Ethelred, the crown 
 of England had fallen to a child ; 3 for the first time since the 
 Conquest had it become necessary for the representatives of 
 the nation to appoint a guardian for the king. The barons 
 upon whom this duty devolved wisely chose William Mar- 
 shall, earl of Pembroke, as governor of king and kingdom. 4 
 With him were associated as councillors Gualo, the legate of 
 Honorius III., to whom the young king had sworn fealty as 
 his feudal superior, 5 and Peter des Roches, bishop of West- 
 minster. 6 The first act of the regent was to reissue, in the 
 name of the son and with the legate's approval, 7 the Great 
 Charter against which the father had died fighting, with the 
 omission, however, of all the merely temporary provisions, to- 
 gether with the constitutional clauses touching taxation and 
 the national council, as well as all others that restrained the 
 royal authority in the raising of revenue. 8 Having thus an- 
 nounced the basis upon which that part of the baronial party 
 which stood about the king would conduct the administra- 
 
 1 M. Paris, p. 282 ; W. Coventry, ii. 
 p. 230. 
 
 a M. Paris, p. 242 ; Fcedera, i. p. 144. 
 
 8 ^thelred was elected at the age of 
 ten years. 
 
 * Fcedera, i. p. 215 ; M. Paris, p. 289. 
 Cf. Gneist, The Eng. Parliament, p. 
 87. 
 
 6 Faedera, i. p. 145 ; M. Paris, p. 289. 
 
 " The former, to satisfy the claims 
 
 and to secure the support of the pope ; 
 the latter perhaps, however inade- 
 quately, to fill the place that belonged 
 to the archbishop of Canterbury." 
 Stubbs, Const, /fist., vol. ii. p. 20. 
 
 7 Cardinal Manning makes special 
 reference to this fact in the monograph 
 heretofore referred to. See p. 20. 
 
 8 Statutes of the Realm : Charters of 
 Liberties, pp. 14-16.
 
 IV.] THE WINNING OF THE CHARTERS. 395 
 
 tion, the earl Marshall addressed himself to the patriotic task 
 of ridding the realm of the French invaders. For a time 
 Lewis held firmly in his grasp the capital and the eastern 
 shires, but the constant desertions of the English barons so 
 weakened his forces that the regent made bold to attack him 
 in the spring of 1217. The decisive battle was fought in Battle of 
 May at Lincoln, where the regent was completely victorious. 1 Linc 
 Lewis retreated on London and called for aid from France, but 
 his last hope of success disappeared with the destruction of 
 the fleet upon which he was depending for reinforcements. 2 
 This disaster was followed by a treaty concluded at Lam- Treaty of 
 beth in September, in which Lewis, after stipulating for the September, 
 safety of his adherents, promised to withdraw from England I217- 
 and to renounce all claims upon the crown upon the payment 
 of a sum which he claimed as expenses. 3 The pacification 
 which followed the treaty was marked by a second reissue of second re- 
 the charter in a form which differed from the two preced- ! dSuter! U 
 ing editions in several material particulars. 4 This second 
 reissue was followed in November by a Forest Charter, in charter of 
 which the remedial provisions of John's charter touching 
 forest abuses were enlarged and rendered more efficacious. 6 
 The text of the charter of 1217, though often republished and 
 confirmed, was never afterwards materially altered. After 
 expelling the French, and restoring peace and good govern- 
 ment upon the general basis of reform proclaimed at Runny- 
 mede, the earl Marshall died, lamented by all, in the spring of 
 
 I2I9. 6 
 
 The work of administration now passed into the hands of Adminis- 
 the justiciar Hubert de Burgh, who was sustained in his ef- Hubert de 
 forts to preserve law and order by Archbishop Langton, who 
 had just returned forgiven from Rome. 7 The government of 
 
 1 M. Paris, pp. 247 - 249 ; Ann. The articles of the Great Charter that 
 
 Dunst., pp. 80-82 ; Ann. Waverley, p. relate to forest abuses are the 44th, 
 
 183. 47th, 48th, and a part of the 53d. Cf. 
 
 * This was the achievement of Hu- Blackstone's Introduction to the Char- 
 bert de Burgh, who commanded a fleet ters, pp. xxii., xli. For Henry's Forest 
 collected in the Cinque Ports. Charter, see Statutes of the Realm : 
 
 8 M. Paris, p. 299; Fadera, i. p. Charters, pp. 20,21. 
 
 148. 6 Ann. IVaverley, p. 291. 
 
 * Statutes of the Realm : Charters of 7 As to Langton's treatment at Rome, 
 Liberties, pp. 17-19. For the details see M. Paris, vol. ii. pp. 168, 174, R. S. 
 see Select Charters, p. 344, 2d ed. He returned in May, I2l8. Ann. 
 
 5 The old idea that John issued a Afailros, p. 196. 
 separate Forest Charter is erroneous.
 
 396 THE NORMAN CONQUEST. [Cn. 
 
 Hubert was confronted by three difficulties which were 
 bravely met and completely overcome. The papal legate, 
 who represented the pope as overlord, claimed a voice in the 
 administration ; 1 the foreign party that John had built up 
 about him still had a footing in the kingdom ; while the rem- 
 nant of the feudal party, which still longed for independence, 
 threatened to renew the feudal anarchy which had existed in 
 Stephen's time. Through the joint efforts of primate and 
 justiciar, a promise was obtained from Rome that the legate 
 should be withdrawn, and no successor appointed while Lang- 
 ton lived ; 2 the last of John's mercenaries were expelled ; 
 and by a vigorous policy of coercion the attempt at feudal 
 rebellion was finally crushed out. 3 The complete establish- 
 Thirdre- ment of peace in 1225 was followed by a reissue of the cbar- 
 charte' the ter by the king " spontanea et bona voluntate nostra" ^ and 
 I22 5- in consideration of the concession a grant was made of a 
 fifteenth of all movables, 5 a foreshadowing of the princi- 
 ple that the redress of grievances should precede the making 
 of a money grant. Henry, though only eighteen, had already 
 been declared by the pope competent to govern ; 6 but not 
 Henry com- until two years later, in a council held at Oxford in January, 
 emancipa- I22/, 7 did he complete his emancipation by announcing his 
 tion, 1227. intention to give personal direction to the administration of 
 the kingdom. From a constitutional point of view, the mi- 
 nority which was thus brought to a close is memorable as 
 A resident the time from which it is possible to trace the existence of a 
 uai royal'" permanent royal council, composed of the king's personal 
 bTtra'ced 111 advisers, the officers of state and of the household, the 
 from ^ judges, besides a number of bishops, barons, and others, 
 minority, who constitute a resident and continual council for the dis- 
 patch of public business, apart from the greater body known 
 as the common council of the kingdom. As the right to 
 appoint the regent was assumed by the great council, it is 
 more than likely that the other personal advisers who stood 
 
 1 Gualo, who returned to Rome in 5 The consideration is clearly stated : 
 November, 1218, was succeeded by "Omnes de regno nostro, dederunt no- 
 Pandulf. Cf. Lingard, vol. ii. p. 86. bis cjuintam decimam partem omnium 
 
 2 Ann. Dunst,, p. 74. Pandulf re- mobiiium suorum." 
 
 signed in July, 1 22 1. M. Westm., p. 280. 6 Honorius so declared in letters is- 
 
 8 See Green, Hist. Eng. People, vol. sued in 1221. 
 
 i. p. 251 seq. 7 M. Pans, p. 336; Stubbs, Const 
 
 4 Statutes of the Realm : Charters, J?is(., vol. ii. p. 39. 
 pp. 22-25.
 
 IV.] THE WINNING OF THE CHARTERS: 397 
 
 with him around the king were also during the minority 
 appointed with its consent and approval. From the great 
 council the earl Marshall received his appointment as " rector 
 regis et regni" in 12 16, 1 and Ralf Neville the chancellorship 
 in I226. 2 It is therefore probable that to the minority of Ministerial 
 Henry can be traced the beginnings of the constitutional doc- "y^d'the 
 trine that the king can do no wrong, and that the ministers ^ t tr t ',"g 
 who advise him are responsible to the assembled represen- king can do 
 tatives of the nation who have a consultative voice in their ap- n ' 
 pointment. 3 Years, however, elapsed, after Henry's formal 
 emancipation in 1227, before he actually attempted to govern 
 alone. For five years more the real direction of affairs con- 
 tinues in the hands of the justiciar Hubert, who is for a time 
 aided in the difficult task of preserving peace at home and 
 abroad, and in governing England in the interest of the Eng- 
 lish, by the patriot primate, who died in July, I228. 4 After Langton 
 Langton's death Hubert found himself too weak to stand ^V" July ' 
 alone against the tide of papal aggression which now began 
 to press upon the realm. Hubert's supposed connection 5 
 with an organized popular opposition to the collection of a 
 tax 6 imposed for the aid of Gregory IX. in his war with the 
 emperor broke his power with the king, whose dominant im- 
 pulse was his devotion to the papacy, and led at last to his 
 dismissal in July, I232. 7 After the fall of Hubert, his old 
 rival, Peter des Roches, regained the royal confidence, and p e terdes 
 became for a time dominant in the king's councils. But his Roches - 
 power was short-lived. In April, 1234, the king commanded 
 Bishop Peter to confine himself to his spiritual duties ; 8 from 
 that time the personal government of the king really begins. 
 
 Henry, who held with his father that the will of the prince Henry's 
 was the law of the land, now attempted to enforce his per- 
 sonal rule, unrestrained by the influence of the great minis- 
 ters of state who had carried on the work of administration 
 since the days of his grandfather, Henry of Anjou. The first 
 
 1 W. Coventry, ii. p. 233. 7 For the charges brought against 
 
 2 M. Paris, pp. 316, 430. Hubert, see M. Paris, p. 377. 
 
 8 Upon this whole subject, see Stubbs, B M. Paris, vol. h. p. 366, R. S. 
 
 Const. Hist., vol. ii. pp. 40, 41, 255-266. " Praecepit Petro, Wintoniensi epis- 
 
 4 M. Paris, vol. ii. p. 302, R. S. copo, ut pergens ad episcopatum suura 
 
 6 Ann. Dunst,, p. 129. curis intenderet animarum, et de cetero 
 
 6 M. Paris, pp. 335, 361 ; Ann. Bur- regiis negotiis non interesset." 
 
 ton, p. 245 ; Ann. Waverley, p. 305.
 
 398 THE NORMAN CONQUEST. [CH. 
 
 step was to abolish the ancient dignity and power of the jus- 
 ticiar. With the fall of Hubert de Burgh 1 the line of great 
 The justi- justiciars comes to an end : henceforth the justiciar becomes 
 ccfmeTsim- simply the head of a law court ; he is no longer " secundus a 
 plythehead re g e ^ Henry's policy was to reduce the dignity and impor- 
 court. tance of the justiciar, and at the same time to distribute all 
 the other great offices of state among trained administrators 
 wholly dependent upon his personal will. In spite, however, 
 of the king's lofty assumptions, the actual direction of affairs 
 Foreign in- soon passed into the hands of the brood of foreign favorites 
 work" 8 ' who followed in the train of Eleanor of Provence, to whom 
 he was married in 1236,2 and to the Poictevin kinsmen of the 
 queen mother who came in I243. 3 And about the same time 
 still another and more potent foreign influence was introduced 
 into the personal government of the king. The one power 
 which Henry admitted to be superior to his own was the 
 power of the papacy, whose influence upon English affairs 
 was formally renewed by the arrival in 1237 of the legate 
 Otho, who came upon Henry's secret invitation to carry out 
 projected reforms in church and state. 4 Out of the pressure 
 of the king's personal rule as directed by the interests of the 
 foreign favorites, and by the exactions of the papal court, 5 
 Conflict be- arose that bitter conflict between the English church and 
 crown and nation on the one hand, and the royal and papal authority on 
 throne side tne otner > which finally resulted, in Henry's latter days, in an 
 EI? r h h P en a PP ea ^ to arms - The dreary waste of years that inter- 
 church and venes between the beginning and the end of the conflict is 
 the'other! filled up with endless details which illustrate the growth of 
 the royal and papal exactions on the one hand and the rising 
 spirit of resistance on the other. The history of the conflict 
 can be most clearly traced in the proceedings of the parlia- 
 ments which meet to listen to demands for money from pope 
 
 1 " Robert Burnell was the first great 4 " Ad reformandum statum ecclesiae 
 chancellor, as Hubert de Burgh was the et regni." M. Paris, vol. ii. p. 398, 
 last great justiciar." Stubbs, Const. R. S. 
 
 Hist., vol. ii. p. 269. 6 Lingard, with his usual frankness, 
 
 2 M. Paris, vol. ii. p. 385, R. S. admits that " the history of Henry's 
 8 " Henry, a good son and a good transactions with the court of Rome 
 
 husband, could not bring himself to discloses to us a long course of oppres- 
 say No to his mother or his wife, and sion, under which the English clergy, 
 the land was filled with successive by the united influence of the crown 
 swarms of the kinsfolk and country- and the tiara, were compelled to sub- 
 men alike of Isabel and of Eleanor." mit to the most grievous exactions." 
 Norm. Conq., vol. v. p. 483. Hist, of England, vol. ii. p. 99.
 
 IV.] THE WINNING OF THE CHARTERS. 399 
 
 or king, and, in turn, to concede or reject them. In the pro- 
 ceedings of the parliament of 1242, which were duly recorded Earliest 
 and which survive as the earliest authorized report of a par- re 
 liamentary debate, 1 we find the representatives of the nation, P 
 after thoroughly discussing the expediency of a foreign war, 1242. 
 bold enough to oppose it by refusing an aid to the king to 
 carry it on. To the parliament of 1244 the king was forced 
 to appeal with his own mouth for aid out of the difficulties in 
 which he had become involved by attempting to carry on war 
 after a grant had been denied him. To this appeal upon the 
 part of the king the parliament replied that they would grant 
 him no money unless he would first assent to a definite plan The pro- 
 of reform which contemplated, among other things, the confir- E^mof* 
 mation of the charters, the election by the national assembly IZ *4- 
 of a justiciar, chancellor, and treasurer, and the establish- 
 ment of a permanent council which should attend upon him 
 and supervise his administration. 2 This demand, though not 
 accepted at the time, defined the basis of later reforms ; it 
 foreshadowed the practical expedients which were afterwards 
 employed to force upon the king a faithful observance of the 
 principles which the charter defined. From 1244 to 1254 From 1244 
 the contest is continuous. The effort upon the part of the tc 
 king is to obtain from the parliament without conditions 
 money enough to supply his ever-increasing wants ; the 
 effort upon the part of the nation is to secure the appoint- 
 ment of the great officers of state in order to control through 
 them the king's improvident administration. To the parlia- 
 ment of 1254 which was convened by the regents for the 
 purpose of obtaining an aid for the king, who was absent on 
 an expedition to Gascony the chosen knights from the Knights of 
 shires are summoned for the first time since the reign of reappear in 
 John. 3 The grant which the regents asked was made and 
 wasted, and at the end of the year the king returned to 1254. 
 
 1 M. Paris, pp. 581, 582 ; Select Char- The Committee say that "it seems to 
 ters, p. 368, 20 ed. have been the first instance appearing 
 
 2 M. Paris, pp. 640, 641. .As to the on any record now extant, of an at- 
 connection of Simon of Montfort with tempt to substitute representatives 
 the joint committee of bishops and bar- elected by bodies of men for the attend- 
 ons that drew up the reply to the de- ance of the individuals so to be repre- 
 mand of the king, see Green, Hist. Eng. sented, personally or by their several 
 People, vol. i. p. 275. procurators, in an assembly convened 
 
 8 Report on the Dignity of a Peer, for the purpose of obtaining an aid." 
 App. i. p. 13, and also vol. L pp. 94, 95. P. 95.
 
 4<x> 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Disclosure 
 of the 
 king's debts 
 to the par- 
 liament of 
 1257. 
 
 The Bar- 
 ons' War, 
 1258-1272. 
 
 Simon of 
 Montfort. 
 
 become involved in fresh complications. While in Gascony 
 Henry had accepted from his papal overlord, for his second 
 son Edmund, an offer of the Sicilian crown, which was re- 
 garded as a papal fief, upon the pledge that England would send 
 an army across the Alps, and also repay the sums which the 
 pope was then borrowing to carry on his war with the house 
 of Hohenstaufen. 1 In 1257 the pope presented his account 
 to Henry, showing an indebtedness of 135,00x3 marks, which 
 was duly laid before the parliament. 2 The crisis had now come. 
 The king was so helplessly in debt, 3 and the administration 
 of the kingdom was in such hopeless disorder, that the fact 
 was apparent to all that the point had at last been reached at 
 which it was necessary for the parliament to place the royal 
 authority in commission, and to provide through its own 
 agents for the future government of the state. 
 
 The work of reorganizing the system of central adminis- 
 tration which Henry's personal misrule had completely broken 
 down, of freeing the nation from the presence and influence 
 of the foreign favorites whom he had quartered on the crown, 
 and of checking the aggressions of the papal power, natu- 
 rally devolved upon the barons, who were now aroused to a 
 definite plan of action under the leadership of the great Earl 
 of Leicester, Simon of Montfort. 4 In a parliament which 
 met at London in April, 1258, the king in his helplessness 
 agreed to put himself in the hands of the barons, and to sub- 
 mit himself to a definite plan of reform which they were to 
 unfold in a parliament to be held at Oxford on the iith of 
 June. 5 At the time appointed, the baronage appeared in 
 arms 6 under the leadership of Leicester and Gloucester, and 
 presented a petition embodying the reforms which they had 
 resolved to carry out. 7 In accordance with the agreement 
 
 1 Fcedera, i. pp. 297, 301, 316, 318, 
 336> 337- See Ranke, Englische Ge- 
 schichte, i. 98. 
 
 2 Fcedera, i. p. 354; M. Paris, p. 946; 
 Ann. Burton, p. 384. 
 
 8 " It was calculated that since his 
 wasteful days began, he had thrown 
 away 950,000 marks." Stubbs, Const. 
 Hist., vol. ii. p. 71, citing M. Paris, p. 
 948. 
 
 4 The best sketch of the whole ca- 
 reer of Earl Simon is perhaps that one 
 contained in Dr. R. Pauli's monograph 
 
 entitled Simon von Montfort Graf von 
 Leicester, der Schbpfer des Manses der 
 Gemeinen. Trans, by Una M. Goodwin, 
 with introduction by H. Martineau, Lon- 
 don, 1876. See, also, Blaauw's Barons' 
 War. 
 
 6 M. Paris, pp. 963, 968; Ann. 
 Theokesb., p. 164; Feeder a, i. pp. 370, 
 
 37 ' 
 
 6 M. Paris, p. 970 ; Pauli, p. 91 ; 
 
 Lords' Report, vol. i. p. 126. 
 
 7 For the petition of the barons, see 
 Ann. Burton, pp. 339~443-
 
 IV.] THE WINNING OF THE CHARTERS. 401 
 
 made at London in April, 1 a committee of twenty-four were 
 elected, half by the king and half by the barons, who drew 
 up the articles generally known as the Provisions of Oxford. 2 Provisions 
 Under the terms of the Provisions, the royal authority was "L^ " 1 ' 
 placed under the control of three committees, who were 
 charged with the task of reforming the entire administration. 
 A council of fifteen were elected by four of the original 
 twenty-four to advise the king in all ordinary matters of gov- 
 ernment ; another committee of twenty-four were appointed 
 to deal only with the negotiation of financial aids ; 3 a third 
 committee of twelve were chosen by the barons to represent 
 the community in three annual parliaments: 4 while to the 
 original committee of twenty-four was committed the reforma- 
 tion of the church. 6 It was provided that parliament should 
 convene thrice in the year, and that in each parliament the 
 permanent council of fifteen should meet with the body of 
 twelve to be chosen by the barons, to discuss the common 
 business of the whole community. 6 Hugh Bigod, the adher- 
 ent of both of the baronial leaders, was chosen justiciar ; and 
 justiciar, chancellor, and the guardians of the king's castles 
 were sworn to act only with the advice of the permanent 
 council. 7 The provisional government, which went into op- 
 eration in June, promptly expelled the foreigners, but the 
 work of reform which it undertook to carry out proceeded so 
 slowly that the knighthood 8 openly complained that, while 
 the barons had looked after their own interests, they had kept 
 none of their promises. The result of this outcry was the Provisions 
 additional provisions known as the Provisions of Westmin- mincer, 
 ster, which were published in Latin and French in October, I2 59- 
 
 1 For the king's consent to the scheme same persons." Green, Hist, of the 
 of reform, and to the election of the Eng. People, vol. i. p. 292. 
 twenty-four, see Fcedera, i. pp. 370, 371. 6 With the further provision " that 
 
 2 Ann. Burton, pp. 446-453. Upon the commonalty shall hold as estab- 
 the whole subject, see Select Charters, lished that which these twelve shall do. 
 pp. 378-400, 2d ed. See, also, Mr. And that shall be done to spare the 
 Luard's translation of the Ann. Bur- cost of the commonalty." 
 
 ton, pp. 501-505. 7 Ann. Burton, pp. 447-449. A proc- 
 
 8 Ann. Burton, p. 450. lamation, the first in the English tongue 
 
 * Ibid., p. 449. since the Conquest, was issued by the 
 
 6 Ibid., p. 480. " The complexity of king commanding the observance of the 
 
 such an arrangement was relieved by Provisions. Fcedera, i. p. 378. 
 
 the fact that the members of each of 8 " Communitas bacheleriae Angliae." 
 
 these committees were in great part the Ann. Burton, p. 471 ; Pauli, pp. 95- 
 
 100.
 
 402 
 
 THE NORMAN CONQUEST, 
 
 [CH. 
 
 Knights of 
 the shire in 
 the parlia- 
 ment of 
 1261. 
 
 Award of 
 St. Lewis, 
 Jan., 1264. 
 
 Battle of 
 Lewes, 
 May, 1264. 
 
 I259. 1 This last effort, like the first, failed, however, to sat- 
 isfy public expectation. The very complexity of the scheme 
 of reform which the barons had devised, coupled with the 
 existence of an open feud between the baronial leaders 
 Gloucester and Leicester foredoomed the provisional sys- 
 tem to failure and disappointment. The king, emboldened by 
 the division of his adversaries, announced in 1260 that, as the 
 barons had failed to keep the Provisions, they were no longer 
 binding on him. In this crisis the king's eldest son, Edward, 
 stood for a moment by the side of Earl Simon in behalf of the 
 popular cause, while Gloucester went over to the king. 2 But 
 father and son were soon reconciled, and Gloucester returned 
 to join with Earl Simon in calling a parliament, in the fall of 
 1261, at St. Alban's, to which were summoned three knights 
 from every shire south of Trent. 3 The death of Gloucester 
 in the summer of 1262 delivered the popular cause from the 
 difficulties of a divided leadership, leaving the great earl free 
 to deal single-handed with his royal opponent. After raising 
 the standard of successful revolt, Simon, in order to avert civil 
 war, agreed in December, 1263, as a compromise, to submit 
 the matters at issue between the nation and the crown to the 
 arbitrament of the king of France, who, it was agreed, should 
 pass upon the validity of the Provisions, and at the same time 
 determine whether or no they should continue in force. 4 
 Early in the following year Lewis made his award, in which 
 he solved the questions at issue in favor of the king, with the 
 proviso, however, that his award was not intended to abridge 
 the liberties of the nation as defined by charter, statute, or 
 custom. 6 This award, which upon its face seemed to be a 
 contradiction, settled nothing but the fact that the last and 
 only hope of the nation was in civil war, which soon began. 
 In the decisive battle fought at Lewes in May, 1264, Simon 
 was completely victorious over Henry and Edward, who, to- 
 gether with their chief supporters, became prisoners in his 
 
 1 Statutes of the Realm, i. pp. 8-1 1 ; 
 Ann. Burton, pp. 471-479. In 1267 
 these Provisions were embodied in the 
 Statute of Marlborough. Select Char- 
 ters,^. 400. 
 
 1 Green, History of the English 
 People, vol. i. pp. 294, 295; Pauli, p. 
 108. 
 
 8 Henry commanded the sheriffs to 
 
 send the knights, not to St. Alban's but 
 to Windsor. For the writ, see Lords' 
 Report, A pp. i. p. 23. 
 
 * Shirley, Royal Letters, vol. ii pp. 
 249-251; Ann. Dunst., p. 225; Pauli, 
 p. 132 seq. 
 
 6 The award may be found in the 
 Focdera, i. p. 433, and in the Liber 
 de Antt. Ltgg,, p. 59.
 
 IV.] THE WINNING OF THE CHARTERS. 403 
 
 hands. 1 The only use which the earl sought to make of his 
 victory was to place fresh and binding restraints upon the 
 royal authority. In the " Mise of Lewes " the convention 
 between the patriot leaders and their captive lord the Pro- 
 visions were confirmed, and a new body of arbitrators ap- 
 pointed to settle all controversies existing between the nation 
 and the king. 2 Pending the award, the royal castles were 
 delivered to the barons, and on the 4th of June writs were 
 issued appointing guardians of the peace in each county, and 
 summoning four knights from each shire to meet the king in Knights of 
 a parliament to be held on the 226. of the same month. 3 t he pariL" 
 The parliament met at the time appointed, and drew up a new ^ nt of 
 programme of government, to last while Henry lived, un- 
 der which the king was to act with the advice of a council of 
 nine, to be nominated by three electors to be chosen by the 
 barons, three of the nine to be inconstant attendance. 4 In 
 order to conclude the arrangements embraced in the " Mise 
 of Lewes," and in order to gain a broader popular basis for 
 his government, Simon, on the I4th of December, issued the Famous 
 writs for his famous parliament, to which were summoned not ETi^f * 
 only the two discreet knights from the shires, but also, for the [f v ^ r s e for the 
 first time in the history of English politics, two representa- fir st time 
 tives from the cities and boroughs. 6 This bold and unpre- from cities 
 cedented appeal for aid to the rising democracy of the cities and 
 and towns did not avail, however, to save the government 
 of the earl, now tottering to its fall. The weakness of the 
 patriot party among the baronage had undermined Simon's 
 strength, and this fact finally led to his overthrow when the 
 disaffected, under the lead of Gloucester and the Mortimers, 
 were joined by Edward, who escaped from the earl in May, 
 1 265. In the person of the prince the royal cause now found 
 
 1 For a general account of the battle, ceteris burgis Angliae, quod mittant in 
 see Rishanger, ed. Halliwell, p. 31 teg. ; forma praedicta duos de discretioribus, 
 Ann. Waverley, p. 356 ; Blaauw's legalioribus et probioribus tarn civibus 
 Barons' War, pp. 143-189 ; Pauli, pp. quam burgensibus. 
 
 144-151. "Item in forma praedicta mandatum 
 
 2 The substance of the convention, est baronibus et probis hominibus 
 which contained seven articles, is stated Quinque Portuum." The writ is con- 
 in the Chronicle of Rishanger, p. 37. tained in the Lords' Report, App. i. p. 
 
 8 Fcedera, i. p. 442 ; Select Charters, 33. " The novelty was simply the as- 
 
 p. 411 seg. sembling the representatives of the 
 
 4 Ibid., i. p. 443. towns in conjunction with those of the 
 
 6 " Item in forma praedicta scribitur counties." Select Charters, p. 410. 
 
 civibus Eboraci, civibus Lincolniae, et Pauli, pp. 183-186.
 
 404 THE NORMAN CONQUEST. [Cn. 
 
 a brilliant leader, whom Simon himself had trained in the art 
 Battle of of war. When, in August, master and pupil met at Evesham 1 
 Aug!, ^265. as leaders of the opposing forces, the great earl went down, 
 and with him perished for a time the patriot cause for which 
 he had so long and so unselfishly contended. Those of Si- 
 mon's followers who survived the defeat were at once made to 
 understand the full significance of unsuccessful rebellion. 
 The franchises of every town that had supported the earl 
 Council were held to be at the king's mercy, while a general sentence 
 winches- of forfeiture was issued against all who had fought under his 
 se'tember standard. 2 These exasperating measures drove the disin- 
 herited lords to gather for resistance in the castle of Kenil- 
 worth, where they were besieged by the king from June to 
 December, I266. 3 During the siege a parliament was held, 
 and with the king's consent arbitrators were appointed who 
 were charged with the duty of preparing a plan of reconcilia- 
 Dictumde tion. The scheme thus prepared, known as the "dictum de 
 worth, Oct., Kenilworth" provided among other things that no one should 
 1266. k e conclusively disinherited from the mere fact of having par- 
 ticipated in the rebellion, that all who would submit within 
 a given time should be spared and forgiven. 4 After the terms 
 thus proposed had been generally accepted, and after all show 
 of armed resistance to the royal authority had completely dis- 
 appeared, the king, in November, 1267, called a parliament at 
 Marlborough, whose spirit stands in marked contrast to that 
 which inspired the restoration parliament which had met in 
 October of the preceding year. Instead of decrees of forfeit- 
 ure against those who had been in rebellion, a statute was 
 now passed in which were embodied the Provisions of West- 
 minster, 5 a series of ordinances of a remedial character 
 which comprised substantially all of the grievances embraced 
 statute of in the Provisions of Oxford. By the enactment of this stat- 
 ough, ute, known as the Statute of Marlborough, 6 the nation won, 
 NOV., 1267. a f ter t h e pacification, the legal recognition of nearly every 
 
 1 As to the battle, see Ann. Wykes, * The ordinance known as the " dic- 
 pp. 172-175; Chron. Mailros, pp. 199- turn de Kenilworth," which is divided 
 215; Ann. Waverley, pp. 362-365. into 41 articles, is contained in the 
 
 2 Fcedera, i. p. 462 ; Liber de Antt. Statutes of the Realm, \. pp. 12-17. 
 Legg., p. 76; Ann. Wykes, p. 176. As See, also, Select Charters, pp. 419-425. 
 to the excesses of the Royalists, see 6 See above, p. 401. 
 
 Blaauw's Barons' 1 War, pp. 267, 268. 6 Statutes of the Realm, i. pp. 19- 
 
 8 Ann. Waverley, p. 373 ; Ann. Win- 25. For a commentary on this statute, 
 ton, p. 104. see Reeves, vol. ii. pp. 323-340.
 
 IV.] THE WINNING OF THE CHARTERS. 45 
 
 right excepting the appointment of ministers and the elec- 
 tion of sheriffs for which the baronial leaders with Simon 
 at their head had so long and so valiantly contended. 1 The 
 concessions thus wisely made by the crown in the hour of 
 victory were followed by peace which remained unbroken 
 down to Henry's death in November, 1272. 
 
 8. The period of peace which followed the policy of recon- From the 
 ciliation inspired by the victor of Evesham was so profound Edward n i. f 
 that Edward took the cross and went to Palestine. 2 While on tothe 
 
 enactment 
 
 his way home the news of his father s death reached him at of Quia 
 Capua in 1273, but he did not arrive in England until August, emft ' 
 1274.3 The fact that no one questioned the right of the 
 absent heir to succeed to the vacant throne goes far to show 
 how the ancient doctrine of elective kingship was fast giving 
 way to the new feudal notion of hereditary right. Without 
 election or coronation, the reign of the new king dated, for the Edward's 
 first time, from the death of his predecessor. On the day of fro?the es 
 Henry's funeral the baronage swore fealty to their absent j^rede- 
 lord, 4 and three days afterwards the royal council, under whose cessor. 
 control the kingdom passed, proclaimed the new peace in Ed- 
 ward's name. 6 It was not, however, until the reign of Edward 
 IV. that the new doctrine of hereditary right finally ripened 
 into the maxim that the king never dies, from which results Maxim that 
 the correlative idea that there can be no such thing as an never'dfes 
 interruption in the king's peace. 6 The first act of the impor- "^bHshed 
 tant reign which now begins was a commission of inquiry until the 
 into the territorial franchises, the results of which, recorded Edward 
 in the Hundred Rolls, 7 led to the passage of the Statute of IV- 
 Gloucester, which will be considered hereafter. The work 
 of investigation thus begun was soon followed by the work of 
 legislation : in April, 1275, Edward's first parliament met at 
 
 1 Stubbs, Const. Hist., vol. ii. p. 97. 6 Liber de Antt. Legg., p. 1 55 ; Feed- 
 " Except the demand for the appoint- era, i. p. 497 ; Select Charters, pp. 447, 
 ment of the ministers and the election 448. 
 
 of sheriffs, the statute of Marlborough 6 Stubbs, Const. Hist., vol. ii. p. 
 
 concedes almost all that had been 103. 
 
 asked for in the Mad Parliament." ' For the facts upon this subject, see 
 
 2 Ann. Winton, p. 109. the introduction to the Rotuli Hiindre- 
 8 The king arrived on the second and dorum, published by the Record Com- 
 
 the coronation took place on the nine- mission. For the relation of the Hun- 
 
 teenth. Ann. Winton, p. 118; Fccdera, dred Rolls of Edward I. to the history 
 
 i. p. 514. of the manorial system, see Seebohm, 
 
 4 Ann. Winton, p. 112 ; Fcedera, i. p English Village Com., p. 32 sty. 
 497-
 
 406 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Statute of 
 Westmin- 
 ster I., 
 1275. 
 
 Free elec- 
 tions. 
 
 Reform of 
 legal pro- 
 cedure. 
 
 Francesco 
 Accursi the 
 civilian. 
 
 Westminster. In that parliament was passed the great stat- 
 ute or code known as Westminster the First, 1 which, in its 
 fifty-one chapters, seems to have embraced nearly every sub- 
 ject which at the moment called for remedial legislation. 
 This statute declares that the peace of the church and of 
 the realm shall be kept and maintained in all things, and that 
 common right shall be done to all, rich and poor alike, with- 
 out respect to persons. 2 It further provides that all elections 
 shall be free, and that no man shall by force or menace dis- 
 turb them, 3 a provision the more important in view of the 
 fact that sheriffs, coroners, and other officers connected with 
 the administration of justice were then elected by the peo- 
 ple. 4 In favor of the feudal tenants, certain clauses of the 
 Great Charter were emphasized by provisions forbidding the 
 illegal exaction of feudal aids, the abuse of wardships, and 
 the imposition of excessive amercements. The statute then 
 provides for a far-reaching reformation of the whole system 
 of legal procedure both in civil and criminal cases. 5 As a 
 compensation for this remedial measure, the parliament made 
 a grant to the crown of custom on wool, woolfells, and 
 leather. 6 Wool, the then staple produce of the country, 
 which had been for some time the subject of unrestrained 
 royal exaction, was now protected to some extent against 
 arbitrary seizure by being made for the first time the subject 
 of parliamentary taxation. 7 Passing over the parliament of 
 1276, which is only memorable because of the attendance of 
 Francesco Accursi of Bologna, 8 the civilian whose services 
 Edward had retained before entering upon the work of legis- 
 lative reform, 9 and over the year 1277, in which the king 
 was engaged with an outbreak in Wales, we come to the par- 
 liament of 1278, in which was passed the Statute of Glouces- 
 
 1 Statutes of the Realm, i. pp. 26, 
 
 3S * ch. , 
 
 8 " And because elections ought to 
 be free, the king commandeth upon 
 great forfeiture that no man by force 
 of arms, nor by malice or menacing, 
 shall disturb any to make free elec- 
 tion." Ch. v. 
 
 4 Cf. Coke, Inst., ii. p. 169; Reeves, 
 Hist. Common Law, vol. ii. p. 391 seq. 
 (ed. Finlason). 
 
 6 Upon this whole subject, see 
 Reeves, vol. ii. pp. 390-429. 
 
 6 Parl. Writs, vol. i. p. 2. 
 
 7 Cf. Select Charters, p. 450. 
 
 8 Statutes of the Realm, i. p. 42. 
 
 9 " Francesco was in attendance on 
 Edward at Limoges in May, 1274, 
 Fadera, i. pp. <jii, 512." Stubbs, 
 Const. Hist., vol. ii. p. 107, note 2. He 
 was the son of the great Accursi of 
 Bologna, who was the writer of the 
 glosses on the civil law.
 
 IV.] THE WINNING OF THE CHARTERS. 47 
 
 ter, 1 a statute designed to give effect to the work begun by statute of 
 the inquiry of 1274 into the territorial franchises. As hereto- 
 fore explained, the jurisdictions of the local courts were from 
 the earliest times cut up and undermined by a network of 
 territorial lordships, which were nothing more nor less than 
 law courts in private hands, that stood as stumbling-blocks to 
 the orderly and uniform administration of law by the king's 
 justices. Against the existence of these private law courts Anti-feudal 
 the anti-feudal policy of Henry II. had been vigorously di- Senryn. 
 rected, 2 and in furtherance of that policy the Statute of 
 Gloucester was enacted. Under the authority of that statute 
 the itinerant justices were directed to inquire into the right 
 by which the several franchises, liberties, and privileges were 
 held by the lay and spiritual lords who claimed them ; and 
 by virtue of the quo warrantos which were issued to all war 
 was openly declared by the crown against all liberties and 
 franchises in the kingdom. 3 Every holder of a franchise 
 was thus driven to maintain his warrant or title. The feudal 
 lords, who regarded the inquiry as a dangerous assault upon 
 their local rights, angrily resisted it ; and in this spirit it was 
 that the Earl of Warenne, when called upon to show his title, 
 produced an old sword and exclaimed to the justices, "See, 
 my lords, here is my warrant." 4 
 
 The blow thus dealt at the possessors of territorial fran- statute of 
 chises was followed in the next year by a memorable statute 7 r 9 tmain ' 
 devised in the interests of the feudal lords, with the king at 
 their head, as against any " person religious or other, whatso- 
 ever he be, that will buy or sell any lands or tenements, or 
 under the color of gift or lease, or that will receive by reason 
 of any title, whatsoever it be, lands or tenements, or by any 
 other craft or engine will presume to appropriate to himself 
 under pain of forfeiture of the same, whereby such lands or 
 tenements may anywise come into mortmain." 6 In order to charter 
 prevent the cutting off of the feudal dues and services which ^adequate 
 resulted from the conveyance of lands into the " dead hands " 
 of religious orders, it was provided in the Great Charter that 
 
 1 Statutes of the Realm, i. p. 45. 6 This is a translation of the vital 
 
 2 See above, p. 282. part of the famous statute De religiosis, 
 8 Reeves, Hist. Eng. Law, vol. ii. pp. commonly called the statute of mort- 
 
 527-526. main. Statutes of the Realm, i. p. 
 
 * Hemingb., ii. p. 6. 51.
 
 408 
 
 THE NORMAN CONQUEST. 
 
 TCn. 
 
 Ecciesias- 
 
 Remedy 
 
 o^t 
 ute - 
 
 Prohibition 
 i?cense ed by 
 
 Conquest 
 1282^83?' 
 
 " it shall not be lawful from henceforth to any to give his lands 
 to any religious house, and to take the same land again, to hold 
 of the same house. Nor shall it be lawful to any house of re- 
 ligion to take the lands of any, and to lease the same to him 
 of whom they were received to be holden." 1 This provision 
 of the charter was not, however, sufficiently comprehensive to 
 compass, the evil, and for that reason the statute De religiosis 
 was passed to give to the prohibition a wider application. 2 
 Ecclesiastical ingenuity proved, however, to be more than a 
 matcn f r the skill of the legislator. The new statute was 
 soon evaded by the bringing of actions for land, in which 
 "the religious men and other ecclesiastical persons "sued 
 the tenant, who, by " suffering a recovery," aided the plain- 
 tiff to evade the statute by acquiring the land, not by gift or 
 alienation, but by process of law. To prevent this new de- 
 vlc ^ a clause was introduced into the Statute of Westminster 
 II. which provided that in such cases a jury should deter- 
 mine whether the claimant had a right over the land sued for 
 or not. 3 The prohibition as to mortmain imposed by the 
 statute could only be removed by license from the crown 
 and the mesne lords, if any, down to the passage of the stat- 
 ute of 7 & 8 Will. III. c. 37, whereby it was provided that 
 such license could be granted by the crown alone, without 
 the consent of the mesne lords, in any form whatsoever. Ex- 
 ceptions have also been made in favor of certain classes of 
 corporations by act of parliament. 4 
 
 From the congenial work of legislation Edward was called 
 m I2 ^2 by a renewal of the Welsh war, which, after less than 
 a year's duration, ended in the death of Llewelyn and the 
 annexation of the principality to the English crown. Llew- 
 elyn fell in December, I282, 6 and in the following June his 
 brother David, who after having received an English lord- 
 ship from Edward's hands had conspired against him, 6 was 
 captured. In an anomalous assembly or parliament which 
 
 1 Cap. 43, ed. 1217. the old rule of law still prevails." 
 
 2 Reeves, Hist. Eng. Law, vol. ii. pp. Digby, Law of Real Property, p. 
 
 Cf. Digby, Law of Real Property, * Fcectera, i. p. 631 ; Cont., Fl. 
 
 pp. 182, 183. p. 229. 
 
 4 " When, however, no license has 6 Green, Hist. Eng. People, vol. i. p 
 
 been obtained from the crown or has 332, 
 been conferred by act of parliament,
 
 IV.] THE WINNING OF THE CHARTERS. 49 
 
 met at Shrewsbury in September, I283, 1 David was tried and 
 condemned as a traitor and immediately executed. A few 
 days afterwards the king at Acton Burnell, in the irregular 
 assembly which had gathered to witness David's trial, enacted 
 the Statute of Acton Burnell, or, as it is generally called, the 
 Statute of Merchants, 2 in which was provided a more speedy statute of 
 and certain remedy for the collection of that class of press- ^ diants> 
 ing demands which arise out of mercantile transactions. 3 In 
 order to render secure the results of his conquest over Wales, 
 Edward not only provided for the settlement of English 
 barons upon the confiscated soil which rebellion had forfeited 
 to the overlord, but he also, by statutes 4 published at Rhudd- incorpora- 
 land in 1284, attempted to incorporate the principality into 
 the body of the kingdom by introducing into the greater part 
 of it the English shire system, together with the system of 
 English legal administration. 6 From this time began that 
 tendency to closer union between the kingdom and the prin- 
 cipality which finally resulted, in the reign of Henry VIII., in 
 the complete incorporation of Wales with England, and its 
 representation in the English parliament. 6 
 
 In 1285, the year following the settlement of the Welsh TWO great 
 conquest, were passed two great statutes the Statute of sl 
 Winchester and the Statute of Westminster the Second 
 which are justly regarded not only as the highest exhibitions 
 of Edward's constructive skill as a legislator, but also as vi. 
 tally important links in the chain that binds the ancient sys- 
 tem of customary law which prevailed in the local courts of 
 the people to the new system of royal or official law which 
 prevailed in the central court of the king. 7 These statutes, 
 in their respective spheres, not only reorganized and im- 
 proved the systems of central and provincial administration, 
 but they brought them into closer and more harmonious rela- 
 tions with each other. As the leading object of the second 
 
 1 Faedera, i. p. 630 ; Parl. Writs, vol. Welsh territories before he became 
 i. p. 16 ; Select Charters, pp. 463, 467. king." Stubbs, vol. ii. p. 117. 
 
 2 Statutes of the Realm, i. pp. 53, 54. 6 Green, Hist. Eng. People, vol. i. p. 
 8 Reeves, Hist. Eng. Law, vol. h. p. 334. 
 
 452. 7 " If the Statute of Westminster rep- 
 
 4 Statutes of the Realm, \. pp. 55-68- resents the growth and denned stature 
 
 6 " They were intended to assimilate of the royal jurisdiction, the Statute of 
 
 the administration of Wales to that of Winchester shows the permanence and 
 
 England, a principle which Edward adaptability of the ancient popular law." 
 
 had in vain attempted to enforce in his Stubbs, Const. Hist,, vol. ii. p. 1 18.
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Statute of 
 Winches- 
 ter, 1285. 
 
 Statute of 
 Westmin- 
 ster II., 
 1285. 
 
 Bill of ex- 
 ceptions. 
 
 De donis 
 
 conditional- 
 
 thus. 
 
 Restraints 
 upon alien- 
 ation. 
 
 Statute of Westminster was to readjust and perfect the new 
 system of legal administration which had sprung from the 
 curia regis, so the leading purpose of the Statute of Winches- 
 ter * was to revive and strengthen the ancient system of po- 
 lice which had immemorially existed in the organization of 
 the hundred, and the ancient military system which had im 
 memorially existed in the organization of the fyrd. 2 The 
 statute last named recites that all kinds of crime are more 
 frequently committed for the want of a proper enforcement 
 of existing law ; and in order to remedy the special evil re- 
 sulting from the concealment of crime, provision is made that 
 " hue and cry " shall be made in all public gatherings, so that 
 no one by pleading ignorance shall shield himself from doing 
 his duty in the arrest of criminals. 3 
 
 The provisions of the Statute of Westminster 4 the Secona 
 fall into two broad divisions : first, those which relate to the 
 organization of the king's itinerant courts, and to the genera' 
 administration of justice therein ; second, those that relate to 
 the tenure and transfer of land. Under the first head the 
 most important single provision is perhaps that one which 
 grants to suitors the right to a bill of exceptions, whereby all 
 matters of exception occurring at the trial can be reexamined 
 upon a writ of error, whether appearing upon the face of the 
 record or no. 6 Under the second head, by far the most im- 
 portant provision is that one contained in the first chapter of 
 the act, which chapter is generally known as the statute De 
 donis conditionalibus. In order to clearly illustrate the bear- 
 ings of this statute, designed as a feudal restraint upon alien- 
 ation, it will be necessary to briefly review the other leading 
 restraints upon alienation which precede and follow it. 
 
 In the review heretofore made of the system of Old-Eng- 
 lish land law as it existed in the pre-Norman period, the fact 
 was drawn out that the village community or township was 
 originally subdivided into family estates, and that the family 
 estate consisted of house-lands in the village, the allotment 
 
 1 Statutes of the Realm, i. pp. 96-98. 
 
 3 Select Charters, p. 469. A transla- 
 tion of the statute is there given. 
 
 8 Reeves, Hist. Eng. Law, vol. ii. 
 p. 518 and note, Finlason ed. That 
 part of the statute which relates to the 
 
 fyrd and the assize of arms is contained 
 in cap. vi. 
 
 4 Statutes of the Realm, i. pp. 71-95. 
 
 * Coke, Inst., ii. p. 426 ; Reeves, 
 Hist. Eng. Law, vol. ii. pp. 487-490 
 and notes, Finlason ed.
 
 IV.] THE WINNING OF THE CHARTERS. 411 
 
 of the family in the arable fields, together with the common 
 rights in the waste lands appurtenant thereto. As the fam- 
 ily tie weakened, and as the communal system fell into decay, 
 the "alod" of the free townsman, embracing both house- 
 lands and arable in severalty, ultimately arose out of the 
 primitive family estate. But even under this changed condi- 
 tion of things the influence of family organization lingered in Restraints 
 the restraints which it imposed upon the right of alienation, 
 The family estate was primarily an estate of inheritance, and 
 as such inalienable. This principle first yielded to the doc- 
 trine that lands were alienable within the limits and with the 
 consent of the family. Then, when wills were introduced by 
 the church, family land became subject to devise, the validity 
 of the will originally depending upon family consent. 1 With 
 these beginnings, the doctrine that the lands of the family 
 were alienable gradually widened as the idea of individual 
 ownership and the use of written instruments in the aliena- 
 tion of land became more firmly established. As the primi- 
 tive method of transfer by actual delivery gave way to the 
 new method of transfer by book or charter, whereby absolute 
 estates were generally created, the term " book-land " became 
 nearly if not quite coextensive in meaning with "alodial ; " in 
 that way the "alod" disappeared in the book-land. 2 But even 
 after this change in the evidence of title, traces of the family 
 influence still survived. As a general rule, the grantee under A grantee 
 a book or charter had an absolute right of alienation by vir- 
 tue of the terms of the book itself. In the absence, however, 
 of the grant of such a power in the charter, the customary 
 law stepped in and declared that the property of the family 
 could not be wholly alienated. 8 This restraint upon aliena- 
 tion in favor of the heir, which survived as a relic of primi- 
 tive custom down to the time of Glanvfll, had disappeared by 
 the time of Bracton. 4 With the growth of feudal ideas the 
 primitive restraints upon alienation, based upon the duties of 
 the ancestor to the heir, were succeeded by a new system of 
 restraints which grew out of the duties due from the tenant 
 
 1 Upon this whole subject see above, earn extra cognationem suam." Leg. 
 p. 137. Hen. I. 70, 21, in Thorpe, Anc. Laws, 
 
 2 See above, p. 140. fol. ed., p. 251. Cf. Digby, p. 90. 
 
 8 " Si bocland autem habeat, quam * Digby, Law of Real Property, pp. 
 ei parentes sui dederint, non mittat 90, 136.
 
 412 
 
 THE NORMAN CONQUEST. 
 
 [Ca 
 
 Restraints 
 in favor of 
 the lord. 
 
 Estates 
 tail. 
 
 Taltarum's 
 
 Quia 
 emptores, 
 Statute 
 of West- 
 minster the 
 Third, 
 1290. 
 
 to his lord. First among these feudal restraints stands the 
 clause of the Great Charter which provides that " no free- 
 man from henceforth shall give or sell any more of his land 
 but so that of the residue of the lands the lord of the fee 
 may have the service due to him which belong-eth to the 
 fee." l After a long interval this clause of the Great Charter 
 was followed by the statute De donis conditionalibus, by 
 force of which estates tail came into existence. The purpose 
 of this statute was not only to protect the interest of the heir 
 to a conditional estate by restraining its alienation by the an- 
 cestor, but also to prevent the defeat of the lord's right of 
 escheat by the alienation of his tenant. By the force of this 
 statute a new species of estates of inheritance came into ex- 
 istence, whose alienation was subject to a twofold restraint 
 in favor of the heir and the lord. 2 The great inconvenience 
 which in time resulted from the establishment of this new 
 system of estates was in a great measure modified by a series 
 of legal fictions established in the famous case of Taltarum in 
 12 Edward IV. 3 
 
 The crowning restraint upon alienation in favor of the 
 feudal lords was, however, embodied in the statute of Quia 
 emptores, enacted in the 18 Edward I. in the parliament of 
 1290. The primary object of this statute was to prevent the 
 loss to the lords of manors caused by the granting out of 
 lands by their tenants to be held of themselves by subinfeuda- 
 tion. In such a case, as there could be no immediate relation 
 of lord and tenant between the chief lord and the alienee, 
 the feudal rights of the former over the land conveyed 
 were consequently diminished. To remedy this evil it was 
 provided in the Statute of Westminster the Third Quia 
 emptores that in all future conveyances by tenants the 
 alienee, instead of becoming the feudal dependent of the 
 alienor, should simply step into the shoes of the alienor, and 
 
 1 Cap. 39 (ed. 1217). " The provision 
 in Magna Carta given above appears 
 to be the only restraint upon alienation 
 of lands in fee simple ever recognized 
 by law in the interest of the lord." 
 Digby, pp. 136, 137. Cf. Coke, Inst., 
 ii. p. 66 ; Reeves, vol. ii. p. 24. 
 
 * Digby, Law of Real Property, pp. 
 187-195 ; Reeves, Hist. Eng. Law, vol. 
 ii. pp. 459-463 j Littleton, sec. 13. 
 
 8 Year Book, 12 Edward IV. 19. 
 " From this time till 1834 (3 & 4 Will. 
 IV. c. 74) it became the common 
 practice for tenant in tail to suffer a 
 recovery ; that is, by a proceeding sim- 
 ilar to that adopted in Taltarum's case, 
 to convert his estate into a fee simple." 
 Digby, p. 219.
 
 IV.] THE WINNING OF THE CHARTERS. 413 
 
 become subject to all the duties and obligations under which 
 he held the land of the chief lord. 1 The statute Qnia emp- Edward's 
 tores was the last of that series of remarkable legislative 
 enactments, whose far-reaching influence in defining and 
 amending the common law has won for Edward the impos- 
 ing title of the English Justinian. Other important statutes 
 of a political and constitutional character were passed, it is 
 true, in the latter part of the reign, but it is rather to those 
 statutes touching the private rights of individuals, and the 
 general administration of justice, already reviewed, that Sir 
 Matthew Hale alludes when he says that "it appears that 
 the very scheme, mould, and model of the common law, 
 especially in relation to the administration of common justice 
 between party and party, as it was highly rectified and set in 
 a much better light and order by this king than his predeces- 
 sors left it to him, so in a very great measure it was continued 
 the same in all succeeding ages to this day. So that the 
 mark or epocha we are to take for the true stating of the law 
 of England, what it is, is to be considered, stated, and esti- 
 mated from what it was when this king left it." 2 
 
 Long before the organizing and defining hand of Edward Growth of 
 was applied to the task of reducing through the agency of monTaw. 
 legislation the body of the customary law, as modified by 
 the innovations to which the Conquest had given birth, to 
 system and order, two great text-writers had been at work 
 smoothing the path before him. In the reign of Henry II. 
 we have the work of Glanvill, the first English law-book cianvUL 
 bearing the name of a personal author, which, as a com- 
 mentary upon the procedure of the curia regis, has been re- 
 ferred to already. 3 The work of Glanvill, which is rather a 
 treatise upon legal procedure than a systematic exposition of 
 the corpus of the common law as it stood in Glanvill's day, 
 was followed at the end of the reign of Henry III. by Brae- Bracton. 
 ton's De Legibus et Consuetudinibus Angliae. 4 This great 
 
 1 Reeves, Hist. Eng. Law, vol. ii. p. which, being passed with a distinct 
 
 527 seq. ; Digby, Law of Real Property, view to the interests of a class, have 
 
 pp. 199-204. This act, though devised been found to work to the advantage 
 
 in the interest of the lords for the pres- of the nation generally." Select Char- 
 
 ervation of their estates, really afforded (trs, p. 478. Cf. Lords' Report, vol. i. 
 
 greater facilities for their division, and p. 129. 
 
 led to the multiplication of tenants in 2 Hist. Com. Law, vol. i. p. 277. 
 
 capite, and of socage tenants also. " It * See above, p. 302. 
 
 is one of the few acts of legislation * As to Bracton's life, of which little
 
 414 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Influence of 
 the imperial 
 and pontifi- 
 cal juris- 
 prudence. 
 
 Britton and 
 Fleta. 
 
 Mirror of 
 justices. 
 
 Fortescue. 
 
 Littleton. 
 Coke. 
 
 work, which even in Coke's time was looked to as the highest 
 source from which a knowledge of the common law could be 
 drawn, is a comprehensive and systematic statement of the 
 whole law of England as it stood when the reign of Edward I. 
 begins. Bracton's great familiarity with the imperial and 
 pontifical jurisprudence, which had already been introduced 
 to some extent into the English system by the clerical judges, 1 
 is manifest not only from his frequent quotations from the 
 Digest, Institutes, and Code of Justinian, but also from his 
 use of definitions and maxims drawn from Roman sources. 2 
 The tendency thus exhibited by Bracton to enrich the com- 
 mon law by principles and definitions drawn from the revived 
 Roman jurisprudence was followed by Edward, who was 
 careful to secure the services of the civilian, Francesco 
 Accursi of Bologna, before entering upon the work of legis- 
 lative reform. 3 For Edward's own reign we have the trea- 
 tises of Britton * and Fleta, which do little more than supple- 
 ment Bracton's work, and adapt the principles which it defines 
 to practical uses. The Mirror of Justices, an anonymous 
 treatise, is generally ascribed to the reign of Edward II. For 
 the reign of Henry VI. we have the treatise De Laudibus 
 Legum Angliae from the pen of Henry's chancellor, Sir John 
 Fortescue, in which the outlines of English law are set forth 
 in the form of a dialogue between the chancellor and the 
 prince. 5 In the following reign was published Littleton's 
 treatise on Tenures, of which the first part of Coke's Insti- 
 tutes is but a later elaboration. But neither to the work of 
 the legislator, nor to the more or less scientific disquisitions 
 of the early text-writers, must we look for the overshadowing 
 force which for centuries has been organizing and adapting 
 the unelastic system of English law which has grown out 
 of an admixture of Teutonic custom and Norman feudalism 
 to the expanding wants of a progressive society. The great 
 
 is known, see Foss, Judges of England, 
 vol. ii. p. 251. 
 
 1 " It seems to be a fashion to dis- 
 credit Bracton, on a supposition of his 
 having mingled too much of the civil- 
 ian and canonist with the common 
 lawyer." Reeves, vol. ii. p. 360, 
 note i. 
 
 2 Cf. Ifenricus de Bracton und sein 
 Verhaltniss zum Rbmischen Rechtf, by 
 
 Dr. Carl Giiterbock, Berlin, 1862, trans- 
 lated by Coxe, Philadelphia, 1866. 
 Digby, p. 104. 
 
 8 See above, p. 406. 
 
 4 As to the authorship of Britton, cf. 
 Nicholas' Britton, preface, pp. xviii- 
 xxvii. 
 
 6 See the Introduction to the Cler 
 mont ed.
 
 IV.] THE WINNING OF THE CHARTERS. 415 
 
 organs of interpretation which have given form and consist- Judicial de- 
 ency to the customary law are the judicial tribunals in which come"^ 
 that law has been immemorially administered. The recorded ^J rce of 
 decisions of these tribunals have stood not only as expositions 
 of the existing law as applied to particular cases, but as 
 sources of law from which have been drawn rules of decision 
 which govern in new cases for which there is no precedent. 1 
 In this way " the decisions of the tribunals come to constitute 
 in the strictest sense of the term a source or cause of law. 
 Judge-made or judiciary law henceforth gradually displaces 
 customary law." 2 Records of cases adjudicated in the Eng- Records of 
 lish courts are in existence from the time of Richard I., and ltles\s? 
 have been published by the Record Commission, 3 which has ^^ 
 also lately published four volumes called Year Books, con- Richard I. 
 taining the reports of cases decided on the itinera of the 
 justices and at Westminster between the twentieth and thirty- 
 second years of Edward I. The regular series of reports The Year 
 known as the Year Books begin, however, with the reign of B 
 Edward II., and contain reports of cases decided to the end 
 of the reign of Edward III., and from the beginning of the 
 reign of Henry IV. to the end of that of Henry VIII., the 
 reports of the reign of Richard II. being contained in a vol- 
 ume known as Bellewe's Reports. 4 
 
 9. The constructive genius of Edward, which was first Parliament 
 employed in the work of organizing and defining the custom- ^mbiyof 
 ary law, is applied, as his reign advances, to the task of estates - 
 organizing and defining the constitution of parliament itself. 
 The process has already been drawn out through which the 
 Old-English witan was silently transformed, after the Con- 
 quest, into the feudal councils or courts of the Norman and 
 Angevin kings. Under Henry II. and his sons, the constitu- 
 tion of the national council reached a definiteness of organi- 
 
 1 " II y a quatre sources principales xxxvii. Blackstone holds that they are 
 du droit constitutionnel anglais : les the evidence of the common law. 
 traites et les quasi-traite"s, les prece- Com., bk. i. p. 70. 
 
 dents et usages que Ton designe ordi- 8 The edition called Rotnli Curia 
 nairement sous le nom de Common Regis was edited by Sir Francis Pal- 
 law, les pactes, les statuts ou lois." grave, and published in 1835. The first 
 M. Boutmy, tudes de Droit Constitu- publication in 1811 bore the name of 
 tionnel (Paris, 1885), p. 9. Placitorum Abbreviatio. 
 
 2 Digby, Law of Real Property, p. * Cf. Reeves, Hist. Eng. Law, vol. 
 103. That judicial decisions are a iii. pp. 73, 443, 570 ; vol. iv. pp. 24, 160, 
 source of the common law is the doc- 225, 561. See, also, Digby, p. 175, and 
 trine of Austin. Jurisprudence, lect. notes.
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Election 
 and repre- 
 sentation. 
 
 The shire 
 court. 
 
 zation which it had never possessed before ; through the 
 influence of the practice of summons, the right to attend the 
 national council was limited to those only who were sum- 
 moned, by the king's writ individually or in a body. How 
 far this practice had developed up to the sixteenth year of 
 John is made clear by the fourteenth article of the Great 
 Charter, which provides that the greater tenants-in-chief, lay 
 and spiritual, shall be summoned individually by special writ, 
 while the minor tenants-in-chief shall be summoned in a body 
 by a general writ addressed to the sheriffs. 1 This provision 
 of the Charter as to the summons of the minor tenants-in- 
 chief did not absolutely imply representation, but it recog- 
 nized a condition of things out of which representation arose 
 as a natural and necessary consequence. The only constitu- 
 tional mode in which the sheriff could execute the general 
 writ of summons to the minor tenants was in the county 
 court, 2 in whose organization and machinery the principles of 
 election and representation had been imbedded from the 
 earliest times. As heretofore pointed out, the earliest mani- 
 festation of the representative principle appears in the form 
 of the reeve and four men who represent the townships in the 
 courts of the shire and the hundred. 3 In the shire court the 
 reeve and four men appeared for each township, the twelve 
 senior thegns for each hundred. The shire court was, there- 
 fore, not only a popular but a representative assembly, a 
 county parliament in which each township and hundred ap- 
 peared in the persons of its representatives. The represen- 
 tative principle, which survived the Conquest as a part of the 
 machinery of the local courts, never entered, however, into 
 the constitution of the national council prior to the reign of 
 John. Not until that time did the ancient practice of send- 
 ing the reeve and four men from the township to the shire- 
 moot expand into the practice of sending the " four discreet 
 men " as representatives of the shire to the common council 
 of the kingdom. For the first time, in the fourteenth year of 
 
 Represen- 
 ts shire in John, the writ addressed to the sheriffs provided for the return 
 wunc a u! nal of " four discreet men" from each shire as its 
 tives in the national council. 4 
 
 as its representa- 
 Thus, by a change in the form 
 
 1 See above, p. 387. 
 3 Select Charters, p. 39. 
 
 8 See above, p. 143. 
 * See above, p. 377.
 
 IV.] THE WINNING OF THE CHARTERS. 
 
 of the writ, a system of representation was substituted in lieu 
 of the general summons to the minor tenants-in-chief. The 
 practice of shire representation thus established slowly gained 
 strength by repetition during the reigns of Henry III. and 
 Edward I. until from the year 1295 it becomes fixed as a 
 permanent institution. A considerable period elapsed, how- Represen- 
 ever, before the right of representation first conceded to the fa^tha 
 shires was extended to the cities and towns : in the famous t^ns^t 
 parliament of Simon 'of Montfort, which met in 1265, the appear in 
 
 the parlia- 
 
 citizens and burgesses first appear. 1 A period of thirty years ment of 
 then elapsed before the experiment was repeated, the rep- I26s ' 
 resentatives of the cities and towns are not again summoned 
 until Edward's great parliament of 1 295.2 The principle of 
 representation which thus gradually worked itself into the 
 constitution of the national council must be considered in 
 connection with the growth of the system of estates with 
 whose history it is inseparably interlaced. As heretofore Growth of 
 explained, the growth of the estate system in England was system? 
 simply a part of a general European movement which is 
 generally regarded by the historians as the work of the 
 thirteenth century. During that period was established in 
 Europe that type of a national assembly into which the sev- 
 eral classes or orders of society entered, in the form of defi- 
 nitely organized estates, either in person or by representatives. 
 In English history the three estates appear as the clergy, the 
 baronage, and the commons. 3 The process of definition 
 which begins with the Conquest is completed by the end of 
 the reign of Edward I. The growth of the estate system Synchro- 
 and of the representative system therefore synchronize with 
 each other. In the composition of the famous parliament 
 convened by Edward at Westminster in November, 1295, 
 the estate system in England reached for the first time its 
 full and final development. In the parliament of 1295 each The model 
 estate appears in person or by representatives. In this 
 assembly the baronage appear in person and represent them- 
 selves ; the clergy and the commons, each as an estate of the 
 
 1 See above, p. 403. the towns, but they are not allowed by 
 
 8 "The national councils of 1273 and constitutional lawyers the full name of 
 
 1283, and the parliament of Acton parliaments." Select Charters, p. 44. 
 
 Burnell, contained representatives of * See above, p. 337.
 
 41 8 THE NORMAN CONQUEST. [Cn. 
 
 realm, appear in the persons of their chosen representatives. 1 
 This parliament, which stands as a model for all that succeed 
 it, completes the transition in the constitution of the national 
 assembly from a feudal council to a council of estates. 2 After 
 the failure of Edward's attempt to organize the clergy as a 
 parliamentary estate, owing to the unwillingness of the clergy 
 themselves to attend in a secular assembly, the lords and 
 commons remain as the permanent elements in the parlia- 
 mentary system. Out of these elements, which the organ- 
 izing hand of Edward first brought into lasting contact with 
 each other, has been gradually developed the parliamentary 
 constitution of modern times. 
 
 cioseofthe io. In Edward's model parliament of 1295 the representa- 
 tion^istrug- tives of the three estates met together in the face of an 
 finai^on 6 em ergency which, in the language of the writs addressed to 
 formation of the archbishops and clergy, plainly admonished all " that 
 
 the charters <. v ! if j 
 
 in the 2 5 th common dangers must be met by measures concerted in com- 
 of Edward mon " 3 These dangers were no less than rebellion in Wales, 
 and war with Scotland and France. To put down the Welsh 
 rebellion, to maintain his freshly established overlordship 
 over Scotland, and at the same time to defend his Gascon 
 possessions against the designs of Philip the Fair, were 
 tasks well calculated to tax to the utmost the resources of 
 Edward, not only as a general, but as a financier. 4 In the 
 face of such difficulties he appealed for aid and counsel not 
 only to the clergy, the baronage, and the shires, but also to 
 that rising branch of the commons which dwelt within the 
 limits of the cities and towns. To the appeal thus made, the 
 nation, which so far in Edward's reign had not been heavily 
 taxed, made a hearty response : the barons and knights gave 
 an eleventh ; the clergy a tenth ; the representatives of the 
 boroughs a seventh. 5 During the course of the year the 
 
 1 The writs to the baronage are is- the third estate from the ancient local 
 sued on the ist October. Lords' Re- machinery which it concentrates." 
 port, App. i. p. 67. The writs to the Stubbs, Const. Hist., vol. ii. p. 168. 
 archbishops and clergy are issued on 8 " Sic et nimis evidenter ut commu- 
 the 3Oth September. Ibid., App. i. p. nibus periculis per remedia provisa 
 67. The writs to the sheriffs com- communitur obvieter." 
 
 manding the return of representatives * The character of Edward's dim- 
 
 from the shires and towns are issued on culties and their relation to the parlia- 
 
 the 3d October. Ibid., App. i. p. 66. ment of 1295 are clearly set forth in 
 
 2 "The thirteenth century turns the the Lords' Report, vol. i. pp. 217, 218. 
 feudal council into an assembly of es- 6 M. Westm., p. 425, 426; Ann. Wi 
 tates, and draws the constitution of gorn, p. 522 ; Patent Rolls, Dec. 4.
 
 IV.] THE WINNING OF THE CHARTERS. 419 
 
 Welsh were subdued, 1 but not until midsummer, 1296, did 
 Edward complete the conquest of Scotland, an enterprise conquest 
 which not only delayed his departure for the war against ofScotlan4 
 Philip, but also exhausted the subsidies which had been 
 granted him. To raise more money a new parliament was 
 summoned to meet in November, 1296, whose constitution 
 was in all respects the same as that of the preceding year. 
 In this assembly the barons and knights gave a twelfth, and 
 the representatives of the towns an eighth ; z but the clergy 
 now notified the king that it was impossible for them to 
 give anything by reason of a bull Clericis laicos which The bull 
 had just been published by Boniface VIII., forbidding the fails'* 
 state to exact, or the clergy to pay, any taxes whatever from 
 the revenues of their churches. 3 In the face of this refusal 
 the king at once collected what had been granted by the 
 baronage and the commons, giving the clergy until January, 
 1297, to make their final answer. Before the end of the Attack 
 month so fixed, their refusal was repeated and the clergy der'gyjan, 
 practically outlawed ; and promptly thereafter writs were is- I2 97- 
 sued for the seizure of the lay fees of the province of Can- 
 terbury. 4 Thus at open war with the clergy, the king re- 
 solved to appeal to the baronage alone to aid him in the 
 prosecution of the war in Gascony. The barons, under the Quarrel 
 leadership of the great earls Roger Bigod of Norfolk and baronage. 
 Humfrey Bohun of Hereford, met the king in February at 
 Salisbury, 6 where he proposed to them singly that they 
 should go to Gascony while he took command in Flanders. 
 The earls, while admitting that their tenures obliged them to 
 go to Gascony with the king, firmly refused to go without 
 him. After bitter recrimination between Bigod and the king 
 the council broke up in anger, and the baronial leaders re- 
 tired to their estates and prepared for civil war. Thus exas- 
 perated by the refusal of the baronage to render military 
 
 1 The third Welsh war really ended 4 Lords' Report, vol. i. p. 219 ; Stubbs, 
 
 before the model parliament met. Const. Hist., vol. ii. p. 131. 
 
 8 The material facts are all stated in 6 Hemingb., ii. p. 121 ; M. Westm., 
 
 the Lords' Report, vol. i. p. 219. See, p. 429; Parl. Writs, i. p. 51. "No 
 
 also, Parl. Writs, vol. i. p. 47 ; Hem- writs to the prelates, or for the elec- 
 
 ingb., ii. p. 116; M. Westm., p. 428; tion of knights, citizens, and burgesses, 
 
 Ann. Trivet, p. 352. appear on the record." Lords' Report, 
 
 8 Fcedera, L p. 836 ; Wilkins, Cone., vol. i. p. 220. And yet the historians 
 
 vol. ii. p. 222. call this meeting of the baronage a par- 
 liament.
 
 420 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 Edward's 
 
 extreme 
 
 measures. 
 
 Resistance 
 under the 
 leadership 
 of Bigod 
 and Bohun, 
 
 Confirma- 
 tion of the 
 charters 
 promised. 
 
 service at the critical moment when, in connection with his 
 allies, he had planned a deadly blow against France, Edward 
 resolved to ignore all of the restraints of legality, and by the 
 mere force of royal edict to raise both men and money for 
 the war. 1 
 
 In execution of this rash policy Edward arbitrarily ordered 
 the seizure of the wool of the merchants, security for pay- 
 ment being given in the form of tallies ; and a like order 
 was also issued commanding the shires to furnish a large 
 amount of provisions to be paid for in the same manner. 2 
 Having thus provided for the raising of supplies, an equally 
 unconstitutional measure was resorted to for the purpose of 
 raising troops to cross the sea under the king's command. 
 Writs were issued in May for a military levy of the whole 
 kingdom to meet in London on the /th of July, the sheriffs 
 being enjoined to enforce the attendance in arms of all per- 
 sons holding lands of the annual value of ^2O. 3 This pro- 
 posal to employ the whole force of the kingdom in a foreign 
 war, regardless of tenure, precipitated the crisis between the 
 nation and the king. 4 When, on the day appointed, the mili- 
 tary force met, Bigod and Bohun as marshal and constable 
 refused to perform their official duties ; whereupon the king 
 indignantly superseded them in their offices, and they left 
 the court. After the departure of the earls, Edward, as a 
 last resort, assembled the leading men who had attended the 
 military levy, and, although they had not been summoned to 
 a parliament, appealed to them to assume the right to act as 
 representatives of the nation, and as such to make on the in- 
 stant a money grant. In this unauthorized gathering, an aid 
 of an eighth from the barons and knights, and a fifth from 
 the towns, was declared to be granted ; 5 and as a reward for 
 this concession the king promised a confirmation of the char- 
 ters. Before attempting, however, to collect the tax thus im- 
 posed, Edward resolved to make a final attempt to come to 
 
 1 Select Charters, p. 489. 
 
 2 Rishanger, p. 169; M. Westm., 
 p. 430. 
 
 8 Fcedera, i. p. 865 ; Parl. Writs, vol. 
 i. p. 281. 
 
 4 " The attempt on the part of the 
 king to require the military service be- 
 yond sea of all who held 20 a year 
 of land, . . . occasioned great dis- 
 
 turbances." Lords' Report, vol. i. p. 
 
 221. 
 
 6 M. Westm., p. 430 ; Ann. Dunst., 
 p. 407 ; Select Charters, p. 490. " There 
 is no evidence that this grant was made 
 by a legislative assembly, and it seems 
 that the manner of levying it was or- 
 dained by the king and his council." 
 Lord's Report, vol. i. p. 221.
 
 IV.] THE WINNING OF THE CHARTERS. 4 21 
 
 terms with the clergy and the earls. With this end in view The king 
 he made peace in a public manner with Archbishop Winchel- pea ce with 
 sey, 1 who at once assumed the r61e of mediator. But the 
 time for mediation had passed ; the time had now come when 
 the supreme question, involving the right of the nation to tax 
 itself, a right which the barons of Runnymede had clearly 
 defined, but which the struggles of eighty years had failed to 
 confirm, had to be settled once and for all between the na- 
 tion and the king. The twelfth article of the Great Charter The 
 had expressly declared that no scutage or aid, other than the provisions 
 three regular feudal aids, should henceforth be imposed but charter."** 
 by the common counsel of the nation ; and by the fourteenth 
 article it was provided that such common counsel as to the 
 assessment of aids and scutages ^should only be taken in an 
 assembly duly summoned. These vital clauses were, however, 
 omitted from the very first reissue of the charter, and in the 
 numberless confirmations which took place during the reigns 
 of Henry III. and Edward I. they were never afterwards re- 
 instated. 2 During the reigns of Henry and Edward taxes, it 
 is true, were generally imposed by national consent, but there 
 was no constitutional guaranty that in the stress of a great 
 emergency they might not be imposed simply as an effort of 
 the royal will. In the stress of such an emergency Edward Edward's 
 had ventured to press to the utmost the right of the crown ^eas^es 
 to tax the nation without its authority, and the result was a the counter- 
 counter-movement upon the part of the nation which made movement 
 
 led by the 
 
 all such future attempts upon the part of the crown forever earls, 
 impossible. Whatever may have been their motives, 3 the 
 fact remains that Bigod and Bohun, as the leaders of this 
 counter-movement to bridle the royal prerogative, stood 
 firmly by the nation and against the king. After repeated 
 attempts, the archbishop utterly failed to bring the earls to 
 submission; 4 whereupon the king published a manifesto 
 against the earls in which he appealed to the people to keep 
 
 1 At Westminster Hall, July 14. 8 Hallam pays a high tribute to the 
 M. Westm., p. 430. patriotism of the earls (M. A., vol. 
 
 2 Dr. Gneist gives his reason why, lii. p. 6), while Stubbs holds that their 
 during this long period, articles 12 and action was prompted by "personal am- 
 14 were omitted, the essence of which is bitions and personal grievances." 
 the supposed difficulty of drawing a Const. Hist., vol. ii. p. 146. 
 
 line of demarcation between the greater * As to Winchelsey's fruitless nego- 
 and lesser nobles. See The English tiation with the earls, see Fccdera, \. pp. 
 Parliament, p. 89 (Shee's trans.). 872,873; Wijkins, Cone., vol. ii. p. 327.
 
 422 
 
 THE NORMAN CONQUEST. 
 
 [CH. 
 
 who resist 
 the collec- 
 tion of the 
 unauthor- 
 ized taxes. 
 
 Close of the 
 struggle. 
 
 Charters 
 confirmed 
 at Ghent, 
 Nov. 5, 
 1297, 
 Confirma* 
 tio Carta- 
 
 the peace during his absence. 1 After this appeal, it seems 
 that the baronial leaders brought forward a formal list of 
 grievances, which were duly presented to the king before his 
 departure. 2 Thus the issue stood at the time of Edward's 
 embarkation for Flanders on the 22d of August. Before 
 leaving, the king appointed his son Edward regent, with 
 Reginald Grey as his chief counsellor. On the day following 
 the king's departure the storm broke : on that day Bohun 
 and Bigod, backed by a military force in which appeared the 
 citizens of London, came into the exchequer and forbade the 
 collection of the unauthorized taxes which the king had 
 levied until the promised confirmation of the charters had 
 taken place. 3 In the presence of such a demonstration, which 
 amounted to civil war, the regent was compelled to yield ; 
 and in order to carry out such concessions as were promised, 
 a parliament was summoned for the 6th of October. 4 In this 
 assembly, which was irregularly summoned, and in which the 
 baronial leaders appeared with a strong military force at 
 their backs, the prolonged struggle was brought to a close. 
 The earls demanded not only the confirmation of the char- 
 ters, but also the adoption, as a part of such confirmation, 
 of certain supplementary articles that embodied the list of 
 grievances which prior to his departure they had presented 
 to the king. The regent, with the advice of his council, at 
 once conceded all that was demanded of him, and then for- 
 warded the charters with the new articles to the king, who 
 confirmed both at Ghent on the 5th of November. 5 The 
 new articles, which were thus solemnly made a part of the 
 constitution, not only denounced all of the unauthorized taxa- 
 tion which had recently been imposed by royal authority, but 
 
 1 B. Cotton, p. 330; Fcedera, i. p. 
 872, 873. 
 
 2 B. Cotton, p. 325; Ann. Trivet, p. 
 360; Rishanger, p. 175 ; Select Charters, 
 p. 491. 
 
 8 M. Westm., p. 430 ; Rishanger, p. 
 178; Part. Writs, i. p. 32; Lords' Re- 
 port, Vol. i. p. 222. 
 
 4 That is to say, writs were addressed 
 to the sheriffs on the I5th September 
 commanding them to return, by the day 
 named, representatives of the shires, to 
 receive the king's charters and letters 
 patent in consideration of an eighth to 
 
 be granted him. No mention is made 
 of representatives from the cities and 
 towns, or of the inferior clergy. The 
 facts as to this assembly, which was 
 summoned in a most irregular manner, 
 are all stated in the Lords' Report, vol 
 i. pp. 224, 225. See, also, Select Char- 
 ters, p. 492. 
 
 6 Fcedera, i. p. 880. The charters 
 had been previously confirmed by /. 
 speximus on the I2th of October. 
 Fosdera, i. p. 879 ; Statutes of the Kealm^ 
 i. pp. 114-119.
 
 IV.] THE WINNING OF THE CHARTERS. 423 
 
 they also provided that, with certain exceptions, no taxes 
 should henceforth be imposed without the common consent 
 of the realm and to the common profit thereof. The king 
 was made to promise the clergy, the barons, and " all the Provisions 
 commonalty of the land, that for no business from hence- a^ciesa* 
 forth will we take such manner of aids, tasks, nor prizes, but to taxation - 
 by the common assent of the realm, and for the common 
 profit thereof, saving the ancient aids and prizes due and 
 accustomed." 1 And in order to extend the limitation to 
 indirect as well as to direct taxation, the articles further 
 provide that the royal right of taxing wool shall not in the 
 future be exercised "without their common assent and good- 
 will ; saving to us and our heirs the custom of wools, skins, 
 and leather granted before by the commonalty aforesaid." 2 
 Thus by the reincorporation into the charters of these vital 
 limitations upon the royal right of taxation, which for more 
 than eighty years had been omitted from them, the pro- 
 longed struggle which the barons of Runnymede had in- 
 augurated ended at last in a completely successful con- 
 summation. The exclusive right of the national assembly to Exclusive 
 authorize taxation was now fully and finally recognized, save JJSftion to e 
 so far as that right was limited by the proviso, " saving the 
 
 ancient aids and prizes due and accustomed." 3 How under finally ad- 
 
 f i r t -11 mitted by 
 
 the cover of this proviso the crown afterwards exercised the the crown. 
 right to talliage the cities and towns upon the royal demesnes 
 will be explained hereafter. 
 
 II. Before the end of Edward's reign the struggle for the Summary. 
 charters was brought to a close, and with the close of that 
 struggle finally disappeared the political results of the Nor- 
 man conquest. The fact has again and again been drawn 
 
 1 Art. vi. "They (the Latin articles, as the stat- 
 
 2 Art. vii. The supplementary arti- ute De tallagio non concedendo) were 
 cles are preserved in French and Latin, referred to as a statute in the preamble 
 and the two forms differ materially to the Petition of Right, and were de- 
 from each other. In the French form cided by the judges in 1637 to be a 
 the articles have become a permanent statute." Select Charters, p. 497. 
 part of English law. Statutes of the 8 By this proviso the king refused 
 Realm,'\. 124, 125. In their Latin form, " to relinquish his old exchequer-rights 
 preserved by Walter of Hemingburg over the settlers on his domain lands, 
 (ii. p. 152), the articles are generally and over the tolls traditionally fixed 
 known as the statute De tallagio non (custuma antiqua), those, namely, on 
 concedendo. A lucid analysis and com- wool, hide, and leather." Gneist, 
 parison of the two forms of the articles ng. Parliament, note to page 136 
 with each other may be found in (Shee's trans.). 
 
 Stubbs, Const. Hist., vol. ii. p. 142, 143.
 
 424 THE NORMAN CONQUEST, [Cn. 
 
 out that the coming of the Normans did not involve the dis- 
 placement of the English nation, nor a wiping out of the 
 immemorial laws and political institutions of the conquered 
 race. The Old-English political system of local self-govern- 
 ing communities, together with the customary law, survived 
 the shock of the Conquest, and upon that tenacious system 
 as a substructure the Norman system of central administra- 
 tion was superimposed. By the coming of William two kin- 
 dred systems of government, both tending in the same direc- 
 tion and yet in different stages of development, were brought 
 into the closest contact, and out of the fusion between the 
 two has grown the modern constitution. The period of 
 transition and growth which intervenes between the ancient 
 constitution and the constitution in its modern form natu- 
 rally divides itself into three stages : the first or Norman 
 stage, embracing the reigns of the four Norman kings, is the 
 stage in which the great mass of foreign elements and in- 
 fluences were infused into the blood, the language, the laws, 
 the political institutions of the conquered race ; the second 
 or Angevin stage, embracing the reigns of Henry II. and his 
 sons, is the stage in which the foreign and native elements 
 were worked into a new combination which retained the 
 strongest elements of both ; the third or charter stage, ex- 
 tending from the fifteenth year of John to the twenty-fifth of 
 Edward I., is the stage in which the work of limitation and 
 definition was so far advanced, and the machinery of the con- 
 stitution so far perfected, as to render it in outward form at 
 least essentially the same as it is at the present day. The 
 new system of central administration, with the source of its 
 strength in the royal authority, grew and widened during the 
 reigns of the Norman and Angevin kings, until it became 
 the dominant force in the constitution. While the growth of 
 the royal authority was thus advancing and overshadowing 
 the traditional liberties of the people, the causes were at 
 work which finally brought about the division and classifica- 
 tion of the nation in three estates. By the thirteenth century 
 the estate system had reached its completion and the royal 
 authority the limit of its growth. This limit was reached 
 when both Richard and John, accepting the imperialist theo- 
 ries of Glanvill, held that the will of the prince was the law
 
 IV.] THE WINNING OF THE CHARTERS. 4 2 5 
 
 of the land. Upon the part of the nation it was claimed that 
 the law of the land was not the will of the prince, but the 
 immemorial laws of the English kingdom, with such additions 
 and amendments as those laws had suffered through the re- 
 sults of the Norman conquest. In the conflict between these 
 irreconcilable theories, the struggle for the charters had its 
 birth. The parties to that struggle were the royal authority 
 on the one hand and the nation marshalled in the ranks of 
 the three estates on the other. In order to make good its 
 cause against the crown, the nation undertook to render the 
 royal authority subservient to that ancient system of Teu- 
 tonic law which finds its source in the customs of the people, 
 and which as a system of law the effects of the Conquest 
 were unable to wipe out. After the Conquest the Old-Eng- 
 lish system of customary law was generally appealed to as 
 " the laws of good King Eadward," while the changes which 
 it suffered through the results of the Conquest were gen- 
 erally described as the amendments made by King William, 
 who claimed to rule, not according to any laws of his own 
 making, but according to the laws of his predecessor, King 
 Eadward. This statement is illustrated with great clearness 
 in that clause of the famous charter of Henry I. in which the 
 king promises to restore the laws of Eadward with the 
 amendments which his father had made. It is therefore 
 plain that when the barons seized upon Henry's charter as 
 the basis of national action, and demanded of the king that 
 he should enter into a fresh understanding upon the lines 
 which it defined, their action simply amounted to a demand 
 that the legal and constitutional relations between the nation 
 and the king should henceforth be regulated by the Old- 
 English code of customary law as modified and amended 
 through the effects of the Norman conquest. The struggle 
 for the charters involved no attempt to wipe out the irrevo- 
 cable effects of the Conquest ; in the charters themselves 
 the new system of central administration and the system of 
 feudal tenures are both recognized as abiding elements in 
 the constitution. The effort was to fix the limits of innova- 
 tion, to define the extent to which the centralizing and feu- 
 dalizing processes to which the Conquest gave birth should 
 be permitted to abridge the immemorial freedom in the time
 
 426 THE NORMAN CONQUEST. [Cn. 
 
 to come. Before the struggle for the charters began, the 
 process of assimilation, through which the lesser mass of the 
 conquerors was absorbed by the greater mass of the con- 
 quered, had been fully worked out. The winning of the 
 Great Charter was in fact the final consummation of the 
 work of union ; it was " the first great act of the English 
 nation after the descendants of Norman conquerors and Nor- 
 man settlers had fully become Englishmen." But the fact 
 must never be lost sight of that the winning of the Great 
 Charter was the beginning, not the end, of a conflict. It 
 embodied, not a final statement of concessions from the 
 crown to the nation, but rather a definite programme of re- 
 form which the nation resolved to persevere in until it should 
 be finally accepted by the crown as an irrevocable basis of 
 government. The struggle does not end until the charters 
 are finally accepted in good faith by both parties as authori- 
 tative definitions of the rights and liberties of the nation on 
 the one hand, and of the rights and prerogatives of the crown 
 on the other. The definitions of rights and liberties thus 
 established in favor of the nation as against the crown em- 
 body no abstract theories of government ; they consist sim- 
 ply of a summing up of the traditional liberties of the English 
 nation, with such modifications and amendments as those 
 liberties had suffered through the effects of the Norman 
 conquest. When the struggle is over, when the process 
 of limitation and definition has been finally completed under 
 the master hand of Edward I., the English constitution 
 stands forth, in a broad and general sense, in essentially the 
 same outward form which it wears at the present day. Dur- 
 ing the reign of Edward the struggle of the constitution 
 for existence comes to an end ; every vital part of the con- 
 stitutional machinery exists ; l nearly all of the great prin- 
 ciples of English freedom have been firmly established. 
 Under Edward's organizing hand the Old-English system 
 of local administration, embodied in the township, the hun- 
 dred, and the shire, is revivified and readjusted to the more 
 perfectly organized system of central administration to which 
 
 1 It can hardly be maintained, how- parliament had developed all of its 
 
 ever, that the mechanism of the consti- powers and privileges, a result which 
 
 tution was complete in any full and was not reached until the reigns of the 
 
 perfect sense until its vital organ the Lancastrian kings.
 
 IV.] THE WINNING OF THE CHARTERS. 427 
 
 the Conquest gave birth. And under the same hand the 
 central system itself becomes essentially as complete as it 
 is at the present day. Then as now the executive govern- 
 ment was vested in the king and his council ; then as now 
 the king could not legislate without the counsel and assent 
 of a parliament duly summoned ; then as now the king could 
 levy no tax without the authority of such a parliament ; 
 then as now the ancient code of customary law existed as 
 a definitely organized system of jurisprudence ; then as now 
 the courts of the king's bench, common pleas, and exchequer, 
 each with its separate staff of judges, were dispatching the 
 several classes of business that came before them ; then as 
 now the system of itinerant judicature embodied in the 
 courts of assize was in full operation. To a somewhat later 
 day, however, must be assigned the full development of the 
 equitable jurisdiction of the chancellor. But in attempting 
 to establish an identity between the outward form of the 
 constitution as it appeared in Edward's day and as it appears 
 in our own, the fact must be borne steadily in mind that 
 hidden inner changes have for centuries been going on 
 which have completely revolutionized its practical working. 
 These changes have taken place as certain parts of the 
 ancient machinery which were once potent have become 
 antiquated and obsolete, and as certain other parts, which 
 were once undeveloped and insignificant, have grown into 
 overshadowing importance. The changes which have thus 
 taken place in this ever-altering constitution have been hap- 
 pily illustrated by likening it to " an old man who still wears 
 with attached fondness clothes in the fashion of his youth : 
 what you see of him is the same ; what you do not see is 
 wholly altered." This great transformation which without 
 making any change in its outward form has thus taken 
 place in the internal mechanism of the English constitution, 
 has been brought about by the silent migration of all the real 
 powers of government from the king and the nobles to the 
 main body of the people. The agent employed by the nation 
 to bring about this result was the parliament, whose mediaeval 
 growth will be traced in the following chapters.
 
 BOOK III. 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. 
 
 Place of the 
 English 
 parliament 
 in the his- 
 tory of in- 
 stitutions. 
 
 Represen- 
 tative gov- 
 ernment a 
 " Teutonic 
 invention :" 
 
 CHAPTER I. 
 
 HISTORY OF PARLIAMENT FROM EDWARD I. TO HENRY IV. 
 
 i. IN the gorgeous language of Burke, the "Parliament 
 of Great Britain sits at the head of her extensive empire in 
 two capacities. One, as the local legislature of this island, 
 providing for all things at home immediately, and by no other 
 instrument than the executive power. The other, and I think 
 her nobler capacity, is what I call her imperial character ; in 
 which, as from the throne of heaven, she superintends all the 
 several inferior legislatures, and guides and controls them all 
 without annihilating any." 1 A third and higher capacity still 
 in which the English parliament may be viewed is that in 
 which it stands forth as the accepted political model after 
 which have been fashioned the several systems of popular 
 government which now exist throughout the world. In this 
 last and highest capacity its position is not more than a cen- 
 tury old. The political systems of all the Teutonic nations, 
 as they appear to us when written history begins, contained 
 the germs of the representative principle, and in every one of 
 the modern European states that have arisen out of the set- 
 tlements made by the Teutonic nations on Roman soil a 
 serious attempt has at some time been made in the direction 
 of representative government. The remarkable fact is that 
 in every continental state in which such an attempt was made, 
 it ended at last in failure and disappointment. By the six- 
 teenth century nearly every effort in the direction of repre- 
 
 1 Speech on American taxation, April 19, 1774. 
 vol. ii. p. 75. 
 
 See Burke's Works, 4th ed..
 
 FROM EDWARD I. TO HENRY IV. 429 
 
 sentative government upon the continent of Europe had come 
 to an end. In England only among the Teutonic nations did it survives 
 the representative system survive ; in England only has the on i y among 
 representative principle which has been called " a Teutonic l^i^na- 
 invention " been able to maintain a continuous existence. *> n s- 
 In this way the English nation has been able to hand down 
 the representative principle from the barbarian epoch to 
 modern times ; in this way England has become the " mother 
 of parliaments," the teacher of the science of representa- 
 tive government to all the world. Since the beginning of the 
 French Revolution nearly all of the states of continental 
 Europe have organized national assemblies after the model of 
 the English parliament in a spirit of conscious imitation. 1 
 But the typical English national assembly, embodying what English bi- 
 is generally known as the bicameral system, was not copied ^^m^rst 
 into the continental European constitutions until it had first reproduced 
 
 r in the Eng- 
 
 been reproduced in a modified form by the founders of the fish states 
 federal republic of the United States. In the several colonial 
 commonwealths founded by English settlers upon American 
 soil, the typical English national assembly reappeared in an 
 embryonic form as the predestined product of a natural pro- 
 cess of reproduction. 2 These assemblies "were not formally 
 instituted, but grew up by themselves, because it was in the 
 nature of Englishmen to assemble." 3 A graphic statement 
 of this fact may be found in the words of a writer upon our 
 colonial history who tells us that in "this year (1619) a House 
 of Burgesses broke out in Virginia." 4 When the colonial com- 
 monwealths in America severed the tie of political depend- 
 ence which bound them to the mother country, and rose to 
 the full stature of sovereign states, they, with a single excep- 
 tion, organized their several legislatures after the ancient 
 model as it existed in the insular system. And the framers 
 of the federal constitution of 1787, abandoning the original 
 idea of a federal assembly consisting of a single chamber, 
 adopted the English system of two chambers in the form in 
 which that system had reappeared in the several states. 6 
 
 1 For the authorities upon this sub- 4 These are the words of Hutchin- 
 
 ject, see above, p. 14. son quoted by Prof. Seeley, Ibid., p. 
 
 3 See above, p. 15. 67. 
 
 8 Seeley, The Expansion of England, 6 See above, pp. 44, 45, 71. 
 p. 67.
 
 - 43 THE GROWTH AND DECLINE OF PARLIAMENT, [Cn. 
 
 and then in Thus rendered popular by its successful reproduction in the 
 stetesof e American constitutions, state and federal, the " British polit- 
 Ei^op^ ntal ical model was followed by France, by Spain and Portugal, 
 and by Holland and Belgium, combined in the kingdom of 
 the Netherlands ; and after a long interval by Germany, Italy, 
 and Austria." 1 To the student of the "science of politics" 
 the typical English national assembly, therefore, appears not 
 simply as the local legislature of the United Kingdom, nor 
 even as the imperial parliament of the British Empire, but 
 higher still, as the accepted model of popular government 
 throughout the world. 
 
 Continuity 2. To the mere student of the English constitution the 
 t'oryof the English parliament appears only in the two aspects in which 
 parliament. Burke has presented it. Viewed in these aspects, it is all- 
 important to grasp the persistency of its growth, the un- 
 broken continuity of its historical development. The history 
 of the English parliament is coextensive with the history 
 of the English nation. From the time when the several 
 branches of the " English kin " grouped together in the hep- 
 tarchic kingdoms were drawn together under the sway of a 
 single royal house, the united nation has never been without 
 a national assembly. In its progress through the centuries 
 such assembly has, it is true, passed through a long process 
 of change and of growth ; it has taken on new forms and new 
 The primi- names ; and yet in all these changing phases of growth the 
 personal identity of the primitive assembly has never been 
 ^ ost t ^ ie constitutional historian can clearly explain how it 
 of lords. still survives in the corporate person of the house of lords. 
 Although the existence of the house of commons, which has 
 grown up alongside of the older assembly, cannot be traced 
 back farther than the thirteenth century, still the system of 
 representation imbedded in the local, self-governing com- 
 munities out of which the younger body grew can be traced 
 the product back to the very earliest times. As surely as the house of 
 
 of the rep- * * 
 
 resentative lords is the lineal successor of the witan, the house of com- 
 nnbedded mons is the product of the representative principle imbedded 
 ranizations ^ rom the beginning in the organization of the shires and 
 of the towns. In order to understand how the two distinct ele- 
 
 shires and . . . , 
 
 towns. ments, equally ancient, which enter into the composition of 
 
 1 Sir Henry Maine, Popular Government, p. 13. 
 
 House of 
 commons
 
 I.] FROM EDWARD /. TO HENRY IV. 431 
 
 the two houses, were at different periods of time worked into 
 the constitution of the national assembly, it is necessary to 
 constantly bear in mind the two great stages of transition TWO great 
 or growth through which the Old-English witan was trans- tuition, 
 formed into the feudal councils of the Norman and Angevin 
 reigns, and through which these councils were in their turn 
 transformed into the parliaments of Edward I. 
 
 At an earlier stage of this work an examination was made Historical 
 into the historical origin of the witan, whether considered as j^ 8 ^^ 
 the supreme council of a single heptarchic state, or as the agemot. 
 supreme council of the whole English nation when finally 
 united in a single consolidated kingdom. 1 One of the leading 
 objects of that examination was to explain the process through 
 which the primitive national assembly or folkmoot, in which 
 every freeman had his place, gradually shrank up into a nar- 
 row aristocratic body composed of the magnates only. Such 
 was the historical origin and such the political structure of 
 the witenagemot of the Old-English commonwealth in which 
 all grave matters were discussed, and with whose advice and 
 consent were performed all important acts which the king 
 could authorize. 
 
 After the coming of William the continuity of the old na- The witan 
 tional assembly went on unbroken ; the witan remained, as 
 before, the national council of the king ; and during William's 
 reign it retained much of its earlier character. Even the 
 name witan goes on in English as long as the Chronicle con- 
 tinues, and the new Latin name of magnum concilium which 
 grows up by its side is simply a translation of mycel gemdt. 
 Of the constitution of the witan, either before or after the 
 Conquest, we have no direct or formal account, but the high- 
 est authorities agree in the conclusion that on all ordinary 
 occasions the witan was a comparatively small gathering of 
 great men, while on extraordinary occasions the assembly 
 was sometimes reinforced by large popular bodies from every 
 part of the kingdom. What were the qualifications necessary 
 to bestow the right of membership in the great council, dur- 
 ing the Norman reigns, cannot be definitely ascertained ; not 
 until the reign of Henry II. can it be confidently maintained 
 that every tenant-in-chief of the crown was a member of the 
 
 1 See above, pp. 147, 148.. 183, 184.
 
 432 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 The witan, 
 after the 
 Conquest, 
 passes 
 through a 
 great prac- 
 tical trans- 
 formation : 
 
 it becomes 
 the king's 
 court of 
 feudal vas- 
 sals. 
 
 Influence 
 of the prac- 
 tice of sum- 
 mons. 
 
 assembly. It seems to be clear, however, that the Norman 
 conquest wrought no formal change in the constitution of the 
 witan ; that, in legal theory at least, what the witan was in 
 the days of King Eadward it remained in the days of King 
 William. But although the witan under the name of the 
 great council outlived the Conquest, and although in legal 
 theory it still retained all of its old powers, yet the fact re- 
 mains that the constitution of the assembly underwent a 
 great practical transformation. At the beginning of Wil- 
 liam's reign, those who composed the council that ordinarily 
 gathered around the person of the king were a body of Eng- 
 lishmen ; by the end of the reign, this body had gradually 
 been changed into an assembly of Normans in which an 
 Englishman here and there held his place. This change 
 naturally resulted from the nature of the Conquest itself. 
 Through William's policy of confiscation and regrant, nearly 
 all of the great estates passed from English to Norman 
 hands ; and in the same way nearly all of the great offices 
 in church and state were parcelled out among his followers. 
 The king's thegns thus became his tenants-in-chief, holding 
 their lands from him as their lord. Through this feudalizing 
 process, the ancient assembly of wise men was gradually and 
 silently transformed into the king's court of feudal vassals, 
 whose right to exercise power was made to depend practically 
 upon the king's pleasure. During the reigns of the Norman 
 kings the legislative functions of the great council were re- 
 duced to a mere shadow. 1 Under Henry II. and his sons the 
 constitution of the national council reached a definiteness of 
 organization which it had never possessed before. The com- 
 position of the council, which was now summoned at regular 
 intervals, was that of a perfect feudal court, an assembly of 
 archbishops, bishops, abbots, priors, earls, barons, knights, 
 and freeholders. The constituent members of the assembly 
 are the same as under the Norman kings, but greater promi- 
 nence and a more definite position is now assigned to the 
 minor tenants-in-chief. Through the influence of the prac- 
 tice of summons, to whose origin an exact date cannot be 
 assigned, the tendency was fast gaining ground to limit the 
 national council to those only who were summoned by the 
 1 See above, pp. 239-242,
 
 I.] FROM EDWARD L TO HENRY IV. 433 
 
 king's writ, either personally or in a body. How far the prac- 
 tice of summons, which was in active operation in the time 
 of Henry II., had developed up to the sixteenth year of John, 
 can be definitely ascertained from the fourteenth article of the 
 Great Charter, which provides that, "To have the common 
 counsel of the kingdom we will cause to be summoned the 
 archbishops, bishops, abbots, earls, and greater barons singly 
 by our letters ; and besides we will cause to be summoned in 
 general by our sheriffs and bailiffs all those who hold of us in 
 chief." By this article, which no doubt expressed the then 
 existing practice, the qualification for membership in the na- 
 tional council was at last distinctly defined, and that qualifica- 
 tion naturally assumed a feudal shape. No one was expected 
 to attend unless he was summoned, and no one was to be 
 summoned unless he was a tenant-in-chief. By the form of The line 
 the summons a line was also distinctly drawn between two tweln lords 
 definite classes of men ; between the magnates, who were 
 entitled to a personal summons, and the main body of tenants- 
 in-chief, who were summoned generally in the shires : in this 
 form the distinction between lords and commons begins. 1 
 
 The time was now fast approaching when the constitution Constitu- 
 of the feudal council, which the practice of summons had thus feudal 
 definitely defined, was in its turn to be modified by the force Codified by 
 
 of a new principle which demanded that every national assem- 
 bly should consist of representatives of all the estates or tate system. 
 classes of men into which the body-politic was divided. The 
 causes which brought about the establishment of the estate 
 system were general in their operation, and in each one of 
 the European countries the result was reached about the 
 same time. The complete establishment of the system is 
 generally regarded by the historians as the work of the thir- 
 teenth century. During that period was established through- 
 out Western Europe that type of a national assembly into 
 which the several orders or classes of men entered in the 
 form of definitely organized estates. In each country the 
 system has its special or local history, but as a general rule 
 in all of the European constitutions the three political factors 
 are the same, the clergy, the nobles, and the commons. 2 
 In nearly all of the Western nations the old primary assem- 
 1 See above, pp. 289-291. 2 See above, pp. 337.
 
 434 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 land 
 
 Effects of 
 
 council. 
 
 Primary as- blies died out and were succeeded by representative assem- 
 blies founded on the principle of estates. In one important 
 - Particular the English kingdom stands as an exception to the 
 general rule, in England the old primary assembly never 
 entirely died out. After first shrinking up into the narrow 
 aristocratic body known as the witan, the witan of the 
 consolidated kingdom which survived the Conquest was ulti- 
 mately transformed, through the practice of personal sum- 
 mons to the great magnates of whom it had been immemori- 
 ally composed, into the house of lords. In this feudalized 
 form the Old-English national assembly survived, and entered 
 as the aristocratic element into the new system of estates. 1 
 
 3. The ultimate effect of the process of feudalization upon 
 the constitution of the national council was to transform the 
 anc i ent assembly, composed of the lay and spiritual witan, 
 into a court or council of feudal vassals in which, according 
 to feudal theory, every tenant-in-chief possessed the right of 
 membership. In practice, however, after the Conquest as 
 before, the feudal councils which ordinarily gathered round 
 the king were composed, as the old assembly had been, only 
 of the territorial magnates, and of the holders of the great 
 offices in church and state. The greater tenants-in-chief who 
 thus gathered around the person of the king, and who won 
 for themselves the right to be personally summoned to his 
 council, and in whom that right became hereditary, repre- 
 sent, together with the lords spiritual, the peerage of England, 
 which is identical with the house of lords. By the practice 
 f personal summons, to whose origin an exact date cannot 
 b e assigned, the line was first drawn between the greater 
 tenants and the mass of lesser vassals who were summoned 
 generally in the shires. This practice, which was in active 
 operation in the reign of Henry II., received positive recog- 
 nition in the terms of the Great Charter itself. The difficult 
 matter to ascertain is the qualification of blood, or tenure, or 
 
 Engiish 
 Identical 
 
 house 1 of 
 lords. 
 
 1 " In England, . . . the primitive 
 Assembly never died out; it never was 
 trampled out ; it simply through the 
 natural working of causes of which I 
 have already spoken shrank up into 
 a narrow body. Through that law of 
 shrinking up, the old democratic As- 
 sembly lived on to become the aristo- 
 cratic element in a new form of the 
 
 constitution. That is to say, I believe 
 that the primitive Assembly was, by 
 lineal personal succession, continued 
 in the Witenagemot, and that the Wi- 
 tenagem6t is, by lineal personal succes- 
 sion, continued in the House of Lords." 
 Freeman, Comparative Politics, p. 
 232.
 
 I.] FROM EDWARD L TO HENRY IV. 435 
 
 special privilege, which entitled the greater tenants to receive 
 the special writ. Upon what principle were those who re- 
 ceived the special writ distinguished above their fellows ? 
 The theory is that the holding of a feudal estate by the pe- The hoid- 
 culiar tenure of barony was the original qualification which esfate by 
 entitled the tenant-in-chief to the right of personal summons, o^"^ 1 * 10 
 " the baronage of the thirteenth century was the body of quaiifica- 
 tenants-in-chief holding a fief or a number of fiefs consol- personal 
 idated into a baronial honor or qualification." 1 It seems to summons ' 
 be clear, however, that a special summons did not necessarily although 
 follow tenure by barony, that the holding by such tenure writ^not 
 was not of itself a sufficient ground for requiring attendance necessarily 
 
 follow such 
 
 in parliament It follows, therefore, that the right to receive tenure. 
 the special writ was not an incident of tenure merely. Only 
 by the actual reception of the writ was the dignity of peerage 
 conferred upon the holder by barony. But not until this 
 right to receive the king's writ had become hereditary was 
 the status of the peer ultimately fixed and determined. The 
 hereditary right to receive the writ, rather than the tenure The heredi- 
 which was the original qualification for the writ, finally be- toTecefve 
 came the constitutional basis upon which the peerage now ^i^is 116 
 reposes. As the process of feudalization advanced, the inher- of peerage. 
 ent power of the king, as the fountain of honor to determine 
 who should be summoned as barons, gradually became subject 
 to the limitation imposed by the feudal rule of primogeniture. Feudal rule 
 It is generally conceded that certainly during the reign of ge 
 Edward I. the right of a baron whose ancestor had been 
 summoned and who had once sat in parliament to claim 
 the hereditary right to be so summoned was clearly and 
 firmly established. 2 The right thus established was ulti- Peerage by 
 mately defined in that rule which provides that where a ^"nds^by 
 peerage has been created by writ the right descends by "f^ 1 "" 
 operation of law to the heirs of the person so ennobled, with- the h eirs of 
 out words to that effect in the terms of the writ itself. 3 nobied. 
 
 1 Stubbs, Const. Hist., vol. ii. p. 178. writ; and unless the terms of the writ, 
 
 3 For the authorities upon the sub- or of the patent under the authority of 
 
 jects restated in this section, see above, which it issues, provide to the contrary, 
 
 pp. 353, 354. he now gains by the writ, and his seat 
 
 8 See Blackstone (Sharswood's ed.), in parliament thereupon, an hereditary 
 
 C0mm.,bk. i. p. 399. "The blood of honor, descendible to the heirs of his 
 
 a temporal lord is considered as enno- body, whatever may have been formerly 
 
 bled by a writ of summons to parlia- the law on this subject." Lords' Re- 
 
 ment, and taking his seat under that port, vol. i. p. 393.
 
 436 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 Heiresses. 
 
 Degrees of 
 dignity in 
 the peer- 
 age : earls 
 and barons 
 only prior 
 to Edward 
 III. 
 
 A duke 
 created by 
 patent. 
 
 A baron 
 created by 
 patent in 
 1387- 
 
 Under this rule a barony created by writ could, in default of 
 male heirs, descend to baronial heiresses, who, although they 
 could not themselves sit in the king's council, conveyed to 
 their husbands the presumptive right to receive his sum- 
 mons. 1 The hereditary peers thus created by writ were 
 designated prior to the reign of Edward III. by the 
 titles of earl and baron only. 2 The former dignity, which 
 descended from the Old-English system, was generally em- 
 braced, however, in the latter term. Upon the comprehen- 
 sive title of baron, which was common to the whole peerage, 
 the higher titles of duke, marquis, earl, and viscount were 
 simply superimposed. 3 In the reign of Edward III. the title 
 of duke was for the first time conferred upon a subject, and, 
 what is more important, the new dignity was created by 
 letters patent. 4 This new method of creation by patent 
 instead of by writ gave rise to an important innovation. The 
 dignity conferred by the new method did not descend gener- 
 ally to the heirs of the person ennobled ; its descent was pre- 
 scribed and limited by the terms of the instrument by which 
 it was created. The result of the new method of creation was 
 to limit the descent of the peerage to a particular line of 
 succession, generally to the heirs male of the person enno- 
 bled. Prior to the reign of John, the ancient dignity of earl 
 seems to have been generally derived from patents of the 
 crown. 6 In the reign of Edward III. the title of duke was so 
 granted, and in subsequent reigns the titles of marquis and 
 viscount. 6 But not until the reign of Richard II. was a baron 
 pure and simple created by patent instead of by writ. In 
 1387 Richard II. created John Beauchamp of Holt, a baron 
 by patent, 7 and from the twenty-fourth year of Henry VI., 
 barons were generally created in that manner. 8 To the two 
 
 1 " They even sat, after the death of 
 their wives, as tenants by the curtesy." 
 Hallam, M, A., vol. iii. p. 119, citing 
 Collin's Proceedings on Claims of Bar- 
 onies, pp. 24, 73. 
 
 2 Lords'" Report, vol. ii. p. 65. 
 8 Ibid., vol. ii. p. 240. 
 
 4 Ibid., Tol. ii. p. 186. "The dignity 
 of duke, as a distinct name of honor, 
 was first given by Edward the Third in 
 the eleventh year of his reign, when in 
 parliament he created his eldest son, 
 Edward, before Earl of Chester, Duke 
 
 of Cornwall. In the patent for this pur- 
 pose the words of creation used are," 
 etc. 
 
 6 Lords' Report, vol. i. p. 69. 
 
 6 Ibid., vol. ii. p. 240. 
 
 7 Ibid., vol. i. p. 345. The language 
 of the Report is, " which is commonly 
 considered as the first creation of a 
 baron by patent." 
 
 8 See Nicolas, Hist. Peerage (Court- 
 hope ed.), p. 291 ; Stubbs, Const. 
 
 vol. iii. p. 437.
 
 I.] FROM EDWARD /. TO HENRY IV. 437 
 
 ordinary methods of creating the dignity of peerage, by writ 
 and by patent, must be added the extraordinary method of Peers 
 creation by the king in parliament: 1 to such creations the 
 assent of parliament is frequently stated. As to the dignity 
 of banneret, the better opinion seems to be that it was a Bannerets, 
 mere order of knighthood and not a rank of peerage. 2 The 
 peers of the realm, although distinguished from each other 
 by titles expressive of different degrees of dignity, were 
 otherwise equal both in privilege and authority. 3 
 
 During the two centuries which intervene between the Legislative 
 Conquest and the formation of the estate system in the reign 
 of Edward I., the national assembly survives in the form of 
 the feudal court or council, whose constitution has in general the Nor- 
 terms been already defined. Although this council, gener- ariy a An- 
 ally known as the magnum concilium, may have embraced on 8 evinkin 8 s - 
 extraordinary occasions the whole body of the tenants-in- 
 chief, it was no doubt composed, on all ordinary occasions, 
 only of the greater tenants, among whom were, of course, 
 embraced the holders of all the great offices in church and 
 state. To the great council thus constituted passed, in legal 
 theory at least, the sum of political, fiscal, legislative, and 
 judicial powers which had been possessed by the ancient 
 witenagemot. 4 The dominant force in the feudal court or 
 council was the new kingship to which the Conquest gave 
 birth, a kingship which refused to be limited by the constitu- 
 tional action of the witan on the one hand, or to be weak- 
 ened by the disruptive tendencies of feudalism on the other. 
 That the Norman and Angevin kings were practically abso- 
 lute there can be no doubt ; and yet it is equally clear that 
 they retained throughout both the theory and form of a 
 national council, by whose counsel and consent they per- 
 formed all important acts of judicature and legislation. 5 
 Even Dr. Gneist, who denies the survival of the witan in the 
 form of a feudal council, and who holds that the royal power 
 
 1 Lords' Report, vol. ii. p. 40, citing sembly, so no formal change took 
 Co. Litt., 16 b. place in its powers. . . . But with the 
 
 2 Lords' Report, vol. i. pp. 328, 329; powers of the assembly, just as with its 
 Stubbs, Const. Hist., vol. iii. p. 441. constitution, while there was no formal 
 
 8 Ibid., vol. ii. p. 243. The Report change, the practical change was great." 
 
 says: "As peers of the realm all were Freeman, Norm. Cong., vol. v. pp. 
 
 esteemed equal." 280, 281. 
 
 4 "As no formal change took place 6 See above, pp. 241, 291. 
 in the constitution of the national as-
 
 438 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 in Norman times was virtually absolute, admits that the form 
 of counsel and consent in legislation was never entirely abol- 
 ished, that "in the first centuries of the Norman period is 
 Survival of met with, occasionally, the consensu baronum meorum, which 
 amUon*! 1 crops up whenever fundamental changes in the hereditary 
 sent." 'common law 'are in question." 1 Although the legislative 
 functions of the great council may in Norman times have 
 been more nominal than real, the immemorial form of coun- 
 sel and consent which descends from the earliest Teutonic 
 legislation never entirely disappeared. That the great council 
 of peers was a supreme judicial court, in the same general 
 sense in which the witan had been, cannot be successfully 
 questioned. 
 
 judicial 4. The standing committee of the great council, curia 
 
 thiThouse re gis> after giving birth to the four great courts of king's 
 of lords. bench, common pleas, exchequer, and chancery, still retained 
 a vast and indefinite reserve of administrative, legislative, and 
 Relation of judicial functions. 2 In order to indicate, even in general 
 ualto'the 1 terms, the domain of these far-reaching powers, it is neces- 
 great coun- sarv to ou tHne the relation which existed between the great 
 council and the smaller body which, in the language of Lord 
 Hale, stood to the former as a concilium in concilia. To 
 the great council, as heretofore pointed out, passed, in theory 
 at least, the sum of political, fiscal, legislative, and judicial 
 powers which had been possessed by the ancient witena- 
 gemot. To facilitate the work of administration, the ordinary 
 exercise of these powers was committed to an inner or con- 
 tinual council, whose relation to the greater body, owing to 
 the scantiness of documentary evidence touching the Norman 
 period, is vague and shadowy in the extreme. From the ex- 
 isting evidence, the conclusion has been reached that the 
 lesser or continual council was what would be called in mod- 
 ern language a standing committee of the great council. 3 
 
 1 Gneist, The English Parliament, not independent legislative or govern- 
 
 p. 60 (Shee's trans.). For the views ing assemblies, needs no proof. The 
 
 of this writer upon " the transforma- kings were practically absolute, but 
 
 tion of the ancient witenagemotes into they retained the theory and the form 
 
 the Norman 'court-days,'" see Ibid., of a national council." Stubbs, Const. 
 
 pp. 54-71. See, also, Gneist, Hist, of Hist., vol. i. p. 356, note i, citing Ver- 
 
 the Eng. Const., vol. i. pp. 246-271 wait. i. 238 seq. 
 
 (Ash worth's trans.). " Gneist's posi- 2 See above pp. 245, 249 
 
 tion, that the Norman assemblies were 8 See above, p. 242.
 
 I.] FROM EDWARD L TO HENRY IV. 439 
 
 As such standing committee, the continual council seems to 
 reproduce the relation which existed between the primary 
 Teutonic assembly and the permanent council composed of 
 the magistrates (principes) who decided all ordinary ques- 
 tions, reserving only the graver ones for the consideration of 
 the greater body. 1 Such was the relation finally established, AH ordi- 
 so far as judicial business is concerned, between the continual cfe 
 council and the four great courts developed out of it, on the ^ "undi, 
 one hand, and the great council, finally known as the house or b y the 
 
 r i i A 11 f /. . ,. courts born 
 
 of lords, on the other. All ordinary questions of judicature of it. 
 pass in the first instance to one or the other of the great law 
 courts ; a more exceptional class, to the court of the chan- 
 cellor ; while another and more difficult class still is reserved 
 to the king in his ordinary council. 2 Only causes of an ex- Only ex- 
 traordinary character remain for the judgment of the great ^ses're- 17 
 council of the kingdom. In the exercise of this extraordi- ^'j'ud'g- 
 nary jurisdiction the house of lords, as the highest judicial mentofthe 
 body in the realm, appears in three aspects : (i) as a court of 
 peers for the trial of its own members ; (2) as a high criminal 
 court of state for the trial of both peers and commoners who 
 are impeached by the commons ; (3) as a supreme court of 
 error and appeal in civil causes. 
 
 As a court of peers for the trial of its own members, the The house 
 house of lords was the only tribunal in which the peerage a court of 
 could enjoy the benefits of that principle of Teutonic law {^"iaTof 
 which granted ft& judidum pariwn to the members of every s e ^ rs 
 class or order. As heretofore explained, the famous clause 
 in Magna Carta touching the " legale judicium parium suo- 
 rum " refers rather to the general right of each estate or class 
 to be tried by its own members than to the special right of 
 trial by jury as afterwards understood. 3 From the very na- 
 ture of the right itself, the right of a peer to be tried by 
 members of his own order could not have antedated the 
 organization of the peerage as a distinct estate. Although 
 the right had been claimed at an earlier date, it was first defi- 
 nitely established in 1341 by the statute of 15 Edward III., Statute of 
 which provides " that no peer of the realm, officer, or other, Jfjf d 
 on account of his office, can be brought before the court, 
 
 1 See above, p. 108. * See above, p. 389, note i. 
 
 2 See above, p. 302.
 
 440 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 condemned to the loss of his worldly possessions, put in 
 arrest or prison, rendered responsible, or judged otherwise 
 than through award of the said peers in parliament." 1 Two 
 years later this statute was repealed, but in the repealing 
 statute the general principle embodied in the first was dis- 
 tinctly recognized. The right as ultimately defined in the 
 law of the land was restricted, however, to a narrower basis 
 than that upon which the statute of 1341 had placed it. In 
 that act the right of a peer to be tried by his peers was made 
 to extend to all offences whatsoever; in the law as finally 
 established, the right was limited to cases of treason and felony 
 A peer may only. A peer may be tried like a commoner for the commission 
 like acom- of a misdemeanor. 2 By statute of 20 Henry VI. the right of 
 mlsde- fora a P eer to ^ e tr ^ ^v his peers in cases of treason and felony 
 meaner. wa s extended to peeresses. 3 When an accusation is to be 
 made against a peer, it is made by indictment in any compe- 
 tent court having cognizance of the offence, and if the offence 
 charged be treason or felony the case is removed for trial by 
 certiorari to the house of lords. 4 If parliament is sitting, the 
 trial proceeds in the house of lords as such, which is usually, 
 The lord though not necessarily, presided over on such an occasion by 
 ard h and e his a ^ ord ni g n steward 5 appointed for that purpose. Under 
 court. these circumstances the lord high steward is simply the presi- 
 dent of a court in which the peers are the judges. If, how- 
 ever, the parliament is not sitting, the indictment is tried in 
 the court of the lord high steward, which was originally sim- 
 ply a select committee composed only of such peers as the 
 steward might see fit to summon. In this tribunal the stew- 
 ard sits as the only judge, while the peers summoned by him 
 the "lords triers" act as a jury. 6 Owing to an abuse 
 which arose out of the power of the steward to limit his court 
 to such peers only as he saw fit to summon, 7 an act was 
 passed (7 and 8 Will. III. c. 3) which provides that, upon the 
 trial of any peer or peeress for treason or misprision, all the 
 
 1 Rot. Part., ii. p. 132. 6 As to the origin of the office, Coke, 
 
 2 36 Inst., 30 ; Hawkins, C. P., bk. 2, 4th Inst., 58. 
 
 ch. 44, 13,14; Stephen, Hist, of the 6 See Sir T. Erskine May, Part. 
 Criminal Law, vol. i. p. 164. Prac., p. 737-741 ; Campbell, Lives of 
 
 8 Rot. Part., v. p. 56. the Chancellors, vol. iii. pp. 538 n., 557 n. 
 
 * Stephen, Hist, of the Crim. Law, 7 See trial of Lord Delamere, n 
 vol. i. p. 165. Howell, St. Tr. 539 ; Macaulay, Hist. 
 
 of England, vol. ii. pp. 313-316.
 
 I.J FROM EDWARD I. TO HENRY IV. 441 
 
 peers shall be summoned, and that every peer so summoned 
 and appearing shall have a vote at the trial. 
 
 A second and higher judicial aspect still, in which the house The house 
 of lords appears, is that in which it stands out as a high 
 criminal court of state for the trial of all persons who are 
 impeached or accused by the commons, sitting as a grand ail persons 
 
 , , , . . , , . , , . , impeached 
 
 jury of the whole nation, of the commission of high crimes bythecom- 
 and misdemeanors. The right to thus assail the great func- m 
 tionaries of the realm was one of the weapons won by the 
 commons during their struggles for political power in the four : 
 teenth and fifteenth centuries. The earlier instances of crim- 
 inal proceedings which take place in parliament during the 
 period which intervenes between the beginning of the reign 
 of Edward I. and the fiftieth year of Edward III. are both 
 irregular and ambiguous. 1 Not until the year last named do 
 we find, in a series of proceedings which take place in the 
 Good Parliament, a clear instance of a parliamentary impeach- 
 ment in the sense in which that term is now understood. 
 The proceedings against the lords Latimer and Neville, and Proceed- 
 their agents and accomplices, 2 who were accused of the com- 
 mission of all kinds of fraud upon the revenue, are regarded 
 by the historians as the earliest instance of a trial by the 
 lords upon a definite accusation made by the commons. 8 In 
 the early part of the reign of Richard II. (1377-1383) im- 
 peachments were directed for various kinds of misconduct 
 against Gomenys and Weston, against Cressingham and 
 Spykesworth, and against the Bishop of Norwich, Elmham, 
 and others. 4 In 1386 these cases were followed by the fa- 
 mous accusation against Michael de la Pole, the lord chancel- 
 lor, who was impeached for grave misconduct in his office. 5 
 Thus by frequent repetition and employment the law and 
 practice as to parliamentary impeachments was by the end of 
 the reign of Richard II. established in substantially the same 
 form in which it appears in modern times. 
 
 During the period in which the practice of impeachment 
 by public accusation of the commons was taking on a definite 
 
 1 See Stephen, Hist, of the Crim, * Rot. Parl., iii. pp. 10-12, 153, 156. 
 
 Law, vol. i. pp. 145-155. 6 Rot. Parl., iii. pp. 216-219; Knigh- 
 
 8 Rot. Parl., ii. pp. 323-326, 328, ton, c. 2684. See Hallam, M. A., vol. 
 
 329 ; Rymer, p. 322. iii. pp. 66, 67. 
 
 * Hallam, M. A., vol. iii. p. 56; 
 Stubbs, Const. Hist., vol. ii. p. 431.
 
 442 
 
 Private ac- 
 cusations 
 by " ap- 
 peal " abol- 
 ished by 
 Stat. Hen. 
 IV. c, 14. 
 
 Impeach- 
 ment be- 
 coming 
 obsolete. 
 
 The law of 
 impeach- 
 ment as 
 finally 
 settled. 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 and final form, it was for some time rivalled by a method of 
 private accusation known as an " appeal," whose history, as a 
 part of the procedure in ordinary criminal cases, has been 
 heretofore examined. 1 By an " appeal " any person had the 
 right to bring any other to trial for any offence before the 
 high court of parliament. In the reign of Richard II. 
 the lord chancellor was in this manner impeached by a fish- 
 monger who accused him of taking bribes in the form of 
 money, and in cloth and fish delivered free at his house. 2 
 The strife and the bloodshed which resulted from the use of 
 this unbridled method of private accusation by the turbulent 
 feudal nobility were so serious that it was finally abolished by 
 a statute passed in I Henry IV. c. 14, which provided " that 
 no appeals be from henceforth made, or in any wise pursued 
 in parliament in any time to come." 
 
 The practice of impeachment by accusation of the com- 
 mons, thus left without a rival, was employed against the 
 duke of Suffolk, who was charged with high treason in I45O, 3 
 and against Lord Stanley in 1459.* After the trial of Lord 
 Stanley, no impeachment seems to have taken place until the 
 trial of Sir Giles Mompesson in 1621, an intermission of 
 one hundred and sixty-two years. From that date down to 
 the impeachment of Lord Melville in 1805, the impeachments 
 which have taken place have been estimated at fifty-four. 5 
 Of these the most famous are those which took place in the 
 struggle between the parliament and the crown during the 
 first two years of the Revolution of 1640. The law of im- 
 peachment as finally settled has thus been summed up by Sir 
 James Fitzjames Stephen : 
 
 " i. The house of lords is a court of justice in which peers 
 may be tried for any offence, and commoners for any offence 
 not being treason or felony, upon an accusation or impeach- 
 ment (impetitio) by the house of commons, which is the grand 
 jury of the whole nation. 
 
 " 2. When such an impeachment is once made, it is not 
 abated either by a prorogation or by a dissolution of parlia- 
 ment, but must go on from session to session, and from par- 
 liament to parliament, till it is determined. 
 
 1 See above, p. 311. 
 
 2 Rot. Par/., iii. p. 168. 
 8 Rot. Par/., v. p. 176. 
 
 * Rot. Par/., v. p. 369. 
 6 See Stephen, Hist, of the Crim. 
 Law, vol. i. pp. 157-159.
 
 I.] FROM EDWARD I. TO HENRY IV. 443 
 
 " 3. A pardon from the crown cannot be pleaded in bar of 
 an impeachment." * 
 
 The third and last aspect in which the house of lords is to House of 
 be viewed as a court of justice is that in which it sits as a co'urt of* 
 final court of appeal for the correction of errors in juder- error in 
 
 ....... * ' civil causes. 
 
 ments and decrees rendered in civil suits by the great courts 
 of law and equity. This supreme appellate jurisdiction in 
 civil cases seems to have lain dormant from the time of the 
 complete organization of the courts of Westminster down to 
 its revival in the sixteenth and seventeenth centuries. The 
 right to remove a law case to the house of lords by writ of 
 error, originally derived from the crown, was confirmed by 
 statute in the 2/th year of Elizabeth; 2 while their appellate 
 jurisdiction in equity cases on petition to themselves, without 
 reference to the crown, has been exercised since the reign of 
 Charles I. 3 
 
 5. Having now explained how the witan grew into the House of 
 feudal councils of the Norman and Angevin reigns, and how 
 out of these feudal councils was developed the house of lords, 
 
 the task remains to explain the process through which a new principle 
 and a popular assembly grew up, alongside of the older in the or- 
 aristocratic body, out of the system of representation imme- 
 morially imbedded in the organization of the shires and 
 towns. In order fully to grasp the nature of this later 
 growth, it is all-important to bear in mind the fact that, from 
 the time of the Conquest down to the establishment of the 
 estate system in the reign of Edward I., all of the great 
 powers of government were concentrated around and central- 
 ized in the person of the king acting through his ordinary 
 council, composed of the great officers of state and the house- 
 hold, or through that larger body known as the great council, 
 composed of those tenants-in-chief who won for themselves 
 the right to be personally summoned, and in whom that 
 right became hereditary. During a long period of time, from 
 the person of the king acting through his lesser or greater 
 council, whose relation to each other is not clearly defined, 
 
 1 Hist, of the Crim. Law, vol. L p. p. 56. " In 1873, indeed, their ancient 
 146. appellate jurisdiction was surrendered 
 
 2 See Intr. to Sugden, Law of Real by the Judicature Act; but before that 
 Property, p. 2. act came into operation this provision 
 
 8 See May, Parliamentary Practice^ was repealed." Ibid., p. 56.
 
 444 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn 
 
 HOW the 
 
 pie as or- 
 
 ganized in 
 
 shires and 
 
 Fn national 
 affairs. 
 
 The com- 
 topartic se 
 
 ratureex. di 
 cept in 
 
 attainders 
 
 and im- 
 ments. 
 
 emanated all the great acts of government, whether admin- 
 istrative, legislative, judicial, fiscal, or political. 1 Under the 
 highly centralized political system to which the Conquest 
 gave birth, the main body of the people, upon whom the 
 burden of government fell, were sternly excluded from all 
 voice in its administration. The great outcome of the polit- 
 * ca l struggle between the nation and the crown, which ex- 
 tends through the thirteenth and fourteenth centuries, is 
 
 * 
 
 embodied in the fact that during that period the main body 
 of the nation as organized in shires and towns won for them- 
 se l yes tne right to participate in, if not absolutely to control, 
 the entire administration of the kingdom. The way in which 
 the nation worked out this result was by building up along- 
 side of the older national assembly a new body composed of 
 the representatives of the local self-governing communities, 
 which, from humble beginnings, won first the right to par- 
 ticipate in taxation, then to participate in legislation, then to 
 impeach the ministers, and finally to participate in the con- 
 trol of the royal administration, and in the deposition of the 
 king himself. The whole process is one of struggle and of 
 growth. At the outset " Vos humbles, pauvres communs 
 prient et supplient pour Dieu et en ceuvre de charite""* that 
 their petitions may be granted. Next they establish the 
 principle that not until their grievances as set forth in their 
 petitions are redressed will they grant the supplies expected 
 of them. With this weapon in their hands they next claim 
 the right to examine the royal accounts, to regulate the royal 
 expenditures, and to hold responsible to themselves the min- 
 isters, who in earlier days answered not to the nation, but to 
 the king. The final result of this process, which has only 
 been fully worked out in our own time, has been a virtual 
 transfer of the fiscal, political, and administrative powers of 
 government from the king and his council to the represen- 
 tatives of the people. One great power only has never 
 J ome d in the migration. The judicial power vested in the 
 greater and lesser councils, and in the tribunals born of them, 
 
 , , . 11111 < 
 
 has never passed to the popular chamber ; the house of com- 
 mons persistently refused to participate in the judicature of 
 
 1 See above, pp. 241-247. formula." See The Eng. Parliament 
 
 2 This, Gneist says, "is the wonted j[Shee's trans.), p. 138.
 
 I.] FROM EDWARD I. TO HENRY IV. 445 
 
 the realm save so far as its participation was necessary in 
 bills of attainder and impeachments. The process of growth 
 through which the body of the nation, as organized in shires 
 and towns, work their way into a partial exercise of the great 
 powers of government, originally vested in the king and his 
 feudal council, begins with the appearance of the shire rep- 
 resentatives in the national council in the reign of John. 1 
 That tentative effort is followed in 1265 by the appearance 
 in the national council not only of representatives from the 
 shires, but from the cities and towns. 2 From the meeting of 
 the famous parliament of 1 295, 8 which completes the transi- 
 tion from a feudal council to an assembly of estates, the 
 right of the shires and towns to send representatives to the 
 national council becomes a permanent institution. It is, 
 therefore, as a part of the estate system that the representa- Representa- 
 tives of the English commons finally take their place in the cJmm^ns 16 
 
 national parliament. Who, then, were the third estate, the take their 
 
 11-1 r P lace in 
 
 commons, as that term was understood in the politics of parliament 
 
 the thirteenth century ? As heretofore explained, 4 the term 
 
 "commons," as it appears in the English political system, s y stem - 
 must not be understood to imply a union into one corporate 
 body conscious of its own identity of all orders of men below 
 the nobility and the clergy, it must be understood only to 
 include all freemen organized and incorporated for govern- 
 ment in the two leading classes of local communities, 
 shires and towns. In order, therefore, to present a complete 
 statement of the origin and growth of the house of commons, 
 it is first necessary to describe the political organization of 
 the shires and towns ; second, the successive periods at 
 which representatives were sent from these local communi- 
 ties to the national council ; third, the union of the shire and 
 town representatives in one house ; fourth, the process 
 through which that house won, step by step, the right to 
 participate in all the great functions of government. 
 
 6. At an earlier stage of this work the historical origin of origin and 
 the shire, and the nature of its internal organization before th^sWre f 
 and after the Conquest, were made the subjects of special ^ 
 examination. The conclusion was then reached that the 
 
 1 See above, p. 377. 8 See above, p. 417. 
 
 2 See above, p. 403. * See above, p. 356.
 
 446 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 modern shire the shire of the consolidated kingdom 
 finds its historical origin in the primitive state ; " that the 
 state of the seventh century became the shire of the tenth, 
 while the shire of the seventh century became the hundred 
 The mod- of the tenth." The modern shire is an aggregation of hun- 
 dreds, the hundred an aggregation of townships. 1 The fact 
 
 tnat tne m d ern shire finds its historical origin in the prim- 
 itive state is best illustrated by the structure of the shire- 
 moot, which was not only a popular but a representative 
 assembly a county parliament 2 in which each township 
 and hundred appeared in the persons of its representatives. 
 The repre- In the reeve and four selectmen who appear for the town- 
 prindpie at ship in the courts of the shire and the hundred we have the 
 m the very earliest illustration of the representative principle. In 
 the shire court thus constituted, the whole body of " suitors " 
 (attendants) were the judges, and in theory whatever judg- 
 ment was rendered was the judgment of the whole assembly. 
 In practice, however, the unwieldy body usually delegated its 
 powers to a committee of "judices " who acted in behalf of 
 the whole court. This principle of delegation, involving the 
 selection of a chosen few to act in behalf of the whole, which 
 is further illustrated by the action of the twelve senior thegns 
 as a jury of presentment, and by the party-witnesses who 
 under certain conditions declare the report of the community, 
 runs through the whole system. 3 Into the structure and 
 procedure of the courts of the shire and hundred the prac- 
 tice of election and representation entered from the very 
 The shire earliest times as an active and familiar principle. Through 
 vives n the Ur ~ tne ordeal of the Conquest the system of local self-govern- 
 Conquest. men t embodied in the shire system passed without material 
 impairment. It seems to have been a leading feature in the 
 Conqueror's policy to maintain the ancient usages of the 
 English nation by keeping up the administration of the cus- 
 tomary law in the popular courts of the shire and the hun- 
 dred. Leaving out of view the removal of the bishop from 
 the shire court to a court of his own, the transformation of 
 the ancient office of earldom into a titular dignity, and the 
 addition of trial by battle to the ancient procedure, the 
 
 1 See above, pp. 145, 170-172 8 See above, pp. 203, 303. 
 a See above, p. 303.
 
 I.] FROM EDWARD I. TO HENRY IV. 447 
 
 shire under the Norman name of county maintains unim- The shire 
 paired its old position as the governing unit in the local or Norman 8 
 
 district administration. From the so-called laws of Henry I. 
 we learn that, after the Conquest as before, the shire-moot was 
 attended by the " thegns of the shire," by the parish priest, 
 and the reeve and four selectmen from each township. The 
 full court, which met twice a year, still possessed both civil 
 and criminal jurisdiction, which was exercised according to 
 the old forms of witness, compurgation and ordeal ; and the 
 old theory survived that the "suitors " were the judges. The 
 "judices " and the "judices et juratores " of the Pipe Roll of 
 Henry I. probably represent the body of landholders, above 
 the villeins in rank, who constituted the courts of the shire 
 and the hundred, with full power to participate in the admin- 
 istration of justice. A punishment by fines applies to all 
 members who fail to attend and discharge their judicial 
 duties. 1 
 
 The Old-English system of local administration embodied The pid- 
 in the shire-moot is first brought into contact with the system ^f^oot 
 of central administration embodied in the Norman curia regis brou g ht 
 
 into contact 
 
 through the visitations of the itinerant justices, who were sent with the 
 through the shires during the reign of Henry I. to assess the curiaTegis. 
 revenue. While thus engaged in provincial business the jus- 
 tices sat in the shire-moot, where judicial work soon followed 
 in the path of their fiscal duties. In the reign of Henry II. 
 the system of itinerant judicature became a well organized 
 and permanent institution. 2 After that time the full assembly A fuiias- 
 of the shire, summoned by the sheriff to meet the royal jus- ^sMre* 
 tices in order to participate with them in the administration ?** the 
 
 r . . justices 
 
 of justice, and in the transaction of other public business, itinerant 
 embraced a far more perfect representation of the county 
 than the ordinary shire court. Before the coming of the 
 judges a general summons was issued to the sheriffs, command- 
 ing them to summon all archbishops, bishops, abbots, priors, 
 counts, barons, knights, and freeholders of their entire baili- 
 wick, and of each vill or township, four lawful men and the 
 reeve, and of each borough twelve lawful burgesses, and 3 all 
 
 1 Upon this whole subject, see above, tiariis itinerantibus venire solent et 
 pp. 252-256, 303-306 debent." See the form in Bracton, vol. 
 
 2 As to the growth of the itinerant ii. p. 188 ; Stephen, Hist. Crim. Law, 
 judicature, see above, pp. 247, 248. vol. i. p. 101. 
 
 8 " Et omnes alios qui coram justi-
 
 448 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 others who by duty or custom were bound to appear before 
 the itinerant justices. Of the extent and variety of the fiscal 
 and judicial business usually transacted before the justices in 
 Agenda of one of these county parliaments, the agenda of the iter of 
 M94. te tne vear II 94 1 has been frequently cited as a typical illus- 
 tration. 
 
 The sheriff After the bishop was by the effect of William's ordinance 
 theeecu- removed from the shire-moot, and after the ancient earl was 
 tive head of stripped of his official character, the presidency of the shire 
 was left alone to the sheriff, the king's ever-present and 
 immediate representative. 2 The earlier iters, which seem to 
 have been rather fiscal than judicial, were generally held by 
 the sheriffs, who were only occasionally superseded by jus- 
 Decline in tices from the curia regis. A steady decline in the judicial 
 powerfof 31 powers of the sheriffs resulted, however, from the develop- 
 the sheriff. m ent of the itinerant system. In 1194 it was provided that 
 the sheriffs should no longer sit as judges in their own shires, 
 and the holding of the pleas of the crown was committed to 
 Coroners of elective officers, the coroners of the thirteenth century. 
 teenth"cen- Although the 24th article of the Great Charter, which forbade 
 tury> both sheriffs and coroners to hold pleas of the crown, does 
 
 not seem to have been promptly enforced, it led the way to 
 the final settlement of the principle that the sheriff is a mere 
 ministerial officer, and that judicial functions in the courts of 
 assize belonged exclusively to the king's itinerant justices. 3 
 But even after the loss of his judicial functions the sheriff 
 still remained in possession of great local power and impor- 
 tance. He was still the executive head of the shire ; he still 
 convened the county court, in which was transacted all of the 
 business of the shire, whether judicial, fiscal, military, or such 
 as arose out of the conservation of the peace. So great were 
 The right his powers that the right to appoint him was claimed in turn 
 of the crown, by the baronage, and by the shire communities. 
 In the scheme of reform known as the Provisions of Oxford, 
 which was forced on the crown by the baronage in 1258, it 
 was provided " that in each county there be a vavasour of the 
 same county as sheriff to treat the people of the county well, 
 loyally, and rightfully. And that he take no fee, and that he 
 
 1 See Hoveden, vol. iii. pp. 262- 2 See above, p. 258. 
 267. 8 See above, p. 319.
 
 I.] FROM EDWARD L TO HENRY IV. 449 
 
 be sheriff only for a year together." J The right to control 
 the nomination of the sheriffs, which thus passed for a mo- 
 ment to the baronage from the king, was challenged in the 
 succeeding reign by the people of the shires, who claimed 
 that they should have the right to choose the sheriffs by elec- 
 tion. This demand Edward I. in 1300 conceded to the people The office 
 of those shires where they desired to have it, and where the 
 office was not "of tee," or hereditary. 2 This privilege, which 
 seems to have been sparingly exercised, was withdrawn by 
 ordinance early in the reign of Edward II. 8 Upon a renewal 
 of the contest in the reign of Edward III. he ordered that the 
 sheriffs be elected by the shires ; but after a few years more Finally ap- 
 it was finally provided that the sheriffs should be appointed 
 by the officers of the exchequer, and that they should hold 
 office for not more than one year. 4 
 
 When in 1294 the sheriffs were forbidden to sit as judges The 
 in their own shires, the holding of pleas of the crown was coronen 
 committed to four officers, three knights and a clerk, who 
 were always elected in full county court. 6 These elected 
 officers, whose duty it was to look after the pleas of the 
 crown and other branches of the king's business in the shire, 
 were the coroners of the thirteenth century. 6 Although 
 the coroner has been stripped of his ancient dignity, and 
 although his chief remaining duties are the holding of in- 
 quest in case of violent or sudden death, and the discharging 
 of the functions of sheriff in the event of the disability of 
 that officer, the office itself is still elective. The freeholders The office 
 who in full county court elected the coroners also elected tive. ek 
 in the same manner the venderers, the officers who stood Venderers. 
 between the crown and the people in the administration of 
 the forest laws. 7 
 
 1 Cf. Ann. Burton, pp. 446-453; Se- suited from the limitation of his period 
 left Charters, 26 ed., pp. 391, 395. of office." See, also, Blackstone, Com., 
 
 2 " Le roi ad grante a soen poeple bk. i. p. 340. 
 
 qil eient esleccion de leur viscontes en 6 " 20. Praeterea in quolibet comitatu 
 
 chescun conte, ou visconte ne est mie eligantur tres milites et unus clericus 
 
 de fee, sil voelent." Statutes of the custodes placitorum coronae." For a 
 
 Realm, i. p 139. list of the agenda of the "iter" of 
 
 8 Statutes aj c the Realm, i. p. 160. 1194, see Hoveden, vol. iii. pp. 262- 
 
 * Feeder a, li. pp. 1049, IO 99- Upon 267. 
 
 the whole subject, see Stubbs, Const. 6 Cf. Bigelow, Procedure, p. 131. 
 
 Hist., vol. ii. pp. 206-208, 382. The 7 See 2 fnst., p. 558 ; Blackstone, 
 
 Bishop concludes (p. 208) that "the Com., bk. i. p. 347. 
 real loss of his ancient importance re-
 
 450 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 The shire 
 the training 
 school of 
 the English 
 people in 
 self-govern- 
 ment. 
 
 Election 
 and repre- 
 sentation 
 employed 
 in every 
 branch of 
 business. 
 
 Present- 
 ment of 
 criminals. 
 
 The system 
 of recogni- 
 tions. 
 
 The shire, which was recognized by the state as a "commit- 
 nitas" x or corporation, and whose court or assembly was the 
 place in which was transacted all local public business, whether 
 fiscal, judicial, or administrative, was the preparatory school in 
 which the main body of the English people were trained for 
 the work of self-government in a higher sphere. Under the 
 new order of things to which the Conquest gave birth, the 
 principles of election and representation, which from the ear- 
 liest times had entered into the structure and procedure of the 
 shire-moot, were still employed in every branch of judicial, 
 fiscal, or remedial work which devolved upon the shire com- 
 munity. Into the new system of presentment and recognition 
 by jury, election and representation both entered, in different 
 forms and in different combinations, as an active and familiar 
 principle. Under the Old-English procedure the present- 
 ment of criminals was probably made either by a private 
 accuser, by the reeve and four men of the township, or more 
 often perhaps by the twelve senior thegns of each hundred or 
 wapentake. By the Assize of Clarendon, under which the 
 ancient system of presentment was reorganized and reestab- 
 lished, the representatives of the township and hundred were 
 brought into a fresh and formal union in the discharge of a 
 public duty with which each body of representatives had been 
 immemorially connected. 2 In the reign of Richard I. the 
 presentment system was still more perfectly reorganized upon 
 a basis distinctly representative. Under the last arrangement 
 "four knights are to be chosen from the whole county, who 
 by their oaths shall choose two lawful knights of each hun- 
 dred or wapentake, and those two shall choose upon oath ten 
 knights of each hundred or wapentake, ... so that these 
 twelve may answer under all heads concerning their whole 
 hundred or wapentake." 3 The principles of election and rep- 
 resentation thus embodied in the system of presentment were 
 as clearly defined in the system of recognitions. By the terms 
 of the Grand Assize, a writ was directed to the sheriff com- 
 manding him to summon four lawful knights of the neighbor- 
 
 1 " A city or borough is, in its corpo- milites de toto comitatu, qui per sac- 
 ' ' 
 
 rate capacity, a ' communitas ; so s a 
 county." Introduction to Toulmin 
 Smith's English Gilds, p. xx. 
 
 2 See above, pp. 306, 307. 
 
 8 " In primis eligendi sunt quatuor 
 
 ramentum suum eligant duos legates 
 milites de quolibet hundredo vel wapen- 
 tacco, et illi duo eligant," etc. Hove- 
 den, vol. iii. p. 262.
 
 I.] FROM EDWARD I. TO HENRY IV. 451 
 
 hood wherein the disputed property lay, who were directed 
 to choose twelve lawful knights of the same neighborhood 
 cognizant of the facts, who were to declare on oath who had 
 the best right to the land in question. In the other assizes 
 the procedure was substantially the same, with the exception 
 that the twelve were chosen by the sheriff without the inter- 
 vention of the four electors. 1 In either event the chosen 
 recognitors, who were regarded as mere witnesses, acted in a 
 representative capacity, as representatives of a particular 
 community they declared its testimony as to the fact in ques- 
 tion. By the employment of local jurors in fiscal as well as Representa- 
 judicial business, the representative principle was first brought pi^com""" 
 into contact with the system of taxation. This contact first ^ it c j ^* ct 
 arose when personal property and income were brought under system of 
 contribution. By the Assize of Arms, in which each free- when P er- 
 man was required to equip himself with arms according to erty a is PrOP " 
 his means, and in which local jurors were required to deter- brou s ht 
 
 ........ under con- 
 
 mine the liability of each, the first step was taken towards tribution. 
 
 the taxation of rent and chattels. Seven years later, Henry 
 II. took the final step when with the consent of the great 
 council he demanded a tenth of all movables to aid the host 
 of Christendom in the war against Saladin. In order to fairly 
 assess each man's liability to the tithe, Henry employed his 
 favorite institution of inquest by local jurors. Whenever any The Saia- 
 one was suspected of contributing less than his share, four or ^1 by 
 six lawful men of the parish were chosen to declare on oath local [ urors i 
 
 r a. method of 
 
 what he should give. In the next reign, when the Danegeld assessment 
 was revived under the name of carucage, the new system was 
 extended to the assessment of real property liable to that tax. 2 
 Early in the reign of Henry III. a writ was issued for the 
 collection of a carucage in which the sheriff was ordered to 
 cause two knights to be chosen in the full assembly, and by 
 the " will and counsel " of the county court, to take part in 
 the assessment and collection of the tax. 3 
 
 In the review heretofore made of the primitive system for The shire 
 the preservation of the peace, whose difficult history extends ^ ce sys " 
 back to the very earliest times, the conclusion was reached 
 
 1 See above, pp. 329, 330. ad hoc faciendum." Close Rolls, \. 
 
 2 See above, pp. 298, 299. 437. Cf. Select Charters, 2d ed., pp. 
 8 "Devoluntate et consilio omnium 351-353. 
 
 de comitatu in pleno comitatu eligentur
 
 452 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 The " view 
 of frank- 
 pledge." 
 
 The mano- 
 rial court 
 leet. 
 
 Sheriff's 
 tourn and 
 leet. 
 
 Business of 
 the courts 
 leet as 
 county po- 
 lice courts. 
 
 that it survived the Conquest under a name which did not 
 clearly express its real character. The ancient frithborh 
 (peace-pledge), the mutual guarantee by which every member 
 of a tithing as well as of a meagtk became a pledge or surety 
 (borti) to the other members, as well as to the state, for the 
 maintenance of the public peace, was incorrectly translated 
 by the Norman lawyers into liberum plegium (frank-pledge), 
 instead of pads plegium (peace-pledge). 1 The " view of frank- 
 pledge," the right to see that these peace associations were 
 kept in perfect order, ultimately became a part of the criminal 
 jurisdiction of the manorial court, where it still survives. As 
 the manor was nothing but a dependent township under a 
 new name, so the court baron, the principal court of the ma- 
 nor, was primarily the successor of the tun-moot, the ancient 
 assembly of the village or township. To the functions 
 thus inherited by the manorial court from the tun-moot was 
 added, by a grant of sac and soc, the jurisdiction, civil and 
 criminal, of a private hundred court. The criminal side of 
 the jurisdiction thus derived from the hundred survives as 
 the manorial court leet. 2 It was not, however, in these mano- 
 rial courts leet only that the jurisdiction of the hundred court 
 was exercised. It was the duty of the sheriff to hold a hun- 
 dred court twice a year in different parts of the county for 
 the view of frank-pledge, and this court was called the great 
 court of the hundred, or the sheriff's tourn and leet, 3 to dis- 
 tinguish it from the lesser court held monthly by the bailiff 
 of the hundred chiefly for the settlement of disputes concern- 
 ing small debts. The hundred court held by the sheriff on 
 his semi-annual turn, tourn, or circuit, for the dispatch of 
 criminal business, was the great court leet of the county, 
 that held by the steward was the court leet of the manor ; 
 " one being only a larger species of the other, extending over 
 more territory, but not over more causes." 4 The business of 
 the courts leet was not only to take the view of frank-pledge, 
 but to present by jury all crimes whatsoever that happened 
 within their respective jurisdictions, and to punish all trivial 
 misdemeanors. In the system of district administration, as 
 
 1 See above, p. 198. 
 
 2 See above, pp. 207-211, 254. 
 
 8 Blackstone, Comm., bk. iii. pp. 33, 
 
 34 ; bk. iv. p. 273. See, also, Viner's 
 Abridgment, vi. p. 586 ; vii. pp. 3, 8. 
 * Blackstone, Conim.^ bk. iv. p. 273.
 
 I.] FROM EDWARD I. TO HENRY IV. 453 
 
 it existed after the Conquest, the courts leet were the county 
 police courts in which all criminals were presented, and in 
 which those accused of trivial offences were tried and pun- 
 ished. By the force of legislation the jurisdiction of the 
 courts leet, excepting the view of frank-pledge, has been 
 gradually transferred to the court of quarter session, 1 a tri- 
 bunal which grew out of the establishment of the office of 
 justice of the peace. 
 
 The execution of the provisions of the Statute of Winches- justices of 
 ter, whereby Edward I. revived and strengthened the ancient * e pea 
 system of police, was committed, as vacancies occurred, to 
 conservators of the peace, who were elected, like the coroners, 
 in full county court. 2 The election of these conservators 
 was, however, put an end to by a statute enacted early in the 
 reign of Edward III. (i Edw. III. c. 16) 3 which provided that 
 " in every county good men and lawful which be no maintain- 
 ers of evil or barretors in the county should be assigned to 
 keep the peace." By the terms of this act the assignment or 
 appointment of conservators was vested in the crown, and 
 the right to elect them taken away from the people. At first 
 the authority of the conservators thus appointed was simply 
 executive, limited probably to quelling riots and apprehend- 
 ing offenders. Not until 1344 were judicial functions con- judicial 
 ferred upon them by an act (18 Edw. III. stat. 2, c. 2) 4 which f^Zld 
 provided that " two or three of the best of reputation in the "* X 344- 
 counties shall be assigned keepers of the peace by the king's 
 commission ... to hear and determine felonies and tres- 
 passes done against the peace in the same counties, and to 
 inflict punishment reasonably." The Statute of Laborers, 
 passed in 1350, provided that the justices should sit four 
 times a year for its enforcement. In 1360 another statute 
 (34 Edw. III. c. i) 5 gave to the keepers of the peace not only 
 
 1 See Sir James F. Stephen, Hist, of 8 Statutes of the Realm, \. p. 257. 
 the Criminal Law, vol. i. pp. 75-85; "This put an end to the election of 
 Blackstone, Comm., bk. iv. p. 273. conservators, and was the beginning of 
 
 2 " In pleno comitatu de assensu the legislation relating to the officers 
 ejusdem comitatus." Par/. Writs, who afterwards became justices of the 
 vol. i. p. 390. " Probably the conser- peace." Stephen, Hist, of the Crim. 
 vators were in the first instance ap- Law, vol. i. p. 112. 
 
 pointed by the crown; the vacancies * Statutes of the Realm, L p. 301. 
 being filled by election : see Parl. 6 Ibid, L p. 364. 
 Writs, vol. i. pp. 389-391." Stubbs, 
 Const. Hist., vol. ii. p. 273, note 2.
 
 454 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Court of 
 
 quarter 
 
 sessions. 
 
 High and 
 petty con- 
 stables. 
 
 Origin and 
 structure of 
 the English 
 town. 
 
 the right to arrest offenders, but to " hear and determine at the 
 king's suit all manner of felonies and trespasses done in the 
 same county." Upon that statute rests the jurisdiction of the 
 courts of quarter sessions for counties, and from the time of 
 its enactment the conservators or wardens of the peace prob- 
 ably take the higher title of justices. 1 Although the jurisdic- 
 tion of the quarter sessions was extended by the statute to 
 all felonies, by the terms of the commission 2 issued to the 
 justices it was practically limited to minor offences by the 
 proviso, " that if a case of difficulty shall arise they shall not 
 proceed to give judgment except in the presence of some 
 justice of one of the benches or of assize." In this way the 
 practice finally became settled to reserve the trial of all serious 
 offences to the justices of assize, " only petty larcenies and 
 misdemeanors " originally punishable in the tourn and leet 
 remaining for trial in the quarter sessions. 3 
 
 By the Statute of Winchester it was provided that for the 
 better keeping of the peace two constables in every hundred 
 and franchise shall inspect all matters relating to arms and 
 armor. The high constables thus established were appointed 
 at the courts leet of the hundred or franchise over which they 
 were to preside, or, in default of an election in that way, by 
 the justices at their quarter sessions. The petty constables, 
 first instituted about the reign of Edward III., are inferior 
 officers in every town or parish, who act in a twofold capa- 
 city as subordinates to the high constables of the hundred. 4 
 
 With the history of the English shire the history of the 
 English town is closely interlaced. The fact has heretofore 
 been stated that the Old-English town or borough was simply 
 a subdivision of the shire "in which men lived closer together 
 than elsewhere ; it was simply several townships packed 
 tightly together, a hundred smaller in extent and thicker in 
 population than other hundreds." 5 Although the early his- 
 tory of the borough constitution is very obscure, in it was 
 
 1 Stephen, Hist, of the Crim. Law, 
 vol. i. p. 113, citing Lambard, Eiren- 
 arcAa, from which the author says is 
 drawn the statements of Blackstone 
 and other writers upon this subject. 
 
 2 As to the form of the commission, 
 which was first settled in Michaelmas 
 term, 1590, see Lambard, p. 43. 
 
 8 Cf. Stephen, Hist, of the Crim. 
 Law, vol. i. p. 115. 
 
 4 See Blackstone, Comm., bk. iv. pp. 
 355, 356. 
 
 Freeman, Norm. Conq. t vol. v. p, 
 312.
 
 I.] FROM EDWARD L TO HENRY IV. 455 
 
 undoubtedly embodied the system originally represented by 
 the free township, which system survived as the basis of The town- 
 municipal authority. Despite the obscurity and confusion ^mthe 
 which surrounds the historical origin of the English municipal ^ s . 9 f l j he 
 system, a definite conclusion has at last been reached, which system, 
 is now generally accepted as final by the historians, and that 
 is that the English town or borough is of purely Teutonic ori- 
 gin ; that it has its historical beginning in the immemorial 
 system of local organization which is coeval with the race ; 
 that at the outset it was nothing more nor less than a town- 
 ship, or a group of townships, more thickly settled and in a 
 higher state of organization than the group ordinarily known 
 as the hundred. The theory that the Roman municipal sys- Roman mu- 
 tem survived the Teutonic conquest of Britain, that the 
 Roman cities preserved in the island kingdom a continuous 
 municipal existence as they did in Italy and Provence, is a 
 delusion which has finally disappeared in the light of the 
 latest research. 1 If, then, we accept the township system as 
 the basis of the municipal system, if we regard the ordinary 
 borough constitution as simply representing a group of town- 
 ships, it follows that the town or borough was simply a hun- 
 dred thicker in population than other hundreds, and for that 
 very reason more strictly organized for the purposes of inter- 
 nal administration. The burgemot, hustings, or law court of The burge- 
 the Old-English town was usually nothing more than the 
 hundred court in a slightly different form ; its origin was the 
 same, and its procedure substantially the same. 2 If this con- 
 ception of the primitive constitution of the ordinary English 
 town is kept steadily in view, it will be easier to explain the 
 endless variations from the normal type which occur in the 
 special histories of particular cities, each one of which seems 
 to have advanced by its own road and at its own pace towards 
 municipal independence. In order to account even in a 
 general way for the endless obscurities and anomalies which 
 appear in the internal arrangements of the cities and towns 
 when their histories can be studied in the charters in which 
 their special privileges are recorded, the fact must be borne 
 in mind that each town constitution presents not only a spe- 
 cial phase of municipal development, but a special combina- 
 
 1 See above, pp. 125, 192. 2 Essays in A. S. Law, p. 22.
 
 456 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 All the ele- 
 ments of 
 municipal 
 life drawn 
 from a 
 Teutonic 
 source. 
 
 The town- 
 ship as the 
 parish. 
 
 The town- 
 ship as the 
 manor. 
 
 tion of constituent elements. These elements have at least 
 one thing in common : they are all drawn from a common 
 source ; they are all parts of the Teutonic system of local 
 self-government and self-help immemorially imbedded in the 
 gild, the township, the hundred, and the shire. The confu- 
 sions which have to be mastered arise out of the endless 
 variety of forms in which these elements of organization are 
 combined in the several city and town constitutions. 
 
 As the ancient borough usually represented a group of 
 townships, it is not strange that we should find in its consti- 
 tution those phases of local administration which the town- 
 ship presents in its twofold aspect of parish and manor. As 
 heretofore explained, the township as the domain of a single 
 priest became so involved with the parish, and the meeting 
 of the township for church purposes became so involved with 
 the meeting of the vestry, that, in small parishes, the idea 
 and even the name of the township is lost in that of the 
 parish. That the township under the name of the parish 
 entered into the constitution of cities and towns is illustrated 
 by a writer who has graphically described that bewildering 
 political aggregate known as the city of London as a " collec- 
 tion of geographically continuous parishes covered with build- 
 ings in the counties of Middlesex, Surrey, and Kent." l The 
 relation of the township to the manor arose out of the " pro- 
 cess of feudalization," through which the free townships lost 
 their independence, and became subject to a superior lord. 
 After the Conquest the township appears as the manor of the 
 lord, and the ancient jurisdiction of the tun-moot survives in 
 the parish vestry and the manorial courts. 2 That the town- 
 ship in its manorial aspect entered into the borough constitu- 
 tion is most clearly illustrated by the fact that at the time of 
 the Conquest we find the inhabitants of towns living upon 
 the demesnes of the king, or some other lord, in the relation 
 of tenants paying individual annual rents and other dues in 
 various forms to the lord as owner of the soil. The first 
 effort at emancipation from the jurisdiction of such lords is 
 made when the burgesses obtain grants whereby the indi- 
 
 1 Sir F. Pollock, Hist, of the Science 
 of Politics, p. ii (Humboldt Library). 
 
 2 Upon the history of the township 
 
 as the parish and as the manor see 
 above, pp. 143, 144.
 
 I.] FROM EDWARD I. TO HENRY IV. 457 
 
 vidual tributes are converted into a gross sum paid as a per- 
 petual rent by the borough as a self-governing community. 1 
 To the elements of organization thus derived by the borough Relation of 
 from the township as parish and manor must be added those theconsti* 
 which it derived from the constitution of the hundred, which 
 it so closely resembles. The most important local court in 
 the Old-English system, in the sense of being that court 
 which brought justice and police protection nearest to every 
 man's door, was the hundred court. How the hundred juris- 
 diction was vested by express grants of sac and soc in the 
 courts of the manor has been explained already. 2 At the 
 time of the Conquest those boroughs that did not possess 
 the right to hold a hundred court by virtue of their own orga- 
 nization as hundreds, often received the right by a grant of 
 sac and soc from the crown whenever they happened to be 
 situated upon the royal demesne. 8 When, therefore, the gov- 
 ernment of a borough appears to be vested in whole or in part 
 in a court leet, it is easy to understand how that element of 
 hundred jurisdiction passed into the borough constitution. 
 In some instances the government of the town by the court 
 leet has continued until modern times. It has been less than The corpo- 
 fifty years since the corporate (representative) body in Bir- Binning- m 
 mingham was the bailiffs and court leet. 4 In some of the ^^| nd 
 larger towns, however, the municipal constitution widened court leet 
 beyond that of the hundred: such towns became counties, ago ^ ye 
 with a complete shire constitution of their own, and with 
 sheriffs of their own. This form of constitution, first be- 
 stowed upon London by the charter of Henry I., was after- 
 wards extended to Bristol, to York, Newcastle - on - Tyne, cities as 
 Norwich, Lincoln, Hull, Southampton, and other cities, which corporate!" 
 in time became " counties corporate." 6 In some of these 
 instances the borough courts do not simply represent the 
 hundred court, but the courts of the township, hundred, and 
 
 1 " The town was then said to be it belongs entirely to the king, or to the 
 affirmed, or let in fee farm, to the bur- earl or bishop." Stubbs, Const. Hist., 
 gesses and their successors forever." vol. i. p. 408, citing Madox, Firma 
 Hallam, M. A., vol. iii. p. 24, citing Burgi,p. 1 6, in which many illustrations 
 Madox, Firma Burgi, p. I. are given. See, also, Stubbs, vol. iii. p. 
 
 2 See above, p. 254. 564, citing Firma Burgi, p. 23. 
 
 8 " In some of the Domesday towns * See Introduction to Toulmin 
 
 the sac and soc belongs, as in Lincoln, Smith's English Gilds, p. xxii. 
 
 to the owners of manorial estates which 6 Cf. Merewether and Stephens on 
 
 are united within the walls. In some the History of Corporate Boroughs.
 
 458 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 London as 
 a distinct 
 shire, 
 
 ard for im- 
 itation. 
 
 shire under new names. Under the charter of Henry I., 
 London 1 is recognized as a distinct unity, entirely free from 
 and above the organization of the county in which it is situ- 
 ated. As a distinct shire it has its own sheriff and justiciar, 
 who are elective officers ; it has its own folk-moot as the equiv- 
 alent of the shire-moot ; each ward has its own ward-moot, 
 which is nothing but a hundred court ; within the wards or 
 hundreds the burgesses were grouped together in township, 
 parish, or manor, to which are annexed the common lands 
 which everywhere enter into the borough constitutions. Into 
 as a stand- the civic organization of London, to whose special privileges 
 a ^ lesser cities were ever striving to attain, the elements of 
 local administration embodied in the township, the hundred, 
 and the shire thus entered as component parts. 2 Into the 
 constitutions of all other towns and cities, these identical 
 elements, in different forms and in different combinations, 
 everywhere entered as the constituents of municipal life. 3 
 
 In the statement which has now been made of the elements 
 out of which has been gradually developed the English muni- 
 cipal system, an omission has been made of a vitally impor- 
 tant factor which at one time became the dominant and 
 cohesive force in nearly all city and town constitutions. Out 
 of that system of neighborhood association for mutual help 
 and protection which gave rise to the institution of "fritk- 
 borh" or "peace-pledge," also sprang that closer form of 
 association for local self-help known as the gild. In the one 
 form of association, men banded together in a given district 
 and joined in a " borh" or pledge for the keeping of the peace, 
 and performance of public duties, by themselves and all other 
 members ; in the other, men entered into a local association 
 or benefit society, to which they gave their " wed" or indi- 
 vidual promise, to abide by the by-laws or internal regulations 
 made for the common benefit. 4 The spirit of association in 
 
 The gild. 
 
 1 For Henry's charter to the citizens 
 of London, see fcedera, i. p. n. 
 
 2 " The city is an accumulation of 
 distinct and different corporate bodies, 
 but not yet a perfect municipality, nor, 
 although it was recognized in the reign 
 of Stephen as a communio, did it gain 
 the legal status before the reign of 
 Richard I." Select Charters, p. 107. 
 
 8 As to the general municipal history 
 
 of London, see Norton's Commentaries 
 on London. 
 
 * " A gild was the association of men 
 together for common objects of private 
 and individual benefit, in which each 
 man gave his ' wed ' to abide by their 
 internal by-laws ; while a frithborh was 
 the banding of men together, within 
 the limits of a boundary, in which each 
 joined in the ' borh,' or pledge for the
 
 I.] FROM EDWARD I. TO HENRY IK 459 
 
 which the gild system finds its origin has manifested itself Uncertain 
 in many lands, and its historical beginning has been traced ^Scfsystem! 
 by some scholars to the banquets and sacrificial assemblies of 
 the heathen Teutonic tribes, 1 while others derive it from that 
 form of association which existed in the Roman system under 
 the name of collegia? The gild system seems, however, to 
 have attained its highest development in the Teutonic coun- 
 tries, especially in England during the middle ages. One 
 of the most eminent of the modern authorities has emphati- 
 cally declared that he deems England the birthplace of 
 gilds ; 3 and from three English gild-statutes, probably drawn oldest 
 up at the beginning of the eleventh century, is derived the account of 
 oldest reliable and detailed account of gild organization. The s ild rgani- 
 
 .._,...,, ,, . i / i zation Eng- 
 
 earlier English gilds, traces of whose existence can be found lish. 
 as far back as the laws of Ine, Alfred, and ^Ethelstan, seem 
 to have been scattered through country and town wherever 
 the pervading spirit of association united men in clubs or so- 
 cieties for religious, charitable, or social purposes. In cities Tendency 
 and towns where populution was densest, the tendency of consoHdate 
 gilds crowded together in close neighborhood was to coalesce 
 in a single body. As early as the time of ^Ethelstan the 
 gilds of London thus united for the purpose of more effectu- 
 ally carrying out their common objects ; and at a later day 
 the gilds of Berwick-upon-Tweed enacted " that where many 
 bodies are found side by side in one place they may become 
 one, and have one will, and in the dealings of one with another 
 have a strong and hearty love." 4 "The united brotherhood 
 or town gild " thus created, partaking of the commercial spirit 
 
 keeping of the peace, and performance p. 390, Genevan, 1766, and also Cicero, 
 
 of public duties by all others." In- De Sen^ectute, cap. 13. 
 troduction to Smith's English Gilds, by 8 " The oldest reliable and detailed 
 
 Miss Lucy T. Smith, p. xv. accounts which we have of gilds come 
 
 1 Wilda, who dissents from this view, from England ; they consist of three 
 finds in the family union the germ from gild-statutes." Dr. Brentano's Essay 
 which the gild was developed. See in Smith's English Gilds, p. Ixv. These 
 Wilda, Das Gildewesen im Mittelalter, statutes may be found in Kemble, Sax- 
 Halle, 1831, p. 28 seq. See, also, Hart- ons in England, vol. i. Appendix D. 
 wig (Untersuchungen uber die ersten * This is the language of the " Stat- 
 Anfange des Gildewesens, p. 153), who utes of the Gild," whose first article 
 agrees with Wilda in the conclusion that provides that " All separate gilds, here- 
 nothing which is essential to the gild tofore existing in the borough, shall be 
 can be derived from the custom of hold- brought to an end." See Smith's 
 ing feasts. English Gilds, pp. 338, 339, Brentano's 
 
 2 Cf. De collegiis et corporibus opifi- Essay, p. xcix. 
 cum, in Heineccii opera omnia, torn. ii.
 
 460 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 The "town which by the time of the Conquest had become universal, 
 comes the begins to be known from that time as the " merchant-gild," l 
 "kL' 1 > chant wnose relation to the government of the towns becomes of 
 the closest and most perplexing character. The confusing 
 relation which thus grew up between the merchant-gild and 
 the borough, of which it was the inner circle, has been thus 
 its relation defined: "Those sworn fraternities for the protection of right 
 borough, and the preservation of liberty, of which mention has already 
 been made in Part I., arose independently of the towns. Yet 
 in the towns the necessity of protecting liberty, property, 
 and trade against the violence of neighboring nobles . . . 
 must have specially moved the small freemen to the forma- 
 tion of the societies above referred to. These inhabitants 
 of the towns were old, free landed proprietors ; partly of the 
 neighboring estates, but chiefly of land within the territory 
 of the towns themselves. Most of them carried on trade ; 
 some probably also handicrafts. But the possession of town- 
 land is the distinguishing mark of these earliest burghers. 
 To this possession alone was full citizenship everywhere 
 attached in the first movements of civic life. . . . Naturally, 
 therefore, the whole body of full citizens, that is, of the pos- 
 sessors of portions of the town-lands of a certain value, the 
 'civitas,' united itself everywhere into one gild, ' convivium 
 conjuratum '; the citizens and the gild became identical ; 
 Gildiawbe- and what was gild-law became the law of the town." 2 The 
 gild hall became the town hall, and the merchant-gild, which 
 arose within the town and yet independently of it, merged 
 town hail, its organization in that of the town in such a manner as to 
 draw to itself the real exercise of all municipal authority. 3 
 No one could enjoy the full status of burgher or citizen un- 
 less he were a member of the gild ; and even the villein 
 (nativus) who obtained admission into the brotherhood, and 
 remained unclaimed by his lord for a year and a day, became 
 a freeman. 
 
 The cities and towns thus constituted, which grew up 
 
 1 Green, History of the Eng. People, governing body, its power of regulation 
 vol. i. p. 211. of trade passed, together with other 
 
 2 Dr. Brentano's Essay in Smith's functions and properties, into the same 
 English Gilds, p. xciii. hands." Stubbs, Const. Hist., vol. UL 
 
 8 " When the merchant guild had be- p. 563. 
 come identified with the corporation or
 
 I.] FROM EDWARD I. TO HENRY IV. 461 
 
 within the jurisdiction of the shires, and upon the demesnes Thestrug- 
 of the king or some other great lord, began the struggle for 
 municipal independence with the effort to free themselves 5^" 
 from the financial and judicial administration of the sheriff lorcL 
 upon the one hand, and from the control of the lord upon the 
 other. Until their severance from the general shire adminis- 
 tration, the sheriff exercised the same jurisdiction over the 
 towns as over the rest of the county ; he collected from 
 them the rents which formed a portion of the ferm of the 
 shire ; and he looked after the king's rights in their courts 
 of justice. In order to render their portion of the burden 
 thus imposed clear and definite, the to\vns first required the 
 sheriff to fix the amount which they were called upon to pay 
 apart from the general contribution of the shire. The next 
 step was to obtain a charter from the crown permitting the 
 towns to pay directly to the exchequer a fixed rent in lieu of 
 the sum contributed through the sheriff. The fixed rent 
 thus paid by the towns directly to the crown, which was 
 known as the firma burgi? the burghers apportioned and The/r 
 collected among themselves by means of their own internal urgt ' 
 regulations. Thus freed from the financial interference of 
 the sheriff, the next effort made by the towns was to free 
 themselves from his judicial authority. Those boroughs 
 which of themselves constituted hundreds, and those which 
 by virtue of an express grant of sac and soc possessed the 
 jurisdiction of a private hundred court, were exempt, of 
 course, from all other forms of hundred jurisdiction. But 
 such exemption did not relieve the burgesses from attend- 
 ance upon the courts of the shire. Only by virtue of a 
 special privilege, or exemption secured by fine or charter, 
 could the townsmen claim the right to have all causes affect- 
 ing themselves tried and finally determined within their own 
 limits and in their own courts, according to the ancient meth- 
 ods of legal procedure, free from the Norman innovation of 
 trial by battle. This exemption from the ordinary sessions 
 of the county court did not extend, however, to the greater 
 courts held in the shires by the itinerant justices. In these 
 
 1 See Brady on Boroughs, p. 40 seq. ; afforded by the case of Huntington, in 
 
 Madox, Firma Burgt, p. 18 ; Hist, of reference to which the term first ap- 
 
 the Exch., p. 226 seq. An instance of pears in Domesday. See Hallam, M, 
 
 a firma burgi before the Conquest is A., vol. iii. p. 24, note I.
 
 462 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 The towns 
 appear in 
 full county 
 court by 
 representa- 
 tives. 
 
 Purchase of 
 commercial 
 privileges. 
 
 The towns 
 win the 
 right to 
 elect their 
 own magis- 
 trates. 
 
 The leet 
 jury. 
 
 courts each town was represented by twelve lawful 1 men ; 
 and the mixed juries before which the townsmen were tried 
 were composed of six strangers, and six drawn from the body 
 of which they were members. 2 Thus practically severed 
 from the administration of the shire, the burghers made a 
 further advance towards complete civic organization by ob- 
 taining from the king, or other lord, grants which widened 
 their commercial privileges, exempted them from tolls, and 
 at the same time conferred upon the body of the citizens or- 
 ganized in the merchant-gild greater power to regulate their 
 internal trade. The charters which conveyed to the towns- 
 men these precious privileges of freedom of trade, of justice, 
 and of internal government had invariably to be purchased 
 from the lord of the town, whether king, noble, or abbot, and 
 paid for in hard cash. 3 
 
 In order to administer the special rights and privileges 
 thus acquired by purchase from the king and other lords, and 
 in order to supply the deficiency which arose out of the 
 exclusion of the shire administration, it became necessary for 
 the towns to acquire the further right of electing their own 
 magistrates. While the borough was administered as a de- 
 pendent township, or as a group of dependent townships, the 
 reeve and his companions, afterwards called the leet jury, 
 constituted the only magistracy, whose authority was supple- 
 mented and strengthened by that of the gild. The reeve or 
 bailiff held the courts of the borough upon the same general 
 principle of accountability to an external authority under 
 which the steward held the courts of the manor. 4 Not until 
 the borough won exemption from the jurisdiction of the 
 sheriff, did it win the further right to establish an independ- 
 ent magistracy, and to choose as its head a reeve or bailiff, 
 who now became an elective officer. 5 The municipal char- 
 
 1 The sheriffs were required to sum- 
 mon " of each vill four lawful men and 
 the reeve, and of each borough twelve 
 lawful burgesses." See the form of the 
 summons as stated by Stephen, Hist, 
 of the Crim, Law, vol. i. p. 101, cit- 
 ing Bracton, ii. (Twiss ed.), pp. 234, 
 581- 
 
 2 An illustration of this may be 
 found in John's charter to Dunwich. 
 " Et si forte amerciari debuerint, per 
 sex probos homines de burgo suo et 
 
 per vi probos homines extra burgum 
 amercientur." Charter Rolls, p. 51. 
 
 8 In the charters granted to the 
 cities and boroughs by Henry I., Hen- 
 ry II., Richard I., and John, may be 
 found ample illustration of the various 
 privileges thus purchased. 
 
 * See Select Charters, 2d ed. p. 41. 
 
 6 For the terms in which Richard 
 grants the right to Lincoln to elect its 
 own reeve (pr&positus), see Fcedera,\. 
 p. 52. For the terms in which John
 
 I.] FROM EDWARD I. TO HENRY IV. 463 
 
 acter of the borough was not completed, however, until the The eiec- 
 elective reeve or bailiff was supplanted by the "mayor," superseded 
 whose advent completed the transition from the old system 
 of township government to the new system in which the 
 borough community appears as a " communitas " or corpora- 
 tion. 1 "The 'communitas' has, at common law, and with- inherent 
 out any statute, full power to regulate its own affairs, and to th*"**- 
 make ' bye-laws,' for its own governance, by the assent of its munitas " 
 own members. This power is inherent, and necessary to 
 enable it to fulfil its obligations to the state." 2 The entire 
 communitas was the corporation, and yet the exercise of all 
 real power lay in the hands of the gild-merchant, which was 
 in fact, if not in theory, the governing body. Acting as 
 such, it gave law to the corporation : " what was gild-law 
 became the law of the town." 3 So fully was the idea of incorpora- 
 corporate existence represented by the gild that it was de- 1 * 
 
 cided in later times, in the case of Totnes, that the incor- 
 poration of a borough was implied by the grant of gilda catoria - 
 mercatoria. When the existence of the merchant-gild be- 
 came merged in the corporation, the title of alderman, which 
 originally belonged to the heads of the separate gilds, was 
 transferred to the magistrates of the several wards into which 
 the town was divided, or, where there was no such division, 
 to the mayor's sworn assistants. And what was more impor- 
 tant, the common property held by the merchant-gild became 
 the property of the town corporation. 4 By the beginning of Condition 
 the thirteenth century the cities and towns that had made 
 the greatest advance towards municipal independence had 
 won the right to be exempt from the financial and judicial century 
 administration of the sheriff, to pay their dues to the crown 
 in the form of a gross sum settled by a direct negotiation 
 with the exchequer, to hold their own courts under their own 
 officers, to elect their own bailiffs, and in some instances a 
 
 grants the same right to Nottingham, 2 Introduction to Smith's English 
 
 See Charter Rolls, p. 39. Gilds, p. xxii., quoting from an unpub- 
 
 1 " When municipal rights were lished paper written by Toulmin Smith 
 
 granted by the Plantagenet kings this in 1864 upon the " Origin of Corpora- 
 
 officer (reeve) was replaced by the tions." 
 
 'mayor,' whose appearance is always 8 Brentano's Essay in Smith's Eng- 
 
 the sign of the establishment of an in- lish Gilds, p. xciii. 
 
 dependent commune." Elton's article * Stubbs, Const, ffist., vol. iii. pp. 
 
 on " Municipality," in Enc. Brit., vol. 565, 566. 
 xvii. p. 30,
 
 464 THE GROWTH AND DECLINE OF PARLIAMENT [Cn. 
 
 mayor, and, above all, the right to regulate their internal 
 trade through by-laws enacted by their gild-merchant. Such 
 was the general nature of the municipal rights recognized or 
 confirmed in the charters which were granted by the Plan- 
 tagenet kings. In the numerous charters issued by Richard 
 and John, nearly every stage can be traced in the unequal 
 march of the English towns towards municipal completeness. 
 At the head of the column stands the great city of London, 
 whose constitution is the model after which the privileges of 
 John's all larger towns are modelled. 1 A month before the Great 
 London! Charter was extorted from John, he granted to the barones of 
 May, 1215. tne c j tv o f L on dc> n the right to elect their mayor annually ; 
 and in the charter itself provision was made that " the city of 
 London shall have all its ancient liberties and free customs, 
 as well by land as by water : furthermore we will grant that 
 all other cities and boroughs, and towns and ports, shall have 
 all their liberties and free customs." 2 
 
 Summary. Such in general terms was the stage of development 
 reached by the cities and towns when the parliamentary 
 period begins. The more advanced have attained a complete 
 municipal existence as communes or corporations, while the 
 rest are advancing towards the common goal at different 
 rates of progress. Under this condition of things there is, 
 of course, a great variety of local usage, and an utter lack of 
 uniformity in the internal arrangements through which the 
 cities and towns are governed. " Roughly, however, we may 
 divide them into two classes, those in which the local ad- 
 ministration was carried on by a ruling body of magistrates 
 or magnates, and those in which it remained in the hands of 
 the townspeople in general ; the former being the type of 
 the larger and more ancient municipalities, the latter that 
 of the smaller towns, and of those whose corporate character 
 was simpler and newer." 3 
 
 7. Having now indicated the stage of development reached 
 by the two great classes of self-governing communities when 
 the parliamentary period begins, the processes must next be 
 drawn out through which the shires and towns appear by 
 
 1 " It became a general rule to con- already enjoyed." Bretano's Essay, 
 firm the gild of a town by granting it p. cv. 
 all the liberties which another town * Charter Rolls, p. 207. 
 
 8 Stubbs, Const, ffist., vol. ii. p. 217.
 
 I.] FROM EDWARD I. TO HENRY IV. 465 
 
 their representatives in the national council, and through Appearance 
 which such representatives finally unite in the formation of 
 
 the house of commons. The records of the year 1213 furnish [^hTthe 
 the earliest authentic instance of the shire communities being national 
 
 ,, , . . ., council, and 
 
 called upon to send representatives to a national council, their final 
 On the /th of November the king called a council at Oxford onehouse. 
 to which the sheriffs were directed to summon, besides the Earliest 
 armed force of the knights, quatuor discretes homines de mcning 1 * 
 comitattt tuo illuc venire facias ad nos ad eundem terminum shire re pre- 
 
 _ _ t sentatives 
 
 ad loquendum nobiscum de negotiis regni nostri. 1 The im-topariia- 
 memorial practice of sending the reeve and four men as rep- m 
 resentatives of the township to the shire-moot thus widened 
 into the practice of sending " four discreet men " as repre- 
 sentatives of the county to confer with the king in his great 
 council touching the affairs of the kingdom. 2 The next 
 instance in which it is clear that representatives of the shire 
 were summoned to parliament occurs in 1254, when the The writ of 
 sheriffs are commanded to return, duos de uno comitatu et I254> 
 duos de alio, ad providendum, una cum militibus aliorum 
 comitatmtm quos ad eundem diem vocari fecimus, quale aux- 
 ilium nobis in tanta necessitate impendere vohierint? In the 
 language of the Lords' Report, this " seems to have been the 
 first instance appearing upon any record now extant, of an 
 attempt to substitute representatives elected by bodies of men 
 for the attendance of the individuals so to be represented, 
 personally or by their several procurators, in an assembly 
 convened for the purpose of obtaining an aid." 4 In 1261 Theassem- 
 Gloucester and Earl Simon joined in calling an assembly at Alton's hi 
 St. Alban's, to which were summoned three knights from " 6l - 
 every shire south of Trent. The significant words in the writ, 
 in which the king afterwards commanded the sheriffs to send 
 these knights, not to St. Alban's but to Windsor, are collo- 
 quium habituros? In 1264, after his triumph at Lewes, Earl 
 Simon caused writs to be issued summoning four knights 
 from each shire to meet the king in parliament, nobiscum 
 tractaturi de negotiis prcedictis* To the famous parliament 
 
 1 The writ may be found in the 4 Vol. i. p. 95. 
 
 Lords' Report, App. i. p. 2. See above, 6 For the writ, see Lords' Report, 
 
 p. 377- App. i. p. 23. 
 
 2 Select Charters, p. 287. 6 Fadera, i. p. 442.. 
 8 For the writ, see Lords' Report, 
 
 App. i. p. 13.
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Earl ^ of 1265 the representatives from the shires and towns were 
 
 fcunous'par- summoned in the same form as the magnates. 1 Passing over 
 
 1 l 1 * entof the anomalous assemblies which met prior to the year 1290, 
 
 we find in that year the knights of the shire summoned ad 
 
 consulendum et consentiendum pro se et communitate? To 
 
 Edward's Edward's model parliament which met in 1295 from which 
 
 Uamenfof time the attendance of representatives from both shires and 
 
 towns has been continuous, or nearly so both knights and 
 
 burgesses are summoned ad faciendum quod tune de communi 
 
 consilio ordinabitur in prczmissis? 
 
 Knights of The writs which thus clearly explain the purpose for which 
 eiectedby tne knights of the shire were summoned to the national coun- 
 
 the whole c j} f a n however, to disclose who were the electors of the rep- 
 body of r 
 freeholders rcsentative members. From the returns to the writs, it is 
 
 county plain that they were elected per totam communitatem, or in 
 plena comitatu, - or per consensum totius comitatus* Beyond 
 this the record evidence does not go ; only by inference from 
 the well established usage of the county court can be deter- 
 mined who were the electors by whom the shire representa- 
 tives were chosen. Despite all the conflicting views which 
 have been expressed concerning the representative character in 
 which the elected knights first appear in the national council, 
 the following statement may be accepted as a substantial 
 embodiment of the conclusions which have been established 
 by the latest and ripest research. It seems to be more than 
 Fourteenth probable that the fourteenth article of the Great Charter, 
 the'cfreat which provided that the lesser tenants-in-chief should be sum- 
 Charter, m oned by the sheriffs generally in the shires, was intended to 
 
 its probable * J ' 
 
 purpose. rouse the lesser baronage to the exercise of rights which had 
 practically passed into desuetude. But the fact that this pro- 
 vision was omitted from the very first reissue of the charter 
 is persuasive to prove that the principle requiring the whole 
 body of the lesser barons to attend in person never received 
 more than a limited application in practice. The fact seems 
 to be unquestioned that from the issuance of the Great Charter 
 down to the time when the representative members appear, 
 the great council, although occasionally attended by a few of 
 
 1 Lords' Report, App. i. p. 33. See, 8 Lords' Report, App. i. p. 66. 
 also, Select Charters, p. 4y. * See Par/. Writs, i. 21-24, 38, 40, 
 
 3 Lords' Report, App. L p. 54. 41 ; Stubbs, Const, ffist., vol. ii. p. 226.
 
 I.] FROM EDWARD I. TO HENRY IV. 467 
 
 the lesser knighthood, continued to be simply a gathering of 
 the prelates and greater tenants-in-chief. The minor tenants- The elected 
 in-chief as a body fail to attend, and in their place and stead 
 appear the elected knights chosen in the shires. If these 
 elected knights had been chosen elsewhere than in the county of mino r 
 
 ,., ,. . ,1-11 . tenants in- 
 
 court, the inference of a certain school might be a fair one, chief, 
 that they represented, not the community of the shire, but 
 only the minor tenants-in-chief. 1 In order to maintain this 
 narrow view it is necessary to show that only the lesser barons 
 were the electors, and not the whole body of the county court. 
 To give color to this idea, it has been claimed that the court 
 summoned for the election of the knights was not the court 
 leet of the county, at which all residents were required to 
 attend, but the court baron, which, excluding the tenants of 
 mesne lords, embraced only such tenants as owed suit and 
 service to the king. 2 The fact has, however, been put beyond 
 question, that the mesne tenants (the vavassores of the 
 barons) did attend ; 8 and it is equally clear that if the elected 
 knights were chosen by a mere fractional part of the shire 
 court, the election could not have been described as the act 
 of the whole community in plena comitatu. The weight of 
 authority, or rather of inference, sustains the conclusion that R epr esenta- 
 the elected knights were not only representatives of the whole fj^f*" 
 shire community, but that they were chosen by the whole knights, as 
 body of freeholders in full county court.* The representative quaiifica- 
 character of the elected knights, as well as the qualification of lo^de- ec 
 the electors, were both determined by the nature of the only Jfy^ 1 ^, 
 court or assembly in which the sheriff could constitutionally acterof the 
 execute the writ under whose mandate the knights were court. 7 
 
 1 This narrow and now obsolete burgh Review, vol. xxvi. pp. 341-34?; 
 view, which was maintained by Brady, Bigelow, Procedure, p. 142. 
 
 Carte, and Blackstone, received a half- * This was the view of Prynne (zd 
 
 hearted assent from the Lords' Com- Register, p. 50), who holds that the 
 
 mittee, who confess, however, that the knights were " elected in the full county, 
 
 whole subject "is involved in great by and for the whole county." This 
 
 obscurity." Vol. i. pp. 149, 150. See, view has been sanctioned by Hallam, 
 
 also, p. 30. M. A., vol. iii. pp. 19, 216-219, and by 
 
 2 " The county court, at which the Stubbs, Const. Hist., vol. ii. pp. 225-232. 
 elections afterwards took place, was The Bishop concludes that "the theory 
 that court which has been considered of the election was that it was the act of 
 as the court baron of the county, dis- the shire-moot, that is, of all the suitors 
 tinguished from the sheriff's turn, at of the county court assembled in the 
 which all residents were bound to ap- county court, irrespective of the ques- 
 pear." Lords' Report, vol. i. p. 140. tion of whom or by what tenure their 
 
 See Mr. Allen's article in the Edin- lands were held." Page 232.
 
 468 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Practice of 
 and repre- 
 
 court. 
 
 First limi- 
 
 chise, 1430. 
 Represen- 
 
 tativesfrom 
 
 townships 
 
 demesne yal 
 summoned 
 
 to the coun- 
 
 ciiatst. 
 " s 
 
 chosen. The sheriff could only act in the county court, which 
 was .composed of the whole body of freeholders, and he could 
 only act in accordance with those methods of procedure with 
 which the shire community had been immemorially familiar. 
 As heretofore explained, the principles of election and rep- 
 resentation which from the earliest times had entered into 
 the procedure of the shire-moot were still employed, after the 
 Conquest as before, in every branch of judicial, fiscal, or re- 
 medial work that devolved upon the shire community. 1 When 
 in the reign of Richard I. the presentment system was reor- 
 ganized upon a basis distinctly representative, " four knights 
 are cnosen f rom tne whole county who, by their oaths, shall 
 choose two lawful knights of each hundred or wapentake." 
 The four knights, who under the terms of the Great Charter 
 are to assist the itinerant justices in taking the three assizes, 
 are elected by the county court. The two knights, who by 
 " the will and counsel " of the shire community take part in 
 the assessment and collection of the carucage of 1 220, * are 
 elected in the full assembly of the shire. And the elections 
 of coroners, venderers, and conservators are all conducted in 
 the same manner. 2 What, therefore, could be more natural 
 or probable than that the knights who were to represent the 
 shire in the national council should have been elected in full 
 county court, as were the knights who were elected by the 
 shire for local purpose ? The force of this inference is cer- 
 tainly not weakened by anything that can be found in the 
 form of a restriction either in the writs themselves or in the 
 returns which were made under them. No legal restriction 
 upon the right of the members of the county court to partici- 
 pate in the election of the representative knights can be found 
 P rior to the statute of Henry VI., 3 whereby the electoral 
 franchise was limited to the forty shillings freeholders. 
 
 The earliest instance of anything like a representation from 
 
 _, ., " . . * ., ., 
 
 the towns appearing in the national council occurs in the 
 memorable meeting at St. Alban's, in August, 1213, to which 
 W ere summoned not only the bishops and barons, but also 
 
 J r 
 
 the reeve and four legal men from each township on the royal 
 demesne. 4 Although, as heretofore explained, the reeve and 
 
 1 See above, p. 255. 
 
 2 See above, pp. 303, 307. 
 
 8 8 Hen. VI. c. 7. 
 * See above, p. 376.
 
 I.] FROM EDWARD L TO HENRY IV. 460 
 
 four men were probably summoned simply to assess the dam- 
 ages due to the plundered bishops and abbots, the incident is 
 important as the first illustration of which there is any his- 
 torical proof of representatives, either from shires or towns, 
 being summoned to a national council. Not until the 7th of 
 November of the same year did the king call a council at 
 Oxford, to which were summoned, besides the armed force of 
 the knights, the " four discreet men " from each shire. 1 The 
 appearance of the town representatives in the council at St. 
 Alban's cannot be regarded, however, as more than a mere 
 indication of the brighter day that was yet to come when 
 Earl Simon, in the hope of giving a broader popular basis to Represen- 
 his government, issued writs, on the I4th of December, 1264, the cities 
 for his famous parliament, to which were summoned not only 
 the two discreet knights from the shires, but also, for the 
 
 , . - T ^,.. ... parliament 
 
 first time in the history of English politics, two representa- by Earl 
 tives from the cities and towns. 2 The writs addressed on i^ 
 this occasion to the cities and towns, commanding them to 
 send up two representatives each, were not addressed to them 
 through the sheriff of the county according to the practice 
 which prevailed at a later day when they became a constituent 
 element in the national parliament. After the year 1265, 
 another long interval occurs before the representatives from 
 the towns appear in what the constitutional lawyers concede 
 to be a genuine parliament. Although representatives from 
 the boroughs appear in the national councils of 1273 and 
 1283, and in the parliament of Acton Burnell, not until Ed- 
 ward's model parliament of 1295 are they regularly sum- 
 moned. At that time their status was first recognized as Represen- 
 an integral part of parliament, and from that time their rep- thetowns 
 resentation has been continuous, or nearly so. 3 Under the fi f st rec g- 
 
 J mzed as an 
 
 writs issued for the parliament of 1295, the representatives integral 
 from both shires and towns were to be chosen ad faciendum Hament m 
 quod tune de communi consilio ordinabitur in pramissis, a " 95- 
 
 1 See above, p. 465. the Cinque Ports the mandate is, 
 
 2 " Item in forma praedicta scribitur " Item in forma praedicta mandatum 
 civibus Eboraci, civibus Lincolniae, et est baronibus et probis hominibus 
 ceteris burgis Angliae, quod mittant in Quino^ue Portuum." Lords' Report, 
 forma praedicta duos de discretioribus, App. i. p. 33. 
 
 legalioribus et probioribus tarn civibus 8 See Select Charters, p. 44. 
 quam burgensibus." To the barons of
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Under the 
 writ com- 
 manding 
 the sheriff 
 to return 
 members 
 from the 
 towns, he 
 could ex- 
 tend or 
 withhold 
 the privi- 
 lege, as he 
 saw fit. 
 
 form which is retained until the terms ad consentiendum are 
 added in the reign of Edward II. 1 
 
 The question has been raised whether the sheriff, under 
 the writ commanding him to return representatives from 
 every city and borough in his county, was restricted to such 
 only as were situated on the royal demesne, or whether he 
 could send his precept to any town, held by any lord other 
 than the crown, which he might deem worthy of the privilege. 
 Although the theory of restriction has been advocated by 
 Brady 2 with his usual leaning to the doctrine of tenure, and 
 has been in part supported by the Lords' Report, 3 the weight 
 of authority is decidedly in favor of the more liberal view, 
 which is fully sustained by the fact that in the parliaments of 
 Edward I., North Allerton, Lynn, Downton, Evesham, Tun- 
 bridge, and other towns of the same class were represented, 
 which were held in demesne by lords other than the king. 4 
 Under the general terms of the writ the sheriff seems to have 
 possessed the power not only to extend the franchise to any 
 town which he saw fit to recognize, but also to ignore others 
 that were manifestly worthy, or even such as had once en- 
 joyed the right of electing members. The legal fiction which 
 the sheriff employed to conceal such an omission is well 
 illustrated by the familiar case which occurred in the I2th 
 Edward III., wherein the sheriff of Wiltshire, after making 
 returns from one city and two boroughs, reported that there 
 were no more cities or boroughs within his bailiwick, and this, 
 too, in the face of the fact that eight other towns in his shire 
 had sent representatives to preceding parliaments. In the 
 6th of Edward II., the sheriff of Bucks, after making a re- 
 turn from Wycomb, reported that there were no more bor- 
 oughs in his county, although in that very reign three other 
 boroughs had twice sent up representatives. 6 From the well- 
 
 1 Hallam, M. A., vol. iii. p. 38, citing 
 Prynne's 2cl Register, p. 92. 
 
 tained by Allen, Edinburgh Review, 
 vol. xxxv. pp. 30, 36, 37 ; and by Hal- 
 
 ^ According to his view representa- lam, M. A., vol. iii. pp. 217, 218. 
 
 tives were sent only by " the king's de- 
 mesne cities and burghs, such as had 
 charters from the king, and paid a fee 
 farm rent in lieu of the customs." 
 Brady on Boroughs, p. 73. 
 
 8 See vol. i. pp. 231, 232. 
 
 4 These instances, and others, are 
 collated by Stubbs, Const. Hist., vol. ii. 
 p. 233. The more liberal view is sus- 
 
 5 See Brady on Boroughs, pp. 110- 
 126 ; Prynne, 3d Register, p. 231 ; Hal- 
 lam, M. A., vol. iii. p. no. To the 
 same effect see, also, Lords' Report, 
 vol. i. p. 375. To remedy this abuse a 
 statute was passed (5 Richard II. stat. 
 ii. c. 4) which imposed a fine upon the 
 sheriff for such neglect. See Lords' 
 Refort, vol. i. p. 341.
 
 I.] FROM EDWARD I. TO HENRY IV. 47' 
 
 known reluctance of the boroughs to send members to par- Reluctance 
 liament, it is more than likely that such returns by the sheriff O ughs to 
 were in many instances the result of connivance upon the j^ mem ~ 
 part of the burgesses themselves, who were more anxious to 
 escape the expense incident to attendance, and the higher 
 rate of taxation which such attendance imposed, than to 
 enjoy the privilege of representation. In some instances in 
 which the sheriff could not be persuaded to omit particular 
 boroughs, they escaped the burden of representation by sim- 
 ply failing to make any return whatever to his precept or 
 mandate. 
 
 The most difficult and obscure question connected with the who were 
 representation of towns is that one which involves the in- 
 quiry : Who were the electors of the borough representatives ? 
 The difficulty arises not only out of the utter lack of symme- 
 try and uniformity in the internal arrangements of the towns, 
 in each one of which the manner of election was deter- 
 mined by local usage or custom, but out of the further fact 
 that the municipal records in which much of the mediaeval Mediaeval 
 history of the English towns is contained have not as yet English 
 been made the subject of thorough investigation. And ^"^"y * 
 strange as it may seem, it is nevertheless true, that the pros- worked out. 
 ecution of such investigations is not always free from official 
 obstruction. As late as 1862 the officers of the corporation 
 of Bristol, in refusing access to its municipal records, stated 
 that they conceived " it to be their duty to withhold the cor- 
 porate records from the scrutiny of historical students." l 
 Happily for the cause of municipal history, the conduct of the 
 corporation of Bristol is only conspicuous as an exception. 
 From such imperfect data as we do possess, it is possible, 
 however, to arrive at a few definite conclusions which indicate 
 the general nature of the process through which the borough 
 members were chosen. The writ ordering the election of Thesher- 
 knights, citizens, and burgesses was returnable in about forty 
 days by the sheriff himself, who was at first required to re- 
 port to parliament the names of the persons chosen under the 
 writ in the county court. Nothing more definite as to the 
 sheriffs procedure can be positively stated until the passage 
 
 1 See Smith's English Gilds, p. 283, note, quoting from Mr. Samuel Lucas 
 (Secular ia, p. 102).
 
 472 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 of the statute of Henry IV. (1406), which provided that the 
 
 election should take place in the first county court held after 
 
 the receipt of the writ, that it should be had in full court by 
 
 those present, and that after the election the names of the 
 
 representatives chosen shall be written in an indenture under 
 
 the seals of them that did choose them, which indenture 
 
 tacked to the writ as the sheriff's return was to be sent into 
 
 The formal chancery. 1 During this period there can be no doubt that 
 
 an C repre- f the formal election of all representatives of the commons 
 
 tookMace to ^ P^ ace * n tne coun ty court ; and it seems to be equally 
 
 in the clear that the real election of the city and borough members 
 
 court, 7 took place in the several municipalities which they were 
 
 ejection of chosen to represent. From the time of Edward I. it seems 
 
 borough to have been the custom for the sheriff to send to such towns 
 
 members in . t < 
 
 the bor- as he saw fit to recognize a precept or mandate commanding 
 
 themselves, the town authorities to prepare for the formal election to take 
 
 place in the county court in which they were cited to appear. 
 
 The failure of the sheriffs to do their duty by sending the 
 
 precepts or mandates to the cities and boroughs entitled 
 
 thereto led no doubt to the act of I445, 2 which undertook to 
 
 regulate the discharge of this duty by positive law. In the 
 
 Sheriffs re- words of the Committee : " In cities and boroughs great ir- 
 
 ia r tosend regularity probably prevailed, for want of settled rules for the 
 
 precepts to conduct both of the sheriffs of counties in issuing their pre- 
 
 the proper r 
 
 officers of cepts, and the returning officers in returning writs in cities 
 towns. and boroughs ; and therefore it was enacted in the 23d of 
 Henry VI., that the sheriffs should issue precepts to the 
 proper officers of cities and boroughs, containing a direction, 
 that in cities the election should be by the citizens of the city, 
 and in boroughs by burgesses of the borough." 3 By this 
 act, which sets forth the fact that the sheriffs have of late 
 sometimes returned persons who were not chosen, and have 
 failed to return persons who were chosen, and in some cases 
 have failed to send precepts, it was provided, that the 
 sheriffs should send to the magistrates of each borough a 
 
 1 "Soient lour nouns escriptz en en- in cancellaria nostra." 7 Hen. IV. c. 
 
 denture dessoutz les sealx de toutz 15; Statutes, ii. p. 156. 
 
 ceux qui eux eslisent, et tacchez au dit 2 23 Hen. VI. c. 14 ; Statutes, ii. p. 
 
 brieve du parlement ; . . . et electionem 340. 
 
 tuam in pleno cotnitatu tuo factam dis- 8 Lords' Report, vol. i. p. 369. See, 
 
 tincte et aperte sub sigillo tuo et sigillis also, p. 375. 
 corum qui election! illi interfuerint nos
 
 I.] FROM EDWARD I. TO HENRY IV. 473 
 
 precept for the election to be held therein ; that such election 
 should be held between the hours of eight and eleven in the 
 morning, that the return should be made by indenture be- Return to 
 tween the sheriff and the electors, and that sheriffs, mayors, ^dTnture!* 
 and bailiffs who failed to do their duty under the act should 
 suffer a penalty. Such were the legal provisions touching 
 the real election which took place in the boroughs themselves, 
 prior to the formal election which took place in the county 
 court on the day the boroughs were cited to appear therein. 
 At the time appointed a delegation of burghers from each The formal 
 city and town appeared in the county court and there an- theVounty 
 nounced the names of those chosen in the town meeting, or court ' 
 as deputies of the town, and with its assent they themselves 
 there chose its parliamentary representatives. 1 Such is the 
 reasonable inference as to the usual course of procedure 
 which has been drawn from the existing evidence. Under 
 this view the representatives of the borough were either 
 elected primarily by the governing body of the town, and the 
 fact then announced in the county court ; or a deputation was 
 elected by the town with power to make its choice in the 
 county court. In either event the original question remains 
 unanswered : Who were the electors who possessed the right to 
 take part in the primary election which took place within the 
 borough itself ? This difficult question was vaguely answered 
 by the Committee in the assertion that the sheriffs were 
 directed to issue " precepts to the proper officers of cities and 
 boroughs, containing a direction that in cities the election Theeiec- 
 should be by the citizens of the city, and in boroughs by the dty were 
 
 burgesses of the borough. But who should be deemed citi- 
 zens and burgesses seems still to have depended on usage, u g h th * 
 where not regulated by charter of the crown." 2 Where not who were 
 expressly regulated by charter, the right of suffrage every- bu^esseT* 
 where depended upon local usage or custom, and such usage depended 
 
 , ",. .., . , .. upon local 
 
 was so various as to render anything like a perfect generaliza- usage, 
 tion, even upon sufficient data, almost impossible. The near- regulated 1 
 est approach to such a generalization is that one which has b ? charter - 
 been made by the master of the constitutional history of the 
 middle ages by the aid of the later evidence which exists 
 
 1 Cf. Stubbs, Const. Hist., voL iii. pp. a Lords' Report, vol. i. p. 369.
 
 474 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cft 
 
 tion of 
 Bishop 
 Stubbs. 
 
 Generaiiza- when our knowledge of the subject really begins : "The most 
 ancient, perhaps, of the franchises, was that depending on 
 burgage tenure ; this was exactly analogous in origin to the 
 freeholder's qualification in the counties ; but as the repres- 
 sive principle extended, the right of a burgage vote had be- 
 come in many places attached to particular houses or sites of 
 houses, probably those which were originally liable for a 
 quota of the firma burgi ; in others the right still belonged 
 to the whole body of freeholders ; and this may be regarded 
 as a second sort of franchise. A third custom placed the 
 right to vote in the freemen of the borough, or of the guild 
 which was coextensive with the borough ; the character of a 
 freeman being personal and not connected with tenure of 
 land or contribution to the public burdens. A fourth gave 
 the electoral vote to all householders paying scot and lot ; 
 that is, bearing their ratable proportion in the payments 
 levied from the town for local or national purposes. A fifth 
 lodged the right in the hands of the governing body, the cor- 
 poration ; the constitution of which again varied from com- 
 parative freedom in one place to oligarchic exclusiveness in 
 another. .The newer the constitution of the town was, the 
 less liberal the constitution seems to have been, ... it is 
 obvious that the tendency of restriction set in from the first 
 institution of charters of incorporation in the fifteenth cen- 
 tury." l The wonder is that this archaic system, under which 
 as a general rule the right of suffrage was taken away from 
 the main body of townsmen and vested in official oligarchies, 
 should have so long survived as a monument of injustice and 
 inequality. The bringing of order and equality out of this 
 chaos of antiquated custom was the achievement of the Mu- 
 nicipal Corporations Act of 1 835,2 which reorganized all of 
 the municipal corporations of England and Wales upon a 
 uniform basis. The provisions of that act 3 which recog- 
 nized the principles that the government of towns should be 
 vested in councils chosen at short intervals by the citizens 
 and burgesses, and that in that class should be included prac- 
 
 Municipal 
 Corpora- 
 tions Act 
 of .835. 
 
 1 Stubbs, Const. Hist., vol. Hi. pp. 
 419, 420. See, also, as to the original 
 form of the elective franchise in bor- 
 oughs, Merewether and Stephens on 
 Boroughs, Introd., xxvi. 
 
 3 S & 6 Will. IV. c. 76, amended by 
 22 Viet. c. 35. 
 
 8 See Dillon, Municipal Corporations, 
 vol. i. p. 35.
 
 I.] FROM EDWARD I. TO HENRY IV. 47 S 
 
 tically all who occupied houses or shops, and paid taxes for 
 the relief of the poor will be specially considered hereafter. 
 
 The questions which have now been asked and answered Eligibility 
 as to the qualification of electors naturally suggest an inquiry elected 
 as to the eligibility of the elected members. From the Ian- members - 
 guage of the writs it is evident that, so far as the shire repre- 
 sentatives were concerned, an early effort was made to limit 
 the honor to members of the knighthood only. Under the 
 writs for the parliaments of 1290, 1294, and 1295, the election 
 was to be made de discretioribus, et ad labor andum potentior- 
 ibus, militibus. 1 The difficulty, however, of forcing the at- Represen- 
 tendance of discreet and able knights made it necessary in 
 the reign of Edward II. to so modify the terms of the writs 
 as to allow the sheriffs to dispense with the original qualifica- knights. 
 tion. 2 The innovation thus brought about was definitely 
 recognized by the statute of 23 Henry VI. c. 14, which 
 declared that only notable knights, or such notable esquires 
 and gentlemen of birth as may become knights, are to be 
 elected ; and by no means a man of the degree of yeoman 
 (vadlet) 3 or under. By the statute of Henry V. 4 residence 
 
 was made a qualification of both electors and elected : the quaiifica- 
 knights of the shire are to be resident within the shire at the electors and 
 date of the writ, and the same thing is required of their statute o? a 
 choosers ; and the citizens and burgesses are to be free and Henr y v - 
 resident citizens and burgesses. This requirement, after 
 having been long disregarded in practice, 6 was finally re- 
 pealed by 14 Geo. III. c. 58, which made the residence of the Repealed 
 electors and elected in their respective counties, cities, and UL\. 58' 
 boroughs no longer necessary. After the qualified represen- 
 tatives of the shires and towns were duly elected, they were 
 required to give security for their attendance, and the names 
 of the bailsmen or manucaptors were entered in the return, 6 
 
 1 Par!. Writs, i. 21, 25, 29, etc. * I Hen. V. c. I. By statute of 
 
 2 This change was brought about by 10 Hen. VI. c. 2, it was provided that 
 adding to the older form, " seu aliis, de the land which gave the vote should be 
 comitatu tuo assensu et arbifrio homi- situate within the county. 
 
 num ejusdem comitatus nominandos." 6 As to the statute of Henry V. per- 
 
 See Stubbs, Const. Hist., vol. iii. p. 397. ishing under the doctrine of desuetude, 
 
 8 Men of this class had been elected see Hallam, M. A., vol. iii. p. 115; 
 
 prior to the passage of the act. Upon Peckwell, Repots of Contested Elections, 
 
 the subject of " Valetti in Parliament," L 53, note D. 
 see the editor's learned note to Taswell- Luders' Reports, vol. i. p. 15. 
 Langmead's Eng. Const. Hist., pp. 347, 
 348.
 
 476 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Represen- 
 tatives re- 
 quired to 
 give secu- 
 rity for 
 their at- 
 tendance. 
 The plena 
 fotestas. 
 Wages. 
 
 The consti- 
 tution of 
 parliament 
 established 
 through the 
 develop- 
 ment of the 
 writ pro- 
 cess. 
 
 a practice which continued down to the end of the fifteenth 
 century. The members thus bound over to appear were 
 armed in the early days with a plena potestas^ in the form of 
 letters of attorney, authorizing them to represent their con- 
 stituents, whose duty it was to provide beforehand for the 
 payment of their wages. Such wages, which were made to 
 cover not only the period of attendance in parliament, but 
 the journey to and fro, and which seem to have been allowed 
 from the very beginning of the representative system, were 
 first reduced to a certain sum by the day in the i6th of 
 Edward II. 2 By the writs de levandis expensis issued in that 
 reign, the wages were fixed at four shillings a day for every 
 knight, and two shillings for every citizen and burgess. 3 
 
 From what has now been said, the fact appears that 
 through the development of the writ process in its highest 
 form the constitution of parliament was finally established as 
 an assembly of estates. Although the name of parliament 
 was not restricted in its earlier use 4 to councils containing 
 representative members, it was finally limited only to such 
 assemblies of estates as contained all of the necessary parlia- 
 mentary elements and no more, and which were convened 
 under the authority of writs regularly issued. 6 In a parlia- 
 ment thus constituted the lords spiritual and temporal ap- 
 peared to represent themselves in response to the individual 
 writs addressed to each member of the peerage ; the repre- 
 sentatives from the shires and towns appeared in obedience 
 to the general writs directed to the sheriffs commanding 
 their election ; the representatives of the clergy appeared in 
 obedience to the pramunientes clause in the writs directed to 
 the bishops commanding them to cause the election and 
 return of proctors armed with full powers from the chapters 
 and parochial clergy. 
 
 The right to issue the parliamentary writs belonged pri- 
 marily to the king, who, with the advice of his council, could 
 
 1 For instances in which it was be- 
 stowed, see Part. Writs, i. pp. 21-23, 
 39, 41, 59. 
 
 2 Prynne, 4th Register, p. 53 ; II all am, 
 M. A., vol. iii. p. 1 14, note 2. 
 
 * Such writs may be traced down to 
 the end of the reign of Henry VIII. 
 See Prynne, 4th Register, p. 495. 
 
 4 As to the early use of the term, see 
 Lords' Report, vol. i. p. 20. 
 
 6 " The constitution of the legislative 
 assembly of the kingdom must now be 
 considered as resting in usage, as de- 
 clared by statute in the I5th of Edward 
 the Second." Lords' Report, vol. L 
 p. 229
 
 I.] FROM EDWARD I. TO HENRY IV. 477 
 
 determine, subject to the limitations imposed by custom, Pariiamen- 
 
 . tary writs 
 
 both the time and place at which parliament should assem- issued by 
 
 ble. 1 Not long after the permanent incorporation of the 
 representative members the custom became established that advice of 
 
 r , f the council 
 
 parliaments should be held annually, or oftener if necessary. Annual 
 Such was the rule laid down in an ordinance adopted in the 
 fifth of Edward II., and in statutes passed in the fourth and 
 thirty-sixth of Edward III. 2 After the particular time within 
 the year had been agreed upon, a choice had next to be made 
 of the place at which the estates should be called together. 
 During the pre-Norman period the witan, after due proclama- Meeting- 
 tion, was usually assembled at some one of the royal resi- national 
 dences, generally after harvest, or on one of the great festi- councils - 
 vals of the church, Easter, Whitsuntide, or Christmas. 8 
 When Westminster became, in the reign of Eadward the Westmin- 
 Confessor, the recognized residence of the king, it became at days'o/the 
 the same time the recognized home of the national council. Confessor ; 
 After the Conquest, however, when the witan was trans- 
 formed into a feudal court or council which followed the 
 person of the king, councils were held at Westminster only 
 when the king saw fit to make it his resting-place. There 
 the Conqueror often held his summer courts ; there William in the days 
 Rufus built the great hall which afterwards became the home man kings* 
 of the courts of justice ; there Henry I. held his councils ; 
 there Stephen founded in honor of his patron saint the 
 chapel which finally became the meeting-place of the house 
 of commons; 4 and there the common pleas were held after 
 it was fixed by the terms of the Great Charter that they 
 should be held in some certain place. In the reign of Henry in. 
 Henry III., who rebuilt the abbey and enlarged the palace, 
 
 Westminster finally came to be considered as the customary enlarges the 
 and lawful meeting-place of parliament. Not, however, until 
 the following reign of Edward I., when the central adminis- 
 trative machinery became permanently fixed in and around 
 the palace, did Westminster become, in the full sense of the 
 
 1 " The writ of summons has always 8 Kemble, Saxons in England, vol. 
 named the day and place of meeting, ii. pp. 192, 202, citing E. Chron., a. 
 without which the requisition to meet 1010. 
 
 would be imperfect and nugatory." * A graphic description of the pal- 
 
 Sir T. Erskine May's Parl. Practice, ace of Westminster, as it appeared in 
 
 p. 46. 1640, may be found in Hosmer's Young 
 
 2 See Ibid., p. 45. Sir Henry Vane, pp. 97, 98.
 
 478 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Westmin- 
 ster be- 
 comes the 
 seat of gov- 
 ernment in 
 the reign of 
 Edward I. 
 
 The meet- 
 ing of par- 
 liament. 
 
 Opening 
 speech. 
 
 Triers of 
 petitions 
 appointed. 
 
 term, the seat of government. From that time onward the 
 dwelling-place of the king out of whose household organi- 
 zation the national administrative system has been largely 
 developed was gradually devoted to the uses of govern- 
 ment: "the chamber became a council room, the banquet hall 
 a court of justice, the chapel a hall of deliberation." * After 
 the final division of parliament into two houses, each found a 
 meeting-place within the precincts of the palace of West- 
 minster, "where the witan of all England still meet for judg- 
 ment and for legislation." 2 
 
 At the time fixed in the writs, the lords spiritual and tem- 
 poral, together with the representatives from the shires and 
 towns, were expected to appear before the king at West- 
 minster, or at any other place that he had seen fit to desig- 
 nate. When a sufficient number had arrived the parliament 
 was opened, and the names of the elected members were 
 called over in order to identify them with those returned by 
 the sheriffs. At a little later day it also became the practice 
 to call over the names of the lords in order to ascertain who 
 had come and who had not. 3 The first business in order was 
 the opening speech, delivered by the chancellor, the primate, 
 or some other great officer of state, in which was explained 
 the purpose for which the estates had been called together. 4 
 After the close of the speech, and after the appointment of 
 triers of petitions, the parliament dissolved itself into its con- 
 stituent elements in order that each group might deliberate 
 apart upon the common work given them in charge. Whether 
 there ever was a time, after the appearance of the representa- 
 tive members, when the three estates deliberated together in 
 a single assembly, is a question whose discussion has drawn 
 out diametrically opposite views from the highest authorities. 6 
 When all the probabilities are weighed in the dim light of 
 the existing evidence, it seems to be more than likely that 
 the different estates, each taxing itself upon its own basis, 
 
 1 Stubbs, Const, fftst., vol. iii. p. 384, * As to the early practice, see 
 
 and pp. 382, 383. 
 
 Elsynge, Ancient Method of Holding 
 
 336. 
 
 2 Freeman, Norm. Cong., vol. ii. p. Parliament, pp. 131 seq. ; as to the 
 
 modern practice, see May, Par I. Prat' 
 
 8 See Rot. Par/., i. 350; Ibid., ii. p. tict, pp. 47, 219 
 
 147; Ibid., iii. pp. 55, 71, 78, 184; 5 Prynne (ist Register, p. 233) holds 
 
 Stubbs, Const. Hist., vol. iii. p. 427 and that they never deliberated together ; 
 
 note 2. Coke (4 Znst., p. 4) holds that they did.
 
 I.] FROM EDWARD I. TO HENRY IV. 479 
 
 deliberated apart from the very beginning, save when momen- it is proba- 
 tarily assembled in the presence of the king, or for the pur- three es- 
 pose of special conference with each other. The period of ^ecfapart 
 uncertainty, which begins with the permanent incorporation from the 
 
 r beginning, 
 
 of the representative members in the famous parliament of save when 
 1295, ends with the definite and final division of parliament for* s me 
 into two houses in the reign of Edward III. 1 In tracing out s P^ ial pur " 
 the causes which led to this division, it is easy to understand 
 why the lay and spiritual baronage, long accustomed to The lay 
 united conciliar action in the great council, should have per- uaf baron- 
 petuated their separate organization in the house of lords. ^ ^^' 
 The difficult matter is to determine why the knights of the separate or- 
 shire, selected from the lesser landholders, who in continental mthehouse 
 lands would have belonged to the estate of the nobles, should of lords ' 
 have withdrawn from the baronage in order to unite upon equal while the 
 terms with the representatives of the towns in the formation [^mem*" 
 of the house of commons. So rapidly did this happy coalition [Rehouse 
 advance that by the fifteenth of Edward II. (1322) the con- of com- 
 stitutional status of the lower house seems to have been defi- 
 nitely recognized in an act which provided that " matters to 
 be established for the estate of our lord the king and of his 
 heirs, and for the estate of the realm and of the people, should 
 be treated, accorded, and established, in parliaments, by the 
 king, and by the assent of the prelates, earls, and barons, and 
 the commonalty of the realm, according as had been before 
 accustomed." 2 Not, however, until the sixth of Edward III. Parliament 
 (1332) do the parliament records distinctly mention the fact 
 that the prelates, the lords temporal, and the knights of the 
 shire deliberated apart, the prelates by themselves, the in . * 
 earls, barons, and other grantz by themselves, and the knights in. 
 from the counties by themselves. 3 In the next year we learn 
 that the lords and the proctors sat apart by themselves, and 
 the knights, citizens, and burgesses by themselves. 4 Finally 
 the parliament rolls of the thirteenth and fifteenth of Edward 
 III. make it clear that the process of division had by that 
 time reached completion, that the lords and commons had 
 
 1 Cf. Hallam, M. A., vol. iii. pp. 38, 8 Rot. Par/., ii. p. 66. September, 
 39; Stubbs, Const, ffist., vol. hi. pp. 1332. 
 
 430, 431. * Rot. Parl., ii. p. 69. 
 
 2 Statutes 15 Edw. II. i. p. 189. See, 
 also, Lords' Report, vol. i. p. 229.
 
 480 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 In 1352 
 commons 
 ordered to 
 the chapter 
 house. 
 
 In 1377 Sir 
 T. Hunger- 
 ford chosen 
 speaker. 
 
 The chan- 
 cellor pre- 
 sides in the 
 house of 
 lords. 
 
 The clergy 
 as an estate 
 of parlia- 
 ment. 
 
 The/**- 
 
 munientes 
 
 clause. 
 
 then definitely arranged themselves in two separate and dis- 
 tinct bodies. In 1352 the commons were ordered to with- 
 draw to the chapter house of Westminster Abbey, which 
 seems to have been then regarded as their chamber. 1 In 
 1376 the lower house formally completed its organization as 
 a deliberative body by the election of Peter de la Mare as 
 foreman. 2 In 1377 Sir Thomas Hungerford was chosen, 
 the first to whom the title and position of speaker were defi- 
 nitely assigned ; 3 from that date the list of speakers is com- 
 plete. Although the speaker was chosen by the votes of all 
 the representative members, never did the honor pass to other 
 than a knight of the shire until the election of Robert Brooke, 
 a member from London, in 1554.* In the house of lords the 
 duty of presiding generally devolves upon the chancellor, 6 
 whose position differs in several important particulars from 
 that of the speaker of the commons. 
 
 8. The statement which has now been made of the final 
 arrangement of the representatives from the shires and towns 
 in one house, and of the lay and spiritual baronage in another, 
 naturally suggests an inquiry as to the fate of the parlia- 
 mentary representatives of the clergy who, under the scheme 
 of Edward I., were to be incorporated as a substantive ele- 
 ment in the assembly of estates. The idea of summoning the 
 representatives of the clergy of both provinces as a constituent 
 element in a national council was first fully developed in the 
 writs by which Edward called together his famous parliament 
 of 1295. The proemunientes clause, contained in the writs 
 addressed to the bishops, premonished them to cause the 
 deans and priors of cathedrals and the archdeacons to appear 
 in person, and each cathedral chapter to appear by one and 
 the clergy of each diocese by two proctors, armed with suf- 
 
 1 " When the commons deliberated 
 apart, they sat in the chapter house of 
 the Abbot of Westminster, and they 
 continued their sittings in that place 
 after their final separation." May, 
 Part. Practice, p. 25, citing Elsynge, p. 
 104. Not until the reign of Edward VI. 
 did St. Stephen's Chapel become the 
 meeting-place of the commons." Bay- 
 ley and Britton, p. 363. 
 
 2 Chronicon Anglice, p. 72. 
 
 8 Rot. Par 1., ii. p. 374. See May, 
 Parl. Practice, p. 23 and note 4. 
 
 4 His successor in 1555 was a burgess 
 from West Looe. Browne Willis, Rot. 
 Parl., p. 113. Stubbs, Const. Hist.,\o\. 
 iii. p. 453. 
 
 6 As to the status and duties of the 
 chancellor as speaker of the house of 
 lords, see May, Parl. Practice, pp. 
 49, 243, 246. The lord chancellor is 
 not necessarily a peer. In 1830 Lord 
 Chancellor Brougham sat on the wool, 
 sack as speaker before his elevation to 
 the peerage, one of m?- * 
 
 of a like kind. Ibid., p. 2 .
 
 I.] FROM EDWARD I. TO HENRY IV. 481 
 
 ficient power to represent the clergy and chapters. 1 " In the 
 Prainunientes clause, inserted in the writs of the 23d of Ed- 
 ward the First, a representation of the clergy in convention 
 was provided, bearing a strong resemblance to the representa- 
 tion of the laity in the legislative assembly in parliament, 
 provided by the writs issued for that purpose at the same 
 time." 2 If the English clergy had seen fit to accept instead 
 of oppose this arrangement, there was no reason why, in Eng- 
 land as elsewhere, the clergy, like the nobles, should not have 
 formed themselves into a distinct parliamentary estate. But The clergy 
 from the very beginning the plan was opposed by the clergy Award's 
 themselves, who preferred to vote their aids in their own pro- 
 vincial councils or convocations. Under the persistent force ni 
 of clerical opposition, the plan of Edward broke down and 
 became a mere shadow. The prcemunientes clause itself is 
 still inserted in the writs, but it has been a dead letter since 
 the fourteenth century. 3 The clergy of the two provinces, clergy 
 refusing to be jointly assembled as an estate of parliament, 
 continued to tax themselves in their provincial convocations convocation 
 until after the restoration of Charles II. 4 The subsidies of therestora- 
 the clergy were voted in the convocations in the form of " be- c'haries n. 
 nevolences," separate and apart from the aids granted by the 
 laity, down to the year 1664, when, by a mere verbal agreement sheidonian 
 between Archbishop Sheldon and Lord Chancellor Claren- , 
 don, an arrangement was made under which the clergy waived 
 
 their right to tax themselves, and agreed to be assessed by the nounced 
 laity in parliament. The results of this silent revolution, separate 
 which has been called " the greatest alteration in the consti- fa 
 tution ever made without an express law," 5 were distinctly 
 recognized in an act of parliament passed in the following 
 year (16 and 17 Car. II. c. i), which recited the fact that the 
 
 1 The language of the summons is : Rights of the Lower House of Convoca- 
 
 " Pramunientes priorem et capitulum tt'on, by Bishop Atterbury, p. 7, 410, 
 
 ecclesiae vestrae, archidiaconos, totum 1702 ; May, Parl. Practice, p. 637 and 
 
 que clerum vestrae diocesis, facientes note I. 
 
 quod iidem prior et archidiaconi in pro- 5 Speaker Onslow, in a note ap- 
 
 priis personis suis, et dictum capitulum pended to Burnet's History of his Own 
 
 per unum, idemque clerus per duos Times (Oxford ed. voL iv. p. 308), says: 
 
 procuratores idoneos, plenam et suffi- " Gibson, Bishop of London, said to 
 
 cientem potestatem." For the writ, me that it was the greatest alteration 
 
 see Lords' Report, A pp. i. p. 67. in the constitution ever made without 
 
 3 Lords' Report, vol. i. p. 214. an express law." See Sir Travers 
 
 8 See Select Charters, p. 38. Twiss' article on Convocation in Enc. 
 
 * Cf. Parliamentary Original and Brit. 9th ed. vol. vi. p. 327.
 
 482 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 The clergy 
 gain the 
 right to 
 vote for 
 members of 
 the house 
 of corn- 
 
 Early par- 
 ticipation 
 of the com- 
 mons in 
 taxation. 
 
 Taxation 
 during the 
 Norman 
 period. 
 
 clergy had been assessed by the commissioners named in the 
 statute, without any objection being raised on their part or 
 behalf. In this act was embraced, however, a proviso, that 
 "nothing therein contained shall be drawn into example to 
 the prejudice of the ancient rights belonging to the lords 
 spiritual and temporal, or clergy of this realm." If by this 
 proviso the clergy intended to save the right to tax them- 
 selves, as Mr. Hallam l supposes, suffice it to say, that they 
 have never since seen fit to reassert it. By their renuncia- 
 tion of the right of separate taxation, 2 the clergy gained the 
 new right of voting at the election of members of the house 
 of commons by virtue of their ecclesiastical benefices, a 
 right which has been more than once distinctly recognized 
 by statute. 3 
 
 9. The refusal of the representatives of the clergy to habit- 
 ually assemble as a separate estate of parliament fixed the 
 fact that the national legislature of England should consist 
 of two houses instead of three. Having explained how this 
 division into two houses was finally settled, the task remains 
 to draw out the process through which the younger body 
 composed of the representatives of the shires and towns 
 gradually won, through persistent effort, first the right to 
 participate in taxation, then to participate in legislation, then 
 to impeach the ministers, and finally to participate in the 
 control of the royal administration and in the deposition of 
 the king himself. The whole process is one of struggle and 
 of growth, which finds its origin in the doctrine fast gain- 
 ing ground at the beginning of the thirteenth century that 
 the tax-payer had the right to be consulted in some form be- 
 fore he was taxed. This doctrine touched, no doubt, its 
 lowest point during the Norman reigns, from whose vague 
 fiscal annals it is hard to determine whether taxes were im- 
 posed by mere edict of the sovereign, or whether with the 
 counsel and consent of the great council. The idea that the 
 nation was in some form consulted, even during the Norman 
 period, is strengthened by two records which belong to the 
 reign of Henry I. : in the one, the king describes " the aid 
 
 1 Const, ffist., vol. iii. p. 243 and note. 
 
 8 " And, till this power was given up, 
 an ecclesiastical benefice gave no right 
 to vote in the election of members of 
 
 the house of commons." Freeman, 
 Growth of the Eng. Const., p. 130. 
 
 8 E. g., 10 Anne, c. 23, and 18 George 
 II. c. 18.
 
 I.] FROM EDWARD /. TO HENRY IV. 483 
 
 which my barons gave me ; " in the other the charter order- 
 ing the restoration of the local courts he speaks of sum- 
 moning the county courts whenever his royal necessity 
 should require it. 1 These two documents clearly indicate the 
 only two methods through which the nation prior to the 
 appearance in the national council of the representative 
 members could be consulted in reference to taxation. The 
 lay and spiritual baronage were consulted in the great coun- Lay and 
 cil, but the grants there made did not bind absolutely the in- baronage 
 ferior clergy, nor the main body of the nation incorporated i" 
 for government in shires and towns. 2 Before contributions council ; 
 could be drawn from the clergy and the commons, separate the clergy 
 negotiations had first to be conducted with the archdeacons 
 
 of each diocese representing the spiritual estate, and with the S com- d 
 the several county courts in which representatives appeared " ons t 
 
 . e . . through the 
 
 from every portion of the shire community. Such negotia- county 
 tions between the crown and the local communities were car- cc 
 ried on by a detachment of justices from the exchequer 
 during their fiscal circuits of the shires. The exchequer The ex- 
 officers, dealing with the shire communities in their corporate ^^, 
 capacity, sat in the county courts, and there debated " with * he . n ne g.: 
 
 r J > J ' tiatmg with 
 
 the landowners the number of hides for which they owe the shires, 
 Danegeld, or the number of knights' fees from which aids county 
 and reliefs are due ; they likewise assess the towns, which court 
 are now becoming important contributors to the revenue." 3 
 The county court was thus the only organ of communication 
 in fiscal matters between the crown on the one hand and the 
 shire and town communities on the other, prior to their rep- 
 resentation in the national council. When the organization 
 and procedure of the county court is considered, it is not 
 hard to understand why the system of representation, so long 
 employed therein for local purposes, should have been ex- 
 tended into a higher sphere. As heretofore explained, the The county 
 county court which met the itinerant justices upon their visita- coun^ par- 
 tions was not only a popular but a representative assembly, foment 
 a county parliament, composed not only of the archbishops, 
 
 1 See above, p. 300, and notes 5 lay. The facts are thus stated in the 
 and 6. writ : " Pro se et communitate totius 
 
 2 In the grant made by certain bish- regni quantum in ipsis est" Rot. 
 ops and barons of an aid "pur fille Parl.,\. p. 25. 
 
 marier" in the parliament of 1290 the 8 Select Charters, p. 18. 
 limitation is put, in so far as in them
 
 4^4 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 bishops, abbots, priors, earls, barons, knights, and freeholders, 
 but also of the reeve and four men as representatives from 
 each township, and twelve burghers as representatives from 
 each borough in the shire. 1 Into both the fiscal and judicial 
 work of the shire, election and representation entered as 
 Early in the active and familiar principles. From a writ issued for the 
 Henry*!!!, collection of a carucage early in the reign of Henry III. it 
 a PP ears that a subsidy granted in the great council was 
 
 two knights assessed in the shire, not as in the earlier days by the itin- 
 
 chosen by .. , 1-1 r i i < 11 
 
 the "will erant justices, but by two knights freely chosen in a full 
 seP' C of U the assembly of the county court. 2 In 1225 a writ, issued for 
 county tne collection of a fifteenth, provided that the tax should be 
 
 court. ' r 
 
 collected by the reeve and four men in each township, who 
 were commanded to pay over the proceeds to four elected 
 knights of the hundred, who in their turn were to inquire by 
 the oaths of local jurors into all disputed cases. 3 The reeve 
 and four men, who were thus charged with the collection of 
 the tax, had been immemorially charged with the higher duty 
 of representing the township in the miniature parliament 
 Therepre- known as the county court. When John, in 1213, summoned 
 system^ f r tne fi rst time the " four discreet men " from each county 
 la" fo f the 1 " to a PP ear as representatives in the great council, he simply 
 county applied to national purposes a system of representation that 
 plied 'to 1 *" had existed from the very earliest times. " The four men 
 anc * the reeve had from time immemorial represented the 
 township in the shire-moot ; now the four men and the sheriff 
 represent the shire-moot in the national council." 4 The fact 
 The elected can hardly be questioned that the elected knights were at 
 summoned fi rst summoned to parliament, for the purpose of consenting 
 mentis^ * taxation upon the part of the shire communities, as a mat- 
 matter of ter of fiscal expediency merely. Instead of the officers of 
 diency. X "the exchequer going down into the shires to there negotiate 
 separately as to the amount each would give, it was deemed 
 more expedient for each shire court to send representatives 
 to the national council armed with full power to express its 
 corporate assent to whatever tax the general voice might 
 there impose. 
 
 1 See above, p. 320. 8 Fcedera, i. p. 177 ; Select Charters, 
 
 * See above, p. 451. pp. 355-35?- 
 
 4 See above, p. 367.
 
 I.] FROM EDWARD I. TO HENRY IV. 485 
 
 The same general causes which brought about the appear- Represent* 
 ance in parliament of the elected knights also brought about, tluftownT 
 at a somewhat later day, the appearance of elected representa- fo r m t e oned 
 lives from the cities and towns. Until the severance of the ^ mfi "- 
 borough communities from the general shire administration, 
 the sheriff exercised the same jurisdiction over the towns as 
 over the rest of the county ; he collected from them the rents 
 which formed a portion of the ferm of the shire, and he 
 looked after the king's rights in their courts of justice. The 
 borough communities which thus grew up within the jurisdic- 
 tion of the shire, and upon the demesnes of the king or some 
 other great lord, began the struggle for municipal independ- Thestrug- 
 ence with the effort to free themselves from the financial munkipai 
 and judicial administration of the sheriff upon the one hand, e nce? end 
 and from the control of the lord upon the other. One of the 
 first steps in this process was to require the sheriff to fix the 
 amount of the ferm which the borough was to pay separate 
 and apart from the general contribution of the shire. The 
 next step was to obtain a charter from the crown permitting 
 the town to pay directly into the exchequer a fixed rent in 
 lieu of the sum contributed through the sheriff. The fixed The/rwa 
 rent thus paid by the town directly to the exchequer, which urgt ' 
 was known as \he.firma burgi, the burghers apportioned and 
 collected among themselves through their own internal regu- 
 lations. 1 But after this much had been accomplished the 
 towns were subject to another form of taxation, which de- 
 pended chiefly upon the royal pleasure. Whenever the great 
 council made a grant to the crown, the king claimed the right 
 to levy upon his tenants in demesne an equivalent exaction 
 under the name of a "free aid." When the growing wealth The "free 
 of the mercantile classes within the towns began to render M 
 them tempting objects of taxation, the imposition of "free' 
 aids " grew more and more frequent. During the reigns of 
 Henry III. and John, such demands were often made by royal 
 authority, even when no general grant had been made by 
 the great council. When a dispute arose over the collection 
 of a " free aid," the contention could only be settled after a 
 tedious negotiation between the town magistracy on the one 
 hand and the officers of the exchequer on the other. The 
 1 See above, p. 461,
 
 486 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Transition 
 from spe- 
 cial to 
 general 
 consent in 
 taxation. 
 
 Exclusive 
 right of par- 
 liament to 
 authorize 
 taxation. 
 
 Declaration 
 of the ex- 
 clusive 
 right of the 
 nation to 
 authorize 
 taxation, 
 contained 
 in the Great 
 Charter, 
 premature. 
 
 representatives of the towns were therefore summoned to 
 parliament simply because the crown found it more profitable 
 to obtain grants of subsidies from them in a national coun- 
 cil than to collect " free aids " from them through the more 
 tedious process of separate negotiation. 1 
 
 By so reorganizing the national council as to require every 
 order of men to appear therein in person or by representa- 
 tives, Edward I. finally completed the transition from the 
 older system of separate consent to taxation, which grew out 
 of feudal ideas, to the more efficient and comprehensive 
 one of general consent expressed as the corporate act of the 
 nation in an assembly of estates. Although in such an 
 assembly each estate taxed itself separately at first upon its 
 own basis, the concurrent act was a national act, resting upon 
 the consent of every class of tax-payers to be affected by it. 2 
 
 10. The corollary, which naturally followed the principle 
 that each estate had the right to consent to taxation in an 
 assembly of estates, was that no taxes whatsoever could be 
 legally imposed upon the nation save such as were expressly 
 authorized by parliamentary authority. The first great effort 
 for the establishment of this principle was made by the bar- 
 onage in the famous struggle with John in 1215 ; and the fruit 
 of that effort was embodied in the twelfth and fourteenth 
 articles of the Great Charter, which provided that no scutage 
 or aid, except the three regular feudal aids, should be imposed 
 but by the common counsel of the nation, and that such com- 
 mon counsel could only be taken in a national council duly 
 summoned under writs regularly issued. The fact that these 
 vital clauses were invariably omitted from all subsequent re- 
 issues of the Great Charter is persuasive to show that the 
 precise and positive definition of the exclusive right of the 
 nation to authorize taxation, which the barons in the hour of 
 victory forced upon John, was premature, that for such an 
 absolute assertion of the right, the nation itself was at the 
 time hardly prepared. 8 It is true that during the eighty 
 years which followed the issue of the Great Charter the im- 
 
 1 All this has been restated by Green 
 with his usual clearness. See Hist. 
 Eng. People, vol. i. pp. 355, 356. 
 
 2 " The process of transition belongs 
 to the years 1282 to 1295, and the tran- 
 sition implies the admission of the 
 
 commons to a share of the taxing pow- 
 er, together with the clergy and the 
 baronage." Stubbs, Const. Hist., vol. 
 ii. p. 243. 
 8 See above, pp. 387, 388.
 
 I.] FROM EDWARD /. TO HENRY IV. 487 
 
 position of taxes generally received parliamentary sanction, 
 but not until the end of that period did the nation finally win 
 a constitutional guarantee that they should never be imposed 
 simply by the force of the royal authority. In the stress of 
 a great emergency Edward I. so reasserted the taxing power 
 of the crown as to alarm the nation ; and the result was a 
 counter-revolution which made all such future attempts upon 
 the part of the crown forever impossible. At the end of the Guarantees 
 " Barons' War," Edward L, in the Confirmatio Cartarum, was ^The'cow- 
 made to promise the clergy, the barons, and " all the com- ^rtarum. 
 raonalty of the land, that for no business from henceforth 
 will we take such manner of aids, tasks, nor prizes, but by 
 the common assent of the realm, and for the common profit 
 thereof, saving the ancient aids and prizes due and accus- 
 tomed." In order to extend this limitation of the royal 
 authority to indirect as well as to direct taxation, it was also 
 provided that the right of the crown to tax wool should not 
 in the future be exercised " without their common assent and 
 good will ; saving to us and our heirs the custom of wools, 
 skins, and leather granted before by the commonalty afore- 
 said." 1 Although Edward clearly conceded the chief subject 
 of contention, he plainly indicated by the foregoing reserva- 
 tions that he did not consider his action at Ghent as a final 
 and unconditional surrender of the right of the crown to still 
 impose certain kinds of direct and indirect taxes. Under the 
 terms of the first proviso " saving the ancient aids and Right of 
 prizes due and accustomed" the crown for a long time ^tamagl 
 claimed the right to talliage the towns upon the royal de- J^* ^" 
 mesnes without the sanction of parliamentary authority. In royal de- 
 1304 Edward himself ordered a talliage to be imposed on his 
 cities and towns in demesne, 2 and in the next year he author- 
 ized the great lords to talliage their ancient demesnes as he 
 had talliaged his. 3 In the sixth year of his reign, Edward II. 
 also imposed a talliage on his cities, boroughs, and demesnes 
 throughout the realm ; and the command was to take " of 
 their movables a fifteenth, and of their rents a tenth ; and to 
 send the assessment to the sheriffs of the city, to levy the 
 talliage, and pay it into the exchequer." 4 The citizens of 
 
 1 For a full statement of this sub- a W. Hemingburgh, ii. 233. 
 ject, with the authorities, see above, pp. * Rot. Parl., i. 161, 162. 
 418-423. * Lords' Report, vol. i. p. 266.
 
 488 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Right of 
 talliage be- 
 comes ex- 
 tinct in the 
 reign of Ed- 
 ward III. 
 
 Parliament- 
 ary control 
 over indi- 
 rect taxes. 
 
 Toll 
 
 originally 
 
 imposed 
 
 directly 
 
 upon the 
 
 ship. 
 
 Prisage. 
 
 Origin of 
 the duty 
 on exports. 
 
 London, in resisting this impost, did not dispute the general 
 right of the crown to impose it, but defended themselves 
 under that clause of the Great Charter which guaranteed to 
 them their ancient immunities. 1 In 1332 Edward III. issued 
 commissions for the collection of what was probably the last 
 talliage ever demanded of the cities and towns. When the 
 matter came up in the parliament of that year, a compromise 
 was reached wherein it was agreed that the crown should 
 recall the commissions, and accept in lieu of the talliage a 
 grant of a fifteenth and tenth. 2 
 
 While the principle was thus becoming settled that the 
 crown could impose no kind of direct taxes not even tal- 
 liage upon ancient demesnes without parliamentary author- 
 ity, the royal right to impose indirect taxes in the form of 
 customs became subject to the same limitation. The origin 
 of indirect taxes has already been traced to the customary 
 right of the Old-English kings to levy tolls in harbors, and 
 upon transport by roads and navigable streams. Upon en- 
 tering the harbor the toll was imposed directly upon the 
 ship, and the tax thus paid was the equivalent given by the 
 merchant for the right to bring wine and merchandise into 
 the realm, and to trade under the king's protection. The 
 nature of this toll or tribute is well illustrated by the ancient 
 hereditary duty belonging to the crown called prisage, which 
 consisted of the right of the crown to take from each wine 
 ship, English or foreign, entering the realm, one cask out of 
 every ten, at the price of twenty shillings the cask. 3 The 
 customs thus find their origin in the duties imposed upon im- 
 ports, which are more ancient than those upon exports, the 
 latter originating, as it is said, as a part of the general sys- 
 tem of taxing personal property. 4 The receipts from the 
 customs, which during the reigns of Richard I. and John con- 
 stituted a considerable item in the revenue, 6 had become of 
 sufficient importance in the reign of the latter to suggest 
 
 vol. iii. p. 43. The Bishop, in criticis- 
 
 incr Hallam's vipw. savs : " UnCODSti- 
 
 1 Art. 13. 
 
 2 Lords' Report, vol. i. p. 305. Upon 
 the whole subject, see Stubbs, Const. 
 Hist., vol. ii. pp. 333, 376, 383, 518-521. 
 Hallam, improperly assuming that the 
 right of talliage had been expressly 
 surrendered in the struggle of 1297, 
 maintains that the three Edwards acted 
 illegally in exacting it. Middle Aget, 
 
 ing Hallam s view, says : 
 tutional the exaction certainly was, but 
 not contrary to the letter of the law." 
 Vol. ii. p. 519, note i. 
 
 8 Madox, Hist. Exch., pp. 526, 532. 
 
 * See above, p. 299. 
 
 6 Madox, Hist. Exch. t p. 529 seq.
 
 I.] FROM EDWARD I. TO HENRY IV. 489 
 
 that provision of the Great Charter which forbade the levy- 
 ing of more than the ancient and lawful customs l on mer- 
 chants entering and leaving the kingdom. When the produc- 
 tion of wool increased to such an extent as to render it the 
 leading element of national wealth, it soon became subject 
 to an export tax which became an important item in the royal 
 revenue. But not until after this tempting commodity had Export tax 
 been for a long time the subject of all kinds of irregular ^fixed 
 
 seizures and exactions, was the export tax on wool definitely J? y the pa f' 
 CL i i i i i i lament of 
 
 fixed on a legal basis by the parliament of 1275, which gave 1275- 
 
 to Edward I. a custom of half a mark on each sack of wool 
 exported, three hundred woolfells, and a mark on the last of 
 leather. 2 The duty thus imposed by statute on wool, skins, First legal 
 and leather (magna et antiqua custumd) is regarded as the [j"^* 
 first legal foundation of the customs revenue. 8 As Edward's torn, rev- 
 reign drew to a close, the royal right of taxing wool became magna et 
 subject, however, to a more positive limitation. A subject of $!,. 
 bitter contention in the crisis of 1297 was "the maletote on 
 wools, that is, to wit, a toll of forty shillings for every sack." 
 As a remedy for such exactions it was provided in the Con- 
 firmatio Cartarum that the royal right of taxing wool should 
 not in the future be exercised " without their common assent 
 and good will ; saving to us and our heirs the custom of 
 wools, skins, and leather granted before by the commonalty 
 aforesaid." 4 Six years later (1303) Edward summoned to 
 the exchequer at York an assembly of merchants, consisting 
 of two or three burghers from each of forty-two towns, with 
 the view of obtaining their consent to an increase of the 
 customs on wool, wine, and other commodities to which the 
 foreign merchants had already assented. This increase in 
 the customs, to which the foreign merchants had already 
 assented, but to which the mercantile representatives of towns 
 refused to assent, was known as the nova or parva custuma, The nova 
 as distinguished from the magna et antiqua custuma granted 
 in the parliament of I27$. 6 Early in the reign of Edward II. 
 
 1 " Ad emendum et vendendum, sine 4 Statutes, i. pp. 124, 125; Select 
 
 omnibus malis toltis, per antiquas et Charters, p. 497. 
 
 rectas consuetudines." Art. 41. 8 Par/. Writs,\. pp. 134, 135; Select 
 
 8 Par I. Writs, i. 2 ; Select Charters, Charters, p. 500 ; Stubbs, Const. Hist., 
 
 p. 4S 1 - vo1 - " PP- 'S 6 . ^ 524. 5 2 5- 
 
 8 See Blackstone, Com., bk. i. p. 313.
 
 490 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 the new customs were declared illegal by the Ordainers, and 
 their collection was suspended in 1311; but after the king's 
 victory in 1322 they were promptly reestablished. In the year 
 which followed the accession of Edward III. the customs, as 
 reestablished in 1322, were confirmed ; and from that time they 
 became a part of the king's ordinary revenue, and as such 
 they received the sanction of parliament in the Statute of 
 Before the Staples, enacted in 1353.* Before the close of the reign of 
 Edward III. the exclusive right of parliament to authorize 
 
 . every form of direct and indirect taxation was thus fully and 
 
 right of finally established, not only in principle but in practice. As 
 to control a principle, the doctrine could hardly have been more clearly 
 of e tZcation announced than in the statute of I4th Edward III., 2 which 
 i!she<L Stab " declared that the nation shall be " no more charged or grieved 
 to make any common aid or sustain charge, except by the 
 common assent of the prelates, earls, barons, and other 
 magnates and commons of the realm, and that in parliament." 
 Feudal tax- While the exclusive right of the nation to authorize tax- 
 fn'gupon* ation was being gradually established, the feudal councils 
 individual which once gathered around the Norman and Angevin kings 
 
 consent .... 
 
 trans- were silently transformed into national parliaments ; and the 
 
 national" 1 older feudal taxes, which rested in a measure upon individual 
 
 resting 11 consent, were gradually supplanted by the new national taxes, 
 
 upon gen- which were the fruit of general consent expressed through 
 
 sent. representatives in a sovereign assembly. Even the right of 
 
 each estate to assent separately to the quota of the general 
 
 contribution to be borne by it gradually passed out of view. 
 
 "The last instance of separate assent to taxes is in 18 Ed- 
 
 ward III. In later reports both houses are mentioned, in con- 
 
 junction with the observation ' that they have advised in com- 
 
 Scutage, mon.' " 3 In this process of transition from special to general 
 
 and a the taxation, the old feudal burdens of scutage, the tax on the 
 
 Ur re feudfT knight's fee, of talliage, the feudal impost upon towns upon 
 
 come b obso- ^ ro y a ^ demesnes, together with the three regular feudal 
 
 lete. aids, gradually died out and became obsolete. But while the 
 
 exchequer was thus being impoverished on the one hand by 
 
 diminishing receipts from the old feudal burdens on land, it 
 
 was being enriched upon the other by the new tax on personal 
 
 1 Stubbs, Const. Hist., vol. ii. p. 526. 8 Gneist, The English Parliament^ 
 8 Statutes, i. 289 seq. p. 137, Shee's trans.
 
 I.] FROM EDWARD I. TO HENRY IV. 49 1 
 
 property, which was first imposed in the reign of Henry II. 
 The tax on personal property was at first levied in the form Taxonper- 
 of grants to the crown of actual tenths and fifteenths of all ^y ong -^ 
 movables. The amount of a fifteenth, which was more usu- >aiiy actual 
 
 ' tenths and 
 
 ally granted than a tenth, was finally reduced to a fixed basis fifteenths, 
 by a careful assessment of every township, borough, and city, 
 in the 8th Edward III. In this assessment the fifteenth part Assessment 
 of the value of every township or parish was ascertained and ^^in! 
 recorded in the exchequer. Whenever in later years a fif- 
 teenth was granted, every parish knew that the proportion 
 which it was expected to raise by a rate was the sum imposed 
 upon it in the assessment made in the 8th Edward III. 1 A 
 still more important and comprehensive form of taxation 
 which must now be mentioned is that which came into use in 
 the reigns of Richard II. and Henry IV. under the name of The sub- 
 subsidy, a tax not directly imposed upon property, real or S1 
 personal, but upon persons in respect to both. When a sub- 
 sidy was imposed, each tax-payer was rated according to the 
 income supposed to be derived from his lands and goods ; so 
 many shillings in the pound for lands, so many for goods. 
 During the later middle ages the older feudal taxes were thus older feu- 
 finally supplanted by subsidies and fifteenths, which were suf- 
 ficiently comprehensive to embrace every form of direct tax- 
 ation then imposed upon real and personal property. The fifteenths, 
 lineal successor of the subsidy and the fifteenth is the mod- 
 ern land-tax, which, embracing both real and personal estates, 
 " has superseded all the former methods of rating either prop- 
 erty, or persons in respect of their property, whether by 
 tenths or fifteenths, subsidies on land, hydages, scutages, or 
 talliages." 2 Or, to sum up in the weighty words of a German 
 scholar, " All the charges falling upon land get at last united A general 
 
 . , , i , . land-tax ; 
 
 into one general land-tax ; 
 
 "All personal charges, into a uniform income-tax ; income-tax: 
 
 " And all customs and excise, into a general tariff, in such a general 
 wise that the latter adapt themselves to a lasting revenue of u 
 the crown, which, since the reign of Henry V., gets assured 
 to the king, by way of supplement to the diminishing reve- 
 nues from the domain-lands. For a considerable time after, 
 
 1 Cf. Blackstone, Comm., bk i. p. a Blackstone, Comm., bk. i. p. 307. 
 309 ; citing 2 Inst. 77, 4 Inst. 34.
 
 492 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 "Tonnage" 
 and 
 
 " pound- 
 age." 
 
 Participa- 
 tion of the 
 commons 
 in legisla- 
 tion. 
 
 The great 
 functions of 
 government 
 monopo- 
 lized for a 
 time by the 
 king and 
 his feudal 
 council. 
 
 Right of 
 the com- 
 mons to 
 participate 
 in taxation 
 drew after 
 it the right 
 to partici- 
 pate in 
 legislation. 
 
 the chief group of these indirect taxes is lumped together 
 under the designation of 'tonnage ' and ' poundage.' " 1 
 
 11. The fact has been heretofore explained that the primi- 
 tive form of royal legislation, common to all the Teutonic 
 nations, and which from the earliest times moulded the enact- 
 ments of the Old-English kings, was retained by their Nor- 
 man and Angevin successors. As Ine and Alfred legislated 
 with the counsel and consent of the witan, so William and 
 Henry of Anjou legislated with the counsel and consent of 
 the great council. During the two centuries which follow 
 the Conquest, " counsel and consent " may not have implied 
 that full and authoritative power of deliberation possessed by 
 the witan in earlier times ; " and yet the very survival of the 
 ancient form attested the fact that the theoretical right of the 
 nation to participate in legislation was not forgotten." z From 
 the time of the Conquest down to the establishment of the 
 estate system in the reign of Edward I., all the great acts of 
 government, whether administrative, legislative, judicial, po- 
 litical, or fiscal, emanated from the person of the king acting 
 through his inner council, composed of the great officers of 
 state and the household ; or from that larger body known as 
 the great council, composed of those tenants-in-chief who 
 won for themselves the right to be personally summoned, and 
 in whom that right became hereditary. The way in which 
 the main body of the nation, grouped together in shires and 
 towns, achieved the right to participate in the great functions 
 of government, thus monopolized for a time by the king and 
 his feudal council, was by building up alongside of the older 
 body a new and a representative assembly which first vin- 
 dicated its right to participate in taxation, next to participate 
 in legislation, and finally to control the administration of the 
 state itself. How the first step was taken, how the represen- 
 tatives of the shires and towns won for themselves the right 
 to join in the granting or withholding of taxes, has been ex- 
 plained already. 8 By the leverage thus established, the com- 
 mons soon found themselves in a position to take the second 
 step, the right to participate in taxation soon drew after 
 it the right to participate in legislation. This result was 
 
 1 Gneist, The Eng. Par!., p. 138, 
 Shee's trans. 
 
 3 See above, pp. 186, 240, 291, 292. 
 8 See above, pp. 482-486.
 
 I.] FROM EDWARD I. TO HENRY IV. 493 
 
 brought about by the employment of a homely but natu- 
 ral expedient. As early as the reign of Henry III. the prin- 
 ciple was openly recognized by both the crown and the nation 
 that concessions in favor of liberty moving from the former to 
 the latter were legitimate subjects of bargain and sale. Of 
 this principle, the confirmation of the charters by Henry in 
 1225 may be taken as a typical illustration. In his charter 
 the king openly admits that " for this concession, and for the 
 gift of these liberties and those contained in the charter of 
 the forests, the archbishops, bishops, abbots, priors, earls, 
 barons, knights, freeholders, and all men of the realm granted 
 us a fifteenth part of all their movable goods." l In the 
 light of such precedents the representatives of the commons, 
 when as a matter of fiscal expediency they were regularly Supply de- 
 summoned to parliament, were quick to learn how to insist 
 upon the redress of grievances in return for a money grant. 
 When such a grant was asked, it became the custom for the 
 commons to put forward in the form of a petition to the 
 crown such grievances as required amendment at the hands 
 of the king and his council. 2 The discussion of grievances 
 became the preliminary to the discussion of the grant, which 
 was invariably made in the expectation that the prayer of the 
 petition would be followed by adequate redress. Although Theproced- 
 
 , , .... , r i ure by peti- 
 
 earlier precedents of the procedure by petition may be found, t ion. 
 the records of the early years of Edward II. (1309 and 1310) 
 afford perhaps the earliest satisfactory illustrations of the 
 nature of such petitions, and of the character of the com- 
 plaints which they set forth. 3 In the reign of Edward III. 
 it became the custom for the chancellor at the opening of 
 parliament to proclaim the willingness of the king to hear 
 the petitions of his people. 4 The petitions thus presented 
 
 1 " Pro hac autem concessione et articles, eleven in number, see Prynne, 
 donatione libertatum istarum et alia- 2d Register, p. 68. In 1301 the lords 
 rum libertatum contentarum in carta had told the king that if the demands 
 nostra de libertatibus forestae, . . . made by them in behalf of the whole 
 omnes de regno nostro, dederunt community were granted, they would 
 nobis quintam decimam parterri omni- increase their gift from a twentieth to 
 um mobilium suorum." Statutes, a fifteenth. Par/. Writs, i. p. 105. 
 Charters of Liberties, pp. 22-25. 8 Cf. Hallam, M. A., vol. iii. pp. 40- 
 
 2 As early as 1309 the commons 43. 
 
 granted a subsidy " upon this condition, * Rot. Par!., ii. pp. 237, 309 ; iii. pp. 
 
 that the king should take advice and 56, 71 seq. ; Stubbs, Const. Hist., vol. 
 
 grant redress upon certain articles ii. p. 572. In I4th Edw. III. an extra 
 
 wherein they are agrieved." For the force had to be appointed to aid in
 
 494 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Such peti- 
 tions as de- 
 manded 
 redress by 
 the making 
 of an ordi- 
 nance or 
 statute. 
 
 The statute 
 coined out 
 of the peti- 
 tion and 
 answer. 
 
 Nearly all 
 
 legislation 
 
 based on 
 
 petitions 
 
 during the 
 
 fourteenth 
 
 century. 
 
 Right of 
 the com- 
 mons to 
 assent to 
 legislation 
 not clearly 
 established 
 until the 
 reign of 
 Edward II. 
 
 consisted either of such as required reference to the proper 
 judicial tribunal, or to the king himself in council, or of such 
 as demanded redress by the making of an ordinance or stat- 
 ute. 1 To this latter class belonged the public petitions which 
 were presented by the commons in behalf of the community. 
 To such petitions the king was expected to make his answer 
 during the session of parliament, and then " the petition and 
 the answer were entered in the parliament rolls, and out of 
 both, by advice of the judges and others of the king's coun- 
 sel, the act was drawn up conformable to the petition and 
 answer, and the act itself for the most part entered in a roll, 
 called the statute roll, and the tenor thereof affixed to proc- 
 lamation writs, directed to the several sheriffs, to proclaim 
 it as a law in their respective counties." 2 The right to par- 
 ticipate in legislation thus won by the commons through the 
 petition process grew to such proportions during the four- 
 teenth century that, during that period, as the parliament 
 rolls will show, nearly all statutes were based upon such peti- 
 tions. At what exact point of time the concurrence of the 
 commons in legislation was deemed indispensable, it is difficult 
 to determine. Such could not have been the case as early as 
 the 1 8th of Edward I., the year in which the statute Quia emp- 
 tores was enacted by the king and the barons, before the day 
 for which the commons were summoned. 3 Not before the 
 reign of Edward II. was the right of the commons to assent 
 to legislation clearly established ; not until the fifteenth year 
 of that reign was it declared by statute that " the matters to 
 be established for the estate of the king and of his heirs, 
 and for the estate of the realm and of the people, should be 
 treated, accorded, and established in parliament by the king, 
 and by the assent of the prelates, earls, and barons, and the 
 commonalty of the realm, according as had been before accus- 
 tomed." 4 When the right of the commons to assent to legis- 
 
 dispatching the petitions in parlia- 
 ment. See Lords Report, vol. i. pp. 
 311,312. 
 
 1 As to the ancient mode of peti- 
 tioning parliament, see May, Par/. 
 Practice, pp. 606-608. 
 
 2 Hale, Hist, of the Common Law, 
 vol. i. pp. 1 6, 17. 
 
 8 On the 1 4th of June the knights of 
 the shire were summoned to meet at 
 
 Westminster on the I4th of July. On 
 the 8th of July the king, at the instance 
 of the magnates, enacted the statute 
 Quia emptores. For the writ of sum- 
 mons to the knights, see Lords' Report, 
 App. i. 54 ; for the act, see Statutes, 
 i. p. 1 06. 
 
 4 Statutes 15 Edw. II. i. 189; Lords' 
 Report, vol. i. p. 282.
 
 I.] FROM EDWARD L TO HENRY IV. 495 
 
 lation thus became clearly established, the ancient formula 
 was so widened as to embrace the new factor. After the 
 permanent incorporation of the representative members, the 
 king legislates either "by the assent of the prelates, earls, 
 barons, and the commonalty of the realm," or " at the request 
 of the commons, and by the assent of the prelates, earls, and 
 barons." During the reign of Edward III. the name of the 
 commons is rarely omitted from the enacting clause of a stat- 
 ute, and from that time it may be safely assumed that the 
 concurrence of both houses in legislation was deemed neces- 
 sary. 1 
 
 The foregoing method of legislation, based upon the peti- Abuses and 
 tions of parliament and the answers of the king thereto, was ^"whi^h 
 liable in practice to so many abuses upon the part of the crown f ew ""^ 
 that it became necessary to supersede it by a more definite ure by peti- 
 and guarded system. In the first place the grant of money 
 had necessarily to precede the redress of grievances, the 
 royal promise was the only guarantee or equivalent which the 
 parliament received when the grant was made. To obtain 
 clear and definite answers to petitions, much less an actual 
 redress of grievances during the session of parliament, was 
 often attended with great difficulty. In 1344 and 1362 the 
 commons beg, for the safety of the people, that the petitions 
 may be examined and redress ordered before the end of the 
 parliament. 2 Sometimes, by a qualified or evasive answer, 
 the petition was so modified that the statute coined out of the 
 two in nowise expressed the original intention. And even in 
 the event of a prompt and definite answer being given during 
 the session, it was not a certainty that the petition and an- 
 swer would in the hurry of business, in the interval between 
 the parliaments, be turned into a statute. And even if it 
 was, the danger remained that the petition would be materi- 
 ally altered in the process of being transformed into an act 
 to be entered upon the statute-book. To remedy evils of the 
 kind last named, the commons, in 1 347, pray that all petitions 
 presented by them for the remedy of mischiefs might be an- 
 
 1 Mr. Clifford (Hist, of Private Bill This statement may be accepted with 
 
 Legislation, vol. i. p. 288} says : " When the qualification put upon it by the 
 
 the commons are not named in the editor of Longmead's Const, ffisf., p. 
 
 early statutes, their assent may be pre- 260, note 2. 
 
 sumed from the fact that most meas- * Rot. Parl. t ii. pp. 149, 272. 
 ures originated with their petitions."
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Evils of the 
 
 remediedby 
 theintro- 
 
 bills in the 
 statutes. 
 
 Transition 
 
 ("national 
 legislation, 
 
 Difference 
 
 an ordi- 
 
 Ordaining 
 
 ing in 
 
 theenactlng 
 power of 
 
 the king in 
 
 parliament, 
 
 swered and indorsed before the commons in parliament, that 
 they might see the indorsements and have remedy thereon 
 according to the ordinance of parliament. 1 In order to rem- 
 ec ty the evils and uncertainties which grew out of " this ex- 
 tracting of the statute out of the petition and answer, about 
 the latter end of Henry VI. and beginning of Edward IV., 
 they took a course to reduce them, even in the first instance, 
 into the full and complete form of acts of parliament." 2 
 When this departure was made from the older form of initia- 
 tion by petition, when bills were introduced in the form of 
 statutes, the original draughts of which could only be altered 
 by the parliament itself, the transition from royal to national 
 legislation, which began with the reorganization of the feudal 
 council as a representative assembly, reached its full and final 
 consummation. 
 
 It must not be supposed, however, that the right thus won 
 ^7 tne parliament to control the enactment, amendment, and 
 repeal of all the more weighty and permanent acts of national 
 legislation was absolutely exhaustive of the older right of the 
 crown to legislate in a tentative way, and with the advice of the 
 council, upon a certain class of subjects, by way of ordinance. 
 Through the maze of learned refinement, which has grown 
 out of the attempt to define the difference between a statute 
 and an ordinance, it is only possible to pass without confu- 
 sion by keeping steadily in view the two distinct sources 
 from which each drew its authority. The line must be clearly 
 drawn between the ordaining power of the king in council 
 an( * tne enactm g power of the king in parliament. After the 
 organization of the estate system the effort was continuous 
 
 . . J . 
 
 upon the part of the national assembly to draw to itself the 
 exclusive control of the taxative and legislative powers which, 
 at an earlier day, were vested in the king and council. In 
 resisting such encroachments upon the prerogative, the effort 
 upon the part of the crown was to reserve to itself fragments 
 at least of taxative and legislative power which it could still 
 exercise in council free from parliamentary interference. In 
 the review heretofore made of the struggle between the 
 nation and the crown as to the exclusive right of the former 
 
 1 Rot. Parl., ii. p. 165. Statutes, preface ; May, ParL Practice, 
 
 2 Hale, Hist, of the Common Law, p. 520, 
 vol. i. p. 18. See, also, Ruffhead's
 
 I.] FROM EDWARD I. TO HENRY IV. 497 
 
 to authorize taxation, the fact was developed that, even after 
 the Confirmatio Cartarum, the crown, under the cover of 
 certain reservations, for a long time reserved the right to 
 talliage the cities and towns in demesne, and to a certain 
 extent to regulate the customs. 1 Long after the general 
 right of the nation to authorize taxation had been clearly 
 admitted, an unflinching and persistent warfare had to be 
 carried on by the parliament before the taxative power of the 
 king in council was fully and finally extinguished. In draw- in drawing 
 ing to itself the right to initiate and control legislation, the co 
 parliament stopped short of complete victory, it left in the 
 
 hands of the king in council an undefined residuum of legis- stopped 
 
 . . i i e i short of 
 
 lative power which was for a long time exercised by the complete 
 making and revoking of a class of temporary enactments V1 
 known as ordinances. Whereas, before the end of the four- 
 teenth century, the general principle was firmly established 
 that all the great and permanent acts of national legislation 
 could only emanate from parliamentary authority, it was 
 equally well understood that alongside of this principle 
 existed the ordaining power of the king in council. With 
 this statement as a preface, it will be the more easy to grasp 
 the full significance of the following statement of the rec- 
 ognized distinction between a statute and an ordinance : 
 " The statute is a law, or an amendment of law, enacted by Bishop 
 the king in parliament, and enrolled in the statute roll, not definition 
 to be altered, repealed, or suspended without the authority of ^,.^6^ 
 parliament, and valid in all particulars until it has been so tweena 
 
 , . ,,11- , statute and 
 
 revoked ; the ordinance is a regulation made by the king, by an ordi- 
 himself, or in his council, or with the advice of his council, a 
 promulgated in letters patent or in charter, and liable to be 
 recalled by the same authority. Moreover, the statute claims 
 perpetuity. . . . The ordinance is rather a tentative act 
 which, if it be insufficient to secure its object, or if it operate 
 mischievously, may be easily recalled, and, if it be successful, 
 may, by a subsequent act, be made a statute." 2 
 
 12. At what exact point of time the parliament, which won 
 for itself the exclusive right to authorize taxation and to 
 
 1 See above, pp. 487. lam, M. A., vol. iii. pp. 50-53 ; Gneist, 
 
 8 Stubbs, Const. Hist., vol. ii. pp. The Eng. Par/., p. 143 ; Clifford's ffis- 
 
 585, 586. On the distinction between tory of Private Bill Legislation, vol. L 
 
 statutes and ordinances, see, also, Hal- p. 332.
 
 498 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Parliament- 
 ary control 
 over the 
 royal ad- 
 ministra- 
 tion. 
 
 Minority of 
 Henry III. 
 the first 
 since the 
 Conquest. 
 
 An inner 
 royal 
 
 council. 
 
 Responsi- 
 bility of the 
 ministers to 
 the nation 
 in parlia- 
 ment. 
 
 Provisions 
 of Oxford, 
 
 Bohun and 
 Bigod. 
 
 initiate legislation, secured the more comprehensive right to 
 deliberate in all matters of national concern, it is difficult 
 to determine. Although such a right was no doubt claimed 
 and exercised in some form by the council of magnates prior 
 to the date of the Great Charter, it is not until the reign 
 which follows that event that we find clear illustrations of the 
 right of parliament to discuss foreign affairs, and to super- 
 vise and control the royal administration. The minority of 
 Henry III., the first which had occurred since the Conquest, 
 cast upon the national council the duty of appointing a guar- 
 dian of king and kingdom ; and it is more than likely that the 
 other personal advisers who stood with the regent around the 
 king were, during the minority, appointed by the same au- 
 thority. From that time it is possible to trace the existence 
 of an inner royal council, composed of the king's personal 
 advisers, which acts as a distinct and organized body, apart 
 from the larger administrative body that directs the affairs of 
 state and the household. Out of this condition of things the 
 constitutional doctrine emerges that the king can do no 
 wrong, and that the ministers who advise him are respon- 
 sible to the assembled representatives of the nation, who 
 have a consultative voice in their appointment. 1 The right 
 thus established by the baronage to control the royal admin- 
 istration during the minority of the king was expanded, before 
 the close of Henry's reign, into a general right of control 
 whenever the exigencies of the state might require it. When 
 in the crisis of 1258 the executive government was found to 
 be in such hopeless embarrassment as to render it necessary 
 for parliament to place the royal authority in commission, 
 the baronage elected a board of control of twenty-four, who 
 drew up the articles generally known as the Provisions of 
 Oxford, under whose terms three committees were chosen, 
 who were charged with the task of reforming the entire 
 administration. 2 When in 1297 Edward I., under a pressure 
 to raise money for a foreign war, attempted to subject the 
 nation to unauthorized taxation, he was resisted by the 
 baronial party under the lead of Bohun and Bigod, who, with 
 an armed force at their backs, appeared in the exchequer and 
 forbade the collection of the tax until a promised confirma- 
 1 See above, pp. 396, 397. a See above, pp. 400, 401.
 
 I.] FROM EDWARD I. TO HENRY IV. 499 
 
 tion of the charters had first taken place. In a parliament 
 irregularly summoned in the midst of the revolution the 
 regent was forced to concede, and the king to approve, the 
 national demands, which were embodied in the famous Con- Confirm* 
 firmatio Cartarum. 1 When, early in the reign of Edward II., rum, 1297. 
 a crisis was provoked by the offensive conduct of the royal 
 favorite Piers Gaveston, as well as by the confused condition 
 into which the affairs of the kingdom had fallen, a council of 
 bishops and barons was called to meet the king at Westmin- 
 ster in February, i3io. 2 A condition of things similar to 
 that which in 1258 had brought on the Barons' War seems to 
 have suggested substantially the same procedure as was then 
 employed. The baronial assembly, which in March met the 
 king in arms, resolved that the affairs of the kingdom should 
 be intrusted for a year to a body of twenty-one Ordainers, to The Lords 
 be chosen by themselves, 3 who should ordain such things as i 3 r io. me 
 should be " to the honor and advantage of Holy Church, to 
 the honor of the king, and to his advantage and that of the 
 people, according to the oath which the king took at his 
 coronation." 4 In a parliament composed of the three estates 
 held in London in August, 1311, the Ordainers, after report- 
 ing the six ordinances, which they had published with the 
 king's confirmation in August, I3io, 6 issued thirty-five ad- 
 ditional articles 6 of like tenor, designed to carry out more 
 completely a general reform of existing abuses. In the addi- 
 tional articles (xiii.-xviii.) express provision was made that all 
 the great officers of state were to be appointed by the king 
 with the counsel and consent of the baronage ; and they 
 (xxxix.) were to be sworn in parliament. And it was further 
 provided (ix.) that the king was not to declare war, to sum- 
 mon forces, or to go out of the realm, without the consent of 
 the baronage in parliament. The right thus asserted and 
 
 1 See above, pp. 419-423. cites the Lords' Report (vol. i. p. 259), 
 
 8 The inferior clergy and the com- which states " that the parliament which 
 
 mons were not summoned. York was assembled at Westminster consisted 
 
 first designated as the meeting-place, only of prelates, earls, and barons." 
 
 but a change was afterwards made to 8 As to the election, see Faedera, ii. 
 
 Westminster. See Parl. Writs, i. pp. p. 105 ; Rot. Par!., i. pp. 443, 445 ; Parl. 
 
 40, 41 ; Stubbs, Const. Hist., vol. ii. p. Writs, II., ii. p. 26. 
 
 325, and note 5. Cf. also, pp. 326- * Parl. Writs, II., ii. p. 27. 
 
 330. Although Hallam's text (M.A., 6 Fcedera, ii. p. 113; Rot. Parl., L 
 
 vol. iii. p. 43) would indicate a belief pp. 446, 447. 
 
 upon his part that the commons coop- 6 Statutes, i. p. 157 seq.; Rot. Parl., 
 
 erated in the proceedings, in a note he L pp. 281-286.
 
 500 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Right of 
 the baron- 
 age to the 
 exclusive 
 control of 
 the royal 
 administra- 
 tion. 
 
 Growing 
 power and 
 influence 
 of the com- 
 mons. 
 
 They win 
 the full 
 right of de- 
 iberation 
 the 
 jeign of 
 Edward 
 III. ; 
 
 assent to 
 the treaty 
 of peace 
 with Scot- 
 land, and 
 are con- 
 sulted as to 
 the war 
 with 
 France. 
 
 Hundred 
 
 Years' 
 
 War, 
 
 maintained by the baronage to control all ministerial appoint- 
 ments, as well as the great questions of war and peace, 
 clearly discloses the fact that the nobles were still regarded 
 not only as the sole counsellors of the crown, but as the real 
 representatives of the nation and the guardians of its privi- 
 leges. The parliamentary status of the commons, down to 
 this point, seems to have been but little better than that of 
 mere tax-payers and petitioners for the redress of grievances. 
 From this time, however, the parliamentary position of the 
 commons passes through a marked transformation ; they 
 gradually cease to follow the lead of the barons, who in their 
 turn learn how to follow the lead of the commons. By the 
 statute of 1322, which provided that all matters to be 
 established touching king or kingdom " should be treated, 
 accorded, and established in parliament, by the king, and by 
 the assent of the prelates, earls, and barons, and the com- 
 monalty of the realm," 1 a full and final recognition was 
 made of the right of the commons to participate in all forms 
 of legislation. But the full right of deliberation in parliament 
 did not pass to the representatives of the shires and towns 
 now fast becoming welded into a definitely organized body 
 under the name of the commons until the following reign 
 of Edward III., whose financial necessities, occasioned by 
 his expensive foreign wars, rendered him continually depend- 
 ent upon their bounty. At the very beginning of Edward's 
 reign, during the administration of Isabella and Mortimer, 
 the treaty of peace with Scotland was settled with the coun- 
 sel and consent of the three estates, prelates, earls, barons, 
 and commons. 2 As soon as Edward's personal rule begins 
 we find him, in 1331, consulting parliament on the question 
 of war or peace with France. 3 On these occasions not only 
 the magnates but the knights of the shire, who now deliberate 
 apart, are consulted. In 1336 parliament advises the king to 
 declare war against Scotland, because he "could no longer 
 with honor put up with the wrongs and injuries daily done to 
 him and his subjects by the Scots."* When in 1338 the 
 prolonged struggle known as the Hundred Years' War opens 
 with France, the king declares that he undertakes it with the 
 
 1 See above, p. 494. 
 
 a Rot. far/., ii. p. 442 ; Fcedera, ii. p. 730. 
 
 8 Rot. Par!., ii. p. 6l. 
 
 4 See Parl. Hist., i. p. 93.
 
 I.] FROM EDWARD I. TO HENRY IV. 5 O1 
 
 assent of the nobles, but at the earnest solicitation of the 
 commons, 1 it is called, in fact, " the war which our lord 
 the king has undertaken against his adversary of France by 
 common assent of all the lords and commons of his realm in 
 divers parliaments." 2 In the parliament of 1341, when more 
 money is asked with which to carry on the war, the lords 
 and commons unite in the demand that commissioners be 
 appointed to audit the accounts of those who receive the 
 money in behalf of the king, and that the great officers of 
 state be appointed by the king in parliament, and there 
 sworn to obey the law. 3 Although Edward by an act of 
 duplicity afterwards repudiated these concessions, the vital 
 principle had been announced by both lords and commons, 
 fighting side by side in a common cause, that the ministers 
 who conduct the royal administration are responsible not 
 only to the king, but to the nation in parliament. 
 
 As incidents to the substantive right to supervise and Right to 
 control the royal administration, which the assembly of t 
 estates fully established during the reign of Edward III., ^ 
 should be noted the right to audit the public accounts, and to 
 appropriate the supplies to special purposes. Although the 
 germ of the right last named can be discovered as early as 
 the reign of Henry III. in the arrangements then made for 
 the collection and custody of particular grants intrusted to 
 officers specially appointed for that purpose, 4 the right of 
 appropriation as a parliamentary right was not clearly estab- 
 lished until the middle of the fourteenth century. In 1346 
 and 1348 the practice distinctly appears in the provisions 
 then made that the money collected from the northern coun- 
 ties should be applied to defence against the Scots ; 6 and 
 more distinctly still in 1353, when a subsidy on wool was 
 granted with the express direction that it should be applied 
 exclusively to the prosecution of the war with France. 6 In 
 1380 the commons pray that the aid granted may be ex- 
 pended in defence of the kingdom ; 7 and in 1 390 a part of 
 the custom on wool was appropriated to the expenses of the 
 
 1 Fadera, ii. p. 1015. 6 Rot. Par!.,u. p. 161, art. 15; p. 202, 
 
 8 Cf. Hallam, M. A., vol. iii. p. 53. art. 7. 
 
 8 Rot. Par 1., ii. pp. 128, 130. 6 Rot. Par!., ii. p. 252. 
 
 4 See Select Charters, 2d ed., pp. 355, 7 Rot. Par/., iii. pp. 90, 93, 94. 
 364, 368-
 
 502 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 king, a part to the prosecution of the war. 1 The right to 
 appropriate the supplies, thus clearly established by the par- 
 liaments of the fourteenth century, was not maintained, how- 
 ever, by those of the fifteenth and sixteenth. After the 
 reign of Henry IV. the practice seems to have fallen into 
 disuse, and it was not firmly reestablished until 1666, when, 
 by virtue of the Appropriation Act of Charles II., it became 
 "an undisputed principle, recognized by frequent and at 
 length constant practice," that " supplies granted by parlia- 
 ment are only to be expended for particular objects specified 
 by itself." 2 
 
 Right to Closely allied to the right to appropriate the supplies, was 
 pubik'ac- the right to audit the accounts which contained the history 
 counts. o f their expenditure. The struggle for the establishment of 
 this right, which begins in the time of Edward III., is brought 
 to a close during the minority of his successor. In the 
 stormy parliament of 1341 both lords and commons join in a 
 demand for the appointment of commissioners to audit the 
 accounts of those who had received money granted to the 
 king, and of those who had received and disbursed his money 
 on both sides of the sea since the war began. Although 
 Edward distinctly made the concession, it was probably an- 
 nulled in the general revocation through which the statutes 
 of 1341 were repudiated. 3 The claim is again asserted, how- 
 ever, in Edward's last parliament, by the commons, who prayed 
 that two earls and two barons might be appointed as treas- 
 urers to see that the grants were properly expended. 4 In 
 the first parliament of Richard II. both lords and commons 
 renew the demand ; and when liberal grants are made, the 
 condition is annexed that treasurers be appointed, to the 
 end " that the money might be applied entirely to the ex- 
 penses of the war, and no part of it in any other way." Two 
 London merchants, William Walworth and John Philypot, 
 were then appointed by the king and sworn in parliament to 
 faithfully perform the duty assigned them. 6 Two years 
 later, in the parliament of 1379, the king, of his own motion, 
 
 1 This appropriation was made, says a Hallam, Const. Hist., vol. ii. p. 
 
 Bishop Stubbs, " in a way which antici- 356. 
 pates the modern distinction between 8 See above, p. 501. 
 the civil list and public expenditure." * Rot. Par!., ii. p. 364. 
 Const. Hist., vol. ii. p. 567. 6 Ibid., iii. pp. 5-7.
 
 I.] FROM EDWARD I. TO HENRY IV. $03 
 
 without waiting for a petition from the commons, ordered the 
 treasurers to lay before the parliament the accounts of the 
 subsidy. 1 From that time the right to examine the accounts, 
 and to appropriate the supplies, may be looked upon as clearly 
 established. 
 
 13. Before the close of Edward's reign the doctrine of The right 
 ministerial responsibility, so clearly announced in the mem- ment. pea 
 orable proceedings of I34I, 2 assumed a more serious and 
 threatening aspect when the commons began to employ for 
 the first time the new constitutional weapon of impeachment. 
 The earlier instances of criminal proceedings, which take 
 place in parliament during the period which intervenes be- 
 tween the beginning of the reign of Edward the First and the 
 5<Dth year of Edward III., are both irregular and ambiguous. 8 
 Not until the year last named do we find, in a series of pro- First clear 
 ceedings which take place in the Good Parliament, a clear 
 instance of a parliamentary impeachment in the sense in 
 which that term is now understood. The proceedings against i 37 6. 
 the lords Latimer and Neville, and their agents and accom- 
 plices, 4 who were accused of the commission of all kinds of 
 frauds against the revenue, are regarded by the constitutional 
 historians 6 as the earliest instance of a trial by the lords upon 
 a definite accusation made by the commons sitting as a grand 
 jury of the whole realm. In the early part of the reign of 
 Richard II. the new weapon forged by the commons is used 
 without stint, and before the close of the reign occurs the 
 famous accusation against the lord chancellor, Michael de la impeach- 
 Pole, who was impeached for grave misconduct in his office. 6 Mulhaefi de 
 From frequent repetition and employment, the law and prac- ^ Pole > 
 tice of parliamentary impeachment was, by the end of Rich- Suffolk. 
 ard's reign, established in substantially the same form in 
 which it appears in modern times. Through the establish- Doctrine of 
 ment of this means of punishment, the doctrine of ministerial resp^nslifil 
 responsibility, which appeals in an embryonic form during the '*>' pla "j d fi 
 minority of Henry III., was finally placed upon a definite niteconsti- 
 constitutional basis. As the constitution prescribed no 
 
 1 Rot. Par/., iii. pp. 56, 57 ; Stubbs, 6 Cf. Hallam, M. A., vol. iii. pp. 54- 
 Const.Ifist.,\o\. ii. pp 567-569. 57; Stubbs, Const. Hist., vol. iii. pp. 
 
 2 See above, p. 501. 430, 431. 
 
 8 Stephen, Hist, of the Crim. Law, 6 Rot. Par!., iii. p. 216; Knighton, c. 
 vol. i. pp. 145-148. 2684. Precise and formal charges 
 
 * Rot. Parl. ii. pp. 323-326 and 329. were presented against Suffolk.
 
 504 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Legal fic- 
 tion that 
 the king 
 can do no 
 wrong. 
 
 The right 
 of deposi- 
 tion. 
 
 Right of 
 the witan 
 to depose 
 the king : 
 
 a right 
 never as- 
 serted by 
 the feudal 
 councils of 
 the Nor- 
 man and 
 Angevin 
 kings. 
 
 mode, short of deposition, through which the king could be 
 made personally amenable for any act of maladministration, 
 it became necessary to accept the legal fiction that the king 
 in his political capacity could do no wrong, or rather that in 
 the conduct of public affairs nothing could be imputed to his 
 bad intentions. In order to give efficacy to this fiction, 
 which excused the king while it punished the minister, it 
 became necessary for the law to deny to the minister either 
 the right to claim immunity from punishment by pleading 
 obedience to the commands of his sovereign, or a pardon 
 granted by him under the great seal pending the impeach- 
 ment. 1 
 
 14. The ever-widening power of parliament which thus 
 drew to itself the right to control the royal administration, 
 and to impeach and punish the ministers guilty of misconduct, 
 did not reach the limit of its growth until the doctrine was 
 finally established that, in the presence of a great emergency, 
 the assembly of estates possessed the right to lay hands upon 
 the throne and to depose the king himself. From the an- 
 nals of the Old-English commonwealth the fact appears that 
 the witan, which possessed the power to elect the king, pos- 
 sessed also the correlative right to depose him whenever his 
 government was not conducted for the good of his people. 
 Although the greater number of instances in which this power 
 seems to have been exercised belong to the period which pre- 
 cedes the union of the heptarchic kingdoms under the house 
 of Cerdic, there are at least two well authenticated acts of 
 deposition which occur after that event. In 958 the unity 
 of the realm was broken by a revolt in which the Mercians 
 reject Eadwig, sever their-kingdom from his, and elect Ead- 
 gar as their king. Early in the next century, ^Ethelred the 
 Second was deposed in favor of his conqueror, and after- 
 wards by act of the witan restored to the throne. 2 Such acts 
 of supreme authority, occasionally performed by the Old- 
 English national assembly, were never repeated, however, by 
 the less authoritative feudal councils which, during the two 
 centuries that follow the Conquest, gathered around the Nor- 
 
 1 As to the law of impeachment as 
 finally settled, see above, pp. 442, 443 ; 
 
 as to the practice, see May, Par/. Prac- 
 tice, ch. xxiii. 
 8 See above, pp. 189, 190.
 
 I.] FROM EDWARD L TO HENRY IV. 505 
 
 man and Angevin kings. Not until after such feudal councils 
 were transformed into an assembly of estates did the repre- 
 sentatives of the nation dare to revive that highest of all Right re- 
 rights which the witan had occasionally exercised from the the e assem- 
 very earliest times. To Edward I. belongs the honor of b] y f 
 
 . estates. 
 
 having transformed the feudal council into an assembly of 
 estates ; within thirty years of the' first meeting of such as- 
 sembly at Westminster, the limit of its sovereign power was 
 reached in the deposition of his son. By the deposition of Deposition 
 Edward II. the parliament, for the first time since the Con- { Edward 
 quest, asserted the right to rid the nation of a worthless and 
 incompetent king. The first serious conflict which Edward 
 provoked, by making himself subservient to the favorite Piers 
 Gaveston, resulted in a practical transfer of the royal power 
 for a time to a committee of prelates and barons called the The Lords 
 Ordainers. 1 The fatal conflict which at a later day arose out Ordainers - 
 of the choice of new favorites, in the persons of the Dis- 
 pensers, led Edward into a revolution in which his foes were 
 marshalled under the leadership of his wife Isabella, and her 
 paramour Mortimer. Deserted in the hour of his need by all 
 upon whom he had the right to rely, the king sought safety 
 in flight, leaving the kingdom to the queen and Mortimer, 
 who began their administration by having the young Edward, 
 with the assent of the assembled magnates, proclaimed guar- 
 dian of the realm on the 26th October, 1 326.2 In November Edward's 
 the king was captured, and in a parliament which met on the by^hfJJ? 
 7th January, 1327, the question of his fate was submitted by Kamentof 
 the partisans of the queen to an assembly to which were 
 summoned, in addition to the usual constituents, forty-eight 
 representatives from Wales. 3 To the parliament thus con- 
 stituted the question was put, whether they would have the 
 father or the son to be king ? In answering this question in six art ; cles 
 favor of the son, the parliament expressed, in six articles ^'"."P 
 drawn up by Stratford, Bishop of Winchester, the reasons Stratford. 
 
 1 See above, p. 499. Lords' Report, vol. i. p. 289. By 34 and 
 
 3 Fcedera, ii. p. 646 ; Parl. Writs, II. 35 Hen. VIII., c. 26, Wales was di- 
 
 i. p. 349. vided into twelve counties, with the 
 
 * " No attempt to procure representa- right to send one knight each to par- 
 
 tives from either North or South Wales liament; every borough which was a 
 
 appears to have been afterwards made shire town being allowed to send one 
 
 until the act passed for the purpose in burgess. 
 
 the reign of Henry the Eighth."
 
 506 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 why Edward of Carnarvon should cease to reign. His in- 
 capacity to govern, his heed of evil counsellors, his neglect of 
 good counsel, the loss of Scotland, Ireland, and Gascony, his 
 oppression of the church and baronage, his violation of his 
 coronation oath, and the general mischief which he had 
 wrought to himself and the realm, were the specific accusa- 
 tions preferred against him. As no formal trial was had, or 
 proof taken upon the charges, it was considered a prudential 
 measure to send a deputation of the parliament to obtain 
 Edward as- Edward's consent to the election of his son. 1 After the dis- 
 son's eiec- 1S crowned king had meekly yielded to his fate, Sir William 
 tion. Trussell, as proctor of the whole parliament, after renouncing 
 
 the homage and fealty of those he represented, said : " I now 
 make protestation in their name that they will no longer be 
 in your fealty and allegiance, nor claim to hold anything of 
 you as king, but will account you hereafter as a private 
 person, without any manner of royal dignity." Sir Thomas 
 Blount, the steward of the household, then broke his staff of 
 office in token of the fact that the king had ceased to reign. 2 
 This final ceremony, used only on the occasion of a king's 
 death, was the omen of Edward's murder which occurred in 
 the following September. 
 
 Deposition The deposition of Edward II., which was the result of mere 
 of Richard wear { ness U p O n the part of the nation with a worthless and 
 incompetent king, was followed, after an interval of seventy- 
 two years, by the deposition of Richard II., which stands out 
 as the culmination of a conflict in which the royal authority, 
 after having defied the constitution by an assumption of 
 absolute power, was completely mastered and overcome by 
 Richard's the irresistible supremacy of parliament. The candor, the 
 youth. 1 " 11 liberality, the courage, manifested by the youthful Richard 
 at the outset of his reign, when in the midst of revolution he 
 was brought face to face with the miseries of his people, gave 
 no token of the imperious and fanatical spirit which in his 
 maturer years provoked his deposition and murder. The 
 brilliant reign of Edward III., during which the military re- 
 nown of England reached perhaps its highest point, was the 
 nursery of a social discontent which began to manifest itself 
 
 1 T. de la Moor, p. 600. action, with the authorities, may be 
 
 8 A clear account of the whole trans- found in Lingard, vol. ii. pp. 259-261.
 
 I.] FROM EDWARD 7. TO HENRY IV. 507 
 
 for the first time in the ranks of the common people. The 
 peasant revolt, which Richard was called upon to quell upon Causes of 
 the threshold of his career, was the result of causes which the tevcST 5 ' 
 pressure of perpetual war, and the visitations of the great 
 plague, had set to work in his father's time. When, at the Condition 
 close of 1348, the Black Death began its desolating march f^Ss^" 
 through the English kingdom, the laboring classes, amongst a - n t ^ be " f 
 whom its results are historically most prominent, had for a the Black 
 century or more been moving from the lower stages of serf- i-^s. 
 age, in which the duties of the villein to his lord were dis- 
 charged by personal services, to a state of comparative free- 
 dom, in which personal services were commuted by money 
 payments. So rapidly had the process of enfranchisement 
 advanced, that lords of manors were obliged to rely for 
 the cultivation of their lands upon hired laborers who took 
 the places of the villeins, who were now discharging their 
 duties to their lords by rentals in money in lieu of base ser- 
 vices. Upon this hopeful condition of things the great plague 
 fell like a blight. By its ravages the total population was so Population 
 reduced that hired labor, which had heretofore been cheap that^h-ed* 
 and abundant, now became dear and scarce. It is probable labor ^ 
 
 ' \ came dear 
 
 that not much less than half of the entire population was and scarce. 
 
 destroyed, 1 and the number of laborers was so reduced that 
 
 those who survived demanded double the old rate of wages. 
 
 As a remedy for this condition of things, which threatened 
 
 ruin to the great landowners, and to the wealthier craftsmen 
 
 of the towns, the council in 1349 passed an ordinance which The council 
 
 attempted to regulate the price of labor by providing that all reguTa^the 
 
 laborers should be forced to serve at the rate of wages which a te e b 
 
 had prevailed before the plague began. 2 This ordinance, pub- ordinance. 
 
 lished in June, was afterwards turned into the statute known statute of 
 
 as the Statute of Laborers. 8 This measure the parliament of 
 
 1351 rendered still more stringent by denying to the laborer 
 
 the right to quit his parish in search of better employment.* 
 
 When the villeins refused to accept the starvation wages thus 
 
 held out to them, the landlords fell back upon their demesne 
 
 1 Cf. Rogers, History of Prices, L viii., made an act of parliament, and 
 p. 60. constitutes stat. 23 Edw. III." 
 
 2 Knighton, c. 2600; Facdera, iii. c. Reeves, Hist. Eng, Law, vol. iii. p. 
 198 ; Statutes, i. 307. 128. 
 
 8 23 Edw. III. "This ordinance was * 25 Edw. III. 
 afterwards by stat. 3 Rich. II., st. i, c.
 
 508 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Conflict 
 between 
 capital and 
 labor inten- 
 sified by 
 the teach- 
 ings of the 
 Lollard 
 preachers. 
 
 The poll- 
 tax. 
 
 Rising of 
 the com- 
 mons be- 
 gins on the 
 5th June, 
 1381. 
 
 The politi- 
 cal griev- 
 
 rights, which when contested were tried in the manor court, 
 presided over by the steward, whose interest it was to have 
 the judgment given against the villein and in favor of the lord. 1 
 The wide-spread irritation and discontent among the lower 
 classes which grew out of this bitter conflict between capital 
 and labor was also quickened and intensified by the teachings 
 of some of the Lollard preachers, who went about not only 
 inveighing against the right of the clergy to hold property, 
 but against the whole system of social inequality, which during 
 the middle ages held the rich and the poor so wide apart. 
 Foremost among agitators of this class stood John Ball, " a 
 mad priest of Kent," who openly proclaimed a new doctrine 
 of social equality, based upon the natural rights of man, which 
 found quaint yet pointed expression in the popular rhyme : 
 
 When Adam delved and Eve span, 
 Who was then the gentleman ? 2 
 
 The social discontent which thus smouldered at the end of 
 Edward's reign broke into flame when, shortly after the 
 accession of his son, the pressure of taxation was applied 
 with fresh force, and through a new device, to every hearth 
 and home in the realm. In the last year of Edward's reign 
 the parliament of 1377, in order to meet the urgent need of 
 money to carry on the war with France, devised a new form 
 of general taxation by granting to the crown a poll-tax of a 
 groat a head. 3 Two years after Richard's accession the par- 
 liament of 1379, in response to another pressing demand for 
 money, granted a second poll-tax, under which every man 
 was charged with a direct contribution in proportion to his 
 rank or dignity. 4 In the next year still another and severer 
 poll-tax was granted. 6 The collection of this last tax in June, 
 1381, was the signal for revolt, on the 5th of June the 
 rising of the commons began. Although the grounds of dis- 
 content seem to have varied somewhat in every district, two 
 great motives for revolt stood out above all the rest, clearly 
 and distinctly defined. The first was the political grievance 
 which grew out of the imposition of the poll-tax, whereby the 
 
 1 As to such proceedings, see See- 
 bohm, Eng. Village Community, pp. 30. 
 31 ; Reeves, Hist, Eng. Law, vol. lii. 
 pp. 130-132, notes, Finlason, ed. 
 
 2 Cf. Green, Hist, of the Eng. People, 
 vol. i. p. 440. 
 
 8 Rot. Par!., ii. p. 364. 
 * Ibid., iii. pp. 57, 58. 
 6 Ibid., iii. p. 90.
 
 I.] FROM EDWARD I. TO HENRY IV. $09 
 
 pressure of the war was brought home to the laboring classes, 
 already in a state of seething discontent, by subjecting them 
 to a burden which had not before been imposed upon them. 
 The second was the social grievance which grew out of the The social 
 attempts of the landlords to exact work from the laborer at 
 low wages, or, in default of that, to revive their demesne 
 rights to base services from men who had begun to regard 
 themselves as no longer villeins. The first actual outbreak, Wat Tyler 
 which began in Kent on the $th of June, was provoked by 
 the collection of the poll-tax ; this seems to have been the men 
 main grievance of the hundred thousand Kentish men who 
 gathered around Wat Tyler of Essex to march upon London : 
 their cry was for the suppression of the poll-tax and better 
 government. On the other hand, the grievance of the men The 
 from Essex and the eastern counties seems to have been 
 
 rather social than political ; their demand was that bondage eastern 
 should be abolished, that tolls and other imposts on trade 
 should be done away with, that the native-born villein should 
 be emancipated, and that all villein service should be com- 
 muted for a rent of fourpence the acre. 1 When, on the Richard's 
 morning of the I4th of June, Richard rode from the Tower 
 to Mile-end to meet the Essex men, their cry was, " We will men - 
 that you free us forever, us and our lands ; and that we be 
 never named nor held for serfs." In reply the king promptly 
 pledged his royal word that their demands should be granted ; 
 and as soon as the charters of freedom and amnesty could be 
 drawn, the mass of those seeking emancipation withdrew to 
 their homes. The same happy result followed when, on the 
 next day, Richard, meeting the Kentish men, made to them 
 the same pledges of freedom, coupled with the reminder that 
 he was their captain and their king. In a little more than a Revolt 
 fortnight the revolt was over, and then came a period of 
 reaction, during which the confiding peasants were taught to a fortnight 
 feel how little trust could be placed even in the written 
 pledges of a king. On the 3Oth of June a royal proclamation 
 was issued ordering all tenants of land to continue their 
 accustomed services ; 2 on the 2d of July the charters of free- 
 dom and pardon were revoked, 3 and on the i8th the local 
 
 1 For a full statement of the crisis a Fcedera, iv. p. 126. 
 and its causes, see Stubbs, Const, ffist^ 8 Ibid, iv. p. 126. 
 vol. ii. pp. 449-463.
 
 510 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 courts were ordered not to release their prisoners. 1 Tres- 
 
 silian, the chief justice, then began to bring the law to bear 
 
 upon the insurgents, who were punished with the greatest 
 
 in spite of cruelty. And yet, in spite of all the cruelty and repression 
 
 repression? tnus applied by the government to the laboring classes dur- 
 
 the purpose j n g ^ ne period of reaction which followed the revolt, the great 
 
 volt fully purpose of the revolution was fully accomplished. The can- 
 
 piished. cellation of charters upon the part of the crown, the attempt 
 
 upon the part of the landlords to revive their old demesne 
 
 rights, could not conceal the fact that villeinage had received 
 
 Within a its death-blow. 2 The process of enfranchisement, so hope- 
 
 Thaiflfte? fully progressing when the advent of the plague arrested 
 
 viikhia"!' * ts P ro S ress advanced again so rapidly that, at the end of 
 
 an obsolete a century and a half from the time of the rising, villeinage 
 
 institution. , . . ., , , . . 
 
 was looked upon as a rare if not an obsolete institution. 
 Yeoman And as the work of enfranchisement advanced, the number 
 comesThe ^ sm all freeholders was so increased by the constant ac- 
 basisof the cession of new freemen that the yeoman class soon came 
 system. to be regarded in every shire as the basis of the electoral 
 
 system. 3 
 
 The In 1 394 the queen, Anne of Bohemia, died, and two years 
 
 chan k g e d in thereafter the king married a second wife, Isabella, the 
 Richard's daughter of Charles VI. of France. From that time dates 
 
 temper 
 
 dates from the marked change of temper which prompted Richard to 
 marriage C in drop all disguises, and to exhibit his purpose of ruling as an 
 13961 absolute monarch, surrounded by a profuse and profligate 
 court. While the king was in this mood an effort was made 
 by the parliament of 1397 to reform, among other things, the 
 royal household. When the bill of complaint upon that sub- 
 ject, which originated with the commons, was presented to 
 the lords, the king sent for them, 4 and requested them to 
 inform the lower house of the offence they had given in pre- 
 suming to " take on themselves any ordinance or governance 
 of the person of the king, or his hostel, or of any persons of 
 estate whom he might be pleased to have in his company." 
 
 1 Feeder a, p. 128. to oppose his assertion of right in the 
 
 3 " The landlords gave up the prac- courts of the manor and the county." 
 
 tice of demanding base services : they Stubbs, Const. Hist., vol. ii. p. 462. 
 
 let their lands to leasehold tenants, * Green, Hist, of the Eng. People, 
 
 and accepted money payments in lieu vol. i. p. 486. 
 
 of labor ; they ceased to recall the * Rot. Parl. t iii. pp. 338-340. 
 
 emancipated laborer into serfdom, or
 
 I.] FROM EDWARD I. TO HENRY IV. $11 
 
 Not content with this rebuke, he also commanded the Duke Richard 
 of Lancaster to demand of the house, through the speaker, to commons, e 
 
 give up the name of the member who had dared to bring 
 forward the offensive proposal. In response to the demand name of 
 
 ,,-,.._, the offend- 
 
 the obsequious commons gave up the name of Sir Thomas ing mem- 
 Haxey, a prebendary of Southwell, who was condemned by 
 the lords to suffer the death of a traitor, 1 a fate from which 
 he was saved by being claimed as a clergyman by Archbishop 
 Arundel. 
 
 In the new parliament, which met in September of this A fresh 
 year, the crime of treason, which with its penalty had first 
 been defined by a law passed in 1352,2 received a fresh defini- 
 tion in a statute which declared the four articles of treason 
 to be, the compassing of the king's death or deposition, the 
 levying of war against him, and the surrendering the liege 
 homage due to him. 3 After the king had procured such 
 further legislation as enabled him to punish his enemies, 
 chief among whom were the appellants Arundel, Gloucester, 
 and Warwick, this parliament, which had been elected 
 under the open pressure of royal influence, was adjourned to 
 Shrewsbury, where it sat for three days. During these days, Parliament 
 through parliamentary action which purported to be volun- 
 tary, Richard was transformed into a practically absolute 
 
 monarch, and parliamentary government for a time brought practically 
 to an end. After granting a subsidy on wool, woolfells, and a 
 leather to the king for life, 4 such a grant as had never been Grant of a 
 before made, the parliament terminated its existence by jjf sidyfor 
 delegating its authority to a committee of eighteen members, 
 who were empowered not only to hear petitions, but also " to 
 examine and determine all matters and subjects which had been 
 moved in the presence of the king, with all the dependencies 
 thereof." 5 In this wise, by bringing about the surrender of 
 the authority of parliament into the hands of a committee, 
 selected from those who were supposed to be his faithful 
 adherents, Richard accomplished for a time the great consti- 
 tutional change to which his policy since the French mar- 
 riage had been openly directed. 
 
 1 Haxey was condemned under an * Rot. Par!., iii. p. 343. See Reeves, 
 
 ex post facto ordinance passed by the Hist, of Eng. Law, vol. iii. pp. 187, 
 
 lords and the king. Rot. Par/., hi. pp. 315. 
 
 339. 34i. 47. 408. * Rot. Par!., iii. p. 368. 
 
 5 Ibid., ii. p. 239. Ibid., iii. pp. 369, 372, 385.
 
 $12 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Reaction Although this daring usurpation, through which the king 
 followed struck down the power of parliament, and secured for himself 
 
 usur a ation a revenue f r ^ e > was not at the moment resisted, the reac- 
 costhimhis tion which followed it led directly to his deposition, and to 
 
 crown and - .. , , . _, 
 
 his life. the transfer of the crown to the house of Lancaster. The 
 opportunity for the counter-revolution grew out of a quarrel 
 Quarrel be- which occurred in December, 1397, between the Duke of 
 foiifand 01 Norfolk and the son of John of Gaunt, Henry of Lancaster, 
 Hereford. now D u k e o f Hereford. The settlement of the quarrel was 
 referred by a committee of parliament 1 to a court of chiv- 
 alry, which met in April, 1 398, and in which it was decided 
 that the quarrel between the two dukes should be settled 
 by single combat at Coventry in the following September. 
 When at the time appointed the dukes entered the lists, 
 Richard forbade the combat, and sentenced Norfolk to ban- 
 ishment for life, and Henry of Lancaster to exile for six 
 Henry of years. The exile thus forced upon the heir of Lancaster was 
 cned, S and soon followed by an act of confiscation. In January, 1399, 
 confiscated J^ n ^ Gaunt died, and although special leave had been 
 given Henry to receive his inheritance on the death of his 
 father, Richard, under an ordinance passed by the parliamen- 
 tary committee, 2 annulled the permission and seized the 
 Lancastrian estates. Two months after that event the king 
 left the realm in charge of his uncle, Edmund, Duke of York, 
 as regent, and went to Ireland for the purpose of reducing it 
 to complete subjection. An opportunity was thus promptly 
 offered to the exiled and disinherited Henry not only to 
 redress his own wrongs, but to become the leader of the 
 counter-revolution through which the nation was to reestab- 
 lish, more firmly than ever before, the supremacy of parlia- 
 Henry ment. On the 4th of July, 1399, Henry landed in Yorkshire, 
 Yorkshire and as he marched rapidly to the south, with an army that 
 g rew at every step, all show of resistance broke down, the 
 forces gathered by the regent refusing to oppose him. By 
 the first of August, Henry was so completely in possession of 
 the realm that when Richard landed in Wales all chance for a 
 struggle was over. On the 2d of September the king was 
 brought to London and placed in the Tower, and on the 3Oth 
 
 1 Rot. Par/., iii. p. 383. pp. 49, 51 ; Stubbs, Const. Hist., vol. ii. 
 
 2 Ibid., iii. p. 372 ; Rymer, viii. pp. 500, 501.
 
 I.] FROM EDWARD L TO HENRY IV. 513 
 
 of that month the parliament met in which his fate was to 
 be decided. The procedure which was now employed was 
 a substantial reproduction of that which seventy-two years 
 before had attended the deposition of Edward II. On the Procedure 
 day before the parliament met, Richard was required to sign a deposition 
 deed of resignation in which he fully renounced his right to the j{ Rlchard 
 crown, and absolved his people from their oaths of homage 
 and fealty. 1 The parliament not only accepted the resigna- 
 tion, but in addition thereto pronounced a judgment of deposi- 
 tion, upon written articles presented against the king in which 
 he was formally charged with every possible act of illegality 
 and malversation. 2 The throne having thus been made 
 vacant, not only by Richard's own act, but by the act of 
 parliament, the all-important question of the succession re- 
 mained to be determined. If that question had depended Theques- 
 only on the strict rule of hereditary descent which the feudal 
 lawyers applied to the succession of estates, the crown would 
 have now passed to Edmund Mortimer, the infant son of 
 Roger Mortimer, Earl of March, son of Phillippa, the daugh- 
 ter and heiress of Lionel of Clarence, the third son of Edward 
 III. But the strict rule of hereditary descent had not yet strict rule 
 received positive and formal recognition in the case of the ^ r y e d r e s d c ent 
 crown: it had not yet superseded the immemorial right of not yet ap- 
 
 * plied to the 
 
 the national council to choose, in the presence of a great crown, 
 emergency, that member of the royal household whom it 
 deemed most competent to govern. 3 And yet the notion that 
 the right to the throne depended upon the hereditary prin- 
 ciple had sufficiently advanced to prompt Henry, when he 
 stood forth before the parliament to challenge the crown, to 
 claim it " as that I am descended by right line of blood com- 
 ing from the good lord king Henry III."* But this shadowy Henry's 
 claim, which depended upon a false tradition, was too flimsy the V resuit 
 to conceal the patent fact that the new monarch had been ofapariia- 
 
 r . mentary 
 
 raised to the throne through a parliamentary revolution, revolution. 
 
 1 Ann. Ricardi, pp. 252, 255 seg. ; parliament to choose in such a case a 
 Man. vtsA., pp. 1 57 sea. On the next successor among any other members 
 day the resignation was accepted. Rot. of the royal house." Green, Hist, of 
 Par/., iii. p. 416 seq. the Eng. People, vol. i. p. 521. 
 3 Rot. Par/., iii. pp. 416-424. * See what Mr. Freeman has to say 
 8 " The strict rule of hereditary de- as to the growth of the hereditary doc- 
 scent had never received any formal trine, in Enc. Brit., gth ed. vol. viii. p. 
 recognition in the case of the crown, 320. 
 and precedent suggested a right of
 
 $14 THE GROWTH AND DECLINE OF PARLIAMENT. 
 
 that the royal authority was for the future to rest upon a 
 parliamentary title. And so it came to pass that the auda- 
 cious attempt made by Richard to subvert the constitution, 
 by rendering the crown independent of the assembly of 
 estates, not only became abortive the moment the nation 
 under a competent leader was aroused to action, but it also 
 fell out, as a consequence of the struggle, that the crown was 
 placed in such a position of dependence upon the two houses 
 as to render all such future attempts doubly perilous. 
 Authority Through the results of the counter-revolution, the authority 
 ment rh: f parliament reached the limit of its growth when, after a 
 Hmlfof its 6 stru ggl e f scarcely two months' duration, it deposed the 
 growth ruling sovereign ; and then, after ignoring the pretensions of 
 results of * the claimant who really represented the hereditary title, 
 tion. revolu ~ awarded the throne to another member of the royal house, 
 whom it deemed more competent to govern. 1 
 
 1 During the memorable crisis of to depose the king himself from his 
 
 1386 the parliament had warned the royal throne, and in his stead to raise 
 
 king that a time might come when it up some other of the royal race upon 
 
 would be "lawful for his people, by the same." Knighton, c. 2683; Parl. 
 
 their full and free assent and consent, ffist., L p. 186.
 
 CHAPTER II. 
 
 HISTORY OF PARLIAMENT FROM HENRY IV. TO HENRY VII. 
 
 I. A POINT has now been reached from which it is possible Review of 
 to review the general advance made by the parliament during 
 the period which intervenes between the Norman conquest 
 
 and the end of the fourteenth century. During that period quest to the 
 the feudal councils which gathered around the Norman and Henry iv. 
 Angevin kings, with authority too vague and shadowy for 
 precise definition, are gradually transformed into an assem- 
 bly of estates which wins not only the right to participate in 
 taxation and legislation, but to supervise and control the en- 
 tire system of national administration. At the beginning of 
 the period all of the great powers of government are central- 
 ized in the person of the king, acting ordinarily through his 
 continual council composed of the officers of state and of 
 the household, from which body emanated all the important 
 acts of government, whether administrative, legislative, judi- 
 cial, fiscal, or political. At the end of the period we find The sum of 
 that the sum of governmental power originally vested in the mTnui 
 king in council has been vastly reduced through the opera- f n 7 ly r ng " 
 tion of two distinct processes of subtraction. In the first y e st fdin 
 
 * the king m 
 
 place, by the growth out of the continual council which soon council re- 
 came to be known as the curia regis l of the common law double pro- 
 courts of king's bench, common pleas, and exchequer, the tractbn 8 ^ 
 greater part of the judicial work of the council was perma- 
 nently transferred to three distinct tribunals, each devoted to Greater 
 the hearing of a definite class of causes. And when at a judicial 
 later day, out of the residuum of judicial power retained by ^undi the 
 the council, was developed the equitable jurisdiction of the transferred 
 chancellor, the judicial functions of the crown were confined courts of 
 within a still narrower circle. By the transfer thus brought equity. 
 
 1 The term curia regis, which for a into three distinct courts which took 
 
 long time after the Conquest was ap- place at the end of the reign of Henry 
 
 plied not only to the continual but to III. of the limited tribunal created 
 
 the national council, finally became the out of the council by Henry II. in 
 
 exclusive designation of the court of 1179. See above, pp, 248, 249. 
 king's bench, after the final division
 
 5l6 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 about of the greater part of the judicial business originally 
 dispatched by the king in council to the great courts of law 
 and equity, the central administration, in its judicial aspect, 
 was transformed into a government of law as distinguished 
 from a government of functionaries. 1 In this way the prin- 
 ciple became settled that judicial controversies should no 
 longer be determined by the mere force of royal authority, 
 Due pro- but by due process of law, that is, by law administered in 
 defined. aw fixed tribunals by trained judges governed by principles and 
 precedents drawn from the Old-English code of customary 
 law as modified by Norman innovation. That the judicial 
 work of the kingdom should be thus conducted was as late 
 as the reign of Henry IV. made the subject of a special de- 
 mand in parliament : in 1406 the commons, as a part of the 
 scheme of reform pressed upon the king in that year, demand 
 that the council shall determine nothing cognizable at com- 
 mon law unless for reasonable cause and with the consent of 
 the judges; that the council and officers of state shall be 
 sworn to observe the common law and all statutes, specially 
 The assem- those recently enacted. 2 In the second place, while the law 
 states es courts were upon the one hand drawing to themselves the 
 control of the bulk of the judicial work which had originally 
 belonged to the king in council, the assembly of estates was 
 upon the other struggling to draw to itself the exclusive con- 
 tr l f tne legislative, taxative, and fiscal business of the 
 ness of the kingdom. But before the national assembly was in a position 
 to essay so great a task, a reorganization had first to be ef- 
 fected in its own constitution, a result which was brought 
 about by the building up alongside of the older feudal coun- 
 cil of a new and a popular body composed of representatives 
 from the shires and towns. How these representative mem- 
 bers were called up to confer with the king upon the business 
 
 1 " The guarantee of the supremacy 2 Rot. Part., iii. pp. 585-589. A 
 of the law leads to a principle which, series of petitions begin as early as 
 so far as I know, it has never been at- 1351 against the judicial usurpations of 
 tempted to transplant from . the soil in- the council. See Rot. Part., ii. pp. 228, 
 habited by Anglican people, and which, 239, 295. In 1390 the commons peti- 
 nevertheless, has been, in our system of tioned that no one should be sum- 
 liberty, the natural production of a moned before the chancellor or the 
 thorough government of law as contra- council by the writ quibusdam de causis 
 distinguished to a government of func- to answer in any case in which the 
 tionaries," Lieber, Civil Liberty and common law gave a remedy. Rot. 
 Self-Government, p. 91, Parl., iii. p. 267.
 
 II.] FROM HENRY IV. TO HENRY VII. S 1 7 
 
 of the kingdom as a matter of mere fiscal expediency, how 
 they coalesced in the formation of the lower house, and how 
 that house gradually won the right to participate in taxation 
 and legislation, to impeach the ministers, to participate in the 
 general control of the royal administration, and in the deposi- 
 tion of the king himself, has been drawn out already. In 
 the parliament thus reconstructed the commons soon ceased 
 to be mere auxiliaries of the baronial body : they became the 
 more active and aggressive force in the new combination. 1 
 
 By the end of the fourteenth century the parliament as an The five 
 assembly of estates had won for itself the possession of five rig 
 substantive rights which embraced all of the higher functions 
 of government: i. The exclusive right to authorize both di- at the close 
 
 . , . . , . of the f our- 
 
 rect and indirect taxation ; and as an incident thereto the teenth cen- 
 commons claimed the right to make the grant of supplies tury ' 
 dependent upon the redress of grievances. 2. The right to 
 concur in the enactment, amendment, and repeal of all per- 
 manent acts of national legislation. 3. The right to super- 
 vise and control the royal administration ; and as incidents 
 thereto (a) the right to appropriate the supplies to special 
 purposes, (b] and to audit the accounts which explained the 
 method of their expenditure. 4. The right to impeach and 
 punish the ministers. 5. And finally the right to depose the 
 king himself, and to vest the succession in another member 
 of the royal house more competent to govern. 
 
 And yet, when a summing up is made of the results of the Neither 
 two processes of subtraction through which the bulk of the subtraction 
 judicial business was transferred from the king and council exhaustive. 
 to the great courts of law and equity on the one hand, and 
 the virtual control of the legislative, taxative, and fiscal busi- 
 ness of the kingdom to the parliament on the other, the im- 
 portant fact remains that neither process was exhaustive. 
 After the jurisdictions of the four great courts at Westmin- 
 ster had been fully and finally established, an undefined re- Anunde- 
 serve of judicial power still remained to the king in council, serve o7 
 a reserve out of which at a later day grew the court of 
 
 star chamber, a reserve which has reached our own time in islative 
 the form of the judicial committee of the privy council. In mains to 
 the same way, and about to the same extent, the parliament, councuf m 
 1 See above, pp. 482-504.
 
 5i8 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 A definition 
 of the pre- 
 rogative. 
 
 Definition 
 of parlia- 
 mentary 
 privileges 
 the work of 
 the 
 
 fifteenth 
 century. 
 
 Privileges 
 belonging 
 to parlia- 
 ment as a 
 whole : 
 origin of the 
 modern 
 form of leg- 
 islation. 
 
 in its effort to draw to itself the exclusive control of taxation 
 and legislation, stopped short of complete victory. After 
 persistent warfare, the assembly of estates finally extinguished, 
 it is true, the taxative power of the king in council. But the 
 effort made by parliament to win the exclusive control of leg- 
 islation was less conclusive. At the end of the struggle 
 there still remained in the hands of the king in council an 
 undefined reserve of legislative power which was for a long 
 time exercised in the making and revoking of a class of tem- 
 porary enactments known as ordinances. When to the inher- 
 ent right of the crown to conduct the executive business of 
 the kingdom are added the personal privileges incident to 
 kingship, and the two remnants of judicial and legislative 
 power which remain to the king in council after the full de- 
 velopment of the law courts and the parliament, the sum thus 
 made up represents the aggregate of royal authority gen- 
 erally known in mediaeval and modern times as the prerogative. 
 
 2. By the end of the fourteenth century all of the substan- 
 tive powers of parliament had reached their full growth. 
 During the fifteenth, no new powers are added. Nothing in 
 fact transpires in the history of parliament during the latter 
 period more important than the settlement of its principal 
 forms of procedure, and the assertion and definition of privi- 
 leges 1 which belong either to the parliament as a whole, or to 
 the respective houses of which it is composed, or to its indi- 
 vidual members. 
 
 Chief among the privileges belonging to parliament as a 
 whole, which received final definition during the fifteenth 
 century, was that which involved the form in which the es- 
 tates should concur with the king in the enactment of legis- 
 lation. After the principle was settled that the concurrence 
 of both houses in legislation was necessary, the common form 
 of legislating throughout the fourteenth century was that 
 initiated by the petitions of the commons, to which the king 
 
 1 " During this epoch, the parlia- 
 ment gained none of those signal vic- 
 tories which distinguished the reigns of 
 Edward III. and Richard II. ; no really 
 new right, no fundamental and previ- 
 ously unknown guarantee, were added 
 to those already possessed. . . . The 
 internal constitution of the parliament, 
 
 especially during the course of this 
 period, made important progress ; from 
 this time we may date, with some de- 
 gree of accuracy, its principal forms of 
 procedure, and its most essential privi- 
 leges." Guizot, Hist. Rep. Govern- 
 ment, pp. 509, 510 (Scoble's trans.).
 
 II.] FROM HENRY IV. TO HENRY VII. $19 
 
 was expected to reply during the session of parliament. 
 When the answer came it was entered, together with the pe- 
 tition, in the parliament rolls, and out of the two, after the 
 adjournment, the act itself was drawn and entered in the 
 statute rolls. The manifold abuses and uncertainties which 
 grew out of this loose and unguarded system have been ex- 
 plained already. To remedy the evils which grew out of this 
 uncertain method of "extracting of the statute out of the 
 petition and answer, about the latter end of Henry VI. and 
 beginning of Edward IV. they (the commons) took a course 
 to reduce them, even in the first instance, into the full and 
 complete forms of acts of parliament." 1 After the passage 
 of bills thus introduced in the lower house, they were sent to 
 the lords, and if passed there they were presented to the king 
 for approval or rejection without alteration. The new method BUIS may 
 of legislation thus inaugurated by the commons was soon either ate 
 adopted by the lords ; and in time it became the settled law 
 
 of parliament that, with the exception of money bills, which money bills, 
 
 .. .11 11-111. i an " bills 
 
 must originate with the commons, and bills touching the touching 
 peerage, which must originate with the lords, all bills upon thepee 
 other subjects may originate in either house. 2 
 
 In considering the privileges which belong to each house privileges 
 as a constituent part of the high court of parliament, the ^thftw) 
 fact must be remembered that, although each house exercises houses sep- 
 its own privileges and usages independently of the other, they depend 
 are enjoyed, not by any separate right peculiar to each, but g{ecode S . m 
 solely by virtue of the law and custom which appertains to 
 parliament as a single body. "As every court of justice 
 hath laws and customs for its direction, some the civil and 
 canon, some the common law, others their own peculiar laws 
 and customs, so the high court of parliament hath also its 
 own peculiar law, called the lex et consuetudo parliament*? 3 
 All parliamentary privileges rest upon the ancient law and 
 custom of parliament considered simply as a part of the un- 
 written law of the land, or upon that law and custom as 
 
 1 Hale, Hist. Com. Law, vol. i. p. 18. as a constituent part of parliament, ex- 
 See, also, Ruffhead's Statutes, preface. ercises its own privileges independently 
 
 2 As to the ancient mode of enact- of the other. They are enjoyed, how- 
 ing laws, and the transition therefrom ever, not by any separate right peculiar 
 to the modern system, see Sir T. Ers- to each, but solely oy virtue of the law 
 kine May, Parl. Practice, ch. xviii. and custom of parliament." May, 
 
 8 Coke, 4 Inst., 15. "Each house, Parl. Prac., pp. 71, 72.
 
 $2O 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 Privileges 
 of the 
 lords : 
 right of au- 
 dience. 
 
 Presidency 
 of the lord 
 chancellor. 
 
 Right to 
 vote by 
 proxy. 
 
 Right to be 
 tried by 
 peers, and 
 freedom 
 from arrest. 
 
 defined by statute. It has been said that the lords enjoy 
 the privileges possessed by them simply because " they have 
 place and voice in parliament." 1 An enumeration of the most 
 important of these privileges will do much to point out not 
 only the difference in the usage of the two houses, but also the 
 difference in the privileges possessed by the individual mem- 
 bers of the house of lords, as compared with the privileges pos- 
 sessed by the individual members of the house of commons. 
 
 Foremost among the privileges possessed by the lords 
 should be noted the right of each individual peer, as an 
 hereditary counsellor of the crown, to have audience with his 
 sovereign. As the corporate successor of the great council, 
 the upper house possessed from the beginning the right to 
 give counsel ; and only by personal access to the sovereign 
 could that right be rendered efficacious. 2 By reason no 
 doubt of this close relation, the presidency of the upper house 
 became vested in the officer most closely connected with the 
 crown, the lord chancellor, or lord keeper of the great seal, 
 who is prolocutor or speaker of the house of lords by pre- 
 scription, although not necessarily a member of that body. 3 
 When a member he is invested with no more authority than 
 any other peer ; when he is not, his office is limited to the 
 putting of questions, and other merely formal proceedings. 
 All speeches are addressed, not to him, but to the whole 
 house. 4 From the earliest times down to a very recent date, 
 when the peers by a standing order voluntarily abolished 
 it, 5 every lord possessed the right to appoint another lord 
 of parliament as his proxy to cast his vote, a right orig- 
 inally exercised by virtue of a royal license which was seldom 
 refused. 6 Every peer possesses not only the right to be tried 
 by his peers, 7 but also immunity from arrest, not merely as a 
 member of the house of lords, but as a baron of the realm, 
 an immunity which is not limited to the session of parliament, 
 for the person of a peer is " forever sacred and inviolable." 8 
 
 1 Hakewell, p. 82. 
 
 2 See Diary and Correspondence of 
 Lord Colchester, vol. iii. pp. 604-607. 
 
 8 See above, p. 480 and note 5. 
 
 * May, Par I. Practice, pp. 243-246. 
 
 8 On the 3ist May, 1868, the house 
 of lords agreed to a standing order, 
 " that the practice of calling for prox- 
 
 ies, on a division, shall be discontin- 
 ued." 
 
 6 For a list of the occasions upon 
 which the permission to appoint prox- 
 ies was withheld, see Elsynge, Ancient 
 Method of holding Parliaments, p. 117. 
 
 7 See above, p. 389, and note i. 
 
 8 Stubbs, Const. Hist., vol. iii. p. 498.
 
 II.] FROM HENRY IV. TO HENRY VII. $21 
 
 Although each house is equally entitled to its own peculiar Privileges 
 privileges under the same code of parliamentary law, the commons. 
 term "privileges of parliament" is generally understood to 
 relate more particularly to those which were won by the 
 lower house during the period in which the united represen- 
 tatives of the commons were striving to win recognition as a 
 coordinate factor in the assembly of estates. From the cus- 
 tom upon the part of the commons of submitting their priv- 
 ileges to the crown for confirmation, it would appear that such 
 privileges were at first mere matters of royal favor. " But 
 whatever may have been the origin and cause of tjjis custom, 
 and however great the concession to the crown may appear, 
 the privileges of the commons are nevertheless independent 
 of the crown, and are enjoyed irrespective of their petition." 1 
 First among the privileges established by the representative 
 members was the right to organize as an independent cor- Right to 
 porate body and to elect a speaker. As early as 1376 the 
 lower house formally completed its organization as a delib- 
 erative body by the election of Peter de la Mare as head 
 officer, 2 but the title of speaker was not then assigned him. 
 In the next year the parliament rolls contain the first men- 
 tion of a speaker of the house of commons expressly named 
 as such : " Monsieur Thomas de Hungerford, chivaler qi 
 avoit les paroles pur les commons d'Engleterre en cest par- 
 lement." 3 From that year the list of speakers is complete. 
 The choice of a speaker was made by the commons under a 
 command from the crown usually expressed at the close of 
 the opening speech. After the election the speaker-elect His de- 
 was presented by the commons to the king as their chosen 
 "parlour et procuratour" After the speaker had expressed Pf"^ 
 his insufficiency for so great an office, it was usual for the house- 
 crown to approve and confirm him as a speaker. After his 
 confirmation it became his duty to claim of the crown, on 
 behalf of the commons, all of their ancient and undoubted 
 rights and privileges, and at the same time to request that 
 his utterances might be considered as their utterances, that 
 no offence should be taken at his words, and that all his 
 shortcomings should be equitably considered. The usage has 
 
 1 May, Parl. Practice, pp. 69-71. * Rot. far/., ii. p. 374. 
 
 3 See above, p. 480.
 
 522 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 The mod- been, since the sixth year of Henry VIII., for the speaker, 
 the demand " in tne name an d on behalf of the commons, to lay claim by 
 and re- humble petition to their ancient and undoubted rights and 
 
 sponsc. 
 
 privileges, particularly that their persons and servants might 
 be free from arrests and all molestations ; that they may 
 enjoy liberty of speech in all their debates ; may have access 
 to her majesty's royal person whenever occasion shall re- 
 quire ; and that all their proceedings may receive from her 
 majesty the most favorable construction." To this the lord 
 chancellor replies, that "her majesty most readily confirms 
 all the rights and privileges which have ever been granted to 
 or conferred upon the commons by her majesty or any of her 
 royal predecessors." 1 
 
 Freedom of Although it may be reasonably assumed that freedom of 
 speech was inherent in the constitution of parliament from 
 the very beginning, it is nevertheless a fact that only after a 
 long period of struggle with the crown was the privilege 
 finally established upon a secure legal foundation. From 
 Elsynge we learn that the " commons did oftentimes, under 
 Edward III., discuss and debate amongst themselves many 
 things concerning the king's prerogative, and agreed upon 
 petitions for laws to be made directly against his prerogative, 
 as may appear by divers of the said petitions; yet they were 
 never interrupted in their consultations, nor received check 
 for the same, as may appear also by the answers to the said 
 
 Haxey's petitions." 2 In the 2Oth of Richard II., however, when Sir 
 Thomas Haxey ventured to introduce a bill for the reforma- 
 tion of the royal household, that imperious monarch was 
 quick to show that he was not animated by the tolerant spirit 
 of his grandfather. The speaker was forced to give up the 
 name of the offending member, and Haxey was condemned 
 by the lords as a traitor. After the counter - revolution 
 had placed Henry IV. upon the throne, Haxey exhibited a 
 petition to the king in parliament to reverse the judgment 
 against him as being " against the law and custom which had 
 been before in parliament," and the prayer of the petition 
 was granted with the assent of all the lords spiritual and 
 temporal. 3 Not content with this adjudication by the king 
 
 1 See May, Par/. Practice, pp. 68, 2 Ancient Method of holding Parlia- 
 69. ments, p. 177. 
 
 8 Rot. Par/., iii. p. 430.
 
 II.] FROM HENRY IV. TO HENRY VII. 5 2 3 
 
 and lords, the commons in the same year again took up the 
 case and presented it in a petition to the king which prayed 
 that the judgment should be reversed, " as well for the fur- 
 therance of justice as for the saving of the liberties of the 
 commons." By the assent of the king and lords to the peti- 
 tion of the commons it was agreed by the whole legislature 
 that the condemnation of Haxey, being in derogation of the 
 privileges of parliament, " should be annulled and held to be 
 of no force or effect." l In the 3$d of Henry VI., Thomas Young's 
 Young complained to the commons that five years before ^ 
 that time he had been imprisoned in the Tower "for matters 
 by him showed in the house," which " matters " consisted of 
 a motion that, as the king had no issue, the Duke of York 
 might be declared heir-apparent. The petition was trans- 
 mitted to the lords, and the king "willed that the lords of his 
 council do and provide for the said suppliant, as in their 
 discretion shall be thought convenient and reasonable." 2 
 The question of freedom of speech next arose in the 4th of 
 Henry VIII. in the case of Strode, a member of the house, strode's 
 who was prosecuted in the stannary court, fined and impris- case> 
 oned, for having proposed certain bills to regulate the tinners 
 in Cornwall. 3 This violation of privilege led to an act which 
 not only pronounced the proceeding against Strode void, but 
 also declared that all similar proceedings that might be begun 
 in the future against "the person or persons that now be of 
 the present parliament, or that of any parliament thereafter, 
 shall be ... utterly void and of none effect." 4 Thirty years 
 later the petition of the commons at the opening of parlia- 
 ment for the first time includes freedom of speech among 
 their "ancient and undoubted rights and privileges." 6 After 
 frequent violations occurring after that time, the right of free 
 debate was for the last time directly impeached in the famous Case of 
 case against Eliot, Holies, and Valentine, against whom a Holies, 
 judgment was obtained in the king's bench in the 5th year 
 of Charles I. for their conduct in parliament. In 1641 the 
 
 1 Rot. Parl., Hi. p. 434. common law, for the local redress of 
 
 2 Ibid., v. p. 337. private wrongs." Taswell-Langmead, 
 8 Parl. Hist., vol. iv. p. 85. " The Eng. Const. Hist., p. 325, note 2. 
 
 court of the stannaries of Cornwall * 4 Henry VIII., c. 8. 
 and Devon is a court of special juris- * Rot. Parl., 33 Henry VIII. ; El- 
 diction ... in derogation from the synge, Ancient Method, etc., p. 176. 
 general jurisdiction of the courts of
 
 524 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 house of commons declared the proceedings in the king's 
 
 bench to be against the law and privilege of parliament; 1 
 
 and finally in April, 1668, the judgment of the king's bench 
 
 was reversed, on a writ of error, by the house of lords. 2 By 
 
 Question the ninth article of the Bill of Rights it was declared, " That 
 
 tied by S Bm the freedom of speech, and debates or proceedings in parlia- 
 
 of Rights. me nt, ought not to be impeached or questioned in any court 
 
 or place out of parliament." 3 
 
 supply The statement has heretofore been made that during the 
 
 pendent fourteenth century parliament established the exclusive right 
 
 of to authorize both direct and indirect taxation, and that as an 
 grievances, incident thereto the commons claimed the right to make the 
 grant of supplies dependent upon the redress of grievances. 
 The claim thus set up by the commons to make supply de- 
 pend upon redress did not ripen, however, into a settled par- 
 Doctrine liamentary privilege until the reign of Henry IV. As early 
 in thereign as the reign of Henry III. the principle was openly recog- 
 
 n j zec j by both the crown and the nation that concessions in 
 favor of liberty moving from the former to the latter were 
 legitimate subjects of bargain and sale. Of this fact Henry's 
 confirmation of the charters in 1225, in which the king openly 
 admits that the concessions made to the three estates are in 
 consideration of a grant of "a fifteenth part of all their mov- 
 able goods," may be cited as a familiar illustration. But in 
 parliamentary practice the difficulty was to secure for the 
 principle a practical operation. When a grant was asked, it 
 became the custom for the commons to put forward in a peti- 
 tion to the crown such grievances as required amendment at 
 Originally the hands of the king and his council. The discussion of 
 precedwi grievances thus became preliminary to the discussion of the 
 the redress. g rant) wn ich had to be made simply upon the hope that the 
 prayer of the petition would be followed by adequate redress. 4 
 To obtain definite answers to petitions, much less actual re- 
 dress of grievances, before the close of parliament, was an 
 undertaking always attended with great difficulty. It was 
 usual for the king to wait until the last day of the session, 
 and then to give such answers as he saw fit after the grants 
 
 1 Com. Journal, ii. p. 203. Upon the whole subject, see May, 
 
 2 Lords' Journal^ xii. p. 223. Parl. Practice, pp. 118-123. 
 8 i Will, and Mary, sess. 2, c. 2. * See above, p. 493.
 
 II.] FROM HENRY IV. TO HENRY VIL $2$ 
 
 had all been made. Any attempt to change this order of 
 proceeding was declared by Richard II.'s judges to be high 
 treason. 1 In the third year of Henry IV. the lower house Finally the 
 grew bold enough, however, to attempt to bring about the de- 
 sired change by availing themselves of the king's necessities. 
 When, in the parliament of 1401, supplies were asked, the 
 commons put forward many demands, and, among others, 
 that before they made any grants, answers should first be 
 made to their petitions. Although the king promised to con- 
 fer with the lords on the subject, he withheld his reply until 
 the last day of the session, and then answered "that this 
 mode of proceeding had not been seen or used in the time of 
 his progenitors or predecessors, that they should have any 
 answer to their petitions before they had shown and done all 
 their business of parliament, whether it were matter of a 
 grant or otherwise; the king would not in any way change the 
 good customs and usages made and used of ancient times." 2 
 The effect of this peremptory refusal seems, however, to have 
 been soon overcome by the practice which grew up shortly 
 after that event of delaying the grant until the last day of 
 the session, by which time all the more important petitions 
 were probably disposed of. 3 The right to make supply de- 
 pend upon redress was thus finally established by the employ- 
 ment of a simple yet potent expedient. 
 
 At a little later day in the same reign (9 Henry IV.) a col- AH money 
 lision took place between the two houses which-gave rise to originated 
 the earliest declaration of two principles of parliamentary law the con ?. 
 
 r r J mcns; king 
 
 which have since become of primary importance : First, that shall not 
 all money bills shall originate in the house of commons ; ^ matters 6 
 second, that the king shall not take notice of matters debated p^^ment 
 in parliament until after a conclusion is reached in both pending the 
 houses, and such conclusion brought before him by their con- 
 sent and authority. After a debate by the lords in the pres- 
 ence of the king upon the state of the kingdom, the former 
 undertook to specify what subsidies were necessary for the 
 national defence. Whereupon the king requested the com- 
 mons to send a committee to the lords to ascertain their views 
 and to report the same to their house, " to the end that they 
 
 1 Hallam, M. A., vol. hi. p. 85. 8 This is the inference of Bishop 
 
 2 Rot. far/., iii. p. 458. Stubbs, Const. Jfist., vol. iii. p. 263.
 
 $26 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 might take the shortest course to comply with the intention 
 of the said lords." A deputation of twelve from the com- 
 mons then attended upon the lords and reported to their fel- 
 lows. But when such report was received the lower house 
 was not slow to manifest its alarm at the proceeding, " saying 
 and affirming it to be much to the prejudice and derogation 
 of their liberties." From the entry in the roll it appears that 
 " after that our lord the king had heard this, not willing that 
 anything should be done at present, or in time to come, that 
 might anywise turn against the liberty of the estate for which 
 they are come to parliament, 1 nor against the liberties of the 
 lords, wills and grants, and declares, by the advice and 
 assent of the lords, in manner following : that it shall be law- 
 ful for the lords to commune amongst themselves in this 
 present parliament, and in every other in time to come, in 
 the absence of the king, of the state of the realm, and of the 
 remedy necessary for the same. And that in like manner it 
 shall be lawful for the commons, on their part, to commune 
 together of the state and remedy aforesaid. Provided always 
 that the lords on their part, and the commons on their part, 
 shall not make any report to our said lord the king of any 
 grant by the commons granted, and by the lords assented to, nor 
 of the communications of the said grant, before the lords and 
 commons shall be of one assent and one accord in such mat- 
 ters, and then in manner and form accustomed, that is to say, 
 by the mouth of the speaker of the commons, in order that 
 the lords and commons may have their will of our said lord 
 the king." 2 
 
 Right of As all members of the house of commons were chosen 
 mon^to under the writ directed to the sheriff of each county com- 
 manding him to return two knights from the shire, and two 
 citizens or burgesses for each city or borough within his baili- 
 wick, it came to be a matter of vital importance to the lower 
 house to regulate by law both the procedure of the sheriff 
 under the writ, and the qualification of the electors by whom 
 the representative members were chosen. The conclusion has 
 
 1 " The true position of the house of note i. To the same effect, see above, 
 
 commons, as not being in itself an es- p. 337 and note 3. 
 tate of the realm but the representative Rot. Par!., iii. p. 61 1 ; Middle Ages, 
 
 of the estate of the commons of Eng- vol. iii. pp. 100-102. See, also, Lordi 
 
 land, is here expressed." Taswell- Report, vol. i. pp. 358, 359. 
 Langmead, Eng. Const. Hist., p. 313,
 
 II.] FROM HENRY IV. TO HENRY VII. $2? 
 
 heretofore been reached that from the beginning of the rep- 
 resentative system the right to choose the elected knights 
 was not limited to the lesser tenants-in-chief, but was vested 
 in the whole body of freeholders assembled in the county 
 court. 1 When in 1376 the commons, in order to prevent the 
 malpractice of the sheriffs in returning members without due 
 election, petitioned that the knights of the shire should be 
 chosen by common election of the better folk of the shires, 
 Edward III. answered that the knights should be chosen by 
 the common assent of the whole county. 2 This declaration 
 of what was no doubt the earlier custom 3 was first incorpo- 
 rated into a positive law when the statute of 7th Henry IV. The fran- 
 c. 15 undertook to fix the franchise upon a definite and popu- 
 lar basis by providing "that at the next county (court) to be ^ 
 holden after the delivery of the writ, proclamation should be IV - 
 made, in full county (court), of the day and place of the par- 
 liament, and that all they that be there present, as well suit- 
 ors duly summoned for the same cause as others, shall attend 
 to the election of the knights for the parliament ; and then, 
 in full county, they shall proceed to the election, freely and 
 indifferently, notwithstanding any request or command to 
 the contrary." This statute, which recognized the fact that 
 the franchise was vested not only in all freeholders but in the 
 whole body of persons assembled in the county court on the 
 day of the election, was seriously modified, however, by the 
 statute of 8th Henry VI. c. 7, which is said to be the first The dis- 
 disfranchising act to be found on the statute-books of Eng- statute S of g 
 land. This act, after complaining that the election of knights *ft Henry 
 of the shire had lately been made " by very great, outrageous, 
 and excessive number of people dwelling within the same 
 counties, of the which most part was people of small sub- 
 stance and of no value," restricted the qualification of county 
 electors not only to freeholders, but to such only as " have 
 free land or tenement to the value of forty shillings by the 
 year at least above all charges." The qualification of county 
 electors, thus fixed at the end of the middle ages, remained 
 
 1 See above, pp. 467, 468. note. It has been contended, however, 
 
 2 Rot. Part., ii. p. 355. that the act of 1406 extended the suf- 
 8 As to the effect of this act as a frage. See Homersham Cox, Ancient 
 
 declaration of the earlier custom, see Parliamentary Elections, p. 105. 
 Stubbs, Const. Hist., vol. ill p. 406 and
 
 528 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 The com- 
 
 
 unchanged until late in the first half of the present century. 
 The omissions and commissions of which the sheriffs were 
 guilty in the execution of the writs under which the repre- 
 sen tative members were chosen soon brought about legisla- 
 tion designed for their correction. In the 5th of Richard II. 
 a statute was passed which provided that if any sheriff should 
 fail to make return to a parliamentary writ, or should omit 
 from such return any city or borough which had been for- 
 merly accustomed to send members to parliament, he should 
 be punished by fine. 1 In the next reign this regulation was 
 followed by the notable statute of 1406 (/th Henry IV. c. 15), 
 made "on the grievous complaint of the commons of the un- 
 due election of the knights of shires for parliament," which 
 provided that the election should be held in the first county 
 court holden after the receipt of the writ ; that the election 
 should be made in full county court by those present ; and 
 that after the election the names of the persons chosen 
 "shall be written in an indenture under the seals of them 
 that did choose them." 2 Prior to this statute it was the duty 
 of the sheriff to report to parliament the names of the elected 
 members, together with the writ ; afterwards the return, 
 which was declared to be the indenture tacked to the writ, 
 was sent into chancery. A little later in the same reign 
 (nth Henry IV. c. i) an act was passed which gave to the 
 justices of assize the power to inquire into the returns, and 
 to fine the sheriffs for returning persons not duly elected. 
 This measure was supplemented and rendered more effective 
 by the act of 1445 (23d Henry IV. c. 14), to which refer- 
 ence has been made already. 3 
 
 At a time when it was necessary for the crown to require 
 security from the elected members for their appearance in 
 tlons delec parliament, it is hardly to be expected that we should find 
 instances of contested elections in the sense in which that 
 term is now understood. Such instances of disputed of 
 contested elections as the mediaeval records do contain 
 clearly disclose the fact that the house of commons in the 
 early days did not presume to claim for itself the right to 
 
 1 5th Richard II. st. ii. c. 4. specimens of these indentures, see 
 
 2 See above, p. 472 and note I. For Prvnne, 2d Register, pp. 128-132. 
 
 * See above, p. 472. 
 
 Right of
 
 II.] FROM HENRY IV. TO HENRY VII. $ 2 9 
 
 determine contested elections ; that such right was originally Right origi- 
 claimed, and for a long time exercised, by the king with the Cftheking 
 aid of his council, or with the help of the lords. After the in counciL 
 return was made the king, with the aid of the council or of 
 the lords, took cognizance of all disputes which grew out of 
 the election. 1 The earliest instance of the commons being 
 associated with the consideration of such questions occurred 
 in the ?th Richard II. (1384), when the borough of Shaftes- 
 bury petitioned the king, lords, and commons, complained of 
 a false return wherein the sheriff of Dorset had substituted 
 the name of a person not elected, and prayed remedy. 2 
 Twenty years later (1404) the commons prayed the king and 
 lords in parliament that an improper return, wherein the 
 sheriff of Rutland had returned a person as elected who had 
 not been elected, might be examined in parliament, and pun- 
 ishment inflicted in the event the sheriff should be found 
 guilty. The lords, after sending for the sheriff and the two 
 contestants, and after due investigation, ordered the return 
 to be amended by the substitution of the name of Thorp, the 
 person really elected, in lieu of that of Ondeby, improperly 
 returned by the sheriff, who, by reason of his misconduct, 
 was removed from office. 3 Two years after this occurrence 
 the act of 1406 was passed requiring the sheriff to make 
 return by indenture, which, together with the writ, were sent 
 into chancery. After the arbitrary power of the sheriffs was 
 thus cut off by a regulation which virtually permitted the 
 electors themselves to make the return, the act of 1410 was 
 passed, which gave to the justices of assize the power to justices of 
 inquire into the returns, and to fine the sheriffs for returning powerfTfn 1 - 
 persons not duly elected. 4 But even after the passage of this ^"^clums. 
 act placing the conduct of elections under the supervision of 
 the justices of assize, it is probable that the ultimate right to 
 pass upon the validity of the return remained to the king, 
 assisted by the lords, or by the judges only. It seems to be 
 clear that down to the end of the fifteenth century the com- 
 mons had never thought of claiming the right to hear and 
 determine all matters touching the validity of their own 
 
 1 Cf . Stubbs, Const. Hist., vol. iii. pp. 8 Rot. Par!., iii. p. 530 ; Hallam, 
 
 421-423. Middle Ages, vol. iii. p. no, 
 
 8 Prynne, 4th Register, p. 261 ; Carev * See above, p. 528. 
 on Elections, p. 118.
 
 530 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Right to 
 determine 
 validity of 
 election 
 first as- 
 serted by 
 the com- 
 mons in the 
 reign of 
 Elizabeth. 
 
 Right 
 finally set- 
 tled in the 
 reign of 
 James I. 
 
 elections. In the reign of Elizabeth this right was for the 
 first time distinctly asserted in a case in which the lower 
 house ventured to examine into the circumstances attending 
 an irregular election that had occurred in the county of Nor- 
 folk. Owing to some defect in the first return from that 
 county, the chancellor had issued a second writ, under which 
 a different member was chosen. Although the queen, after 
 the matter had been noticed by the commons, directed the 
 speaker to express her displeasure that " the house had been 
 troubled with a thing impertinent for them to deal with, and 
 only belonging to the charge and office of the lord chan- 
 cellor," a committee was nevertheless appointed to inves- 
 tigate the matter, and a report was made in favor of the 
 members elected under the first writ. In their report, which 
 was agreed to by the whole house, the committee took occa- 
 sion to say that "they had not thought it proper to inquire 
 of the chancellor what he had done, because they thought it 
 prejudicial to the privilege of the house to have the same 
 determined by others than such as were members thereof." 1 
 An important issue again arose between the crown and the 
 commons when upon the accession of James I. a royal procla- 
 mation was issued which undertook to specify what kind of 
 persons should be chosen, "bankrupts and outlaws" being 
 specially excepted. Under the terms of the exception the 
 clerk of the crown refused to receive the return of the elec- 
 tion of Sir F. Goodwin, chosen for the county of Buckingham, 
 for the reason that some years before he had been outlawed. 
 A second writ was issued, under which Sir John Fortescue 
 was chosen. When the matter was brought before the house 
 the election of Goodwin was sustained, and he was ordered 
 to take his seat. In the course of the controversy which 
 followed, the king maintained not only that outlaws had no 
 right to sit, but that the house had no right to meddle with 
 returns which were made into the court of chancery, and 
 which were within its exclusive jurisdiction. James further 
 declared that "he had no purpose to impeach their privileges, 
 but since they derived all matters of privilege from him, and 
 by his grant, he expected that they should not be turned 
 against him." He then invited the commons to confer with 
 1 D'Ewes, Journal, p. 393 ; Hallam, Const. Hist., vol. i. p. 275.
 
 II.] FROM HENRY IV. TO HENRY VIT. 53 1 
 
 the judges, and upon their failure to do so he attempted to 
 force them to confer by commanding them as an absolute 
 king. Finally, as a compromise of the whole matter, the 
 commons brought in a bill prohibiting outlaws from sitting 
 in parliament in future, and as a personal favor to the king 
 the elections of both Goodwin and Fortescue were set 
 aside ; James admitting on his part, in an interview with a 
 committee of the commons, that they were the proper judges 
 of the returns. 1 From that time the commons never failed 
 to assert their exclusive right to decide upon the legal validity 
 of the returns, and the conduct of the returning officers in 
 making them, a right which was recognized and affirmed in 
 turn by the house of lords, by the courts of law, and finally 
 by an act of parliament (7 William III. c. 7) which declared 
 that " the last determination of the house of commons con- 
 cerning the right of elections is to be pursued." 2 
 
 Leaving out of view the immunity from arrest which the immunity 
 peers enjoy, not merely as members of the upper house but f ^uncuT 
 as barons of the realm, a brief statement will be made of the and P a '; li a- 
 
 . . , , ments from 
 
 origin of the right of freedom from personal molestation and personal 
 legal arrest which, from the earliest times, has belonged to lion? 5 
 members of the English national assembly. From the very 
 beginning of national councils in England, the persons of 
 those who attended such assemblies were protected by law 
 while going to and fro. By a law of ^thelberht, provision Laws of 
 was made that " if the king called his ' leod ' (people) to him S 
 (i. e. to the gemot) and any one there do them evil, let him 
 compensate with a twofold 'bot' (satisfaction) and fifty shil- 
 lings to the king." 3 This law, made at the end of the sixth 
 century, was succeeded early in the eleventh by a law of 
 Cnut, which provided " that every man be entitled to grith 
 (freedom from molestation) to the gemot and from the gemot, 
 except he be a notorious thief." 4 The same immunity was 
 recognized in the laws of the Confessor in favor of persons 
 going to and from the synods. 6 After the Conquest, the 
 
 1 Commons Journal, vol. i. pp. 149- louts case, z Ventris, p. 37 ; Prideaux 
 169; Parl. Hist., vol. i. pp. 993-1017 ; v. Morris, 2 Salkeld, p. 502. 
 Gardiner, Hist, of Eng., vol. i. pp. 185- ^thelbert, i ; Select Charters, p. 
 188. 61 ; Kemble, Saxons in England, vol. 
 
 2 See Taswell-Langmead, Eng . Const, ii. p. 33. 
 
 Hist., p. 341, citing Barnardiston v. 4 Cnut, 83 ; Select Charters, p. 74. 
 Soame, 6 Howell St. Tr. 1092 ; Ons- 6 LI. Eadw. Conf., art. 2, cl. 8. Cf. 
 
 Blackstone, Comm., bk. i. p. 165.
 
 532 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 persons who responded to the writs under which the parlia- 
 ments were convened still retained without any fresh enact- 
 ment the protection guaranteed by the earlier laws, the 
 sovereign who issued the writs placing under his protection, 
 while going to and fro, the persons who obeyed them. This 
 protection extended not only over the period occupied by the 
 parliament, but, as was generally claimed, over a period of 
 forty days before and after each session. 1 And it was held 
 that this immunity extended not only to the members them- 
 immunity selves, but to their servants. Such the privilege was de- 
 servants. clared to be by statute in the $th Henry IV. c. 6, in the 
 special case of Chedder, a member's servant beaten by one 
 Savage, who was required to surrender in the king's bench, 
 and in default to pay twofold damages to the party injured, 
 stat. of besides the fine to the king. 2 By a general law passed in 
 vj. I y nth Henry VI. c. 11, a penalty identical with that imposed 
 by the law of ^Ethelred was fixed in all cases of affray or 
 assault upon any member of either house coming to council 
 or parliament under the king's command. 3 
 
 Exemption The immunity from personal molestation thus enjoyed by 
 arcestand the members and their servants was also held to exempt 
 distress. both, together with their property, from legal arrest, and dis- 
 tress in civil suits, during the period over which the privilege 
 extended. When Edward I. was petitioned by the Master of 
 the Temple for leave to distrain for rent of a house held of 
 Cases of him by the Bishop of St. David's, he replied that " it does not 
 StDavid's seem fit that the king should grant that they who are of his 
 o?Maiton coun cil should be distrained in time of parliament." 4 And 
 Edward II. in 1315 recognized the privilege by resenting the 
 arrest of the Prior of Malton while on his way from parlia- 
 ment, not only as an offence to the prior, but as a breach of 
 the king's peace and dignity. 6 But in spite of frequent prior 
 recognitions, this privilege was openly violated in the famous 
 Thorpe's case of Thomas Thorpe, speaker of the commons, who, dur- 
 ing a prorogation of parliament, was in 1453 imprisoned on 
 
 1 For the authorities touching the 8 Statutes, ii. p. 286; Rot. Par!., iv. 
 duration of the privilege, see May, p. 453. 
 Parl. Practice, p. 139. * Rot. Par/., i. p. 61. See, also, 
 
 a Statutes, ii. p. 144 ; Rot. Parl., iii. Coke, 4th Snst., 24 E ; Hatsell, Prece- 
 P- S4 2 - dents, i. p. 3. 
 
 6 Hatsell, Precedents, i. p. 12.
 
 II.] FROM. HENRY IV. TO HENRY VII. 533 
 
 an execution issued out of the exchequer for the non-pay- 
 ment of a fine due the king for a trespass committed in the 
 seizure of certain property belonging to the Duke of York. 
 When the commons complained to the king and lords, and 
 demanded the release of their speaker, the judges were con- 
 sulted, and they, after protesting that "the determination 
 and knowlegge of that Privelegge belongeth to the Lordes of 
 the Parlement, and not to the Justices," nevertheless took 
 occasion to assert that " if any persone that is a membre of 
 this high Court of Parlement be arested in suche cases as be 
 not for treason or felony, or suerte of the peas, or for a con- 
 dempnation hadde before the Parlement, it is used that all 
 such persones shuld be relessed of such arrestes, and make 
 an Attourney, so that they may have theire fredom and liber- 
 tee frely to entende upon the Parlement." In spite, however, 
 of the opinion of the judges, the lords influenced no doubt 
 by the fact that Thorpe was an enemy of the Duke of York, 
 who was then dominant held that notwithstanding his 
 privilege he should remain in prison ; and the commons were 
 directed in the king's name to proceed to the election of a 
 new speaker, which they did the next day. 1 
 
 The practical difficulty under which the commons labored, Authority 
 and which the case of Thorpe disclosed, was that, although ofthemace - 
 the right to freedom from arrest had been established by the 
 highest legal authority, the house itself possessed no inde- 
 pendent means for its enforcement. Not until the middle of 
 the sixteenth century did the commons ever attempt to de- 
 liver a member out of custody by virtue of their own un- 
 aided authority. Prior to that time, when " members were in 
 execution, in order to save the rights of the plaintiff, they 
 obtained special statutes to authorize the lord chancellor to 
 issue writs for their release ; and when confined on mesne writs of 
 
 ' privilege 
 
 process only, they were delivered by a writ of privilege issued at first is- 
 by the lord chancellor." 2 In 1543 the commons first asserted for 
 their right to release a member by their own authority in the cel1 
 case of Ferrers, a member held in custody in a civil suit 
 
 1 Rot. Par I., v. pp. 239, 240. It was 2 May, Par/. Practice, p. 130, citing 
 
 afterwards said in parliament that this cases of Larke, Clerk, Hyde, and At- 
 
 case was " begotten by the iniquity of wyll ; Rot. Pari., iv. p. 357 ; Ibid., v. 
 
 the times." Commons Journal, i. p. p. 374; Ibid., vi. pp. 160, 191 ; Sadcliff's 
 
 546. case, Hatsell, Precedents, i. p. 51.
 
 534 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 The privi- 
 lege as de- 
 fined by 
 statute in 
 1770. 
 
 Right of 
 conference 
 with the 
 lords. 
 
 under a writ issued from the king's bench. When the house, 
 hearing of the arrest, sent their sergeant to demand the re- 
 lease of the member, he was at first resisted by the jailers 
 and sheriffs of London, but when the sergeant was sent a 
 second time the prisoner was promptly surrendered. As a 
 vindication of its dignity, the house committed for contempt 
 not only the jailers and sheriffs, but even the plaintiff in the 
 suit. When these energetic measures were reported to the 
 king, he earnestly commended the action of the commons in 
 the presence of the judges, the speaker, and other leading 
 members of the house ; and, when he had finished, his views 
 were confirmed by the lord chief justice. 1 Although after 
 that time members were released by writs of privilege when 
 obtained by the permission or warrant of the speaker, the 
 case of Ferrers may be regarded as establishing the right of 
 the commons to release a member from custody by the war- 
 rant of the mace alone. The privilege in its widest form, 
 giving rise to many abuses, was restricted from time to time 
 by statute, 2 until at last, in 1770, an act 3 was passed by which 
 it was reduced to its ancient limits ; that is to say, freedom 
 from arrest was guaranteed to the persons of members only, 
 their servants and their property being left subject to ordinary 
 legal procedure. At no time was the privilege ever allowed 
 to interfere with the administration of criminal justice, im- 
 prisonment for treason, felony, or for security of the peace at 
 all times being excepted from its operation. 4 
 
 In the parliament of 1402 the commons made a fresh and 
 formal demand for the exercise of a privilege which had no 
 doubt existed in some form from the very organization of the 
 parliamentary system, the privilege of conferring with the 
 lords upon all pending questions of importance which called 
 for concurrent action. Although the lords claimed that it 
 
 1 This case rests upon the authority 
 of Holinshed (i. p. 824), and not upon 
 parliamentary records. As tt the accu- 
 racy of the account, see May, Part, 
 Practice, p. 132. 
 
 2 12 & 13 Will. III. c. 3; 2 & 3 
 Anne, c. 18; n Geo. II. c. 24. 
 
 8 10 Geo. III. c. 50. It has been 
 held that the arrest of a member is 
 irregular ab initio, and that he may be 
 discharged immediately upon motion 
 in the court from which the process is- 
 
 sued. See Colonel Pitt's case, Strange, 
 vol. ii. p. 985. 
 
 4 As to the limits of privilege in case 
 of open contempt of a court of justice, 
 see May, Par 1. Practi-e, p. 160. In the 
 case referred to, Cockburn, C. J., after 
 fining two members for contempt in 
 connection with the " Tich borne Case," 
 said if he had seen fit to commit them, 
 he would not have been restrained by 
 privilege.
 
 II.] FROM HENRY IV. TO HENRY VII. 535 
 
 was the duty of the commons to debate among themselves 
 and then to report their views to them, and although the 
 commons often claimed the right when a conference was to 
 be had of selecting the lords with whom they were to con- 
 fer, the usual course seems to have been for each body to 
 appoint a committee to confer with a similar committee from 
 the other, and then after consultation each committee re- 
 ported the result to its own house. In 1373 the first instance 
 occurs of the commons requesting the lords to appoint a se- 
 lect body to confer with them. 1 In 1383 the commons renew 
 the request for a committee of conference from the lords, 
 and couple with it the request that they be allowed to elect 
 the lords of whom the committee should be composed. 
 Richard II., in yielding to the request as a matter of grace, 
 was careful to assert that the right of selection claimed be- 
 longed, not to the commons, but to the king himself. 2 When, 
 in the parliament of 1402, the commons demanded of Henry 
 IV. the right to confer with a select committee from the 
 lords touching certain important matters he had given them 
 in charge, he yielded to the request, but with the express 
 statement that he did so as a matter of favor and not as a 
 matter of right. 3 
 
 3. The effort made in the preceding chapter to outline The house 
 the history of parliament during the fourteenth century con- t er La 
 eluded with the statement that its authority reached the limit 
 of its growth when, after a struggle of scarcely two months' 
 duration, it deposed the ruling sovereign in the person of 
 Richard II., and then, after ignoring the claimant who really 
 represented the hereditary title, awarded the crown to an- 
 other member of the royal house whom it deemed more 
 competent to govern. 4 After Henry of Lancaster had stood 
 forth in the assembly of estates at Westminster Hall, and 
 had challenged and claimed the kingdom of England and 
 the crown thereof, by reason of conquest, inheritance, and 
 Richard's resignation, 6 the estates there assembled were con- 
 
 1 Rot. Par/., ii. p. 317. tween the houses, see May, Parl. Prac- 
 
 2 Ibid., iii. p. 145; Hallam, M. A., tice, pp. 490-496. 
 
 vol. iii. p. 66. * See above, p. 514. 
 
 8 Rot. Parl., iii. p. 486. Cf. Stubbs, 6 These are the three grounds as 
 
 Const. Hist., vol. ii. pp. 426, 465, 593; stated by Froissart, iv. c. 116. Henry 
 
 vol. iii. pp. 37, 457. As to the modern rose in the assembly and stated his 
 
 practice when conferences occur be- own claim in English, as follows : " In
 
 S3 6 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 suited, singly and collectively, as to what they thought of 
 such claim ; " and thereupon the lords spiritual and temporal, 
 and all the states, with the people, consented that the duke 
 should reign over them." 1 And so while Henry as the 
 leader of the counter-revolution through which the change of 
 dynasty was brought about, was careful to put forward every 
 claim but the true one, the estates, by whose united action 
 the revolution was made effective, were equally careful to 
 make it the occasion for the assertion of a constitutional prin- 
 ciple which became the corner-stone upon which the throne 
 of the new dynasty was erected. Although Henry challenged 
 the crown by a threefold claim of title, which carefully ex- 
 cluded the theory of election, his confused assertion of right 
 could not conceal the fact that he was the mere creature of 
 a parliamentary revolution, that he was destined to reign by 
 its right to virtue of a parliamentary title. In spite of all disguises the 
 upona S par- fact stood out that from his election by the assembly of 
 titie entary estates Henry derived the right to reign, and in his first 
 parliament the new sovereign was careful to admit his real 
 constitutional status by declaring through the mouth of Arch- 
 bishop Arundel that he did not desire to be governed by his 
 own will and purpose, but by the common advice, counsel, 
 and consent of the wise and ancient of the kingdom. 2 The 
 victory which the- assembly of estates thus won over the 
 Thesucces- monarchy was emphasized upon four different occasions dur- 
 tinTes^regu- m & Henry's reign when the parliament saw fit to regulate 
 latedby anc j ii m j t t h e succession to the crown which their election 
 
 parliament 
 
 during the had bestowed. In the first parliament, which met on the oth 
 . of October, I39Q, 3 the Prince of Wales, with the assent of 
 
 the name of Father, Son, and Holy a Lord's Report, vol. i. p. 349. The 
 Ghost, I, Henry of Lancaster, challenge Report goes on to say : " It is to be 
 this realm of England and the crown, collected from the language of the roll, 
 with all the members and the appurte- that this general acclamation was con- 
 nances, as that I am descended by right sidered as having made the Duke of 
 line of blood, coming from the good Lancaster king." 
 lord King Henry Third, and through 2 Rot. Par!., iii. p. 415. 
 that right that God of his grace hath 8 This parliament, which had deposed 
 sent me with help of my kin and of my Richard II. on the 301)1 of September, 
 friends to recover it, the which realm and which was supposed to be dissolved 
 was in point to be undone for default by his deposition, was reassembled un- 
 of governance and undoing of the good der the new king's writs on the 6th of 
 laws." Rot. Part., iii. pp. 422, 423. October. As to the short notice, see 
 See also Ann. Ric., p. 281 ; Man. Eves., Rot. Par!., iii. p. 423 ; as to the writs, 
 p. 209. The substance of the statement see Lords' Report, vol. iv. p. 768. 
 is the same in the several versions.
 
 II.] FROM HENRY IV. TO HENRY VII. 537 
 
 the lords spiritual and temporal, and all the commons, was 
 " created and ordained heir apparent, to have and enjoy the 
 realm in time to come when God it should will." 1 Four 
 years later the succession was limited to the prince and the 
 heirs of his body, and in default upon his brothers in the 
 order of seniority. 2 In 1406 the crowns of England and 
 France were resettled upon the king and the heirs male of 
 his body. 3 In the same year, however, this restriction was 
 removed, and the crown finally settled upon Henry and the 
 heirs of his body without limitation. 4 In thus accepting the 
 crown for himself and his descendants through the choice of 
 the three estates, Henry was not only compelled to assume 
 a relation of dependence upon the parliament as a whole, 
 but he was also obliged to enter into special obligations to 
 each estate separately, from which he found release only in 
 the grave. 
 
 While the parliament was careful to require that the new Henry iv. 
 sovereign should reign as a constitutional king, the prelates, 
 as the special defenders of the national church, were no less 
 careful to demand that he should become the champion of 
 orthodoxy, and the scourger of the growing heresy. The 
 canon law, the ecclesiastical law of mediaeval Europe, re- 
 garded heresy as a crime ; and while the church undertook to 
 visit the offence with such spiritual penalties as excommuni- 
 cation, it also looked to the state to supplement its work by 
 the infliction of civil penalties in the form of imprisonment 
 and capital punishment. Such a conception of heresy and 
 its punishment seems to have been imbedded from the ear- 
 liest times in the civil and ecclesiastical law of the English 
 kingdom. Prior to the enactment of the statutes against state of the 
 heresy, although an English bishop could excommunicate, thesta r 
 the offender could not be put into prison save by the king's utes- 
 writ of de excommunicato capiendo ; 5 and although heresy 
 was an offence punishable by death, the heretic could only 
 be burned, if at all, by virtue of the writ de Juzrctico combu- 
 rendo* The scantiness of material illustrative of the earlier 
 
 1 Rot. Par!., iii. p. 434. times called, from the bishop's certifi- 
 
 2 Ibid., iii. pp. 525, 575. cate, " significavit," see Blackstone, 
 8 Ibid., iii. pp. 575, 576. Comm., bk. iii. p. 102. 
 
 * Ibid., iii. p. 581. ' " We find among our ancient pre- 
 
 * As to the nature of this writ, some- cedents a writ de haretico comburendo,
 
 538 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Wycliffe 
 and the 
 Lollards. 
 
 Statute of 
 1382 to 
 which the 
 commons 
 did not 
 assent. 
 
 Wycliffe 
 died in 
 1384. 
 
 practice can be easily accounted for in light of the fact that 
 the English mediaeval church, down to the close of the four- 
 teenth century, was exceptionally free from heresy and con- 
 sequent religious persecution. Not until after the advent of 
 Wycliffe out of whose teachings grew the host of dis- 
 senters from the orthodox creed of the ancient church gener- 
 ally known as Lollards was the machinery for the suppres- 
 sion of heresy in England put into active operation. During 
 the period of reaction that followed the Peasant Revolt, 
 which the disciples of Wycliffe were supposed to have insti- 
 gated, the first appeal was made to parliament for the sup- 
 pression of heresy by statute. In the parliament which met 
 in May, 1382, Archbishop Courtenay procured the enactment 
 of a statute which provided that commissions should issue 
 out of chancery, directed to the sheriffs and other officers in 
 pursuance of certificates from the bishops, to arrest all persons 
 certified by the bishops to be preachers of heresy, and their 
 abettors, and to hold them in prison until they should jus- 
 tify themselves "according to reason and the law of holy 
 church." 1 But in the parliament which met in October of 
 the same year, the commons petitioned that this statute 
 should be annulled, for the reason that it had never received 
 their assent ; and the king returned a favorable answer to 
 their petition. 2 After that event the prelates possessed no 
 means for the punishment of heresy save such as were con- 
 tained in the old canon law process. Thus the law stood at 
 the time of Wy cliff e's death in 1384. The death of the great 
 schoolman and pamphleteer did nothing, however, to check 
 the spread of the new doctrines which he had propounded 
 not only to the learned in the universities, but to the rank 
 and file of the English people. So widespread and threaten- 
 
 which is thought by some to be as 
 ancient as the common law itself." 
 Blackstone, Comm., bk. iv. p. 46. As 
 to this statement Bishop Stubbs says : 
 " Although Blackstone declares that a 
 writ of the kind is found among our 
 ancient precedents, and refers to Fitz 
 Herbert, Nalura Brevium, p. 269, the 
 only example of the writ given there is 
 the writ in Sawtre's case." Const. 
 Hist., vol. iii. p. 358, note 4. Sawtre 
 was the first of the Lollards executed 
 for heresy in England. He was ex- 
 
 ecuted by virtue of the king's writ, and 
 not under the statutes. 
 
 1 Stat. 5 Ric. II. st. 2, c. 5 ; Statutes, 
 ii. p. 25. 
 
 2 Rot. Parl., iii. p. 141. In the stat- 
 ute the assent of the lords and com- 
 mons is not expressed. Hallam says, 
 " Nevertheless, the pretended statute 
 was untouched, and remains still among 
 our laws, unrepealed, except by des- 
 uetude, and by inference from the 
 acts of much later times." Middle 
 Ages, vol. iii. p. 87.
 
 II.] FROM HENRY IV. TO HENRY VII. 539 
 
 ing had the religious revolt become by the end of the reign 
 of Richard II., that Archbishop Arundel, the bitter foe of the 
 Lollards, in supporting the revolution through which Henry 
 IV. was raised to the throne, was careful to commit the new 
 sovereign to a policy of active persecution. In 1399 a con- 
 vocation was held in which articles denouncing the Lollard 
 doctrines were drawn up, 1 and in 1401 Arundel procured the 
 passage of the famous statute De h&retico comburendo? in The statute 
 which it was provided that no one should presume to preach ^~J^-' 
 or teach, in public or private, in any diocese, without the rendo, 
 license of the diocesan first obtained, except curates in their 
 churches ; that no one should write any book or teach in 
 any school or conventicle the new doctrines ; and that all 
 who possessed forbidden books or writings should in a given 
 time deliver them up. All offenders against the act the 
 bishops were permitted to arrest and detain in their prisons 
 until they should make canonical purgation, or abjure their 
 opinions ; and if convicted they should be imprisoned and 
 fined in proportion to their offence. If after conviction the 
 offender should refuse to abjure, or after abjuration should 
 relapse, the sheriff of the county, or the mayor or bailiff of 
 the nearest borough should, when required by the diocesan, 
 be present at the sentence ; and after it was pronounced it 
 became his duty to receive the condemned, and before the 
 .people in a high place cause him to be burned as an example 
 and terror to others. The practical effect of this act was to 
 confer upon the bishop the power to try and convict one 
 accused of heresy, without the assent of a synod, and the 
 further power to require the sheriff to burn the condemned 
 without the consent of the crown. 3 And yet, comprehensive 
 and cruel as were the powers thus bestowed, another statute 
 still more comprehensive and cruel was yet to come. In the The final 
 midst of the excitement and alarm which followed the at- c^feUtet- 
 tempted insurrection of the Lollards under the leadership of 
 Sir John Oldcastle, a statute 4 was passed in the second year Henry v 
 of Henry V. which naturally divides itself into two parts. 
 The first part, after repeating in substance the provisions of 
 
 1 Wilkins, Cone., iii. p. 238 seq. Reeves, Hist, of Eng. Law, vol. iii. pp. 
 
 2 2 Hen. IV. c. 15-, Statutes, ii. p. 425-428. 
 
 12 q. * 2 Hen. V. st i. c. 7 ; Statutes, ii. pp. 
 
 As to the tenor of the act, see 181 seq.
 
 54 . THE GROWTH AND DECLINE OF PARLIAMENT. [Cft 
 
 the act of 1401, added to the penalties to which the Lollards 
 were previously liable by providing that those who should be 
 convicted before the ordinaries, and delivered over to the 
 secular power, should forfeit lands, goods, and chattels, sub- 
 stantially as in case of felony. The second part of the act 
 entered a new field by providing that justices of the king's 
 bench, of the peace, and of assize are now empowered to 
 inquire (that is, take indictments) of heretics and their main- 
 tainers, and to award process for their arrest. Within ten 
 days after arrest the accused were to be delivered to the 
 ordinary by indenture for trial in the church courts. 1 Under 
 and by virtue of this final statute against the Lollards took 
 place most of the fanatical executions which disgrace the rec- 
 ords of the fifteenth and sixteenth centuries. 
 Henry iv. The conclusion has been heretofore reached that by the 
 
 and the irir i 111 
 
 commons, end oi the fourteenth century the commons had not only 
 won the right to participate in all the higher functions of 
 government, but that they had become the more active and 
 aggressive force in the national council reconstituted as an 
 assembly of estates. 2 During the first thirteen years of the 
 fifteenth century, occupied by the reign of Henry IV., the 
 rising influence of the commons reached the highest point of 
 its mediaeval growth, a point which it did not again reach 
 until after the lapse of two hundred years. Although the 
 commons, as an estate of the realm, assented in the parlia- 
 ment of 1399 that the Duke of Lancaster should reign over 
 the kingdom, it was less from the fact of their participation 
 in the election of the new sovereign than from their right to 
 assent or dissent when grants of money were asked that their 
 
 Their grow- influence throughout the reign was made effective. The 
 
 ing influ- , . . , 
 
 ence based new king was poor, and the demands upon him for money 
 ney he were great. In this condition of things the commons were 
 power. not s ] ow to perceive their opportunity. As early as the 
 parliament of 1401 the lower house, taking advantage of the 
 king's necessities, began to insist upon a clear and final con- 
 cession of the constitutional principle that the grant of 
 supplies should be preceded by answers from the crown to 
 petitions for the redress of grievances. Although this de- 
 
 1 Cf. Reeves, Hist, Eng. Law, vol. 2 See above, pp. 500-504. 
 iii. pp. 452, 453.
 
 II.] FROM HENRY IV. TO HENRY VIL 54* 
 
 mand was met by a peremptory refusal, the effect of the 
 refusal was soon overcome by the practice which grew up 
 shortly after that event of delaying the grant until the last 
 day of the session, by which time all the more important 
 petitions were probably disposed of. The right to make The right 
 supply depend upon redress was thus secured by the employ- sp^|y e de _ 
 ment upon the part of the commons of a simple yet irresist- pendupon 
 ible expedient. 1 Six years later (1407) a collision occurred finally es- 
 between the two houses that led to a declaration on the part 
 of the crown which " seems to have placed the king and the 
 two houses of parliament each in the separate and independ- 
 ent situation in which they now respectively stand." 2 The 
 outcome of this collision, which has been heretofore consid- TWO vitally 
 ered at length, was the definition of the two vital principles principles 
 of constitutional law which declare, first, that all money tf 
 
 bills shall originate in the house of commons; second, that defined in 
 
 1407. 
 the king shall not take notice of matters debated in parlia- 
 
 ment until after a conclusion has been reached in each house, 
 and such conclusion brought before him by their consent and 
 authority. 3 And yet, in spite of the serious encroachments 
 which the parliament thus made upon the monarchy under 
 the new dynasty, Henry IV. was bold enough to declare in 
 1411, when a quarrel arose with the commons over some 
 measure that had passed in the preceding parliament, that 
 he intended to enjoy all the liberties and prerogatives which 
 had ever belonged to any of his predecessors. 4 
 
 4. Some account must now be given of the growth of the The contin- 
 continual council which during the reigns of the Lancastrian "^ counciL 
 kings comes prominently into view, not simply as a depend- 
 ent body of councillors who assist the king in conducting the 
 executive business of the kingdom, but rather as a distinct 
 corporate entity, which stands midway between the king and 
 the parliament, through which the latter is able to limit and 
 control the exercise of the royal authority. In order to exe- 
 cute the mass of fiscal, judicial, and administrative work 
 which the growth of the royal power after the Conquest con- 
 centrated around the person of the king, it became necessary 
 to organize out of the great council a smaller body composed 
 
 1 See above, pp. 524, 525. * See above, pp. 525, 526. 
 
 8 Lords' Report, vol. i. p. 359. * Rot. Par/., iii. p. 658.
 
 542 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 A standing 
 committee 
 of the 
 greater 
 body. 
 
 Can be 
 traced as a 
 definitely 
 organized 
 body from 
 the minor- 
 ity of 
 Henry III. 
 
 Beginnings 
 of the doc- 
 trine of 
 ministerial 
 responsibil- 
 ity. 
 
 of the king's immediate officers and advisers, who were 
 charged, under the king's direction, with the whole work of 
 central or national administration. From the existing evi- 
 dence as to the relation of the two bodies to each other, 
 which is vague and shadowy in the extreme, the conclusion 
 has been heretofore reached that the lesser or continual coun- 
 cil stood to the greater as a concilium in concilia ; or, in mod- 
 ern language, that the lesser council was a standing committee 
 of the greater body. 1 The continual or " permanent council 
 under the early Norman kings consisted of the great officers 
 of state, the chancellor, the great justiciary, the lord treas- 
 urer, the lord steward, the chamberlain, the earl marshal, 
 the constable, and any other persons whom the king chose to 
 appoint ; and of the two archbishops, who claimed a right to 
 form a part of every council, public or private." 2 This group 
 of councillors, whom the Norman kings frequently changed, 
 appears as a definitely organized governing body when, upon 
 the accession of the child king Henry III., it became neces- 
 sary for the first time after the Conquest to form a council of 
 regency for the government of the state. From that time it 
 is possible to trace the existence of a permanent royal coun- 
 cil composed of the king's personal advisers, who constitute a 
 resident governing body for the dispatch of public business, 
 separate and apart from the greater body known as the com- 
 mon council of the kingdom. As the regent and other great 
 officers of state who composed the permanent council during 
 the minority of Henry III. were chosen by the great council, 
 it is probable that from that time can be traced the begin- 
 nings of the constitutional doctrine that the king can do no 
 wrong, and that the ministers who advise him are responsible 
 to the assembled representatives of the nation who have a 
 consultative voice in their appointment. 3 So firmly did the 
 idea that the royal authority should be wielded with the advice 
 of an organized and responsible body of state officials become 
 established during the earlier part of the reign of Henry III. 
 that, when he attempted after his emancipation to enforce his 
 personal rule with the aid of foreign favorites and dependent 
 clerks, the baronage resented the attempt by an open appeal 
 
 1 See above, pp. 242-245, 438. 
 8 Dicey, The Privy Council, p. 7. 
 
 8 See above, pp. 396, 397.
 
 II.] FROM HENRY IV. TO HENRY VII. 543 
 
 to arms. One of the leading concessions which Henry was 
 required to make, after he had surrendered himself to the 
 baronage under the lead of Leicester and Gloucester, was 
 that a committee of fifteen, under the control of the parlia- 
 ment, should advise him in all ordinary matters of govern- 
 ment. 1 During the reigns which follow, the principle that Growth of 
 the royal power could thus be limited and controlled by the 
 action of the council, and that the council itself could be 
 
 controlled by the parliament, was brought into requisition controlled 
 whenever a weak or wayward king rendered its assertion council, and 
 
 necessary and expedient. Although the authority of the 
 council, as a limitation upon the royal prerogative, naturally liament - 
 waned in the presence of so great a king as Edward I., even 
 Edward seems to have recognized its existence as a part of 
 the general political scheme, 2 and in his day it became more 
 definitely organized as the constitutional centre of the highest 
 state government. 3 
 
 After the parliament had established its right to enact all General 
 the more important and permanent acts of national legisla- counaT S the 
 tion, and after the three law courts, and the court of the duties - 
 chancellor, had won the right to hear and determine all ordi- 
 nary litigation, a mass of legislative and judicial work still 
 remained to the council in addition to its executive busi- 
 ness. 
 
 1. The residuary right of legislation, which remained to itsiegisia- 
 the king after the establishment of the parliamentary sys- |jo ns func ~ 
 tern, is generally known as the ordaining power of the king 
 
 in council. It was a part of the duty of the council to ad- 
 vise the king whenever the issuance of an ordinance became 
 necessary. 
 
 2. In like manner it was the duty of the council to advise its judicial 
 the king in the exercise of the extraordinary judicial powers functlons - 
 which remained to the crown after the complete organization 
 
 of the great courts of law and. equity. Such authority was 
 exercised either by the issuance of special commissions of 
 "oyer and terminer," or by the direct decision of knotty 
 cases by the king in council. 
 
 3. Although the council was thus called upon to discharge 
 
 1 See above, p. 401. 8 See Gneist, TTie Eng. Parliament, 
 
 8 Stubbs, Const. Hist., vol. ii. p. 258. p. 115 (Shee's trans.).
 
 544 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 itsexecu- both legislative and judicial duties, the fact remains that it 
 
 tions. um was primarily an executive body charged with the duty of 
 carrying out, at home and abroad, the diplomatic, financial, 
 and military work which devolved upon the king as chief ex- 
 ecutive. As an administrative body it became the duty of 
 the council to pass upon the vital questions of war and peace, 
 and to make treaties with foreign nations ; to manage the 
 finances by providing the best means to raise revenue, and at 
 the same time by looking after the method of their expendi- 
 ture; to summons the feudal army and county militia, and to 
 provide means for the maintenance of paid armies ; to con- 
 trol aliens, and at the same time to a certain extent to regu- 
 late trade ; and to preserve the king's peace by the assertion 
 of the royal authority whenever the ordinary process of law 
 proved inadequate. In addition to these duties the council 
 was also called upon to pass upon a mass of miscellaneous 
 business brought before it by petitions in which complaints 
 were made of all such abuses as naturally arose out of an im- 
 perfect and inadequate system of judicial and financial ad- 
 ministration. 1 
 
 The council During the weak and troubled reigns of Edward II. and 
 Richard II. the council was again employed, as in the days 
 ^ Henry III., as an intermediary body through which the 
 
 ard ii. parliament at one time supersedes, at another limits and con- 
 trols, the exercise of the royal prerogative. When in 1310- 
 1311 Edward provoked a conflict with the nation by putting 
 himself in the hands of the favorite Piers Gaveston, the royal 
 power was for a time practically transferred to a committee of 
 prelates and barons called the Ordainers, who provided, in a 
 scheme of reform which they devised for the future govern- 
 ment of the realm, that the king should appoint the great 
 officers of state only with the counsel and consent of the 
 baronage, and that all such officials should be sworn in par- 
 liament. 2 When in 1386 a serious breach occurred between 
 the parliament and Richard II. upon the demand of the for- 
 
 1 A definite idea of the extent and 167, 168; iii. 115, 210, 355; iv. 76, 114, 
 
 variety of business which came before 281 ; v. 35, 173, 191, 290; vi. 40-45, 66, 
 
 the council can only be formed by a 67, 68. See, also, Dicey, Tke Privy 
 
 study of the minutes of the council it- Council, pp. 49-68 ; and Palgrave, Au- 
 
 self. As illustrations, see Proceedings thority of the King's Council, 
 
 of Privy Council, i. 128, 289; ii. 165, 2 See above, p. 499.
 
 II.] FROM HENRY IV. TO HENRY VII. 545 
 
 mer that certain offensive ministers should be removed from 
 office, the king was at last compelled not only to yield to that 
 demand, but also to submit to a practical transfer of the royal 
 power to a committee with Gloucester at its head. This 
 committee, which was to hold office for one year, was not only 
 empowered to regulate the royal household, but also to un- 
 dertake the reform of the entire administration of the king- 
 dom. 1 
 
 After the accession of Henry IV. the estates were not Thecounca 
 slow to reassert the principle that the exercise of the royal ceadonof* 
 authority should be limited and controlled by the action of Henry IV> 
 the council, and that the council itself should be controlled 
 by the parliament. It is not the baronage, however, as in 
 the days of Henry III., Edward II., and Richard II., who 
 take the initiative, but the commons, who now appear as the 
 more aggressive element, which demands that the executive 
 government shall be conducted in accordance with the views 
 of the national assembly. In the parliament of 1404 the commons 
 commons ventured not only to attack the organization of the 
 royal household, but also to request the king to appoint in 
 parliament the servants who were to compose his great and council be 
 continual council, a request which was promptly complied fifpari 
 with. 2 Two years later, after the selection of a council under ment * 
 like circumstances, the commons informed the king that their 
 motive in making the grant then asked was not only their 
 fear of God and their love for him, but " the great confidence 
 which they had in the lords elected and ordained to be of the 
 continual council." 3 Passing over the reign of Henry V., 
 during which the absence of conflict between the crown and 
 the parliament rendered the restraining power of the council 
 unnecessary, a period is reached during which the council at- 
 tained its highest point of activity and authority. The mi- Thecoundl 
 nority of Henry VI. threw the executive government into the 
 hands of a council which derived its existence, not from royal 
 nomination, but from parliamentary election. 4 The coun- Henry vi. 
 cil of regency thus organized at once assumed a position of 
 
 1 Rot. Par/., iii. p. 221 ; Statutes, ii. * Rot. Parl., iii. pp. 525, 526, 530. 
 pp. 39-43. The commission issued to * Ibid., iii. p. 568. 
 the committee of reform in November * Lords 1 Kefort, vol. i. p. 368. 
 was turned into a statute dated ist De- 
 cember.
 
 546 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Ca 
 
 Parliament 
 imposes 
 regulations 
 upon the 
 council and 
 fixes the 
 pay of its 
 members. 
 
 The sworn 
 and paid 
 councillors 
 come to be 
 known as 
 the " privy 
 council," 
 during the 
 reign of 
 Henry VI. 
 
 commanding importance, an importance not unfettered, 
 however, by restraints imposed by the power that created it. 
 The parliament, not content with controlling the nomination 
 of the councillors, claimed the further right to regulate their 
 procedure by the imposition of rules and regulations which 
 they were bound by oaths 1 to obey. A series of regulations 
 of this character, beginning with the reign of Edward I., re- 
 appears in an improved form in the parliament rolls for 1406, 
 1424, and I43O, 2 as well as in the records of the privy coun- 
 cil itself. In addition to the restraints imposed by such regu- 
 lations, the parliament also retained in its hands the right to 
 regulate the pay of the councillors. As early as the reign of 
 Richard II., there existed a body of regularly paid and sworn 
 councillors ; during the reign of Henry IV. the commons 
 pray that the lords of the council be suitably rewarded ; 3 and 
 during the minority of Henry VI. their pay was regulated by 
 a scale which guaranteed to each member a fixed sum accord- 
 ing to his rank or dignity. 4 During the period last named, it 
 is possible to distinguish the sworn and paid councillors, who 
 attend regularly to the king's business, from the main body 
 of the council, which, upon special occasions, also embraced 
 the judges and justices, and such other advisers as the king 
 might see fit to specially summon. The sworn and paid 
 councillors who thus devoted themselves regularly to the 
 king's business began to be known, during the reign of 
 Henry VI., as the "privy council," the private or inner 
 circle of the greater body generally known as the " ordinary 
 council," or simply as "the council." Or, to express the dis- 
 tinction in the words of one who has made the history of 
 the privy council the subject of special investigation : "The 
 minority of Henry VI., by flinging the whole government 
 into the hands of the sworn councillors, must have rendered 
 the distinction between the habitual members of the council 
 
 1 Steph., Comm., vol. ii. (8th ed.), p. 
 460. 
 
 2 " Those of 1406 were enacted in 
 parliament and enrolled as an act; 
 those of 1424 were contained in a 
 schedule annexed to the act of nomi- 
 nation ; those of 1430 were drawn up 
 in the council itself, approved by the 
 lords, and read in the presence of the 
 three estates, after which they were 
 
 subscribed by the councillors." 
 Stubbs, Const. Hist., vol. iii. p. 251, 
 citing Rot. Par/., iii. pp. 585-589 ; iy. p. 
 20 1 sea., 343, 344; Ordinances, i. p. 
 297; iii. p. 148-152 ; iv. 59-66. 
 
 8 Rot. Part., iii. p. 577. 
 
 4 Proceedings of the Privy Council^ 
 iii., Preface xix., and p. 154; Rot. 
 Par!., iv. p. 374.
 
 II.] FROM HENRY IV. TO HENRY VIL 547 
 
 and those, whether nobles, lawyers, or others, who were only 
 occasionally summoned, much more marked. ... It is, 
 therefore, sufficiently apparent that under Henry VI. a select 
 council was gradually arising from the midst of the general 
 council ; that a change was taking place precisely analogous 
 to the process by which, in a later age, the privy council itself 
 gave birth to the cabinet." l Having traced the growth of 
 the council, viewed as a restraining influence upon the royal 
 authority, down to that point in its history at which the sep- 
 arate existence of the inner circle known as the "privy coun- 
 cil " distinctly appears, its further consideration will be post 
 poned until it can be hereafter viewed in the new aspect 
 which it assumes as an irresponsible engine of tyranny in the 
 hands of the York and Tudor kings. 
 
 5. While the absence of conflict between the crown and origin of 
 the parliament during the reign of Henry V. obscures for a ra hy. m 
 time the history of the council as a restraining influence 
 upon the royal prerogative, the vigorous revival of the French 
 war which followed Henry's accession brings the council as 
 an administrative body into fresh prominence as the active 
 agent of the executive power. The minutes of a meeting of 
 the council held in May, 1415, reveal through the mass of 
 business then pending the full scope of its activity. From 
 the consideration of matters touching an alliance with the 
 Duke of Burgundy, the council passes in turn to questions of 
 finance, matters of police, measures for the suppression of 
 the Lollards, and, last and most important of all, to provisions 
 for national defence through the issuance of commissions of 
 array, and orders for the equipment of the army and the 
 fleet. 2 At this point the account heretofore given of the 
 mediaeval system of military organization 3 may be conve- 
 niently supplemented by a brief summary of the history of 
 the admiralty. 
 
 The office of admiral, which finds its origin upon the shores office of 
 of the Mediterranean, whence it was transferred to the North a( 
 European countries by the returning crusaders, seems to 
 
 1 Dicey, The Privy Council, pp. 44, ' Privy ' and ' Ordinary ' council were 
 45. The same author says (p. 43), in any sense distinct bodies." 
 " Reasonable doubts may be enter- 2 Proceedings of the Privy Council, 
 tained whether, prior to Henry VI. the ii. p. 167. 
 
 * See above, p. 296.
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 have made its first appearance in England when, in the year 
 1286, Edward I. appointed William Leyburne captain of all 
 the portmen and mariners of his dominions under the title of 
 Admiral de lamerdu Roy cCAngleterre. In 1306, from which 
 time there is an uninterrupted succession of admirals, Ed- 
 ward Charles appears as captain and admiral from the mouth 
 of the Thames northward ; and Gervase Allard as captain and 
 admiral of the fleet of the Cinque Ports and of all other ports 
 from Dover westward. 1 This division of the maritime juris- 
 diction between two admirals of the North and West con- 
 tinued down to 1360, when a single high admiral of England 
 was appointed in the person of Sir John Beauchamp. Dur- 
 ing the remainder of the mediaeval period the office of admi- 
 ral is at one time divided, at another reunited in a single 
 person. 2 
 
 Beginnings The obscurity which conceals the early history of the 
 icnavy. ac i m iralty renders it alike difficult to ascertain how the na- 
 tional fleets were at first constituted, and how the sovereignty 
 of the sea was practically secured to the king as lord thereof 
 against the claims of the privileged seaport towns, and of 
 private individuals who carried on sea adventures of a semi- 
 oid-Eng- piratical character. The beginnings of the English navy can 
 ets ' be faintly traced in the fleets which were raised in the latter 
 part of the pre-Norman period for the protection of the king- 
 dom against the incursions of the Danes. Under the scheme 
 then employed each shire was required to furnish ships in 
 proportion to the number of its hundreds, an arrangement 
 which applied to the inland shires as well as to those on the 
 seaboard. Each shire sent its quota of ships to the fleet, as 
 it sent its quota of fighting men to the host. 3 This primitive 
 system, which did not long survive the Norman conquest, 
 was succeeded after that event by a new arrangement based 
 upon different principles. In order to supply the lack of a 
 The Con- regular navy, and to protect the southern seaboard against 
 querorand a ttack, the Conqueror incorporated the Cinque Ports and 
 Ports. endowed them wi^h certain special privileges, 4 upon condition 
 
 1 Fazdera, i. p. 990. 8 See above, p. 187 and note 2. As 
 
 2 A full statement may be found in to the history of the Old-English fleets, 
 Rowsell's article entitled " Admiral," see Norman Conquest, vol. i. pp. 226- 
 in Enc. Brit., gth ed. vol. i. pp. 155, 230. 
 
 156. 4 From the time of the Conquest the
 
 II.] FROM HENRY IV. TO HENRY VII. 549 
 
 that they would furnish a given number of ships and men for 
 so many days in case of an emergency. The naval force 
 thus contributed by the privileged towns for local defence 
 was augmented, when the crusades created a necessity for a 
 large number of ships for foreign expeditions, by fleets of 
 mercenaries, which were maintained, like the mercenary ele- 
 ment in the army, out of the royal exchequer. In the naval Origin of 
 force of mercenaries thus raised and maintained out of the 
 royal revenue the permanent fleet finds its origin. 1 The 
 organization and government of the fleet, thus dependent 
 upon the king's bounty, devolved during the mediaeval period 
 upon the admiral, the king's lieutenant and highest naval 
 representative. 
 
 In addition to his position as the executive head of the Theadmi- 
 naval administration, the admiral was also the president of a 
 sovereign court the high court of admiralty in which he 
 sat in person or by deputy to assert the king's lordship over miraity. 
 the seas, and to hear and determine all maritime causes aris- 
 ing outside of the limits of any county, that is, beyond the 
 reach of the common law tribunals. The code of sea laws, Code of ^ 
 which defined the jurisdiction and regulated the procedure of 1 ?* s w , h ! ch 
 
 ..... . , . e defined its 
 
 this high prerogative court, consisted of a collection or the junsdic- 
 usages of the sea, which during the mediaeval period acquired, 
 through the consent of the maritime nations, the force of 
 customary law. Through the fame acquired by the judg- 
 ments of a maritime court of the island of Oleron, in which 
 were defined the sea usages of the Atlantic, such usages 
 came to be known as the " Laws of Oleron." 2 It is probable Laws of 
 that a record of these judgments was brought into England O16ron< 
 and published as law by Richard I. upon his return from the 
 Holy Land. 3 Certain it is that the earliest collection of such 
 usages and judgments of the sea received in England is 
 described in the Black Book of the Admiralty as the " Laws 
 of Oleron;" and the earliest known text is contained in the 
 
 Cinque Ports are found in the posses- mament was organized on this plan." 
 
 sion of many special privileges. See Stubbs, Const. Hist., vol. i. p. 594. 
 Samuel Jeake, Charters of the Cinque 2 As to the* cause which brought 
 
 Ports, London, 1728. about the collection of the judgments 
 
 1 " The permanent fleet then was, of the maritime court of Oleron, see 
 
 from its very origin, a fleet of mercen- Cleirac's introduction to his work on 
 
 aries, and was maintained from the royal Les Us et Coustumes de la Mer, first 
 
 revenue, just as a band of Kraban9ons printed in Bordeaux in 1647. 
 might have been. . . . John's naval ar- 8 Such is the statement of Cleirac.
 
 550 
 
 THE GROWTH AND DECLINE OF PARLIAMENT [Cn. 
 
 Encroach- 
 ments of 
 the admi- 
 ralty court 
 upon the 
 common 
 law tribu- 
 nals : Stat. 
 ijth Rich- 
 ard II. st. 
 1,0.5. 
 
 Stat. isth 
 Richard II. 
 c. 3. 
 
 Stat, aist 
 Henry IV. 
 
 Liber Memorandorum, contained in the archives of the Guild- 
 hall of the corporation of London. 1 So marked did the ten- 
 dency of the admiralty jurisdiction which grew out of the 
 enforcement of these sea laws to encroach upon the domain 
 of the common law tribunals become, that it became neces- 
 sary as early as the reign of Richard II. to check its advance 
 by very stringent legislation. The statute of the 13 Richard 
 II., after reciting in the preamble that "a great and common 
 clamour and complaint hath been oftentimes made before this 
 time, and yet is, for that the admirals and their deputies hold 
 their sessions within divers places of this realm, as well within 
 the franchise as without, accroaching to them greater author- 
 ity than belongeth to their office, in prejudice of our lord the 
 king and the common law of the realm," etc., directs that the 
 admirals and their deputies shall not meddle henceforth with 
 anything done within the realm, but only with things done 
 upon the sea, according to the custom in the time of Edward 
 III. Two years later the statute of 15 Richard II. provided 
 that, by reason " of the great and grievous complaint of all the 
 commons," the court of admiralty shall have no cognizance of 
 any contract, plea, or quarrel, or of any other thing done or 
 arising within the bodies of counties, whether by land or 
 water, nor of wreck of the sea ; but that the admiral shall 
 have cognizance of the death of a man, and of mayhem done 
 in great ships being and hovering in the main stream of the 
 great rivers ; yet only beneath the bridges of the same rivers 
 nigh to the sea. 2 In the next reign it was provided by 
 statute of 21 Henry IV. that, if the admiral or his lieutenant 
 exceed their jurisdiction, the statute and common law may 
 be holden against them ; and if any man wrongfully pursues 
 in the admiralty court, his adversary may recover of him 
 double damages at common law. The instance jurisdiction 
 of the admiralty was permanent ; the prize jurisdiction was 
 
 1 See Sir Travers Twiss's excellent 
 article entitled " Sea Laws," in Enc. 
 Brit., gth ed. xxi. pp. 583-586. " The 
 Laws of Oleron, as they were called, 
 might constitute a national code of 
 maritime law for the direction of the 
 admiral ; and whatever was defective 
 therein was supplied from that great 
 fountain of jurisprudence, the civil law, 
 
 which was generally adopted to fill up 
 the chasms that appeared in any of the 
 municipal customs of modern European 
 nations." Reeves, Hist, of Eng. Law, 
 vol. iii. p. 389. 
 
 2 As to the statutes of Richard, see 
 Reeves, Hist. Eng. Law, vol. iii. pp. 
 388, 389.
 
 II.] FROM HENRY IV. TO HENRY VIL 55 1 
 
 temporarily bestowed by virtue of a special commission which 
 was usually issued at the commencement of hostilities. 
 
 When the English colonies in America were established, vice-admi- 
 vice-admiralty courts were created whose civil and maritime h?the C Eng- 
 jurisdiction "extended to the same subjects and was exer- J^J" 10 " 
 cised under the same limitations in the colonies as in Great America. 
 Britain. ' Upon the establishment of colonial governments,' 
 says a learned judge of one of those courts, 'it was deemed 
 proper to invest the governors with the same civil and mari- 
 time jurisdiction ; and therefore it became usual for the lord 
 high admiral or the lords commissioners to grant a com- Colonial 
 mission of vice-admiral to them.' The office thus conferred mTde^ce- 
 on the governor was precisely the same with that of the admirals - 
 vice-admirals in England, and was confined to that civil and 
 maritime jurisdiction which was the original branch of his 
 authority. (Stewart's V.-Ad., 394, 405.) These courts were 
 subordinate to the admiralty court of England, and until 
 the late reign of William IV. it received appeals from them, 
 (i Dod. Adm. R., 381.) M1 
 
 Long after the Federal Constitution of 1787 had extended Admiralty 
 the judicial power of the United States "to all cases of 
 admiralty and maritime jurisdiction," 2 a famous controversy Jn 
 arose, involving the question whether the ancient rule, which ed states. 
 excluded such jurisdiction from waters within the bodies of 
 counties in the old land, should likewise exclude it, in the 
 new, from the mighty rivers which constituted great high- 
 ways of commerce, and from the vast lakes that were no less 
 than inland seas. Authority and precedent, which blindly 
 refused to recognize changed geographical conditions, fought 
 for the ancient rule on the one hand, while an invincible 
 logic, which demonstrated that the reason of the ancient 
 doctrine had ceased, contended for a new and more con- 
 venient rule on the other. Guided by that marvellous pre- 
 science which has ever directed American statesmen and 
 jurists in adapting the institutions of the mother land to the 
 changed conditions of the new, the supreme court of the 
 United States finally abolished the ancient rule with all of its 
 
 1 Opinion of Mr. Justice Campbell a Art. 3, sec. 2. 
 in Jackson et al. v. Steamboat Magno- 
 lia, 20 Howard, pp. 329, 330.
 
 552 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 inconveniences, and established in its stead a new one which 
 
 makes the navigable character of the water, and not the 
 
 relation of the water to the land, the test of jurisdiction. 1 
 
 Henry vi. 6. The Hundred Years' War, which grew out of the asser- 
 
 dynastic tion by Edward III. of his claims to the French crown, 
 
 struggle reached its highest point of success when Henry V., after 
 
 known as . 
 
 the War of the victory of Agmcourt and the conquest of Normandy, was 
 ses< able in 1420 to force on Charles VI. the treaty of Troyes, 
 wherein it was agreed that Catherine, the eldest of the 
 French princesses, should be given him in marriage; and 
 that he should become regent of the kingdom during the life 
 of Charles, and his heir at his death. Two years thereafter 
 Henry V. died, leaving his English kingdom, and the vast 
 continental possessions which he had secured by inheritance, 
 treaty, and conquest, to Catherine's infant son, then scarcely 
 nine months old, The infant Henry VI. at once succeeded 
 to the English throne, and, upon the death of his maternal 
 Henry grandfather two months later, to that of France. For the 
 fourtn'mi f urtn time since the Conquest the duty then devolved upon 
 nority since the national council to provide for the actual administration 
 quest. of the sovereign power during the minority of the king, as 
 the common law of the realm neither contemplated nor pro- 
 vided for any such contingency. 2 How upon the accession of 
 Henry III. the exercise of the royal authority was vested in 
 the earl marshal, the elected representative of the baronage, 
 who carried on the government with their advice under the 
 title of rector regis et regni, has been explained already. 3 
 After the deposition of Edward II., and the coronation of his 
 son, then but fourteen years old, the parliament, which was 
 immediately summoned, vested the administration of the 
 sovereign power, not in a protector or regent, but in a stand- 
 ing council of bishops, earls, and barons, which has been 
 
 1 The early doctrine which limited risdiction in the United States is not 
 
 the admiralty jurisdiction to tide wa- limited to tide waters, but extends to 
 
 ters may be found in The Thomas Jef- all public navigable lakes and rivers 
 
 ferson, 10 Wheat. 428 ; Peyroux v. where commere is carried on between 
 
 Howard, 7 Pet. 324 ; United States v. the several states or with foreign na- 
 
 Cooms, 12 Pet. 72. These cases were tions. 
 
 overruled in The Genesee Chief v. 2 "In judgment of law the king, as 
 
 Fitzhugh, 1 2 How. 443, the principles king, cannot be said to be a minor." 
 
 of which were reaffirmed in The Mag- Co. Litt., p. 43. 
 
 nolia, 20 How. 296. The doctrine as 8 See above, p. 394. 
 finally settled is, that the admiralty ju-
 
 II.] FROM HENRY IV. TO HENRY VII. 553 
 
 aptly termed "a sort of parliamentary regency." 1 The same 
 general plan was followed at the accession of Richard II., 
 who was at the time but eleven years old. Although he was 
 permitted to take the great seal from the hands of its old 
 keepers, and to hand it over to a new custodian who, by its 
 magic influence, could legalize all acts of government, the 
 direction of affairs actually passed to a council of twelve orig- 
 inally appointed by the lords, and afterwards modified by the 
 authority of the whole parliament. 2 In providing for the A 
 minority of Henry. VI. the estates were careful to empha- 
 size the exclusiveness of their jurisdiction by ignoring the tabhshed - 
 directions of the dead king, who had expressed the wish that 
 his eldest brother, the Duke of Bedford, should become 
 regent of France, while his younger brother, Gloucester, 
 should act as regent in England. 3 As soon as parliament 
 assembled it " proceeded to authorize by its act the appoint- 
 ment of the Duke of Bedford, whilst in England, protector 
 and principal counsellor of the king, and the Duke of 
 Gloucester to execute the same functions in the absence of 
 the Duke of Bedford ; and a council, consisting of the Duke 
 of Gloucester and several bishops, dukes, earls, and barons 
 was appointed to assist in the government." 4 The council, 
 which ordinarily stood as an intermediary body between the 
 crown and the estates, thus became the depositary of the royal 
 authority, upon its ordinary executive functions the duties 
 of a regency were superimposed. As the infancy, incompe- 
 tency, and imbecility of the unfortunate Henry rendered the 
 regency thus established practically perpetual, the dramatic 
 history of his troubled reign is no more nor less than the 
 record of a series of struggles carried on between the leading 
 statesmen of the time for supreme influence in the council, 
 which was equivalent to the substance of royalty itself. 
 
 The three great actors who first come upon the scene are The strug- 
 Bedford, Gloucester, and Henry Beaufort, Bishop of Lincoln, fremacy"^ 
 During the prolonged absence of Bedford on the Continent, the counaL 
 where he wore his noble life out in the effort to hold the 
 
 1 Knigh ton, c. 2556; Rot. Parl., ii. p. the Gesta Hen. Quinti, p. 159. Ac- 
 
 52. Cf. Hallam, M. A., vol. iii. pp. cording to Wavrin, p. 423, Henry com- 
 
 17^-181. mitted England to the Duke of Exeter, 
 
 Rot. Parl., iii. p. 386. and France to Bedford. 
 
 ' This is the account contained in * Lords' 1 Report, voL L p. 368.
 
 554 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 French conquests which Henry V. had won, a struggle began 
 between Gloucester and Beaufort for supremacy in the Eng- 
 Legitima- lish administration. The Beauforts, the natural allies of the 
 house of Lancaster and ever the mainstays of its fortunes, 
 were the illegitimate descendants of John of Gaunt by his 
 mistress, Catherine Swinford, who were legitimated by act 
 of parliament in the reign of Richard II. 1 In the original 
 patent of legitimation the right to succeed to the crown was 
 not given in express terms, and from that fact the inference 
 was drawn that they were excluded by implication. In 1407, 
 however, Henry IV., in confirming Richard's act of legitima- 
 tion, expressly excluded the right to the succession by insert- 
 ing the limitation, " excepta dignitate regali"* words, 
 which were found interlined in Richard's grant on the patent 
 rolls, but which did not occur in the document upon which 
 Richard's parliament had acted. 3 The fact that the express 
 words of exclusion were introduced into the original patent 
 through an illegal interpolation left to the Beauforts, in the 
 event of the extinction of the legitimate branch, a pretension 
 at least upon which to found a claim to the crown of Lancas- 
 ter. The Henry Beaufort, bishop first of Lincoln, then of 
 Winchester, who now comes prominently into view, was a son 
 of John of Gaunt by the Swinford alliance, who had in both 
 of the preceding reigns held the office of chancellor. In 1424 
 Beaufort was again elevated to that office, 4 and from that time 
 his rivalry with Gloucester continues with varying fortune until 
 it was suspended by Bedford, who returned from France in 
 1433 to personally assume the direction of the home adminis- 
 tration. In the next year, however, Bedford was recalled to 
 France, and in 1435 he died at Rouen. After that event 
 Gloucester still struggled to maintain his hold upon power, 
 until the condemnation of his wife 5 for witchcraft in 1441 
 
 1 Rot Parl., iii. p. 343. tion by Henry IV., in 1407, the excep- 
 
 3 Excerpta Historica^. 153. tion occurs without interlineation. See 
 
 8 " In the original patent of legitima- Sir Harris Nicolas, in Excerpta Hist., 
 
 tion, and in the copy entered on the p. 153. It appears, however, to me, 
 
 rolls of parliament, there was no reser- that the original patent, though it omits, 
 
 vation of the royal dignity. In the nevertheless implies the exception." 
 
 copy on the patent rolls there is such Lingard, vol. iii. p. 50, and note i. 
 
 reservation, but it is interlined, and in * Fcedera, x. p. 340. 
 
 a different ink, though the hand is 6 She is styled " Eleanor Cobham, 
 
 nearly the same. In the exemplifica- lately called Duchess of Gloucester."
 
 II.] FROM HENRY IV. TO HENRY VII. 555 
 
 broke his prestige in the council, and left Cardinal Beaufort l Beaufort, 
 in undisputed possession as chief minister. To end the hadbeen 424 
 French war, which was a continual drain upon the national U^o' C i)f n " 
 resources, now became the prime object of Beaufort's pol- 44 be- 
 
 ITT- 11 o ill- came chief 
 
 icy. With that end in view a truce * was concluded in counsellor. 
 1444 through the English ambassador, the Earl of Suffolk, 
 William de la Pole; and by the same agent a marriage 
 was negotiated between Henry and Margaret of Anjou, 
 which was duly celebrated in April, 1445. In February, 
 1447, Gloucester died suddenly at Bury St. Edmunds, and 
 six weeks thereafter his old rival, Cardinal Beaufort, followed 
 him to the tomb. Suffolk, the negotiator of the Angevin Suffolk, 
 marriage, and the trusted friend of Henry and Margaret, now 
 comes upon the scene as chief counsellor, and assumes the 
 burden of maintaining the French war, fast approaching an 
 inglorious close under the leadership of Edmund Beaufort, 
 Duke of Somerset. In 1448 the surrender of Maine and 
 Anjou 3 the price of Henry's marriage with Margaret 
 was finally made ; in 1450 the second French conquest of 
 Normandy was completed; and in 1451 the conquest of the 
 English possessions in the south ended with the fall of 
 Bordeaux. For a moment the tide was turned, when in 1453 
 the great Earl of Shrewsbury came as a deliverer and changed 
 defeat into victory. But the end had now come. The earl 
 was slain at Castillon in July, and in October Aquitane, the 
 splendid inheritance of Eleanor, was lost to England forever. 
 From that time England " constantly takes part in continental England 
 affairs ; but she holds no continental possessions save such continental 
 outlying posts as Calais, Boulogne, Dunkirk, or Gibraltar." 4 posses- 
 In 1450, in the midst of these disasters, which in rapid suc- 
 cession tore from the English crown all of its important 
 continental dominions, Suffolk fell, leaving the supremacy in The strug- 
 court and council to be fought for by the Duke of Somerset, l 
 the representative of the Beauforts, then lieutenant of 
 France, and Richard, Duke of York, then lieutenant of 
 Ireland. 
 
 1 He was first nominated to the car- 3 Foedera, xi. pp. 59-67 ; Rot. Par/., 
 
 dinalate in 1417 (Ang.-Sax., p. 800), but v. p. 74. 
 
 the king forbade him to accept. He * Fcedera, xi. pp. 210, 214. 
 
 accepted a second nomination made * Mr. Freeman, in Enc. Brit., " Eng- 
 
 in May, 1426. Cf. Lingard, vol. iii. p. land/'gth ed., vol. viii. p. 321. 
 188.
 
 556 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Pedigree of The pedigree of this Richard of York, who now comes 
 York: prominently into view, takes us back to the great genealogi- 
 cal controversy which arose between the children of Edward 
 III. when, upon the deposition of Richard II., the crown 
 passed by authority of parliament to Henry IV., the son of 
 John of Gaunt, Duke of Lancaster. If the doctrine had 
 then been firmly settled that the strict rule of hereditary de- 
 scent, applied by the feudal lawyers to the succession of es- 
 tates, governed the descent of the crown, it would have 
 passed, not to the heir of John of Gaunt, the fourth son of 
 Edward III., but to Edmund Mortimer, the heir of Edward's 
 his relation third son, Lionel, Duke of Clarence. 1 Whatever rights the 
 Dukeof e ' house of Clarence possessed, under a law of succession which 
 clarence; j n t hat jay was not at all clearly defined, were transmitted 
 from Lionel to his daughter Phillipa, who became the wife 
 of Edmund Mortimer, third Earl of March. Roger Mortimer, 
 the son of this union, fell fighting in Ireland in 1398, leav- 
 ing an infant son, whom the childless Richard II. declared his 
 heir-presumptive. This infant son was the Edmund Morti- 
 mer, fifth Earl of March, whose claim was ignored in the 
 revolution which elevated Henry IV. to the throne. At his 
 death without issue, the latent claim of his house survived to 
 his sister Anne, who married the Earl of Cambridge, by 
 whom she became the mother of Richard, Duke of York. 2 
 In addition to the right which Richard thus derived through 
 the house of Mortimer, a right embarrassed by the fact of 
 its transmission through female descendants, he also claimed 
 his relation descent in the male line from Edmund of Langley, a son of 
 of SSey d Edw ard III., younger than John of Gaunt. Under this claim 
 Richard stood next in the line of succession in the event of 
 the death of Henry IV. without issue, provided the Beauforts 
 were excluded by the terms of their legitimation. 3 Such 
 were the rival claims of the houses of York and Beaufort to 
 the tottering throne of the childless Henry VI. when, in the 
 autumn of 1450, Somerset returned from France and York 
 from Ireland to contend for the station of chief minister, 
 made vacant by Suffolk's fall. 4 When the struggle for su- 
 
 1 See above, p. 513. George, Duke of Clarence, Richard 
 
 2 Richard married the daughter of III., etc. 
 
 the Earl of Westmoreland, Cecily Ne- 8 See above, p. 554. 
 
 ville, the mother of Edward IV., * As to the condition of things upon
 
 II.] FROM HENRY IV. TO HENRY VIL 557 
 
 premacy between the rival dukes was at its height Henry be- 
 came imbecile, and a few months thereafter the hopes of both 
 were clouded by the birth, in October, 1453, of an heir to the An heir 
 demented king. Somerset's unfortunate connection with the HemyVi., 
 disasters in France, which at this juncture resulted in the Oct '453- 
 final loss of Aquitaine, now turned the tide against him. His 
 arrest in December broke his power with the council, and 
 in March of the next year York, whose influence was su- 
 preme, was chosen protector. 1 The advantage thus gained York pro- 
 by York was, however, of but short duration ; early in 1455 u 
 the king recovered, the protectorate was terminated, and 
 Somerset released from custody. No recourse now being 
 left to York but arms, with Salisbury and Warwick at his 
 back he marched upon the king, and in May the first battle with the 
 of St. Alban's was fought, in which Somerset was slain and oFst. Ai- e 
 York completely victorious. With this fight, which was but ^". s ' c fvn y> 
 little more than a skirmish, the civil war begins. war begins. 
 
 York, timid to the last in putting forward his claim to the York's 
 royal office, demanded no more after his victory at St. Al- ^ectorate* " 
 ban's than the first place in the council, and the calling of a 
 parliament to which he could appeal for an approval of his 
 policy. The parliament which met in July 2 was prorogued 
 until November, and in the interval the king again became 
 insane, rendering necessary a second protectorate. At the re- 
 quest of the commons the lords nominated York as protector, 
 and the king confirmed the nomination, with a subsequent 
 proviso that the government should be vested in the council, 
 with the duke as its head. 3 The ascendency thus secured 
 by York, who now held in his grasp the royal authority, the 
 demented king, and the infant heir, forced the leadership of 
 the Lancastrian cause upon its natural defender, the indomi- 
 table and despotic Margaret of Anjou. Fortune favored her Margaret 
 at the outset : in February, 1456, the king recovered his rea- ^^^^ 
 son, and the duke's second protectorate came suddenly to an of the Lan> 
 end. 4 The three years of peace which now ensued, during cause, 
 which a great formal pacification took place in March, I458, 6 
 
 their return, see Lingard, vol. iii. p. * Rot. Par/., v. pp. 321, 322 ; 
 
 2OQ. Faedera, xi. p. 373. See fasten Letters, 
 
 f Rot. Par/., v. p. 242. i. 378, as to the queen's disposition 
 
 3 Lords' Report, iv. p. 936. towards the duke. 
 
 8 Rot. Parl.,v. 284-290; Fcedera, xi. 6 Fabyan, p. 464; Hall, p. 172; Pas- 
 
 pp. 369, 370. ton Letters, i. pp. 424-427.
 
 558 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 between York and Margaret, at St. Paul's, were simply the 
 
 prelude during which both factions were marshalling their 
 
 forces for the final appeal to arms. Despite the victory won 
 
 Battle of by Salisbury over the forces of Lord Audley at Bloreheath, in 
 
 Sept^S.' September, 1459, tne duke was soon driven through deser- 
 
 Fiight of tions to seek shelter in Ireland, while his great lieutenants, 
 
 York, Sahs- . . 
 
 bury, and Salisbury and Warwick, took refuge at Calais. From these 
 
 Warwick 
 
 safe retreats York and Warwick were busy concerting a fresh 
 attack upon the kingdom, while Margaret, in the parlia- 
 ment which met at Coventry in November, was striving to 
 complete the ruin of the Yorkist lords by bills of attainder. 1 
 In June, 1460, Warwick and Salisbury, with York's eldest 
 son, the future Edward IV., landed in Kent, and, after pub- 
 lishing a manifesto 2 severely arraigning the royal advisers, 
 marched with a great popular following at their backs upon 
 London, where they were joyfully received early in July. On 
 York the loth of that month a decisive battle was fought at North- 
 ampton 3 which resulted in a great slaughter of the Lancas- 
 trian lords, the capture of the king, and the flight of Marga- 
 state's his ret to Scotland. Richard's hour of triumph had now come, 
 crown. ie and with it came the necessity of propounding to the nation 
 the definitive claim of his house to the royal office. In an as- 
 sembly of estates which met on the 7th of October, after 
 the repeal of the acts of the Coventry parliament, 4 Richard, 
 whose right as heir-presumptive to the crown by virtue of his 
 descent from Edmund of Langley had been cut off by the 
 birth of a son to Henry and Margaret, finally rested his claim 
 to the crown solely upon his descent from Edward III. 
 through the house of Mortimer. 6 To Richard's claim as 
 thus propounded the lords, who were consulted as to its suffi- 
 ciency, stated five objections, 6 which were scarcely so con- 
 vincing as that of the king himself, who when questioned 
 upon the subject thus replied : " My father was king ; his 
 father was also king ; I myself have worn the crown forty 
 
 1 Rot. Par/., v. pp. 346-350. consulted, but they replied that it was 
 
 2 Stow, pp. 407, 408; Eng. Chr., not a question for them to decide. On 
 pp. 86, 87. this subject it was that Sir John For- 
 
 8 Eng. CAr., pp. 95-97; Wore., p. tescue afterwards wrote his Defensio 
 
 773 ; Gregory, p. 207. Juris Domus Lancastritz, which may 
 
 * Rot. Parl., v. p. 374. be found in the first volume of the Cler- 
 
 Ibid., v. p. 375. mont ed., 1869, pp. 505-516. 
 6 Ibid., v. p. 376. The judges were
 
 II.] FROM HENRY IV. TO HENRY VII. 559 
 
 years from my cradle : you have all sworn fealty to me as 
 your sovereign, and your fathers have done the like to mine. 
 How, then, can my right be disputed?" 1 The answer to Acompro- 
 this cogent question was found in a compromise wherein c s u e re ^ h t he 
 it was agreed that Henry should "keep the crown and his succession 
 estate and dignity royal during his life, and the said duke house of 
 
 .,.,.* J J , ,. . ., . ,. , ., Yorkafter 
 
 and his heirs to succeed him in the same at his death/ Henry's 
 This settlement, which forever cut off the rights of her son, death ' 
 was accepted by Margaret as a fresh challenge to arms. 
 Rapidly gathering forces in the north in the king's name, 8 
 in December she met York and Salisbury at Wakefield, and 
 after a bloody fight York was slain and Salisbury captured York slain 
 and beheaded at Pomfret. 4 But the fall of the duke was no ^f^ e ' 
 overthrow of the cause of York, it was simply an incident Dec -> MOO. 
 through which the leadership of that cause was transmitted to 
 a more crafty, a more merciless, a more brilliant defender. 
 The young Edward, who at the time of his father's fall was 
 gathering forces on the Welsh marches, now took the lead, 
 and in February, 1461, won a battle at Mortimer's Cross, 6 
 just two weeks prior to Warwick's defeat in the second bat- 
 tle at St. Alban's. After that event Edward and Warwick 
 joined forces and entered London, where on the ist of March 
 Chancellor Neville explained to an assembly of citizens the 
 nature of Edward's title. On the 4th, after seizing the crown Edward iv. 
 and sceptre of Edward the Confessor, he was proclaimed crown and 
 king at Westminster under the title of Edward IV. 6 Thus, sceptre at 
 
 .......... Westmin- 
 
 not only without the authority of parliament, but m open de- ster, March 
 fiance of the acts through which it had settled and confirmed virtue 'of y 
 the succession in the house of Lancaster, the heir of York 
 seized the crown and entered into possession of the royal 
 office as an estate which he claimed belonged to him by the 
 unaided force of his hereditary title. Although parliamentary 
 sanction followed, Edward's reign, in contemplation of law, 
 dates from the day upon which he asserted his hereditary 
 
 1 Blackm., 305; Lingard, vol. Hi. p. Gregory, Chr., p. 215. Cf. Stubbs, Const. 
 
 223. Hist., vol. iii. p. 189. Although there 
 
 * Rot. Par I., v. 375-383. may have been no formal parliamen- 
 8 Whethamstede, i. p. 381. tary election, the authorities clearly 
 
 * Eng. Ckr. t p. 107. show that the technical claim of inde- 
 6 W. Wore., pp. 775, 776 ; Eng. feasible hereditary right drew its prac- 
 
 CAr., p. no. tical vitality from the general approval 
 
 6 Hardyng, p. 406 ; Eng. Chr., p. expressed through the forms of a pop- 
 no; Whethamstede, i. pp. 405-407 ; ular election.
 
 560 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Decisive 
 battle of 
 Towton 
 Field, 
 March 29, 
 1461. 
 
 Outline of 
 the consti- 
 tution by 
 Sir John 
 Fortescue. 
 
 All govern- 
 ments di- 
 vided into 
 three 
 classes. 
 
 claim by the seizure of the crown and sceptre at Westmin- 
 ster. But although Edward was now king at London and in 
 the south of England, the decisive struggle of the civil war 
 was yet to come. Robbed of the capital, Margaret had with- 
 drawn with her army to Yorkshire, the Lancastrian strong- 
 hold in the north, and there on the 29th of March, 1461, was 
 fought the bloody battle of Towton Field, in which the two 
 armies numbered together nearly one hundred and twenty 
 thousand men. 1 After a desperate conflict Edward was com- 
 pletely victorious : the Earl of Northumberland and the lords 
 Wells and Neville were among the slain ; the earls of Devon- 
 shire and Wiltshire were taken and executed ; Margaret, with 
 the king and heir, was forced to seek refuge in Scotland ; the 
 war of the succession was practically at an end, 2 the cause 
 of Lancaster was lost. 
 
 7. No attempt to outline the form which the English con- 
 stitutional system assumed during the fourteenth and fifteenth 
 centuries should fail to embrace some allusion to the accounts 
 given of that system by Sir John Fortescue, the great Lan- 
 castrian lawyer, who attended Queen Margaret in her exile on 
 the Continent, where he seems to have undertaken, for a time 
 at least, the political education of the heir-apparent. From 
 the De Laudibus Legum Anglics, which was designed to in- 
 struct the prince how he should rule over the English ; from 
 the De Dominio Regali et Politico, a Treatise on Absolute 
 and Limited Monarchy, and in particular on the Monarchy of 
 England ; and from the De Natiira Legis Nature?' it is pos- 
 sible to draw something like a definite idea of the extent to 
 which the English kingship had become limited towards the 
 end of the fifteenth century by the growth of the parliament 
 on the one hand, and by the growth of the system ot legal ad- 
 ministration on the other. Under the influence of mediaeval 
 political ideas, the writer divides all governments into three 
 classes ; the first of which he describes as regal government 
 (dominium regale), the second as political government (domin- 
 
 1 See Green, Hist. Eng. People, vol. 
 
 i- P- 575- 
 
 2 " By the surrender of Berwick to 
 the Scots, in April, the fall of the 
 house of Lancaster was recognized as 
 final." Stubbs, Const. Hist., vol. iii. 
 p. 190, citing Hall, p. 256. 
 
 8 These three treatises are contained 
 in the first volume of the sumptuous edi- 
 tion of the works of Sir John Fortescue, 
 printed for private distribution by Lord 
 Clermont in 1869 in two volumes quarto. 
 The first volume of this, the only com- 
 plete edition of the works of Sir John,
 
 II.] FROM HENRY IV. TO HENRY VII. $6l 
 
 ium politicum}, and the third as government of a mixed na- 
 ture, regal and political (dominium regale et politicum}. 1 To 
 the third class England belongs. The contrast is then sharply 
 drawn between the absolute regal government of France, 
 where the civil law prevails, and the limited regal and politi- 
 cal monarchy of England, where the common law prevails. 2 
 The maxim of the civilians, that "what has pleased the 
 prince has the force of law," 3 has no place in the English 
 system. The king of England is a rex politicus : ^ he cannot, King of 
 "at his pleasure, make any alterations in the laws of the 
 land, for the nature of his government is not only regal, but 
 political. Had it been merely regal, he would have a power 
 to make what innovations and alterations he pleased in the 
 laws of the kingdom, impose talliage and other hardships 
 upon the people, whether they would or no, without their 
 consent, which sort of government the civil laws point out 
 when they declare Quod principi placuit legis habet vigorem : Q UOI J, 
 but it is much otherwise with a king whose government is %'"* 
 political, because he can neither make any alteration or legis habet 
 
 i -11 r i 1-1 f vigorem, 
 
 change in the laws of the realm without the consent of the not an Eng. 
 subject, nor burden them, against their wills, with strange 
 impositions ; so that a people governed by such laws as are 
 made by their own consent and approbation enjoy their prop- 
 erties securely, and without the hazard of being deprived of 
 them, either by the king or any other." 6 In England the Limitations 
 king " cannot by himself or his ministers lay taxes, subsidies, 
 or any imposition of what kind soever, upon the subject ; he 
 cannot alter the laws, or make new ones, without the express mentary 
 consent of the whole kingdom in parliament assembled." 6 * 
 Sir John, who had been chief justice of the king's bench, 
 while explaining how the liberties of the nation as a whole 
 were protected by the parliamentary system, did not forget to 
 point out how the life, liberty, and property of the individual 
 subject were guarded by the system of legal administration. 
 
 bears the title, " The Works of Sir 3 De Laudibus, cc. 35, 36. 
 
 John Fortescue, Knight, Chief Justice 8 Ibid., cc. 9, 35 ; De Nat. Leg. Nat., 
 
 of England and Lord Chancellor to i. 28. 
 
 King Henry the Sixth, now first col- * De Nat. Leg. Nat., i. 16. 
 
 lected and arranged by Thomas (For- 6 De Laudibus, c. 9. 
 
 tescue) Lord Clermont." Ibid., c. 36. 
 
 1 De Natura Legis Natures, i. 16; De 
 Dominio Regali et Politico, c. I.
 
 562 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 In the account given of the provisions made for the local ad- 
 ministration of justice, a careful statement is contained of the 
 procedure in jury trials both in civil and criminal cases. 1 In 
 The jury a civil case the issue is tried by an impartial jury taken from 
 system. ^ neighborhood ; in a capital case the jury is not only se- 
 lected impartially from the neighborhood, but the defendant is 
 given a large number of challenges, for which he need assign 
 no cause or reason. " In a prosecution carried on in this man- 
 ner there is nothing cruel, nothing inhuman ; an innocent 
 person cannot suffer in life or limb : he has no reason to 
 dread the prejudice or calumny of his enemies ; he will not, 
 can not, be put to the rack to gratify their will and pleasure. 
 In such a constitution, under such laws, every man may live 
 Parliament- safely and securely." 2 Thus by the middle of the fifteenth 
 century the personal and political rights of the English peo- 
 
 practicai p] e which had long before been defined in statutes and char- 
 
 guarantees r 
 
 of liberty, ters, were permanently and practically guaranteed to the na- 
 
 tion as a whole by the parliamentary system on the one hand, 
 and to the individual subject by the jury system on the other. 3 
 The house 8. Through the exercise of the ultimate power of parlia- 
 its acces-~ m ent the house of Lancaster was raised to the throne, and 
 S n n b^ rks ^ or more tnan sixty years it reigned by virtue of a parliamen- 
 ningofa tary title. To the ascendency which the parliament thus 
 won over the monarchy, in the hands of that branch of the 
 royal house which may be regarded as its own creation, must 
 be added the advantage which accrued to the estates by rea- 
 son of the continual dependence upon them of the ruling 
 house for the means with which to maintain a never-ending 
 foreign war. Under the favorable conditions thus presented 
 by the period of Lancastrian rule, the powers and privileges 
 of parliament were so far defined and consolidated as to war- 
 rant the hope that in the assembly of estates the English na- 
 tion had at last found a defender constant enough and strong 
 enough to maintain its liberties as against the monarchy in 
 all the years of struggle and of change that were yet to come. 
 And yet this hope, apparently well founded, ended in failure 
 and disappointment the moment that the immature parlia- 
 mentary system was called upon to maintain itself amid the 
 
 1 De Laudibus, cc. 26, 27. 8 This is well put by M. Duruy, Hist. 
 
 3 Ibid., c. 27. du Moven Age, Paris, 1864, p. 450.
 
 II.] FROM HENRY IV. TO HENRY VII. $63 
 
 vicissitudes of a dynastic struggle between two factions which 
 it was powerless to control. By the fall of the house of Lan- 
 caster the first period of parliamentary growth, which had 
 been steadily progressing for nearly two centuries, was 
 brought suddenly to a close. With the accession of the 
 house of York began that prolonged period of reaction which 
 reached its highest point under the house of Tudor, dur- 
 ing which the monarchy, released from the fetters and safe- 
 guards which the growth of the parliamentary system had 
 put about it, resumed in substance, if not in form, the exer- 
 cise of that system of royal autocracy which it had wielded 
 before the charters were won. The great fact which the dy- collapse of 
 nastic struggle known as the War of the Roses teaches, so {ur 
 far as constitutional history is concerned, is embodied in the me 
 
 * . system. 
 
 failure of the parliamentary system to maintain itself when 
 subjected for the first time to a crucial test of its strength in 
 the storm and stress of civil war. The question which this 
 failure naturally suggests is this : Why was it that the mon- 
 archy, upon the accession of the house of York, was able to 
 suddenly free itself from the limitations and restraints with 
 which the framers of the charters had so carefully hedged it 
 about ; why was it that the parliamentary system, upon which 
 the practical enforcement of these restraints really depended, 
 should have suddenly given way at the very moment when 
 its existence as a conserving and arbitrating force had become 
 a great national necessity ? The political struggles of the 
 thirteenth century had demonstrated the fact that the mon- 
 archy, when relying solely on its inherent strength, could not The mon- 
 resist the might of the united nation marshalled in the ranks 
 of the three estates. So long as the elements composing 
 the estate system remained intact, so long as these elements tion of th 
 
 ,. . , i i .... three es- 
 
 acted in concert against the monarchy in the national parha- tates, 
 ment to which the estate system gave birth, so long the mon- 
 archy lay helpless in the hands of a coalition which could 
 grant or withhold its supplies, which could dictate its policy 
 and punish its ministers, and which, as a last resort, could 
 lay its hands upon the throne and depose the king himself. 
 The causes which, upon the accession of Edward IV., led to 
 the reestablishment of the monarchy, and to the suspension 
 of the system of parliamentary life by which it had been over-
 
 564 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 awed for more than a century, must be found in the processes 
 is emanci- of dissolution and decay which by that time had undermined 
 Through the not only the corporate vitality of each of the three estates, 
 esSe sy e kut which had also dissolved that spirit of union and inter- 
 tem. dependence, born of a common oppression, which in the ear- 
 
 lier days had bound them to each other. 
 
 Decline of The Conqueror, warned by experience in his own duchy, 
 ^. bai an d enlightened by observation of the disruptive tendencies 
 manifested by feudalism in France, where it existed not only 
 as a system of tenure but as a system of government, was 
 careful to fetter its growth in his English kingdom by all 
 the safeguards which could be devised for the protection of 
 Continental the central authority. In the continental system, where 
 feudalism. j ar g e sections of territory were granted to the greater vas- 
 sals, such vassals, through the process of subinfuedation, 
 became powerful local magnates with bands of tenants at 
 their backs bound to them by a tie of fealty which was direct 
 and immediate, while that which bound them to the king as 
 supreme lord was only indirect and mediate. Under this 
 system the tenants of the mesne lords, who owed no direct 
 fealty to the state or the king as its head, were ever ready 
 when occasion required to follow the standards of their im- 
 mediate lords even against that of the king himself. 1 In 
 William's the hope of changing this aspect of feudalism in England, 
 anti-feudal \villiam was not only careful to so distribute the great 
 estates as to prevent the vesting of large sections of contig- 
 uous territory in the hands of any one great magnate, but he 
 was also careful in the great Gemot of Salisbury to impose 
 an anti-feudal restraint upon all landowners by requiring each 
 and all of them, in accordance with the old English practice, 
 to take an oath of fealty directly to the king as the head of 
 the state. 2 And yet in spite of all such precautions the 
 feudal element waxed strong upon English soil, and through- 
 out the Norman reigns the national authority as embodied in 
 the new kingship was continually menaced by the great 
 vassals of the Conquest, who were ever eager to establish in 
 the new land all the special privileges and jurisdictions to 
 which they had been accustomed in the old. And during 
 the period of anarchy which fills up the greater part of 
 1 See above, pp. 224, 225. 3 See above, pp. 233, 268, 269.
 
 II.] FROM HENRY IV. TO HENRY VII. 565 
 
 Stephen's reign, it seemed as if the hopes of the feudal party The feudal 
 in England were to be fully realized. As soon as the royal Stephen -f 
 authority gave way in the struggle for the crown, the land tci n - 
 was rent by strife between baron and baron, who arrogated 
 to themselves all of the powers of petty despots. They forti- 
 fied their castles, they engaged in private war, they struck 
 their own coins, they exercised private jurisdiction, in a 
 word, they reproduced for a time all the evils of continental 
 feudalism which the Conqueror, by his far-sighted policy, had 
 hoped to render impossible in England. 1 In the light of 
 these events Henry II., after the restoration of order, made Anti-feudal 
 it the prime object of his policy to strengthen in every pos- 
 sible way all anti-feudal restraints, and at the same time to 
 reduce the feudal party, as well as all other orders in the state, 
 to obedience to a uniform system of law which the royal 
 authority could both mould and administer. The most 
 striking single feature of Henry's anti-feudal policy was that 
 embodied in his scheme of commuting personal military ser- 
 vice for the money payment called scutage, 2 a scheme Scutage. 
 which made possible the hiring of mercenaries for foreign 
 wars, a kind of warfare to which the feudal array with its 
 short term of service was but illy adapted. And yet, in spite 
 of the foresight of the Conqueror, in spite of the anti-feudal 
 policy of Henry II., the baronial body held its own as the 
 most powerful order in the state, and as such took the lead 
 and maintained it throughout the prolonged struggle with 
 the crown in which the charters were won. The leadership strength of 
 thus conceded to the baronage rested in the main upon its ^ ^^ 
 superiority as a military power : the feudal array, composed military 
 of the greater barons with their vassals at their backs, consti- 
 tuted a force with which no other in the kingdom could suc- 
 cessfully compete. The bands of mounted and heavily armed 
 knights, who were bound to their baronial chiefs by a sacra- 
 mental tie which arose out of the ownership of land, could 
 never be successfully confronted by an array of unarmored 
 footmen until there was first a change in the art of war. As 
 the strength of the feudal array grew out of the power of the 
 great lords to command the services of the trained knights 
 by virtue of their ownership of great estates, and upon the 
 
 1 See above, pp. 275, 276. 2 See above, pp. 283, 284.
 
 566 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 superiority of the armored host thus organized to every other 
 military force, the wreck of the baronage as a military body 
 must be found in the operation of two causes, one of which 
 gradually dissolved its cohesion from within, while the other 
 suddenly destroyed its military prestige from without. By 
 Baronage the breaking up of the great estates, which the process of sub- 
 by'the 11 '* infeudation and the elevation of the villein into a freeholder 
 breakingup steadily advanced, the great lords were gradually deprived of 
 estates their military followings, whose numbers depended upon the 
 subinfeuda- extent of their territorial possessions. So marked had this 
 tendency become in the reign of Edward I., that we then 
 find the baronial body attempting to arrest its progress by 
 special legislation devised in the interest of their order. And 
 yet such legislation certainly failed of its object. It seems 
 to be no more clear that the statute Quia emptores was de- 
 signed to protect the baronage against the undermining influ- 
 ence of subinfeudation, than it is certain that the practical 
 effect of that act was to advance the progress of the very evil 
 which it was designed to prevent. 1 While the expedients of 
 legislation were thus failing to check the growth of the 
 causes which were gradually depriving the baronial body of 
 An attempt their actual vassals, an attempt was made to nourish the 
 dying feudalism by an artificial process of adoption, which 
 
 feudalism consisted of the giving of their liveries by the baronial house- 
 ciai process, holds not only to the smaller gentry and farmers of the neigh- 
 borhood, but to the vagrant or the outlaw who was willing to 
 swell the retinue of the great man and to wear his livery in 
 consideration of his maintenance and protection. 2 The arti- 
 ficial vassalage which thus grew up filled the houses of the 
 
 1 As to the design and practical ef- they were held by their tenures. . . . 
 feet of this statute see above, pp. 412, The condition of the times, and the 
 413, and note i. The statute De turn of manners which now prevailed, 
 religiosis was also designed to protect made it desirable and necessary for 
 the king and other feudal lords from great lords to supply this defection in 
 the loss of services due them by the their tenants by other expedients. It 
 conveyance of estates to persons or accordingly had become the custom to 
 institutions incapable of discharging retain persons in their service to be at 
 the legal obligations. See above, p. call when their lords' affairs needed 
 407. their support; and in order to distin- 
 
 2 " The feudal bond between lord guish different partisans, as well as to 
 and vassal had been of late years grow- give a splendor to such retinue, they 
 ing weak ; and we find now that vil- used to dress them in liveries and hats 
 leins and land-tenants had begun to of a particular make or color." 
 break into violent demands for an ex- Reeves, Hist. Eng. Law, vol. iii. pp. 
 emption from the servitude in which 351, 352, Finlason, ed.
 
 II.] FROM HENRY IV. TO HENRY VII. 567 
 
 greater barons with a riotous force, equally ready for service 
 in time of war and for acts of lawless outrage in times of 
 peace. When the baron could no longer demand the military 
 service of his vassals for private war, " he could, if he chose 
 to pay for it, support a vast household of men armed and 
 liveried as servants, a retinue of pomp and splendor, but 
 ready for any opportunity of disturbance ; he could bring 
 them to the assizes to impress the judges, or to parliament to 
 overawe the king ; or he could lay his hands, through them, 
 on disputed lands and farms, and frighten away those who 
 had a better claim. He could constitute himself the cham- 
 pion of all who would accept his championship, maintain their 
 causes in the courts, enable them to resist a hostile judgment, 
 and delay a hazardous issue." J 
 
 This custom of the strong man undertaking to maintain champerty 
 the cause of his weak dependent, although it might be under- trance" 1 
 taken without pecuniary interest in the result, was so abused 
 to the detriment and disturbance of the common law that, as 
 early as the reign of Edward I., the maintainers of false 
 causes were made the subject of severe repressive legislation, 
 the scope of which was greatly widened by a series of statutes 
 passed in the reign of Edward III. 2 When the maintenance 
 of a cause was undertaken upon an agreement that a part of 
 the matter in controversy should be paid to the maintainer as 
 a compensation for his service, it was called champerty, 3 in 
 simple maintenance, 4 the question of compensation not enter- 
 ing into the account. 
 
 In this connection may be noted another evil growing out Heraldry, 
 of the giving of liveries, which finally expanded into an elab- 
 orate system known as heraldry, whose organization and 
 supervision was committed to a body of heralds, regularly 
 organized under the presidency of the earl marshal. The 
 term " livery," which originally embraced the allowance both 
 of food and clothing given by the lord to his dependent, was 
 gradually restricted to the giving of clothing only, which took 
 the shape of a uniform, or badge of service. 5 When these 
 
 1 Stubbs, Const. Hist., vol. iii. pp. to the distinction between champerty 
 ;o, 531. and maintenance, see, also, Bell 
 
 8 See Stat. Westm., i. cc. 25, 28, 33; Smith, 7 D. & R. 846, 5 B. & C. 188. 
 
 530, 531. and maintenance, see.^also^ Bell v. 
 
 " See Stat. Westm., i. cc. 25, 28, 33; 
 I Edw. III. st. 2, c. 14; 20 Edw. III. * Co. Litt., 368 b ; Blackstone, Comm., 
 
 cc. 4, 5, 6. bk. iv. p. 136. 
 
 8 Co. Lift., 38 b; 2 Inst., p. 208. As 6 "Livery was originally the allow-
 
 568 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 Badges of 
 service be- 
 come hered- 
 itary. 
 
 The heralds 
 incorpo- 
 rated into a 
 court under 
 the presi- 
 dency of 
 the earl 
 marshal. 
 
 Power of 
 the baron- 
 age as a 
 military 
 force 
 
 broken by 
 the discov- 
 ery of gun- 
 powder. 
 
 badges of service, which were looked upon as most valuable 
 possessions by those having the right to bestow them, became 
 hereditary, their descent was regulated by a system of com- 
 plicated rules designed not only to prevent the use of similar 
 bearings by different families, but also to determine the rela- 
 tive rights to the paternal coat as between different members 
 of the same family. 1 The administration of this complicated 
 heraldic system, and the adjudication of the controversies 
 which grew out of it, was committed to the earl marshal, 
 whose jurisdiction was defined by statute in the reign of 
 Richard II. 2 Not until the reign of Richard III. were the 
 heralds definitely incorporated into the college of arms 3 
 under the presidency of the earl marshal. This court, which 
 survived the fall of the house of Stuart, and which adjudi- 
 cated a few causes as late as the last century, was not finally 
 abolished until very recent times. 
 
 While the cohesion of the baronial body was thus being 
 weakened by the operation of causes working from within, its 
 strength as a military force was rudely broken from without 
 by a revolution in the art of war. By the discovery of gun- 
 powder and its application to actual warfare, which took 
 place during the reigns of the Lancastrian kings, the impreg- 
 nable feudal castle and irresistible feudal knights were shorn 
 at once of their terror and their power. "The introduction 
 of gunpowder ruined feudalism. The mounted and heavy- 
 armed knight gave way to the meaner footman. The ' Last 
 of the Barons,' as Warwick has picturesquely been styled, 
 relied mainly on his train of artillery. It was artillery that 
 turned the day at Barnet and Tewkesbury, and that gave 
 Henry the Seventh his victory over the formidable dangers 
 
 ance (liberatio) in provisions and cloth- 
 ing which was made for the servants 
 and officers of the great households. 
 . . . The term livery was, however, 
 gradually restricted to the gift of cloth- 
 ing ; . . . the clothing took the charac- 
 ter of uniform, or badge of service." 
 Stubbs, Const, fits/., vol. iii. p. 531. As 
 to the legislation known as the statutes 
 of liveries ( i Rich. II. c. vii. ; 16 Rich. 
 II. c. iv. ; and 20 Rich. II., c. i.), which 
 were designed to prevent the many 
 evils which grew out of the system, see 
 Reeves, Hist. Eng. Law, vol. iii. pp. 
 352, 553- 
 
 1 " As this right was strongest in the 
 eldest son, he alone bore the paternal 
 arms unaltered (in French heraldry, 
 ' sans brisure ') ; and the other sons 
 were obliged to introduce some suf- 
 ficient change, called in heraldry a 
 'difference.'" Clark, "Heraldry/' in 
 Enc. Brit., gth ed. vol. ix. p. 687. 
 
 2 13 Richard II. c. 2. As to the 
 limits of the jurisdiction, see Blackstone, 
 Comm., bk. iii. pp. 104, 105; Hale, 
 Hist. Com. Law, vol. i. pp. 52, 53. 
 
 8 Cf. Coke, 4 Snsi., p. 125.
 
 II.] FROM HENRY IV. TO HENRY VII. 5^9 
 
 which assailed him. The strength which the change gave to 
 the crown was in fact almost irresistible. Throughout the 
 middle ages the call of a great baron had been enough to 
 raise a formidable revolt. Yeomen and retainers took down 
 the bow from their chimney corner, knights buckled on their 
 armor, and in a few days a host threatened the throne. 
 Without artillery, however, such a force was now helpless, 
 and the one train of artillery in the kingdom lay at the dis 
 posal of the king." * 
 
 The influences which thus undermined the power of the The church 
 baronage during the period which closes with the accession ^^ 
 of Edward IV. were scarcely more marked in their results s P int - 
 than those which, during the same period, broke the patriot 
 spirit of the church, and led the clergy to seek shelter and 
 protection for their wealth and their privileges at the feet of 
 the monarchy. How in the struggle for the charters the 
 clergy, as a corporate body organized for action, took an 
 earnest part in behalf of the nation as against the crown, has 
 been explained already. 2 In that struggle the church, so far 
 as its own special privileges were concerned, was completely 
 victorious. In the hope of breaking the coalition between 
 the clergy and the lay estates John, a short time prior to the 
 making of the treaty of Runnymede, specially guaranteed to 
 the church free elections, while in the Great Charter itself 
 express provision was made that the Church of England 
 should be free, and should have her whole rights and liberties 
 inviolable. 3 By John's surrender of his kingdom to the pope, 
 and by his receiving it back again as a fief, 4 all controversy 
 was for the time removed as to the right of the English 
 Church to submit itself to the papal supremacy which was 
 firmly asserted throughout the reign of Henry III. Not struggle 
 until the reign of Edward I. was the papal overlordship as ^own^d" 5 
 admitted by John, both in the ecclesiastical and political or- the papacy 
 der, challenged by the crown and the parliament. When the reign of 
 Boniface VIII., claiming to be feudal lord over Scotland, E 
 commanded Edward to withdraw his troops from that king- 
 dom, the parliament, before whom the bull was laid by the 
 
 1 Green, Hist. Eng. People, vol. iL See above, pp. 378, 379, 383. 
 pp. 14, 15. * See above, p. 373. 
 
 2 See above, pp. 348, 349.
 
 570 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 Stat. De 
 asportatis 
 religioso- 
 runt. 
 
 Stat. of 
 Provisors. 
 
 Stat. for 
 the protec- 
 tion of the 
 king's 
 court. 
 
 Stat. 1 7th 
 Richard II. 
 
 Stat. of 
 
 Praimunire. 
 
 king, claimed the right to make answer and emphatically de- 
 nied the pope's asserted jurisdiction. 1 The repudiation thus 
 announced of the feudal supremacy of the pope over the 
 political relations of the crown, was followed by a series of 
 statutes which were designed to cut off to a certain extent 
 papal interference with the church's internal administration. 
 The first of the series, the statute De asportatis religioso- 
 rum (35 Edward I.), 2 which forbade the carrying or send- 
 ing of " any tax, rent, or talliage imposed by the superiors, 
 or assessed amongst themselves, out of the kingdom," was 
 designed to prevent alien priors from drawing tribute from 
 English religious houses. In the 25th Edward III. was 
 passed the great Statute of Provisors, which, after declaring 
 that the elections of bishops and others should be free as in 
 time past, denied to the pope the right to make nominations 
 to benefices within the kingdom, and also imposed severe 
 penalties upon all " provisors " who should obtain them from 
 him by purchase or otherwise. 3 Three years later was passed 
 a statute designed to protect the jurisdiction of the king's 
 court by forbidding, under severe penalties, any person from 
 withdrawing any cause from its cognizance by means of a ci- 
 tation to the court of Rome. 4 The attempt to defy or evade 
 all such statutes as were designed to hinder the assertion of 
 the papal claims, by procuring excommunications directed 
 against those who dared to obey them, led to an enactment, 
 in 1389, which imposed heavy penalties upon all persons who 
 should bring or send such excommunications into the king- 
 dom, or attempt to enforce their mandates. 6 In the conflict 
 which then ensued between the crown and the papal court, 
 when Boniface IX. declared all such statutes null and void, 
 the commons stood resolutely by the king. Upon their peti- 
 tion was passed the famous Statute of Praemunire (16 Rich. 
 
 1 Fcedera, ii. pp. 873-875 ; Richan- plaints of all the commons of the 
 ger, pp. 208-210; Hemingb., ii. pp. 
 
 209-213; M. Westminster, pp. 443, 
 444. See Lingard's account of the 
 transaction, vol. ii. pp. 184-188. 
 
 2 25 Edw. I. st. i, c. 1-4. As to the 
 relation between this statute and the 
 Statute of Provisors, see Reeves, Hist. 
 Eng. Law, vol. ii. p. 452. 
 
 8 25 Edw. III. st. 4. This statute 
 was passed upon " the grievous com- 
 
 plaints of 
 realm." 
 
 4 27 Edw. III. st. i. In order to 
 enforce this aifd like statutes, it was 
 necessary to obtain a writ pramunire 
 facias, commanding the sheriff to warn 
 the accused to appear and answer for 
 his contempt. In this way the name 
 " praemunire " became fixed to this kind 
 of legislation. See Gibson, Codex, p. 
 80. 
 
 6 13 Rich. II. st. 2. c. 3.
 
 II.] FROM HENRY IV. TO HENRY VII. 571 
 
 II., c. 5), in which it was provided that if any one shall obtain 
 from the Court of Rome, or elsewhere, any sentence of ex- 
 communication, ecclesiastical process, or any other thing 
 touching the rights of the crown, or bring the same within 
 the realm, such a one shall be put out of the king's protec- 
 tion, shall be subject to forfeiture and to be attainted, and 
 shall also be subjected to process to "be made against them 
 \>y fram nnire facias, in manner as it is ordained in other stat- 
 utes of provisors against those which do sue in the court of 
 another in derogation of the regality of our lord the king." 
 
 During the period in which the king and parliament were Growing 
 thus defending by means of penal statutes the rights of the j^uence'of 
 crown as against the claims of the papacy, the clergy were the der y- 
 maturing and strengthening their internal corporate organi- 
 zation, and steadily increasing their enormous wealth, which 
 could only be reached for the purposes of taxation through 
 the two legislative bodies or convocations in which the whole 
 clerical order appeared either in person or by representatives. 
 " The clergy as a body were very rich ; the proportion of di- 
 rect taxation borne by them amounted to nearly a third of the 
 whole direct taxation of the nation ; they possessed in the 
 constitution of parliament and convocation a great amount 
 of political power, a majority in the house of lords, a recog- 
 nized organization as an estate of parliament, two taxing and 
 legislating assemblies in the provincial convocations ; they 
 had on their great estates jurisdictions and franchises equal 
 to those of the great nobles, and in the spiritual courts a 
 whole system of judicature parallel to the temporal judica- 
 ture but more inquisitorial, more deeply penetrating, and 
 taking cognizance of every act and every relation of men's 
 lives." l In this terse and graphic statement the master of 
 the history of the middle ages has epitomized the elements 
 which made up the aggregate social and political weight pos- 
 sessed by the clergy at the end of the fourteenth century, 
 when the spiritual influence of the church was assailed by 
 the Lollard revolt on the one hand, and its immense wealth The Loi- 
 threatened by a sweeping confiscation on the other. The h 
 first of these assaults grew out of the great religious rebel- 
 lion which, taking color and form from the teachings of Wyc- 
 
 1 Stubbs, Const. Hist., vol. iii. pp. 365, 366.
 
 5/2 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 liffe, moved under his stirring influence not only large sec- 
 tions of the common people, but many among the baronage 
 and the clergy themselves, to break away from the teachings 
 statutes of and authority of the older dogmatism. The response made 
 
 Heresy, de- ,-,, , . ,' i T i -T r 
 
 signed to by the church ^o this assault was embodied in the series of 
 church's 116 statutes, heretofore described as the Statutes of Heresy, 1 
 S uth t ru wn i cn were the equivalent paid by Henry IV., after his ac- 
 cession, to the prelates, with Arundel at their head, for their 
 aid and assistance in the revolution which raised to the 
 throne the house of Lancaster. While the clergy by means 
 of these cruel statutes were engaged in crushing out the 
 growing heresy, through which the Lollards were undermin- 
 ing the church's spiritual authority, they were startled by a 
 fresh attack made by the commons upon their temporal pos- 
 The church sessions. In the " Unlearned Parliament " 2 which met in 
 with confis- I44> certain knights of the shire ventured to suggest that 
 the land of the clergy be taken into the king's hands for one 
 year as an aid in the prosecution of the war ; 3 and in the par- 
 liament of 1410, the knights reasserted this suggestion in the 
 shape of a formal petition addressed to the king and lords 
 recommending a sweeping confiscation of the lands of the 
 bishops and religious houses, and a permanent endowment, 
 out of the proceeds, of fifteen earls, fifteen hundred knights, 
 six thousand esquires, and a hundred hospitals, with the 
 further suggestion that ,20,000 be reserved for the king. 4 
 This radical proposal, distasteful to the lords, was earnestly 
 opposed by the Prince of Wales and rejected. 5 The well- 
 founded alarm thus excited in the minds of the clergy by the 
 assaults made in turn upon their spiritual authority and their 
 temporal possessions was naturally deepened and intensified 
 by the general sense of insecurity which oppressed all classes 
 at the end of the civil war. At the end of the struggle the 
 one political force that seemed to have survived, the one force 
 that stood out above the turbulence of the times with power 
 to guarantee protection and order, was embodied in the royal 
 authority. Moved, therefore, by a sense of insecurity, and 
 
 1 See above, pp. 537-540. * Walsingham, ii. pp. 282, 283; 
 
 2 So called from the fact that the Fabyan, p. 575. 
 
 king directed in the writs that no law- 6 Stubbs, Const. Jfist., vol. iii. pp. 
 yers should be summoned. 47, 64. 
 
 8 Ann. ffenr., pp. 393, 394.
 
 II.] FROM HENRY IV. TO HENRY VII. 573 
 
 not unmindful of the assistance it had received when as- Alarmed by 
 saulted by heresy on the one hand, and threatened by confis- asLuu" the 
 cation on the other, the church, which in the charter days had ^"^ 
 been the steadfast ally of freedom, turned its back upon its shelter at 
 
 the feet of 
 
 great traditions, and, upon the accession Edward IV., meekly the mon- 
 sought shelter and protection at the feet of the monarchy. 
 
 In the first chapter devoted to the growth of parliament Decline of 
 the attempt was made to draw out the fact that, from the mo ns. 
 time of the Conquest down to the establishment of the es- 
 tate system in the reign of Edward I., all of the great pow- 
 ers of government were centralized in and concentrated 
 around the person of the king acting ordinarily through his 
 continual council, or through that larger body, known as the 
 great council, composed of those tenants-in-chief who won 
 for themselves the right to be personally summoned, and in 
 whom that right became hereditary. Under this highly cen- 
 tralized system the main body of the people, upon whom the 
 burden of government ultimately fell, were sternly excluded 
 from all voice in its administration. Only through the per- 
 sistent struggles of the thirteenth and fourteenth centuries 
 did the main body of the people finally win for themselves 
 the right first to participate in and then to control both the 
 fiscal and political administration of the kingdom, by build- 
 ing up alongside of the older feudal assembly a new cham- 
 ber composed of elected representatives chosen by freemen 
 organized for government in the shires and towns. The 
 strength of the new body as originally organized lay in the The lower 
 fact that it was truly representative : at the outset the right first a truly 
 to participate in the election of the representative members [f 
 was probably extended to all, or nearly all, of the freemen {j 
 embraced in the corporate organizations of the local commu- through 
 nities from which they came. The causes which led to the oTthe f^an- 
 decline in the position and influence of the representative chise> 
 body thus built up must be found in the processes through 
 which it ceased to be really representative, through which, 
 in the shires, the franchise, which was the birthright of the 
 many, was finally limited to the few ; through which, in the 
 towns, the suffrage was taken away from the main body of 
 townsmen, to whom it had originally belonged, and vested in 
 official oligarchies.
 
 574 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 Elected 
 knights 
 originally 
 chosen by 
 the whole 
 shire com- 
 munity. 
 
 Franchise 
 fixed upon 
 a broad 
 popular 
 basis by 
 Stat. ?th 
 Henry IV. 
 
 Stat. 8th 
 Henry VI. 
 the first dis 
 franchising 
 statute in 
 English 
 history. 
 
 The weight of authority supports the conclusion that the 
 elected knights were not only representatives of the whole 
 shire community, but that they were chosen by the whole 
 body of freeholders in full county court. 1 When in the par- 
 liament of 1376 the commons, intent upon correcting the 
 evil practices of the sheriffs, petitioned that the knights of 
 the shire might be chosen by common election of the better 
 folk of the shires, and not nominated by the sheriffs without 
 due election, Edward III. replied that the knights should be 
 elected by the common assent of the whole county? When the 
 first statute (/th Hen. IV. c. 15) was passed regulating the 
 election of the knights, a statute which is regarded as sim- 
 ply confirmatory of the then existing custom, the franchise 
 was fixed upon a broad popular basis by the provision " that 
 all they that be there present [in the county court], as well 
 suitors duly summoned for the same cause as others, shall 
 attend to the election of the knights for the parliament; and 
 then, in full county, they shall proceed to the election, freely 
 and indifferently, notwithstanding any request or command 
 to the contrary." This statute under which the right of 
 suffrage reached its highest point by being recognized as the 
 privilege of all freemen present in the county court, whether 
 freeholders or not was followed in the eighth year of Henry 
 VI. by the first disfranchising statute of which there is any 
 record in English history. 3 By the terms of this statute the 
 suffrage was not only limited to the freeholders, but to such 
 only of them as "have free land or tenement to the value of 
 forty shillings by the year at least, above all charges." Thus 
 before the fall of the house of Lancaster the parliament itself, 
 impelled by the reactionary spirit of the times, consented 
 to the weakening of its own constitution by authorizing a 
 measure that must have resulted in a wide disfranchisement. 
 When the difference in the value of money is taken into 
 account, the forty shillings qualification was equivalent to 
 a modern real property qualification of from thirty to forty 
 pounds annual value. 
 
 The same general tendency which, before the close of the 
 
 1 See above, pp. 466, 467. 
 8 Rot. Par/., ii. p. 355. See above, 
 p. 527. 
 
 8 Hen. VI. c. 7.
 
 II.] FROM HENRY IV. TO HENRY VII. 575 
 
 middle ages, must have brought about the disfranchisement Tendency 
 of the landless freemen and the lesser freeholders within the town! for 
 shires, likewise pervaded the municipal electoral systems and 
 brought about a still more sweeping restriction of the fran- 
 chise in the cities and towns. In the effort heretofore made which were 
 to ascertain who were the electors of borough representa- ngVof the 
 tives, the general conclusion was reached that the electors in many - 
 a city were the citizens, in a borough the burgesses. Who 
 were citizens and who were burgesses seems to have de- 
 pended everywhere upon local custom, and such custom was 
 only uniform in its tendency to take away the suffrage from 
 the main body of townsmen and vest it either in a self-elected 
 governing body, generally known as the mayor and com- 
 mon council, or in a still smaller circle of " selectmen," 
 nominated and controlled by them. 1 This general tendency 
 both in the higher and lower ranges of government has been 
 thus happily described : " While the aristocracy was encroach- 
 ing upon popular power in the government of the state, it 
 was making advances, no less sure, in local institutions. The 
 few were gradually appropriating the franchises which were 
 the birthright of the many. . . . The common law, in its 
 grand simplicity, recognized the right of all rated parishion- 
 ers to assemble in vestry and administer parochial affairs. 
 But in many parishes the popular principle gradually fell into 
 disuse ; and a few inhabitants self-elected and irresponsi- 
 ble claimed the right of imposing taxes, administering the 
 parochial funds, and exercising all local authority. This 
 usurpation, long acquiesced in, grew into a custom which the 
 courts recognized as a legal exception from the common 
 law." 2 That kind of usurpation, consecrated by custom, 
 which secured the government of parishes to select vestries, 
 likewise took away the government of the towns from the 
 main body of townsmen and vested it in self-elected governing 
 bodies, who gradually assumed the exercise of the electoral 
 rights which had originally belonged to the whole community. 
 In the charters of incorporation which began to be issued to 
 the municipalities after the accession of the house of Tudor, 8 
 
 1 See above, pp. 473, 474. tinued by the Stuarts. See Hallam, 
 
 2 Sir Thomas Erskine May, Const. Const. Hist., vol. iii. pp. 74,75; May, 
 Hist., vol. ii. pp. 460, 461. Const. Hist., vol. ii. p. 465. 
 
 * The policy of the Tudors was con-
 
 576 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 the right of electing representatives in parliament was gener- 
 ally vested in the municipal governing body usually styled the 
 mayor and common council. When the fact is remembered 
 that these governing bodies were, as a rule, nominated by the 
 crown in the first instance, and then perpetuated by self-elec- 
 tion, it is quite possible to understand how the electoral rights 
 of many boroughs passed under royal control, or under that 
 of the local magnates known as high stewards, in whom the 
 royal or aristocratic influence finally came to be vested. 
 Revival of As t ^ ie parliamentary system was the outcome of the es- 
 
 the mon- t a t e system, the collapse of the one naturally followed the 
 
 archy under J J 
 
 Edward iv. collapse of the other. The attempt has now been made to 
 draw out in some detail the processes of disintegration and 
 decay which, by the end of the civil war, had not only under- 
 mined the corporate vitality of each of the three estates, but 
 which had also broken that spirit of union and interdepend- 
 ence which in the earlier days had bound them to each other. 
 In the process of disfranchisement, which gradually with- 
 drew the suffrage from the main body of freemen in the 
 shires and towns, can be discovered the chief cause which 
 undermined the growing strength of the house of commons ; 
 in the decay of the baronage, and in the weakening of the 
 prelacy, can be found the causes which broke the power of 
 the house of lords. Only in this way can be explained how 
 it was that the parliamentary system, which had reached its 
 highest point of authority at the accession of the house of 
 Lancaster, touched its lowest point of impotency and exhaus- 
 tion at the close of the dynastic struggle which ended in its 
 overthrow. Under the favorable conditions then presented, 
 by the paralysis of the constitutional forces by which it had 
 been so long held in check, the monarchy, upon the accession 
 of Edward IV., lifted up its head, and casting off the fetters 
 by which it had been bound by the parliamentary system on 
 the one hand, and by the system of legal administration on 
 the other, entered upon a fresh career of autocracy which 
 was not destined to be broken until the days of the Stuart 
 Forms of kings. And yet the new system of absolutism thus reestab- 
 the older H s hed by the house of York, and perpetuated by that of Tu- 
 
 constitu- * f e 
 
 tionaiiife dor, did not aim at the abolition of the older forms of legal 
 and constitutional life by which the monarchy had been over-
 
 II.] FROM HENRY IV. TO HENRY VIT. 577 
 
 awed for more than two centuries, it simply strove to ex- 
 tinguish forever the vital spirit which in the better days had 
 made them actual restraints upon the royal authority. With 
 the despotic powers of the crown reorganized and reestab- 
 lished in a royal council, which was practically unlimited save 
 by the authority which created it, the monarchy had more to 
 gain than to fear from the perpetuity of a set of lifeless insti- 
 tutions which it could override at its pleasure, or manipulate 
 at its convenience. The reestablishment of the monarchy 
 did not end the existence of the parliament ; as a shadow of 
 its former self it lived on as a convenient place in which acts 
 and decrees dictated or permitted by the council could be 
 registered, and business of minor importance transacted. 
 Neither was the ordinary administration of law in the central 
 and local tribunals radically modified or suspended, the 
 whole judicial system was simply overawed by and made sub- 
 servient to the unrestrained and despotic powers of the coun- 
 cil, in which the royal will was omnipotent. The forms of the 
 older constitutional life were retained, and yet the monarchy 
 as reestablished by Edward was in substance the monarchy 
 as it had existed under the Norman and early Angevin kings, 
 a monarchy still limited by the self-imposed restraints aris- 
 ing out of administrative routine and orderly legal procedure, 
 and yet absolutely unlimited by the coercive constitutional 
 restraints which had been put upon it by the patriots an 
 statesmen of the thirteenth and fourteenth centuries. 
 
 In the reestablishment of the monarchy Edward was care- Edward 
 ful to emphasize the fact that, as the right of the house of thaTthe 
 Lancaster to the throne had rested solely on a parliamentary Lancas - 
 
 . J J trians were 
 
 election, that of the house of York rested solely upon an in- kings de 
 defeasible hereditary title, a title which he claimed the deju" 
 Lancastrian parliaments had no right to ignore, no power to 
 set aside. 1 Upon that assumption, then for the first time 
 practically asserted in English politics, Edward held that the 
 Lancastrian kings were only kings de facto non de jure* 
 
 1 "The doctrine of indefeasable he- Eng. Const., p. 194. See, also, Sir 
 
 reditary right, the doctrine that there Michael Foster, Crown Law, p. 403, in 
 
 was some virtue in a particular line of which the author shows that the only 
 
 succession which the power of parlia- hope of the house of York was in the 
 
 ment itself could not overthrow, was assertion of " a title paramount to the 
 
 first brought forward as the formal jus- power of parliament." 
 
 tification of the claims of the house of 2 The theory was that Edward IV. 
 
 York." Freeman, The Growth of the succeeded to the rights of Richard II.,
 
 578 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 that their judicial acts were valid and binding only so far as 
 he and his parliaments saw fit to ratify them. 1 The strength 
 which the monarchy drew from the self-sustaining theory em- 
 bodied in this new doctrine of indefeasible hereditary right, 
 Edward was careful to supplement by every practical expe- 
 dient which he could devise for its protection against that 
 most dangerous of all the restraining measures to which the 
 parliamentary system had given birth, the power of the es- 
 tates to coerce the crown through the withholding of sup- 
 plies. What had given edge to this weapon in the hands of 
 the Lancastrian parliaments was the continual need of the 
 kings of that house of the means with which to carry on 
 strife with Scotland, and at the same time to maintain the 
 never-ending war with France, which was only brought to a 
 close by the final loss of Acquitane late in the reign of 
 Edward's Henry VI. The financial relief which the ending of the 
 peace. Hundred Years' War then brought to the monarchy was made 
 permanent by a policy of peace which, throughout the reigns 
 of Edward IV. and Henry VII., remained unbroken. While 
 the treasury was thus protected from the drain of war on the 
 one hand, its coffers were filled on the other by various expe- 
 dients which, although they involved the agency of parlia- 
 ment in the first instance, did not involve its annual assent 
 or cooperation. In the flush of victory which followed the 
 A sweeping- battle of Towton, Edward obtained the passage of a sweep- 
 tainder*and ing bill of attainder 2 through which the crown was enriched 
 oMhe^cus- by forfeiture of the estates of fourteen lords and more than 
 toms. a hundred knights and esquires. Four years later, after the 
 victory at Hexham, he obtained from parliament a grant of 
 tunnage and poundage and the subsidy on wool for life. 3 Af- 
 ter this life grant of the customs made in 1465, the meetings 
 Meetings of parliament grew less and less frequent. The long estab- 
 ment^ow lished right of the nation to express its will at least once a 
 less to? year through the national council was first suspended during 
 quent. tne j ater vears o f Henry VI., when elections were avoided as 
 
 and that the three Lancastrian kings * Rot. Par!., v. pp. 489 seq. The va- 
 
 were usurpers : " Henry Usurpour, late lidity of laws passed during the Lancas- 
 
 called Kyng Henry the sixt," is the trian reigns was not questioned, 
 
 language of the act of 1461. See 2 Ibid., v. pp. 467-475. 
 
 Reeves, Hist. Eng. Law, vol. iv. p. 12, 8 Ibid., v. p. 508. 
 note, Finlason ed.
 
 II.] FROM HENRY IV. TO HENRY VII. 579 
 
 much as possible, and when such parliaments as were called 
 
 were rather armed assemblies of the greater nobles, with their 
 
 liveried partisans at their backs, than authoritative meetings 
 
 of the king's advisers. The blow thus directed at the au- 
 
 thority of parliament during the confusion resulting from civil 
 
 war was now followed by a studied contempt of its influence 
 
 in times of peace. During the quarter of a century of York- 
 
 ist rule the nation was but seven times called upon to elect 
 
 new parliaments, and in the brief periods during which such 
 
 parliaments sat their deliberations were confined to the regis- 
 
 try of such acts as the king in council saw fit to dictate, or 
 
 to the enactment of statutes touching the growing commerce 
 
 of the realm which it was his interest to promote. 1 In the NO statute 
 
 words of Hallam : " The reign of Edward IV. is the first i"berty dur. 
 
 during which no statute was passed for the redress of griev- 
 ances or maintenance of the subject's liberty." 2 As a part of reign. 
 the policy through which Edward thus freed the monarchy 
 from all actual dependence upon the parliamentary system 
 must be noted that most despotic of all the expedients of 
 royal taxation through which the crown extorted gifts of 
 money from particular subjects under the name of benevo- Benevo- 
 lences. Although this unconstitutional device, through which 
 the subject's money was taken without parliamentary con- 
 sent, may have been practised in substance in preceding 
 reigns, 3 its active employment by Edward IV. has put upon 
 him the odium of its authorship. 4 To the wealth which the 
 crown thus derived from forfeitures, confiscations, acts of re- 
 sumption, from the life grant of the customs, and from be- 
 nevolences, must be added the profits which Edward derived 
 from his adventures as a private trader, adventures which 
 bore the fame of the merchant king as far as the ports of 
 Greece and Italy. 
 
 While Edward was thus emancipating the monarchy from Expansion 
 the financial and political restraints which the growth of the cia/iolers" 
 parliamentary system had put about it, he was also careful to f thecoun- 
 
 1 " In the reign of Edward IV. the regarded even at the time as an inno- 
 parliament seemed to be principally vation, was perhaps a resuscitated form 
 taken up with the arrangement of the of some of the worst measures of Ed- 
 commercial system." Reeves, Hist, ward II. and Richard II." Stubbs, 
 Eng. Law, vol. iv. p. 9. Const. Hist., vol. iii. p. 274. 
 
 2 Middle Ages, vol. iii. p. 189. 4 Reeves, Hist. Eng. Law, vol. iv. 
 8 "The collection of benevolences, pp. 26, 261.
 
 58o 
 
 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 Such pow- 
 ers first re- 
 strained, 
 
 then ex- 
 panded by 
 statute. 
 
 Scientific 
 perfection 
 of the law 
 in the 
 reigns of 
 Henry VI. 
 and Ed- 
 ward IV. 
 
 impart a fresh force to the judicial powers of the council 
 which the growth of the law courts and the rise of the equi- 
 table jurisdiction of the chancellor had contracted without 
 exhausting. In the explanation heretofore made of the pro- 
 cess through which these courts were evolved out of the 
 council, the fact was emphasized that a supreme and unde- 
 fined residuum of judicial power still remained after their cre- 
 ation. 1 The necessity for protecting the ordinary adminis- 
 tration of justice, in the subsidiary tribunals thus organized, 
 from encroachment upon the part of the supreme and unde- 
 fined judicial power 2 retained by the council, led to the enact- 
 ment of a series of restraining statutes which extend from 
 the reign of Edward I. to that of Henry IV. 3 Not until the 
 reign of Henry VI. did a new legislative policy begin whose 
 aim was, not to narrow the judicial powers of the council, but 
 to give to them a wider expansion. The uniformly weak and 
 inefficient system of internal administration which prevailed 
 throughout the Lancastrian reigns, and which even in times 
 of peace could neither preserve order nor guarantee a firm ad- 
 ministration of law, almost completely gave way during the 
 protracted confusion of the civil war. And yet at the very 
 time when the peace of the kingdom was most poorly kept, 
 at the very time when the steady enforcement of law was 
 scarcely attempted, the law as a science reached a very high 
 degree of theoretical perfection. During the reigns of Henry 
 VI. and Edward IV. the science of pleading reached the lim- 
 its of its mediaeval growth : 4 the law schools known as inns 
 of court and of cnancery were filled with zealous students, 
 while the bench was adorned by able judges who discussed 
 the law with great learning and elaboration. 6 The difficulty 
 lay not in the scientific perfection of the law, but in the want 
 of administrative power adequate to its enforcement. As 
 heretofore explained in connection with the subject of main- 
 
 1 See above, p. 249. 
 
 2 " This authority had been exercised 
 in two ways : first, by issuing special 
 commissions of ' oyer and terminer ; ' 
 secondly, by summoning accused per- 
 sons. The first process had, after re- 
 peated remonstrances from parliament, 
 been abandoned, before Richard II. as- 
 cended the throne. The second cer- 
 
 tainly survived, and even received ex- 
 tension." Dicey, The Privy Council, 
 p. 69. 
 
 8 See above, p. 516 and note z. 
 
 4 Reeves, Hist. Eng. Law, vol. iii. p. 
 
 6 Cf. Ibid., pp. 621-627. As to the 
 history of the inns of court, see For- 
 tescue, De Laudibus, c. 49.
 
 II.] FROM HENRY IV. TO HENRY VII. 5 Sl 
 
 tenance, the provincial administration of justice was para- itspracti- 
 lyzed by the turbulent local magnates, who with their liveried dencyow- 
 retinues at their backs could overawe the judges at the assizes, 
 delay a hazardous issue, seize upon the lands in dispute, or f t^ 6 
 even resist the enforcement of a hostile judgment after it was 
 rendered. 1 The remedy finally proposed for evils of this char- Extraordi- 
 acter took the form of statutes which authorized the council 
 to draw before it all persons and all causes which could not 
 be dealt with in the ordinary local tribunals. With this end ervationof 
 
 , -,-r t-r-r 11- order in the 
 
 in view, the Act of 3ist Henry VI. c. 2, was passed, enlarging reign of 
 the powers of the council, 2 whose "judicial authority had, to H 
 judga by the minutes of Henry VI. 's reign, been exerted 
 chiefly in cases where, from the might of the offenders, the 
 courts were powerless to enforce justice." 3 
 
 The effort thus made in the reign of Henry VI. to Edward iv. 
 strengthen the hands of the council, in order to make it the the council 
 defender of order against anarchy, was followed in the reign jnof *"" 
 of Edward IV. by an attempt to convert the judicial power tyranny. 
 of the king in council into an irresponsible engine of tyranny. 
 By the patents issued by Edward, first to Tiptoft and then to 
 Rivers, the jurisdiction of the high constable was extended, 
 in contempt of the common law, to cases of high treason. 
 The accused were thus deprived not only of the right of trial 
 by jury, but their acquittal or conviction was committed, Jurisdio 
 without appeal, to the high constable, who, as the king's vice- high^on- 6 
 gerent, was authorized to hear, examine, and conclude all stable> 
 such causes, however begun, even summarily and plainly, 
 without noise and show of judgment, on simple inspection of 
 fact. 4 Through the judgments of this unconstitutional tri- 
 bunal, which in some cases adopted the law of Padua as the 
 rule of its procedure, Edward made way with many of his 
 Lancastrian opponents. 
 
 During the period in which the high constable, in contempt 
 
 1 See above, p. 567. et de piano sine strepitu et figura judi- 
 
 a As to the relation of the council cii, sola facti veritate inspecta." Such 
 
 as thus invigorated to the body after- are the terms rehearsed in the patent 
 
 wards called, under the Tudors, the issued by Edward to Rivers, Aug. 24, 
 
 "Star Chamber," see Reeves, Hist. 1467. Fcedera, xii. pp. 581,654. The 
 
 Eng, Law, vol. iii. pp. 469, 470, and powers enumerated in the patent had 
 
 notes, Finlason ed. been originally conferred upon Tiptoft 
 
 8 Dicey, The Privy Council, p. 72. in 1462. Cf. Stubbs, Const, ffist., voL 
 
 * " Audiendum, examinandum et fine iii. p. 282 and note 2. 
 debito terminandum, etiam summarie
 
 582 THE GROWTH AND DECLINE OF PARLIAMENT. [CH. 
 
 Construe- of English precedent, was thus taking jurisdiction of cases of 
 n> high treason in his novel tribunal, the English law upon that 
 subject was itself being grossly abused in the common law 
 courts through an unwarrantable expansion of the doctrine of 
 constructive treason. Despite the famous Statute of Trea- 
 sons (25 Edw. III.), 1 which attempted to fix the law upon a 
 definite basis by an explicit enumeration of the cases to which 
 it should be applied, there was a constant tendency upon the 
 part of the courts in these evil times to extend the act to 
 cases not enumerated in it. 2 In Edward's reign also appears 
 the first clearly authenticated instance in the history of Eng- 
 
 Torture. lish law of the employment of torture as a means of forcing 
 accused persons to confess or to betray their accomplices. 3 
 
 Ems of at- In connection with the despotic practices which at this 
 time pervaded the administration of justice in the ordinary 
 tribunals, should also be noted that gravest of all judicial 
 abuses which, during the reigns of Henry VI. and Edward 
 IV, recurred with shocking frequency in the proceedings of 
 the high court of parliament itself. Although bills of at- 
 tainder had been employed at a much earlier day, 4 it was 
 during the period of passion engendered by the civil war that 
 the summary power of parliament to punish criminals by 
 statute was for the first time perverted and abused. The 
 calm and deliberate exercise of the judicial power of the whole 
 parliament by process of impeachment, wherein the commons 
 as the grand inquest of the realm were required to maintain 
 their accusations by sufficient evidence adduced before the 
 lords sitting as judges, but illy satisfied the necessities of a 
 dynastic struggle in which the victors were ever eager for 
 the heads of the vanquished. Far better adapted to this 
 condition of things was the proceeding by bills of attainder, 
 in which, if the parliament saw fit to refuse to hear the ac- 
 cused in his defence, the validity of the judgment could never 
 be questioned in any court whatsoever. 5 The accused, even 
 
 1 The crime of treason, which was plices. W. Worcester, p. 789. For 
 first defined in 1352, received a fresh early instances of the use of torture, see 
 definition in 1397. See above, p. 511. first volume of Mr. L. O. Pike's History 
 
 2 See Blackstone, Comm., bk. iv. pp. of Crime ; Coke, 3 Jnst., p. 35. 
 
 79, 80 ; Reeves, Hist. Eng. Law, vol. * Such was the procedure employed 
 
 Hi. pp. 397-400 ; Hale, P. C., p. 115. by parliament in the banishment of the 
 
 8 In 1468 an accused person, by the two Despensers in 1321. See i St. Tr. 
 
 name of Cornelius, was burned in the pp. 23, 38. 
 
 feet to make him betray his accom- 6 See Coke, 4 fnst., p. 37.
 
 II.] FROM HENRY IV. TO HENRY VIL 583 
 
 under a bill of attainder, was, however, as a matter of grace, 
 usually permitted to defend himself both by counsel and 
 witnesses. " The proceedings of parliament in passing bills The pro- 
 of attainder, and of pains and penalties, do not vary from thereunder, 
 those adopted in regard to other bills. They may be intro- 
 duced in either house, but ordinarily commence in the house 
 of lords : they pass through the same stages ; and when 
 agreed to by both houses, they receive the royal assent in the 
 usual form. But the parties who are subjected to these pro- 
 ceedings are admitted to defend themselves by counsel and 
 witnesses, before both houses ; and the solemnity of the 
 proceedings would cause measures to be taken to enforce the 
 attendance of members upon their service in parliament." * 
 
 9. The emancipated monarchy, which under the ruthless Usurpa- 
 leadership of Edward had trampled upon the parliament and Richard 
 overawed the entire system of legal administration, passed at 1II- 
 his death in April, 1483, to his infant son, known in English 
 history as Edward V. The royal authority thus transmitted 
 by the unaided force of the hereditary principle was destined 
 to abide only for a moment in the person of the boy king. 
 Edward, who had dyed his hands in the blood not only of his 
 Lancastrian foes, but in that of his own house, had, through 
 the irony of fate, left his helpless brood as a stumbling-block 
 in the path of his ambitious brother, Richard, Duke of 
 Gloucester, who had been drawn into tempting proximity to 
 the throne through the murder of Clarence. The tragic 
 episode during which Richard overawed the council and 
 secured the protectorship through the overthrow of Hastings, 
 and then the crown itself through the murder, as all the world 
 believed, of Edward's children was of but short duration. 
 On the 4th of May Gloucester was declared protector; on Richard de- 
 the 24th of June his right to the crown was proclaimed at tecto?on~ 
 Guildhall by his co-conspirator, the Duke of Buckingham ; 2 ^ May 
 on the next day an informal assembly of notables met at crowned 
 Baynard's Castle and presented him a petition, 3 in which he 1483. y ' 
 was solicited to accept the crown as the only lawful heir of 
 Richard, Duke of York ; and on the 6th of July 4 he and his 
 
 1 May, Parl. Practice, p. 744. All with the authorities, vol. iii. pp. 275- 
 
 references to this work are to the gth 282. 
 
 ed. . 8 Rot. Parl., vi. pp. 240, 241. 
 
 8 See Lingard, who gives the details * Cont. Cray/., p. 567.
 
 584 THE GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 consort Anne, the daughter of Warwick, were crowned at 
 Westminster. Within three months after that event the 
 crown which Richard had forcibly taken away from his 
 brother's children was challenged by a new and dangerous 
 Henry TU- pretender, Henry Tudor, Earl of Richmond, who, in the 
 lengL the absence of a better claimant, assumed to represent the house 
 hb^edT of Lancaster. With the death of Henry VI. and his son, the 
 gree. legitimate male line of Lancaster had become extinct, its 
 claims survived only in the bastard branch represented by 
 the house of Beaufort. And the male line of that house had 
 also been extinguished by the fall of the last Duke of Somer- 
 set at Tewkesbury. Henry Tudor, who traced his descent 
 through the female line of the house of Beaufort, was the son 
 of Margaret Beaufort the great-granddaughter of John of 
 Gaunt and Edmund, Earl of Richmond, the son of Cath- 
 erine, widow of Henry V., who had married a Welshman by 
 the name of Owen Tudor. The new claimant, who had found 
 shelter in Brittany during the reign of Edward IV., now 
 His first at- threatened invasion. In October, 1483, Henry sailed with a 
 Oct-fi^ fl eet fr m Brittany, and at the same time Buckingham, who 
 unfortu- had broken with Richard, together with the Woodvilles and 
 the Courtenays, raised the standard of revolt in England. 
 But the enterprise was both premature and unfortunate. A 
 storm delayed Henry's arrival ; the confederates failed to join 
 forces ; and Buckingham, the chief of the conspiracy, lost his 
 head. In the proclamation which the new claimant put forth 
 at this time, a fact was announced which until then seemed 
 to have been carefully concealed, the murder of the princes 
 in the Tower. 1 With his popularity menaced by this ghastly 
 disclosure, and with his right to the crown challenged by a 
 resolute though baffled opponent, Richard, in the hope of 
 winning the support of the nation, was not slow in calling 
 Richard's a parliament, which met in January, 1 484.2 In this his 
 mentmeY*" only parliament, the usurper made every effort not only to 
 1484*"'' strengthen his hold upon the crown by means of a parlia- 
 mentary election, but also to win popular favor by consenting 
 to a series of measures designed in the interest of commerce 
 and reform. In the act passed for the settlement of the 
 
 1 See Green, Hist. Eng. People, vol. 2 Rot. Par/., vi. p. 237 ; Cont. Croyl., 
 ii. p. 62. p. 570.
 
 II.] FROM HENRY IV. TO HENRY VI L 5 8 5 
 
 succession the attempt was made not only to vest the crown 
 in Richard and his issue, but to restate, as a matter of his- 
 tory, the circumstances and the claims under which he had 
 accepted it in the first instance. " This act recites that a statement 
 roll had been presented to Richard, as Duke of Gloucester, ^d'stiti'e 
 before his coronation, on behalf and in the name of the three j^VX- 
 estates of the realm, . but that neither the three estates, the settie- 
 
 ... ment ol the 
 
 nor the persons who presented such roll, were assembled in succession. 
 form of parliament ; and therefore it was ordained and estab- 
 lished in parliament, that the tenor of the said roll, and the 
 contents thereof, should, by the three estates then assembled 
 in parliament, and by authority of the same, be ratified, etc., 
 and be of the same force as if the same things had been done 
 in parliament. The roll is then set forth, in which, after 
 stating the right of Richard, as undoubted son and heir of 
 Richard, Duke of York, in right king of England by way of 
 inheritance, and asserting the bastardy of the children of 
 Edward the Fourth, and the disability of the children of the 
 Duke of Clarence by reason of the attainder of their father, 
 it is stated that the persons presenting such roll had chosen 
 in all that in them was, and by that writing chose, Richard 
 unto their king and sovereign lord ; and prayed him, that 
 according to this election by them, as the three estates of 
 the land, and by his true inheritance, he would accept and 
 take the crown and royal dignity, etc., as well by inheritance 
 as by lawful election." 1 In this statement, put forward in 
 the first instance by the notables, and then adopted and rati- 
 fied in a regular parliament, a studied effort was made to 
 strengthen Richard's title by blending in its support the Blending 
 waning doctrine of elective kingship and the new feudal trine of C 
 theory of indefeasible hereditary right. As the represen- j^^-p 
 tative of the house that impersonated the hereditary theory, 7 ith the 
 
 J J feudal the- 
 
 Richard was compelled to employ every pretence, however ory of he- 
 specious, to remove from his path the prior claims of the 
 children of Edward and of Clarence ; and yet the very weak- 
 ness of his pretences drove him to seek shelter under the 
 sanction of a parliamentary election. 
 
 That the nation, although silent under the despotic policy 
 of Edward IV., did not patiently acquiesce in the result of 
 
 1 Lords' Report, vol. L p. 371.
 
 586 777.fi 1 GROWTH AND DECLINE OF PARLIAMENT. [Cn. 
 
 An outcry the revolution through which its liberties had been over- 
 eftort'ons 6 thrown, clearly appears from a petition addressed by the citi- 
 andimposi- zens o L onc j on to Richard III., in which the declaration is 
 
 tions of the 
 
 preceding made that " We be determined rather to adventure and com- 
 mit us to the peril of our lives and jeopardy of death than to 
 live in such thraldom and bondage as we have lived some 
 time heretofore, oppressed and injured by extortions and new 
 impositions against the laws of God and man and the liberty 
 and laws of this realm wherein every Englishman is in- 
 herited." 1 In this outcry against "extortions and new impo- 
 sitions" can no doubt be found the motive for the statute 2 
 now enacted, in which the evil practice of extorting benevo- 
 Benevo- lences was not only forbidden, but denounced as a new and 
 wddenf^nd unlawful invention. In addition to the guarantee thus given 
 popular leg- a pr a i ns t the most obnoxious form of illegal taxation, other 
 
 islation en- * 
 
 acted. statutes were passed of a popular character, chief among 
 which may be noted those designed for the promotion of the 
 growing interests of English commerce, for the reform of 
 legal procedure, and for the prevention of the mischief aris- 
 ing from secret feoffments which the perils of the civil war 
 statute had greatly multiplied. 3 Another statute 4 was also passed 
 subject^ at this ti me which bears an important relation to the history 
 uses. o uses Owing to the fact that the king was incapable of 
 holding to a use, it was enacted that, where Richard was en- 
 feoffed to uses jointly with other persons, the land should vest 
 in the co-feoffees ; where he was the sole feoffee, it should 
 vest in the cestui que use, an early statement of the princi- 
 ple, afterwards embodied in the great Statute of Uses (27 
 Henry VIII. c. 10), that the position of the cestui que use 
 should in all cases be assimilated to that of legal owner. 6 As 
 a recognition, no doubt, of the concessions made by the king 
 in the interest of reform, parliament on the last day of the 
 ancTpofmd- session granted him tunnage and poundage, and a subsidy on 
 subsidy on w o1 f r ^fe. 6 A few days later Richard by charter confirmed 
 Canted for to ^ clergy the privileges which had been secured to them 
 life. shortly after the accession of Edward IV. 
 
 1 See Green, Hist. Eng. People, vol. 6 See Gilbert on Uses, ch. i. sect, i ; 
 ii. p. 63. Digby, Law of Real Property, p. 291, 
 
 2 i Rich. III. c. 2. note i, and pp. 310, 311 ; Blackstone, 
 8 i Rich. III. c. i. Comm., bk. ii. p. 332. 
 
 4 i Rich. III. c. 5. 6 Rot. Parl., vi. pp. 238-240.
 
 II.] FROM HENRY IV. TO HENRY VII. 
 
 But the boldness, the craft, the subtilty of Richard, who Fail of the 
 
 ... -it j *. house of 
 
 under more favorable conditions might have made a great York, it 
 
 king, were powerless to avert the doom now fast descending 
 upon him. Not only had he shocked the moral sense of the * 
 nation by a usurpation which had culminated in a ghastly guarantee 
 deed of blood, but he was also weighted down by the short- OI 
 comings of a dynasty whose despotic policy had deprived the 
 nation of its liberties without securing in return the one boon 
 which every despotic power was expected to bestow, admin- 
 istrative order. The weakness of the royal authority under the 
 Lancastrian kings, their powerlessness to preserve order, 
 their failure to maintain a steady enforcement of law, had ex- 
 hausted the patience of the nation, and had paved the way 
 for their overthrow. In the hope of escaping from this con- 
 dition of things, the nation had submitted to a transfer of the 
 crown to the house of York from that of Lancaster. And 
 yet after years of waiting the expected change had not come ; 
 the "want of governance," which had worn out the patience 
 of all classes under one dynasty, remained as a standing re- 
 proach to the other. The house of York had broken down 
 all the barriers in favor of liberty which the nation had so 
 patiently built up, and yet it had failed to curb the spirit of 
 lawlessness which had been steadily gaining strength during 
 a long period of foreign and domestic war. It may have been 
 that the administrative machinery, which the monarchy had 
 not yet been able to strengthen and consolidate, was itself in- 
 adequate to cope with the chronic disorders which naturally 
 arose out of the decay of an expiring social system. How- 
 ever that may have been, the fact remained that the nation 
 was worn out by an experiment which had robbed it of nearly 
 every political right, and which had in return given it practi- 
 cally nothing. 1 The spirit of discontent which grew out of 
 this condition of things, the disposition to seek relief by still 
 another change of dynasty, the conciliatory proceedings of 
 Richard's parliament had failed either to allay or avert. His 
 
 1 " The house of Lancaster . had small degree to destroy all that was 
 
 reigned constitutionally, but had failed destructible in the constitution. . . . 
 
 by lack of governance. The house of England found no sounder governance 
 
 York succeeded, and, although they under Edward IV. than under Henry 
 
 ruled with a stronger will, failed alto- VI." Stubbs, Const. Hist., vol. iiL p. 
 
 gether to remedy the evils to which 273. 
 they succeeded, and contributed in no
 
 588 
 
 THE GROWTH AND DECLINE OF PARLIAMENT, 
 
 When inva- 
 sion is 
 threatened, 
 Richard re- 
 turns to the 
 collection 
 of benevo- 
 lences. 
 
 Henry 
 lands on 
 ;th Aug., 
 1485. 
 
 Battle of 
 Bosworth, 
 22d Aug. 
 
 fair promises were no doubt estimated at their true value. As 
 subsequent events proved, his legislation in the interest of re- 
 form was not seriously intended. When in December, 1484, 
 it was known that Henry Tudor was preparing for a second 
 invasion, Richard began to collect benevolences, 1 in open vio- 
 lation of the statute, passed less than a year before, in which 
 they were not only forbidden, but denounced as a new and 
 unlawful invention. The utter faithlessness, the cruelty, the 
 craft, the mistrust, which characterized the conduct of Rich- 
 ard, no less in public administration than in private intrigue, 
 sufficiently explain why it was that his bad cause was wrecked 
 at the critical moment by the desertion of the great military 
 chiefs upon whose fidelity he relied. Henry, who had not 
 yet reached his thirtieth year, landed at Milford Haven on 
 the 7th of August, 1485, with a small force, which was in- 
 creased through the influence of his Tudor connections 
 among the Welsh, and then by constant adhesions as he ad- 
 vanced towards the centre of the kingdom. On the 22d 
 of August he was met by Richard at Market Bosworth, in 
 Leicestershire, where the decisive battle was fought. In the 
 midst of the battle the Stanleys and Northumberland, upon 
 whom the king mainly depended, deserted his standard and 
 went over to the enemy. In his despair Richard, the last 
 representative of a house that had produced more than one 
 tyrant but not a single coward, threw himself into the thick 
 of the fight, and perished while hewing his way to the pres- 
 ence of his opponent. Thus, by the fate of a single battle, 
 lost through treason, the crown of England passed away from 
 the last of the Plantagenets, from the last king of the 
 great house of Anjou. 
 
 1 Cent, Cray 1., p. 572.
 
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