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 BOOK 342.42.G532 v. 1 c. 1 
 GNEIST # HISTORY OF ENGLISH 
 CONSTITUTION 
 
 3 T153 DOlOb?!! 7 
 

 
THE HISTORY .G^-M 
 
 OF THE 
 
 ENGLISH CONSTITUTION. 
 
 BY 
 
 Dr. RUDOLPH GNEIST, 
 
 PBOFESSOR OF LAW AT THE UNIVERSITY OF BERLIN. 
 
 TRANSLATED BY 
 
 PHILIP A. ASHWOETH, 
 
 OF THE INNER TEMPLE, ESQ., BARRISTEE-AT-LAW. 
 
 IN TWO VOLUMES. 
 VOL. I. 
 
 LONDON: 
 
 WILLIAM CLOWES AND SONS, LIMITED, 
 
 27, FLEET STKEET. 
 
 1886. 
 
LONDON : 
 
 PRINTED BY WILLIAM CLOWES AND SONS, LIMITED, 
 
 STAMFOED STREET AND CHARING CROSS. 
 
NO 
 
 
 \ AUTHOR'S PREFACE 
 
 The History of the Constitution of England has hitherto 
 only been written with regard to the Middle Ages, and separate 
 centuries since the Eeformation. In venturing to draw a 
 picture of the thousand years' Constitutional History of such 
 ^) a nation, I must necessarily begin with an apology in order 
 to explain the shortcomings and inequalities of my work, and 
 ! in some measure to justify them in the eyes of the benevolent 
 reader. 
 
 My writings upon the English Constitution did not originate 
 
 in a uniform scientific plan; my Eoman law professorship 
 
 -\ offered few points of connection with this subject, although 
 
 ^.^ I am much indebted, in these writings, to the works upon 
 
 ^•^^ the history of Law of my revered teacher, von Savigny. It 
 
 ,^ was rather the efforts for reform in the German legal pro- 
 
 "•^ cedm-e which gave rise to these essays. Brought up in the 
 
 laborious and strict school of Prussian Judges, at a time 
 
 when the whole task of formulating the matter in litigation 
 
 was entailed upon the judge who personally directed the 
 
 pleadings of the parties, and having acquired a personal 
 
 ^ knowledge of the political and social state of Germany, 
 
 ^ England, and France, I had become sufficiently intimate with 
 
 (js, the advantages of our nation of officials, as well as with the 
 
 ■^ weak points of our system, both in legal procedure and 
 
iv Authors Preface. 
 
 administration. I felt most keenly the necessity of the funda- 
 mental reforms in this department, which I have for many 
 years advocated in my academical lectures, at a time when 
 the majority of my colleagues stood aloof from, and were 
 opposed to, the reforms that have since been introduced. It 
 was precisely the differences in opinion upon this subject 
 which gradually led me to the conviction, that the so-called 
 philosophical schemes in public law chiefly originate in a lack 
 of positive knowledge of circumstances. My own work on 
 ** Trial by Jury " (Berlin, 1849) bears witness to the truth of 
 this statement. 
 
 It was the period of storm and stress in 1848 that first led 
 me from the domain of law to the wider one of politics. A 
 closer acquaintance with the condition of affairs in France and 
 England, more especially with the excellent treatises of Lorenz 
 Stein on those of the latter country, made me somewhat re- 
 served and doubtful in my attitude towards the new con- 
 stitutional development. I declined a summons to the National 
 Assemblies of that time, and preferred to take part in the 
 administration of a great provincial system, which gave to my 
 political ideas a more practical direction, corresponding to the 
 experience that the ruling class in England gains every day 
 in its provincial activity. 
 
 The constitutional struggles in Prussia soon took the shape 
 of a decisive conflict between the old and the new form of 
 society ; a dispute which was to be finally settled in Prussia 
 for the whole of Germany. I was led by this struggle to 
 examine with greater care into the real origin of the social 
 relations of the various classes in Central Europe, in order to 
 illustrate the rights and wrongs of Feudalism and Democracy 
 by the position of classes in England (" Adel und Eitterschaft 
 in England," 2nd edition, 1853). The recognition this work 
 obtained in many circles encouraged me to further labour. 
 
 Meanwhile the ministerial government in Prussia had 
 
Author s Preface. 
 
 proceeded in a direction which might well be considered a 
 realization of the theories of Constitutional Government 
 which had prevailed up to that time ; but its effect in Prussia 
 was sufficient to demonstrate how utterly inapplicable to 
 Germany were the French and Belgian models. When this 
 confusion was at the worst, between 1853 and 1856, I began 
 my investigations in the domain of English Administrative 
 Law, the most difficult of the whole series of the labours, 
 and one that I might well compare to a walk through a 
 primaeval forest. With good, though incomplete sources of 
 reference at hand, I succeeded in tracing amongst the chaos 
 of disconnected antiquarian matter piled up around Black- 
 stone's Commentaries, a connected system of laws reaching 
 back into the Middle Ages, while Parliamentary papers enabled 
 me to produce as realistic a picture as possible of the adminis- 
 tration of to-day (" Geschichte und heutige Gestalt der Amter 
 in England," 1857). This tract was written not merely in 
 reference to the Prussian abuses of administration, but was 
 intended to draw attention to just what the constitutional 
 theories had forgotten in their long struggle for a suitable 
 popular representation, viz. that building up of a fair adminis- 
 tration from the lowest foundation, which is a necessary 
 element in a popular state. This work has not been without 
 its influence upon Germany in filling up a material gap, and, 
 if I am not mistaken, it has in England also influenced some 
 later views of Constitutional History. 
 
 Being dissatisfied with this partial view of the subject, and 
 having obtained a more complete body of material upon which 
 to work, I ventured upon the task of writing a history of the 
 English Parliament. But the task of developing the system 
 of English polity in its true aspect, led to my intended History 
 of Parliament becoming a detailed history of the English 
 administrative law (" Englisches Verwaltungsrecht," 2nd ed., 
 1867, vol. i., Historical pt., 648 pages). 
 
vi Author s Preface. 
 
 Meanwhile, in the year 1858, constitutional monarchy was 
 restored as the form of government in Prussia, with the honest 
 endeavour to return to an administration according to the 
 law, and to proceed with the construction of the inner fabric 
 of the State. Together with many of my political friends 
 I hoped that the time had arrived for " opposing positive 
 tendencies to the negative tendency of our national policy, 
 for exchanging vague and formless efforts for fixed and settled 
 aims and objects to be gained by attainable means." With 
 regard to the reorganization itself, every one was satisfied 
 that a system of ''self-government" was a necessity; but 
 each of the two political parties in the realm, and the body 
 of State officials, respectively understood by this term three 
 very different and wholly incompatible systems. It w^as the 
 natural consequence of a state of affairs, in which the official 
 world and two distinct orders of society had been involved 
 for a whole generation in a dispute concerning the constitution. 
 It was no easy matter gradually to reconcile prevailing ideas 
 to the truth, that in a modern state, parishes and district 
 unions can no longer be autonomous bodies, but are, primarily, 
 only the executive organs of our more fully developed admin- 
 istrative law, and that local rates cannot be severed from 
 our system of political economy. Hence a legislation that 
 would rise above all party views was seen to be a vital 
 necessity ; just as in England the inner fabric of the con- 
 stitution was not the outcome of parliamentary legislation, 
 but proceeded in its day from the organic laws dictated by 
 the Privy Council. In order to further these legislative 
 labours, or at least to prevent an overhasty imitation of the 
 French model, in the regulation of parishes and districts, 
 there aj)peared a work which I had somewhat speedily com- 
 j)leted, entitled " Die Englische Communal-Verfassung oder 
 das System des Self-government " (1860). Soon afterwards 
 I was able to rewrite with greater care my history of ''self- 
 
Author s Preface. vii 
 
 government " (" Engl. Communal-Verfassung," 2nd ed., 1863), 
 and to give a description of the modern English municipal 
 reforms down to the times when the organic legislation in 
 Prussia really began its work ("Engl. Communal- Verfassung," 
 3rd ed., 1871). 
 
 After the Prussian and with it the German constitutional 
 question had been successfully solved, the time for actual con- 
 struction had arrived, viz. the time for positive reforms of our 
 administrative system, especially our police laws, local juris- 
 diction, local taxation, municipal regulations, etc. (" Ver- 
 waltung, Justiz, Kechtsweg," etc., Berlin, 1869.) For Prussia 
 I made the principal basis of my work the reformed adminis- 
 trative and social legislation of Stein and Hardenberg, the 
 municipal regulations of 1808, and the existing parochial 
 system in country and town. But whilst I carefully avoided 
 transferring into our German institutions any name or insti- 
 tution from English Hfe, yet in all cases where our officials 
 had no practical experiences at hand to guide them in new 
 combinations in administrative law or local government, I 
 made use of parallels taken from England. In subsequent 
 years there followed essays which dealt with our constitutional 
 disputes, and with the question of reform in our legal pro- 
 cedure, as well as in our administration ; among which the 
 legislative proposals touching the Prussian Kreisordnung, 
 school board administration, provincial taxation, the principle 
 of legality in the administrative (Kechts-staat), the reform of 
 the legal profession, of the magistracies, of penal procedure, 
 etc., repeatedly brought me better points of view of and 
 parallels with the English law. 
 
 Thus there gradually arose, in addition to a continuous 
 history of administrative law and " self-government," a chain 
 of parallels for various points of the inner life of the state, in 
 which, thanks to the energetic development of the royal prero- 
 gatives, the English' and Prussian constitutions are much 
 more intimately related than is generally supposed. 
 
viii Author s Preface. 
 
 It cannot be denied that these writings appeared in an 
 epoch and in the midst of the most profound political crisis 
 in my native land (during the last years of Frederick 
 WiUiam III., under Frederick William IV., during the regency, 
 and under WilKam I., Emperor and King) ; and appeared, 
 too, under the pressure imposed upon me by my academical 
 duties, as well as that entailed by a magistracy and a pro- 
 vincial office, and by a long and active parHamentary life. 
 Though all this has probably been instrumental in producing 
 a many-sided appreciation of affairs, it necessarily had an 
 unfavourable effect upon the systematic arrangement of those 
 writings ; besides which, in a work directed towards an im- 
 mediate and practical end, the connection of the whole cannot 
 always be sufficiently kept in view and expressed. Hence 
 arose on my part a natural desire to put together the English 
 constitutional history in a larger and more coherent form, 
 using as a basis the work most nearly complete in itself, the 
 history of English administrative law, from which I could 
 retain the divisions into periods and chapters because it was 
 originally designed for a history of parliamentary law. As 
 regards this portion, the present work appears as a third 
 edition. And here I have repeated an old experience gained 
 on the German judicial bench, namely, that where, after many 
 interlocutory judgments, the final judgment has been reached 
 in any litigated case, many mistakes, one-sided views, and 
 gaps are discovered, which have arisen in determining the 
 separate preliminary and intermediate questions. Fortunately 
 such interlocutory judgments are not binding on the historian, 
 but allow of the completion, correction, and modification of 
 opinions which once went too far ; and in this I have been 
 much helped of late years by the excellent historical works 
 of Froude, Freeman, Stubbs, and others. 
 
 In another direction this history has encountered a grave 
 difficulty, viz. in the copiousness of the matter. 
 
Author s Preface. ix 
 
 A constitutional history must portray the reciprocal action 
 continually going on between State and society, Church and 
 State, constitution and administration, state-life and popular 
 life, political and private economy, between the greatest and 
 smallest interests. These are ever acting and reacting one 
 upon another in such wondrous complications that a picture 
 of the coherent elements, even when the moments of their 
 activity are continually brought before the reader, can be 
 but inadequately represented. In this constitutional history 
 differs from a history of law, for the latter traces the develop- 
 ment of the dogmas of private and criminal law, by quoting 
 from legal documents and authorities, whilst the former deals 
 with the living body of the State in its origin, its life and its 
 progress, and the successive and unbroken evolution of enact- 
 ments which have remained in force until the present day. 
 
 But even in this imperfect form, the English constitutional 
 history is pre-eminently suited to give a picture of the inner 
 coherence of the various members of the state and society, on 
 which the history of all constitutions and the fate of all 
 nations is really based. In these recij)rocal relations the 
 history of former centuries returns to life, and becomes a 
 mirror wherein are reflected the struggles of the present ; but 
 above all it must be regarded as manifesting the over-ruling 
 Providence which guides the destinies of mankind according 
 to right and towards the right. Every man who, with the 
 inevitable partiality arising from a political, ecclesiastical or 
 social standpoint, follows up the development of the British 
 empire for a thousand years back, and strives in all earnest- 
 ness to discover the connection of events, will be obliged to 
 correct or amplify many preconceived opinions. The results 
 of personal activity and experience are similar in the mani- 
 fold relations of public life, in narrower and in wider circles ; 
 and it is just this habit of personal activity that has educated 
 the English nation and its ruling class in political freedom, 
 
Author s Preface. 
 
 and has raised the political parties in the country to the 
 capacity of ruling parties. Perhaps in later treatises I may 
 succeed in portraying these reciprocal relations in a still 
 simpler and more vivid manner, for in them lies the solution 
 of that enigma of the European world — otherwise incapable 
 of explanation — namely, how it comes that in one country 
 the individual members of the State and of society appear to 
 be in a state of progress, and yet the whole loses ground, 
 whilst in another, the individual elements appear to be back- 
 ward and at times to retrograde, whilst the whole is mightily 
 advancing. 
 
 Berlin, Aj^rily 18S2. 
 
TRANSLATOR'S PREFACE. 
 
 The author's world-wide reputation, both as a jurist and 
 historian, was alone sufficient to justify the appearance of an 
 Enghsh edition of his History of the English Constitution ; 
 but the preface to the German original furnishes a still more 
 cogent reason for presenting this translation to the English 
 public. The author there tells us that no consecutive history 
 of the English Constitution has previously been written. 
 Various epochs have, it is true, been treated by consummate 
 masters, but there is no treatise extant, that has attempted 
 in any way to describe the rise of our political system, and to 
 follow it through all its varying phases down to the present. 
 
 It is the author's express wish that his preface to the 
 German original, though primarily intended for German 
 readers only, should likewise preface this translation; as 
 therein are set out the causes that induced him to commence 
 and bring his researches to a successful issue. 
 
 The work having been compiled fragmentarily and at 
 different times, and having originally been devised to meet 
 the practical needs of the German legislature, could not but 
 exhibit some abnormal features ; among them the especial 
 stress laid upon the administrative institutions of the State, 
 
xii Translator s Preface. 
 
 the county and the parish. The author was, moreover, 
 obliged to express himself according to political and legal 
 conceptions familiar to German jurists, and which diverge 
 more or less widely from English terms. Hence a free trans- 
 lation of the English terms into German had first to be made, 
 a retranslation of which into English is far from easy, and in 
 many cases might appear to call for explanation, the insertion 
 of which, however, would have encumbered the text. 
 
 The author as well as the translator must accordingly beg 
 the indulgence of the reader for any roughness or unevenness 
 of style, which may blemish the original or the translation ; 
 shortcomings that could scarcely be avoided, as the author 
 could only hastily revise the sheets. 
 
 At all events it will be of the greatest interest for English 
 students of history to see how a foreign jmdst, who has been 
 much engaged with the reform of the judicial and adminis- 
 trative institutions of Germany, treats the ancient and 
 modern development of the *' Parliamentary Model State." 
 
 P. A. A. 
 
 London, November, 1885. 
 
CONTENTS. 
 
 FIRST PERIOD. 
 
 TEE ANGLO-SAXONS. 
 
 CHAPTER I. 
 
 PAGE 
 
 The Anglo-Saxon ForNDATioN ... ... ••• .•• 1-13 
 
 The original settlement (1); Bocland and Folcland (3) ; Military 
 system (5) ; Judicial system (7) ; The Church (9). 
 
 CHAPTER II. 
 
 The Anglo-Saxon Monaechy ... ... ... ... ... 14-39 
 
 Origin (14); Military Supremacy and followers (19) ; Judicial Supre- 
 macy (23) ; Police-supremacy, ordaining power, system of sureties 
 (26) ; Revenue, Danegeld (30). 
 
 CHAPTER III. 
 
 The Union of the Kls:gdoms, and the Divisions of the Realm ... 40-55 
 The Heptarchy (41); Shires (43); Hundreds (47) ; Tithings (50) ; Local 
 divisions (52). 
 
 CHAPTER IV. 
 
 The Offices op Ealdorhan AND Shir-Gerefa ... ... ... 56-70 
 
 Ealdorman, Eorl (56) ; Shir-gerefa (61) ; Local ger^fas (66). 
 
 CHAPTER V. 
 
 The Anglo-Saxon Chukch ... ... ... ... ... 71-87 
 
 Bishoprics (72); Monasteries (72); Parish churches (74); Church 
 property (76); Tithes (77); Political position of the clergy (79); 
 National character (85). 
 
XIV 
 
 Contents. 
 
 CHAPTER VI. 
 
 PAGE 
 
 The Anglo-Saxon Class-kelations, and the National Assemblies ... 88-103 
 Great thanes (93) ; County thanes (94:) ; Ceorls (95) ; National assem- 
 blies (98) ; Witenagemotes (101). 
 
 CHAPTER Vn. 
 
 The Decay AND Fall of THE Anglo-Saxon Kingdom ... ...104-114 
 
 National antipathies (104) ; Social antipathies (108) ; Church and 
 State (110) ; National character (113). 
 
 SECOND PERIOD. 
 TEB ANGLO-NOBMAN FEUDAL STATE. 
 
 CHAPTER VIII. 
 
 The Property Bases of THE Norman Feudal State ... ... 115-137 
 
 Character of the Conquest (116) ; Legal incidents of the feudal system 
 (119); Doomsday Book (124); Statistics of the population (125); 
 Erroneous ideas as to the Norman feudal system corrected (129) ; 
 Inbreviatio and redemptio (131) ; Events of the century (134). 
 
 CHAPTER IX. 
 
 The Norman County Government ... ... ... ...138-153 
 
 New position of the Eorl (138) ; The Vicecomes (141); Manors (147); 
 Honors (148); Burghs (150). 
 
 CHAPTER X. 
 
 I. The Development OF the Norman Military Power ... ... 154-164 
 
 Decisions as to peace and war (154) ; Equipment of troops (156) ; 
 Command (159) ; Revival of the Saxon militia (162). 
 
 CHAPTER XI. 
 
 II. The Development of THE Norman Judicial Power ... ... 165-183 
 
 Confirmation of the Leges Eduardi (166) ; County and hundred courts 
 (166) ; Manorial courts (169) ; Germs of centralization (172) ; Origin 
 of the Sheriff's Tourn (177) ; Jurisdiction of the Curia Regis (179) ; 
 Changes by royal ordinances (181) ; Juries in civil actions (182). 
 
 CHAPTER XIL 
 
 III. The Development OF THE Norman Police Control ... ... 184-201 
 
 Sureties (184) ; Presentment (187) ; Turnus Vicecomitis (190) ; Summary 
 
 procedure (193) ; System of amerciaments (195) ; Police regulations 
 and royal ordinances (200). 
 
Contents, 
 
 XV 
 
 CHAPTEK Xin. 
 
 PAGE 
 
 IV. The Development of the Finance Control ... ... ... 202-217 
 
 Demesnes (203) ; Feudal perquisites (205) ; Fines (206) ; Aids, tallages, 
 scutages (210); Danegeld (213); Transition to a system of land and 
 property taxation (215). 
 
 CHAPTEK XIV. 
 
 The Norman ExcHEQUEB ... ... ... ... ... 218-229 
 
 Origin (218) ; Procedure (221) ; Court days (224) ; Staff (226) ; Exchequer 
 
 of Jews (228). 
 
 CHAPTER XV. 
 
 V. The Rise and Decay of the Norman Church Supremacy ... 230-245 
 
 Concessions to Rome (230) ; Separation of the Ecclesiastical Jurisdiction 
 (231) ; Feudal bonds of the Church (233) ; Disputes as to the in- 
 vestiture (236) ; Constitutions of Clarendon (237) ; Freedom of 
 election (240) ; Progress of the struggle (240). 
 
 CHAPTER XVI. 
 
 The Curia Regis. The Great Officers of the Realm ... ...246-271 
 
 The Curia considered as the Norman Court Days. Royal power of 
 ordinance (246) ; the Curia Regis as a Central Law Court (255) ; the 
 Curia Regis as a Supreme Government Council (260) ; The great 
 ofBcers of the realm (263). 
 
 CHAPTER XVII. 
 
 Teansitional Period. Itinerant Justices. Justices in Banco. Origin 
 
 OF Estates of THE Realm... ... ... ... ... 272-293 
 
 Origin of itinerant justices (273) ; Origin of a Court of King's Bench 
 in connection with the Exchequer (279); Origin of Estates of the 
 Realm (286). 
 
 CHAPTER XVni. 
 
 Magna Charta ,... .. ... ... ... ... 294-311 
 
 Its origin (294); Limitations of the supreme power (301); Clauses 
 relating to the Estates of the Realm (307) ; its fundamental cha- 
 racter (310). 
 
 CHAPTER XIX. 
 
 The First Attempt at a Government by Estates of the Realm ... 312-332 
 
 Confirmations of Magna Charta (313) ; Epochs of the constitutional 
 struggle (317) ; the name Parliament (320) ; the Parliament of 
 Oxford (322) ; the Statute of Marlebridge (325) ; Character of the 
 constitutional wars (326) ; Germs of a Lower House (330). 
 
xvi Contents. 
 
 , CHAPTER XX. 
 
 PAGE 
 
 The Class Relations of the Anglo-Norman Period ... ... 333-344 
 
 The Greater Vassals, Barones Majores (334) ; the Barones Minores and 
 Sub-vassals (337) ; Freeholders and towns (342). 
 
 THIRD PERIOD. 
 
 THE PERIOD OF THE GROWTH OF THE ESTATES 
 OF THE REALM. 
 
 CHAPTER XXI. 
 
 The Century of Organizing Statutes. Union of the Central Govern- 
 ment with the Constitution of the Counties ... ...345-383 
 
 Nature of the organization (346) ; Union of the military system with 
 the county (350) ; Union of the judicature with the county (256) ; 
 Union of the police power with the county — Origin of justices of the 
 peace (363) ; Union of the financial administration with the county — 
 Local taxation (375); Self-government in the towns (381). 
 
 CHAPTER XXII. 
 
 The Courts OF Common Law ... ... ... ... ... 384-397 
 
 Court of King's Bench (384) ; Court of Common Pleas (385) ; Court of 
 Exchequer (386) ; Consolidation of the itinerant justices and the 
 Bench (388) ; Rise of the legal profession (392) ; the Lord Chan- 
 cellor as officina justitix (393) ; Special courts (394). 
 
 CHAPTER XXIII. 
 
 The Permanent or Continual Council. The Court of Chancery 398-413 
 Origin of the Council (398) ; Procedure (399) ; Staff (403); Commissions 
 and delegations (406) ; Jurisdiction of the Council (408) ; the Lord 
 Chancellor as head of the Chancery Department (410). 
 
 CHAPTER XXIV. 
 
 The Parliament OF THE Prelates AND Barons ... ... ...414-437 
 
 The Magnum ConciUum as an administrative organ (414) ; Spiritual 
 and temporal lords and officials (424) ; origin of heritable peerages 
 (434). 
 
CONSTITUTIONAL 
 HISTORY OF ENGLAND. 
 
 FIEST PEEIOD. 
 THE ANGLO-SAXONS. 
 
 CHAPTEE I. 
 
 ECGBEEHT, 800-836 
 JEthelwulf, 836-857 
 
 ^THELBALD, 857-860 
 ^THELBERHT, 860-866 
 ^THELRED, 866-871 
 
 JElfred, 871-901 
 
 Eadward the Elder, 901-924 
 
 ^THELSTAN, 924-941 
 
 Eadmi-nd. 941-946 
 Eadred, 946-955 
 
 Eadwig, 955-959 
 
 Kadgar, 959-975 
 
 Eadward the Martyr, 975-978 
 
 ^thelked XL, THE Unready, 978-101 6 
 
 Eadmi-nd Ironside, 1016 
 
 Cnl't, 1016-1035 
 
 Harold L, Harefoot, 1035-1039 
 
 Harthacnct, 1039-1042 
 
 Eadward the Confessor, 1042-1066 
 
 Harold II., 1066 (January to October) 
 
 The conquest of the British Isles by the Saxons, Angles, and 
 Jutes from the middle of the fifth century has the character 
 
 * "With regard to the sources of this 
 period, Lappenberg (" Geschichte Eng- 
 lands," vol. i. Introd.) gives the most 
 exhaustive information. Compare also 
 Gneist ("Geschichte der Communal- 
 Yerf." pp. 7-9). The laws in the fol- 
 lowing ]iages are quoted as given by 
 Eeinhold Schmid ("Die Gesetze der 
 Angel-Sachsen," 2nd ed., 1858). Where 
 special occasion demands, quotations are 
 given from the official report of the 
 Eecord Commission (Thorpe, " Ancient 
 Laws and Institutes of England," two 
 
 VOL. I. 
 
 vols. 8vo, 1840). The several royal laws 
 are quoted with the abbreviations used 
 bv Schmid, viz. Athlb. (^Ethelberht), 
 Whtr. (Wihtraed), In. (Ine), Alfr. 
 (Alfred), Edw. (Eadward the Elder), 
 Athlst. (^thelstan), Edm. (Eadmund), 
 Edg. (Earigar), Athlr. (^thelred), Cn. 
 (Cnut). Frf.m the Norman times the 
 Leges Guliehiii Conqu. also contain in 
 the main only a collection of Anglo- 
 Saxon rules of law. The so-called Leges 
 Henrici J. are principally also only 
 a private compilation from the later 
 
 B 
 
Coyistitutional History of England. 
 
 of a gradually advancing occupation. The disunited Britons, 
 some of them grown effeminate, while others have become 
 savage, are overcome after numerous battles with varying 
 issue ; the civic settlements, dating from the days of the Roman 
 sway, fall into ruins ; the old Eoman culture disappears, and 
 with it Christianity ; the aboriginal population is either driven 
 into the hills or reduced by oppression to a state of slavery 
 or to the position of impoverished peasants. Hence in Eng- 
 land those peculiar conditions are wanting which in Western 
 Europe arose from a mixture of the Germanic races with 
 a Romanized provincial population, with Roman culture, and 
 with the Roman provincial and ecclesiastical constitution. 
 On the other hand, the conquest had the effect of destroying 
 the tribal bond that still prevailed in the home from which 
 the conquerors came. The first settlements, indeed, appear 
 to have been based upon the exodus of small tribes (notably 
 the Angli), with wives, children, and servants, from the old 
 home into the new. As colonization slowly proceeded new 
 migrations continually took place (as in the colonization of 
 the Marks in East Germany), in consequence of which the 
 old tribes became mingled together, and the original family 
 unions were widened by new settlers. The groups of con- 
 querors thus welded together appear to have found their bond 
 
 Anglo-Saxon legislation, dating from the Manners, Landed Property," etc. 
 
 the middle of the twelfth century. New and important contributions for 
 
 The Leges Eduardi Confessoris also are this period are also given by Freeman, 
 
 a private compilation from various "History of the Norman Conquest," 
 
 sources and traditions from the legis- vols, i., ii., iii. (2nd edition, 1870); 
 
 latiou of the later Anglo-Saxon times, Bishop Stubbs, " Constitutional His- 
 
 and apparently dating also from the tory," vol. i. cap. ]-8 (1874); and an 
 
 twelfth century. The Anglo-Saxon exceedingly able and useful selec- 
 
 documents are quoted from Kemble's tion of legal charters and historical 
 
 Codex Dipl., vols, i.-vi. (1839-1846). documentary evidence is furnished by 
 
 Of English historical works bearing his " Select Charters and Illustrations 
 
 on these times use has been made of Constitutional History "(2ud edition, 
 
 principally of Kemble, "The Anglo- Oxford, 1874). Of German treatises, 
 
 Saxons in England" (1849), two vols. a history of Anglo-Saxon law contain- 
 
 (translated by Brandis, from whom the ing the principal features, by Conrad 
 
 quotations are taken); Sir Francis Maurer, "Miinchener Kritische Ueber- 
 
 Palgrave, "The English Common- schau," vol. i. p. 47, ff., continued in 
 
 wealth" (1831, 1832), two vols. ; Sharon vols. ii. and iii. ; Phillips, " Geschichte 
 
 Turner, "History of the Anglo-Saxons" des Angelsachsischen Rechts " (1825) ; 
 
 (1799-1835), three vols, with the sup- Lappenberg, "Geschichte Englands," 
 
 plementary volume, "The History of vol. i. (1838). 
 
Tlie Anglo-Saxon Foundation, 
 
 of union principally in the greater and lesser military chiefs, 
 from whose office as leaders in war the royal dignity arose in 
 later times. 
 
 After the occupation of the country a division of lands took 
 place, in which the Mda, familia, mansus, or plough of land 
 (which, according to Kemble, amounted to thirty-three Saxon, 
 or forty Norman, acres), was made the unit or smallest 
 measure of land settlement, and, with certain rights of pas- 
 turage and woodcutting, was regarded as a sufficient basis for 
 a peasant's household. 
 
 In many places the British population had already a dis- 
 tinct landed property upon which the conquerors entered. In 
 later times the continual feuds among the petty kingdoms 
 everywhere hastened the dissolution of the family bond and 
 the development of private property, with all its lasting effects 
 upon the constitution and civilization of nations. Only in 
 a few tracts of land in North Europe were soil and climate 
 so inviting and so productive for the peaceful labour of tillage 
 and pasturage, so calculated to produce attachment to hearth 
 and home. From the beginning of the tenth century the 
 expressions "boc-land" and ''folk-land" appear as the in- 
 variable equivalent of the ager ijrivatus and the ager puhlicus. 
 The rich store of Anglo-Saxon records proves conclusively that 
 the rights of private property were early established, and that 
 property could be transferred by title deeds. Just as certainly 
 was there in early times great inequality in the division of 
 property. The reason for this is chiefly to be sought in the 
 existence of small armies which were slowly but steadily 
 conquering, under their numerous captains and commanders, 
 who at the division of the land received the greater posses- 
 sions, which possessions in process of time were managed 
 by the settlement upon them of smaller people, who rendered 
 payment in kind. This inequality of property had already 
 undermined the old position of the freeman. The ancient 
 inheritance of freedom, the considerable weregeld, and the 
 personal protection accorded the liher homo, were, indeed, 
 continued to him, even when he possessed no land, down to 
 
Constitutional History of England, 
 
 the close of the Anglo-Saxon period. But in every other 
 respect, the rising up of the greater landed proprietors over 
 the class of the peasant proprietors, and the degradation 
 below the line of freedom of the free-born men, without 
 possession of their own, is increasingly manifest. The con- 
 ditions of j)roperty among the Anglo-Saxons tended thus to a 
 state of dependence, by means of loans of land and service, 
 on the largest scale. The ordinary names for those who were 
 in this state — Folgan, Hldfdta — include both the settlers upon 
 the land thus lent or let and also the personal domestic 
 servants. But the state of service (gesith) thus created 
 proceeds in two widely divergent directions. 
 
 This entrance into the sphere of personal service has quite 
 a different meaning as applied to the household of the inferior 
 warrior chieftains. When once a settlement has been formed, 
 the honour attached to this service, and its connection with 
 military and legal affairs, gives the retinue of the king a 
 position so prominent as to be eagerly sought after by the 
 landless sons of the great proprietors, and even by free land- 
 lords. The relation of service to the king forms more and 
 more an especially honoured upper class, increasing with the 
 growth of the royal privileges and of the realm. 
 
 On the other hand, this dependence, brought about by the 
 settlement on farms held of private persons, is productive ol 
 a lower position, which sinks below the level of the old common 
 liberty. This class of settlers are for the most part small 
 farmers, intermingled even with bondsmen, and it has the 
 position of a dependent and heavily burdened peasantry. 
 Extant records show us how manifold were the ways of 
 granting such a *'fief," whether revocably or irrevocably, for 
 years or for life, and with reservation of numerous payments 
 igafol) in kind or in mone^^, in labour, service in the field, 
 defined or undefined. The great landed proprietorships 
 realized much from such settlements, and supplied them- 
 selves with the natural products and the services of which 
 a great household stood in need, for the wants of private 
 life as well as for the equipment of the troops. The depen- 
 
The Anglo-Saxon Foundation. 
 
 dence thus created became in fact hereditary, and increased 
 in times of war, through the destruction of the free peasant 
 farms, and in times of peace through the increase in the 
 number of the landless members of families. In this direction 
 social order appears in the Anglo-Saxon times to have 
 advanced Avith even step. The law of property originating in 
 later times under the name " rectitudines singularum person- 
 arum,'' affords us in the law affecting the Thane, in the rights 
 of inheritance, and of those affecting the farm labourers, 
 a picture of a firmly established state of society, exhibiting 
 a deeply rooted dependence of the free-born classes on great 
 landed proprietorships.** In its forms of armament, adminis- 
 tration of justice, and Church, the State is constantly acting 
 and reacting upon these bases of property. Army, Law Court, i 
 and Church remain throughout the whole of the Middle Ages 
 the three foundations on which the commonwealth is carrying 
 out its work of change. 
 
 I. The first department, tfic iHllltarg SSStcm of the 
 Anglo-Saxons, is based upon universal service. Under this 
 is to be understood the duty of every freeman to respond in 
 person to the summons to arms, to equip himself at his own 
 expense, and to support himself at his own expense during 
 the campaign. The impossibility of attaining a uniform fulfil- 
 ment of this duty is at the root of all the changes in the! 
 social relations, and in the constitution of the Germanic races. | 
 After a fixed settlement has been entered on, the small peasant 
 farm, barely sufficient to support a family, cannot possibly, 
 as a rule, answer this duty, and still less can it be fulfilled 
 by the landless freeman. Among the Anglo-Saxons, as else- 
 where, after the settlement a division of the militia, according 
 to Hundreds, was organized, in which arrangement a remedy 
 was to be found for existing evils. They were obviated in 
 this way, that the Hundreds, instead of furnishing a hundred 
 
 * * The laws of property are treated the older family constitution, see R. 
 
 of at length by Conrad Maurer, in the Schmid in " Hermes," vol. 32 (1829), 
 
 "Miinchener Eritische Ileberschau." pp. 232-264. On the land communities 
 
 E. Schmid's "Glossarium" v. Bocland, of the Mid.lle Ages, see Nasse, "Das 
 
 Folkhmd, Hid. Kemble, Anglo-Saxons, Englische Marken-system." 
 i. c. 2, 4, and appendix A, B, C. On 
 
o Constitutional History of England. 
 
 men, sent smaller contingents, and that in making the divisions 
 the number of the hides of land was taken into account ; that 
 a landowner was allowed to send his sons and his followers 
 to serve in his stead, and that the regulation of the duty of 
 furnishing troops was left to the resolution of the National 
 Assembly, and in process of time to the lieutenants of the 
 king in the County Assembly. The Hundred therefore means, 
 with regard to the constitution of the army, only an equal 
 contingent within a greater unity ; and this is the reason that 
 in various epochs, as for instance under the reign of Alfred 
 the Great, a new organization of the Hundreds took place. 
 The Anglo-Saxon times never attained to such fixed and deter- 
 minate rules of law as were introduced by the capitularies of 
 the Carlovingians. The sub -distribution was left entirely to 
 the administration of the county, whence only a very unequal 
 and faulty form of militia could proceed. 
 
 Accordingly, in the times of the Heptarchy, the individual 
 chieftains were obliged to have recourse to other forces for the 
 waging of their numerous wars, by detaining and reorganizing 
 from among their free servants and followers an armed retinue 
 ready to respond to their personal summons. All court 
 offices had originally a warlike character. Prospects of booty, 
 honour, favour, and reward induced even freemen to join such 
 trains of followers. Besides the booty, gifts of folkland and 
 grants of offices of trust were the rewards chiefly paid for 
 services of this description, and thus there was formed round 
 each of these little kings a first levy of tried soldiers, whose 
 existence confined an appeal to the general military service 
 of the peo^^le more and more to cases when the country was 
 in peril. We first read in the laws of Ine of these warlike 
 Gesith-men (with or without land of their own), whose 
 increased weregeld indicates them as belonging to a class 
 liable to military service in a higher sense ; and in process 
 of development these men become the still more esteemed 
 class of Thanes. Analogous reasons in later times led to 
 the greater landed proprietors in the united Saxon kingdom 
 forming a warlike retinue from among their domestics, their 
 
The Anglo-Saxon Foundation, 
 
 iinder-vassals skilled in arms, and in some measure from 
 among the free landed proprietors. At the same time the 
 majority of the freemen were, to a certain extent, practised 
 in arms, but this varied according to the position of the 
 districts. As a rule, the service of the freemen in times of 
 peace was required by the Hundreds more for guard duties, 
 the repair of castles, and the making of roads. The reorgani- 
 zation of the army by Alfred was not permanent, and after 
 the lapse of a hundred years sank into a state of utter 
 weakness, and at the close of the Anglo-Saxon period the 
 ascendancy of a few powerful, warlike Thanes, with their 
 armed followers, produced an oligarchical character in the 
 whole of the constitution. (1) 
 
 II. The second department, the ^nglo-^a.XOlt ^bminiStra= 
 tion of 2i^^Sttce, in spite of the numerous accounts handed 
 down to us, affords no comprehensive picture of the whole. 
 It. the developed constitution of the tenth century, however, 
 we meet with judicial courts of the two following degrees. 
 
 The Hundred Court or Hundred-gemote, meeting once a 
 month for the narrow district of a commonalty {Vicinetum), 
 decides the ordinary civil actions and petty criminal cases, 
 and is the principal place for the solemn conclusion of 
 contracts and testamentary dispositions. 
 
 The County Court Shire-gemote, meeting twice a year, 
 exercises a fuller criminal jurisdiction, decides quarrels between 
 the inhabitants of different hundreds, draws in general within 
 
 (1) An enquiry into the constitution land, and the rendering of military 
 of the army leads to the negative result service by the grantee, existed already 
 that there was no legal distribution in Anglo-Saxon times, as did also the 
 of the burdens of military service in legal and police jurisdiction of the land- 
 Anglo-Saxon times. Military service lord over his tenants. In the same 
 was the personal duty of every free way there was a bond of allegiance 
 man, and not a fixed burden, but one between the king and his higher 
 pertaining to the commonalty, and regu- followers, between every master and 
 lated according to extent of property. servant, between the Hlaford and the 
 The much-vexed question, which has Hlafaeta; but the growing together 
 been discussed almost within the and the consolidation of these relations 
 memory of the present generation, as into the English feudal system did 
 to whether in the Anglo-Saxon times not take place until the Norman times. 
 a " feudal system " existed, has its For their more special formation under 
 origin in mistaking a few unconnected the influence of the monarchic power, 
 elements for the whole. Grants of see cap. ii. sec. 2. 
 
8 Constitutional History of England. 
 
 its jurisdiction matters in dispute between more powerful 
 parties, and forms a periodical district assembly for the 
 conduct of all public business in the county. 
 
 The parties appear before the court with numerous com- 
 purgators, i.e. persons prepared to swear to the truth of a 
 statement ; the employment of witnesses in civil actions 
 was tolerably frequent, and suitors seem to have appeared 
 frequently taking a part. A regular participation in such 
 judicial proceedings, wdth their numerous judges and com- 
 purgators, presupposes an independent position which must 
 have been very rare among the small settlers, many of whom 
 possessed but a single hide of land. And yet a regular 
 attendance at judicial proceedings is the necessary preliminary 
 of all legal knowledge ; he who is only present now and then 
 cannot become and remain the depository of legal knowledge 
 and of legal custom. Accordingly the great County Courts 
 were, at their first authentic appearance, assemblies of the 
 greater proprietors, who, in their capacity of regularly appear- 
 ing, experienced lawmen, obtained the appellation of " Witan." 
 A picture of old Germanic peasant communities forming a 
 court in full assembly, under their chosen presidents, is not 
 to be found among the Anglo-Saxon records. The inequality 
 of the proprietorships has thrust back the smaller farmer into 
 the position of a spectator in the large assemblies, and even 
 in the small County Courts the judgment is generally left to 
 a small number of " Witan." 
 
 These beginnings of a magisterial constitution are founded 
 upon the natural basis of the ascendancy of the great pro- 
 prietors. The Carlovingian institution of select lawmen 
 (goabini), appointed permanently by a royal officer, is foreign 
 to Anglo-Saxon ideas. 
 
 The magisterial office in Anglo-Saxon times is remarkably 
 vigorous in the matter of punishment. Blood vengeance 
 appears only to have been permitted against the slayer with 
 malice aforethought and the adulterer. The privileges and 
 responsibilities of clan and family kinships assume a subor- 
 dinate position where a breach of the peace has been com- 
 
The Anglo-Saxon Foundation, 9 
 
 mitted. The system of composition, so far as payment of 
 weregelcl and penalty to the parties is concerned, appears to 
 have soon become only subsidiary. Serious breaches of the 
 peace are generally visited with capital or corporal punish- 
 ments, while for serious as well as for petty offences, con- 
 siderable fines under various styles and names were payable 
 to the magistrates. Penal justice was thus, even in the 
 Anglo-Saxon times, in intimate connection with the financial 
 rights of the king, and in course of further development 
 with the privileges attached to the private jurisdiction of the 
 landowners. Out of the magisterial authority in criminal 
 procedure there was formed a system of protective measures 
 to secure the "maintenance of the peace." The householder 
 is made responsible for those living with him, the landowner 
 for all the occupiers of his soil, especially for their due 
 appearance in courts of justice. The landless man who did 
 not belong to the household of an established landed i^ro- 
 prietor, was forced to enter a union called a " tithing." 
 Towards the close of the Anglo-Saxon period, this " tithings 
 system" developed into similar small unions consisting both 
 of free men and of poorer people dependent upon the soil. 
 At the same time these formed a police system, and acquired 
 a right of settlement, and thus incorporated the landless 
 population either with the household of a Thane, or with the 
 land belonging to a Thane, and to a community dependent 
 upon him, or forced them into a tithing of free peasantry. (2) 
 III. The third division of the Anglo-Saxon Hfe is furnished 
 by i\^z Christian Clburc]^ — the necessary complement to the 
 army and the judicial system. Just as the influence of the 
 heathen priesthood in the new settlements does not appear 
 to have been anywhere very important, so the conversion 
 of the separate kingdoms to Christianity in the course of a 
 single century (591-688) was effected without any material 
 
 (2) As to the legal jurisdiction of refers to their various aspects. As to 
 
 Anglo-Saxon times, compare Lappeu- their further development under the 
 
 berg, vol. i. p. 581, et seq. ; Phillips, influence of monarchy, vide cap. ii., 
 
 pp. 166-210. The description of the sees. 2 and 3. 
 offices and the districts (cap. iii. iv.) 
 
10 Constitutional History of England. 
 
 struggles or convulsions. The successful labours of the 
 Scottish missionaries, who brought down from the north the 
 faith of the British Church, were met from the times of 
 Gregory the Great and St. Augustine onwards by the equally 
 successful propagation of the Eoman Catholic ecclesiastical 
 system advancing from the south. In si)ite of the disunion 
 that at first existed, Christianity found a fruitful soil in the 
 peaceful inclinations of the new colonists ; while the early 
 entrance of the aristocratic classes into the clerical profession 
 is a characteristic feature in England. The importance of 
 the Church of the Middle Ages shows itself primarily in its 
 protection of the weaker classes. The Church created the 
 first beginnings of a legal protection against the sale and 
 ill-usage of women, children, and bondsmen. It was the 
 Church that first secured to the labourer his day of rest, 
 his earnings, and an effectual liberation from slavery. She 
 it was that founded the earliest schools for the upper classes, 
 whilst the lower clergy and the monks were accessible to all 
 alike for advice and instruction. She was the first to foster 
 gentle manners, industrial pursuits, peaceful intercourse, and 
 was the first originator of relief for the poor. The higher 
 regard for the sanctity of marriage, the raising of the position 
 of women — first in manners, and then in their private rights — 
 are due to her influence. In the Law Courts the Church 
 made her power felt by the frequent apj)lication of oaths, and 
 by conducting the judicial trials by the ordeal of fire and 
 water, w^hich fell to the Christian clergy in the transition 
 from heathendom. The Bishop appears in conjunction with 
 the Lieutenant of the king, as the head of the county adminis- 
 tration. And so the Church, steadily progressing, enters into 
 the Commonwealth to fulfil those humane tasks for which 
 there was as yet no room in the temporal constitutions of 
 the Middle Ages. In all circles of public administration the 
 Clerici are the indispensable medium for WTiting. Bound up 
 with all classes of the population, and with all the interests 
 of life, the development of the English Church, as regards its 
 officials, its doctrines, and dogmas, has been more national in 
 
The Anglo-Saxon Foundation. 11 
 
 its character than the Churches of the continent. Neverthe- 
 less, the internal organization of the Church is true to its 
 principles, as being an universal school. To perform its 
 widely extended functions, there was formed a peculiar class 
 for intellectual labour, which, like every other free labour, 
 needs property ; and therefore in the Middle Ages it needed 
 landed property, without which the Church would have re- 
 mained in a servile position, and incapable of fulfilling its 
 vocation. The ecclesiastical constitution accordingly assumes 
 in this most national of all Church institutions the same 
 external form as in the rest of Christian Europe. A school 
 for a nation can only be conducted by spiritual superiority, 
 and this demands, on the part of officials, submissiveness 
 and devotion to their profession, — the first example in the 
 Germanic life of a class of professional public functionaries. (3) 
 Such are the political forces which, continually acting and 
 reactmg upon the inequality of property, remodel those 
 class relations to which I shall again revert in Chapter 
 VI. The bearers of arms maintain their dominion over 
 the soil, and become the landowners. The landless freemen 
 come into a lasting and actually heritable dependence upon 
 the land. Throughout all degrees of property there runs a 
 disposition to create dependences which strives after a legal 
 recognition, and gains it in the following way. 
 
 (3) We shall revert to the more iin- higher clergy that it became possible 
 
 portant of these relations under the for the Church of the Anglo-Saxons to 
 
 head of Ecclesiastical Administration become so soon a national one, that the 
 
 (Chapter V.). As to the outward pro- Liturgy, Kitual, Prayers, and Sermons 
 
 gross of the conversion, vide especially were so soon given in the German 
 
 Lapponberg, i. 132-205. The pro- tongue, and found their way to the 
 
 pagationofthe new doctrines proceeded heart of the people. The retention of 
 
 from above to below, making its first the Germanic proper names, the pecu- 
 
 appearance at the court, and then liarity of the Anglo-Saxon calendar and 
 
 through resolutions of the national its feasts, the small influence exercised 
 
 assembly, whicli was generally appealed by the Roman Ecclesiastical Law, the 
 
 to, and which decided by a majority of development of the national language 
 
 voices. With regard to the main cha- by the Ecclesiastics, tiie weakened in- 
 
 racteristics of Anglo-Saxon heathen- tiuence of Rome upon the princes of 
 
 dom, see the exhaustive essay of the realm, are the peculiar and iii- 
 
 Kemble, i. cap. 12. The effort made timately connected advantages of a 
 
 to replace as soon as possible the few Church, truly richly endowed by reason 
 
 foreign missionaries by native bishops of its former deficiencies " (Lappeu- 
 
 is worthy of note. " It is owing entirely berg, i. 163). 
 to the admission of natives among the 
 
12 Constitutional History of England. 
 
 The state of dependence in which the poorer classes 
 were, was formally recognized by the king and the general 
 assembly of the realm and became a principle of law. The 
 relation between Hlaford and Hlafaeta was already a com- 
 plete portion of the Anglo-Saxon legislation. (In. 39, 50, 
 Alf. 37, 42; Athlr. i. 1, ii. 4, 7, iii. 5, iv. 1; Edm. iii. 7; 
 Cn. ii. 29, 32, 78, 79.) 
 
 Higher services rendered in the militia and in the Law 
 Courts then led to the legal recognition of a higher worth 
 or station — to the idea of Thanehood. The direct expression 
 for the " worth " of a man is the " Weregeld," which was 
 fixed in the proportion of 200 to 1200 shillings ; that is, the 
 Thane was estimated at six times the rate of the mere free- 
 man. By multiplication of these, further sums were arrived 
 at for the Ealdorman and the Bishop. As the legal system 
 of these times is primarily based upon the legal protection 
 that a fine affords, a higher rating was equivalent to the 
 recognition of the right to a higher class or rank. Hand 
 in hand with these two relations is developed the foundation 
 of a manorial system. The householder and landlord has 
 the actual power to dismiss his gesitli, and to take away 
 from his tenants their grants, whence there results a right 
 accorded to the lord of deciding upon the disputes of his 
 gesith and his tenants. Eecognized by the authority of 
 the State, the domestic Imjyermm becomes a regular jurisdic- 
 tion. With the increasing power of the magnates, further 
 royal privileges pass to the landlords, and in later times 
 also a petty criminal jurisdiction. Amongst the Thanes, 
 again, certain greater Thanes are distinguished from the 
 others, as having large territories and armed retinues, and 
 being in possession of the high state offices, as well as of 
 the lay dignities of the Ealdormen. These, together with 
 the Prelates, compose, in Anglo-Saxon times, the legislative 
 councils of the realm. Just as the county assembly in its 
 executive capacity had become limited to Thanes and a few 
 minor elements, so a similar limitation in a far higher degree 
 took place in the council of the realm. The Anglo-Saxon 
 
The Anglo-Saxon Foundation. 
 
 13 
 
 Gemote, the so-called *' Witenagemote," is a representation 
 of the masses of landed proprietors corresponding to the 
 system by which they fulfil the functions of the State ; that 
 is, it is determined by property, office, and royal appointment. 
 In the last centm-y of the Anglo-Saxon period the great 
 proprietorships had attained such an ascendancy as to make 
 the position of the throne vary with the period and with the 
 character of its occupier, and the exercise of all royal rights 
 often appears, as a matter of fact, to be the right of the 
 oligarchic Witenagemote.t 
 
 t As to the degrees in the different 
 classes, a more exhaustive account will 
 be found in Chapter YI., I only here 
 refer to what is necessary for the 
 understanding of the offices. In the 
 Laws of Ine the GesWicundman makes 
 himself at first conspicuous. It is only 
 since the time of J^lfred that the dignity 
 of a Thane appears in connection with 
 landed property to the extent of at 
 least five hides, which carries with it 
 a " Weregeld " of 1200 shillings, and 
 the rank of a Ticelfhyncleman. I con- 
 clude from a combination of numerous 
 indications that this is connected with 
 the establishment of altered military 
 arrangements, according to which the 
 king prevailed upon the majority of 
 the great landlords to pledge them- 
 selves to him to obey his personal 
 summons ; for which the honour of a 
 royal Thane, the appointment to the 
 office of Shir-gerefa, etc, as well 8s the 
 further advantages resulting therefrom, 
 such as favours and honours, were a 
 suflBcient equivalent. The title of 
 " Thane " now becomes applicable to 
 the royal servants, and extends from 
 the highest offices in the court down 
 to the smaller offices appertaining to 
 the county administration and the 
 royal demesnes. Moreover, those hav- 
 ing the right to exercise a private 
 jurisdiction, belong by virtue of this 
 right to the class of Thanes, because 
 their civil and police powers are now 
 regarded as royal offices. The pre- 
 ponderating influence in this arrange- 
 ment was the regard paid to public 
 office and a public calling, and not to 
 
 mere amount of property. That this 
 was the leading idea attached to the 
 complex notion of Thanehood is shown 
 by- 
 
 1. The etymology of the word, 
 which expresses (together with the 
 word derived from it, thegnian, to 
 serve) the serviens, or minister. This 
 last is the usual translation in the 
 old Saxon records. 
 
 2. In later times any kind of official 
 position was so naturally connected 
 with the word " Thane," that loss of 
 Thanehood was used as a synonym for 
 dismissal from a royal office. 
 
 3. Even where the possession of 
 five hides is mentioned as being the 
 basis of Thanehood, the reservation is 
 added that the following things are 
 further required : a church and a 
 kitchen, a bell tower, and a seat in 
 the castle gate (which is equivalent 
 to a personal jurisdiction, saca et soca\ 
 and a special office in the king's hall 
 (of lay rank, cap. iii., Schmidt, 381). 
 
 4. That the stipiilated service forms 
 the decisive point is further shown by 
 tlie equality subsisting between all 
 Thanes until the close of the Anglo- 
 Saxon period. The great Thane with 
 princely possessions is a Twelfhynde- 
 man, and is no more than the simple 
 county Thane with five hides of land. 
 The Anglo-Saxon legal j^hraseology 
 has no special term for distinguishing 
 the great Thanes. AVhen it is necessary 
 to single out the magnates, the denota- 
 tion " Eoyal Thanes " is used with a 
 certain emphasis, in order to signify the 
 important royal office they hold. 
 
14 Constitutional History of England, 
 
 CHAPTEK 11. 
 
 'E\)t ^nglo-^axon i^onatcj)^. 
 
 From amidst this reconstruction in the system of property 
 and freedom, we see in England the regal power going forth, 
 — the most magnificent civil creation of the Middle Ages. 
 Among the most nearly related continental races, in their 
 old dwelling-places, among Saxons, Frisians, Holsteiners, 
 Hadlers, and Dittmarshers, we find in those times no regal 
 sovereignty. Its appearance among the Anglo-Saxons must 
 be accounted for, not by national peculiarities, but by social 
 conditions, which arose from the settlements upon conquered 
 territory. Among the first generations, too, we do not as 
 yet find a kingship. The conquering expeditions had cer- 
 tainly a chieftain at their head, who belonged to the families 
 famous in war (nohiles) ; and in the conquered country we 
 find the successful commander at the head of the army which 
 has seized the territory. His name was associated with 
 memories of victory, with the acquisition of the present 
 dwelling-place. When the land was divided the lion's share 
 fell to him, as well as the spoils of the vanquished British 
 chiefs. In like manner, as possessions became hereditary, 
 the transfer of the ducal dignity to the son was looked upon 
 as a natural arrangement. Such a condition of things was 
 found even among the Eepublican tribes of the continent. 
 Actual kingship begins to exist — firstly, so soon as the dignity 
 of the chieftain appears not only in the leadership of the 
 army, but when it becomes a comprehensive supreme power, 
 
The Anglo-Saxon Monarchy. 15 
 
 including the office of magistrate, of protector of the peace, 
 of defender of the Church, with the highest control of the 
 Commonwealth in every department ; secondly, so soon as 
 this highest dignity has become recognized by the popular 
 idea as the family right of a high-born race. Directly both 
 these conditions co-exist, the new idea shows itself in its new 
 name. After gaining great victories, iElla, of Sussex (514- 
 519), was the first to adoj)t the title of " Cyning;" and this 
 example was gradually followed by the other chieftains, down 
 to the petty potentates who ruled over a tract of country 
 hardly as large as a county of the present day. The step 
 which exalted the ducal dignity, until then recognized as a 
 martial title, to the permanent position of supreme power, 
 was, regarded from without, of no great importance. The 
 head of the arm}- in time of war, becomes the head of the 
 government in time of peace ; that is, the organization 
 according to which the soldiers assembled under their leader, 
 becomes the model for the new monarchical state. 
 
 The social conditions which regulated this new state of 
 affairs have been indicated above. Together with the definite 
 development of private property, the princij)al military and 
 legal offices are transferred to a class of great landlords, which 
 class in this way gains a predominant influence in the com- 
 monwealth. The graduated values of the landed properties 
 gives the upper classes a separate position with regard to 
 ''Weregeld" and fines, puts them on a different footing in 
 the army and in the Law Courts, puts a different value upon 
 their oath, and accords them a different share in judicial pro- 
 ceedings. The ever-increasing difficulty of obtaining justice 
 against the powerful, the class interests which pervade army, 
 Law Courts, and the system of the maintenance of the peace 
 (and later also the Church), create an idea that the old con- 
 federate constitution is no longer sufficient for the freeman. 
 Under such conditions the chosen officers of the State become, 
 wittingly or unv/ittingly, the representatives of the interests 
 and the privileges of the upper classes, and develop a tendency 
 to use their power for the exclusion from justice and oppression 
 
16 Constitutional History of England, 
 
 of the lower classes. In the burden which military duty im- 
 posed upon the small landowners, and in the numerous duties 
 of tenure and service, means for this oppression were ever 
 present, and were increased by manifold circumstances. War 
 and disaster drove the small independent landowners from 
 their farms ; the Hundred was broken in upon by the lords of 
 the manor and by dependent communities, and the separate 
 allodial peasants became less and less capable of protecting 
 themselves and bearing the common burden. In such a state 
 of affairs the weaker classes would necessarily be in a better 
 position when a higher impartial power appointed and con- 
 trolled the civil and military officers. Only by such a power 
 could the initiative be taken for the measures which were now 
 necessary for the protection of the unrepresented classes. The 
 exclusion of the small landowners and of the landless from all 
 the greater assemblies lessens their interest in the life of the 
 confederacy, and inclines the masses to subject themselves 
 to one great distant lord, rather than to numerous powerful 
 neighbours. In this matter the Middle xiges were guided by 
 an empirical tact. If the supreme ruler of the commonwealth 
 was to be exalted above these class interests, it was necessary 
 that his ruling position should be made a permanent dignity 
 in his family, which should be independent of the favour of 
 the dominant classes, and devoted to the lasting welfare of the 
 community ; and as a rule the king was inclined to this from 
 the feelings inspired by his high calling. In contrast to the 
 ancient world, in the Germanic world the hereditary kingship 
 raised the " State " above social interests, and gave the 
 permanent and highest duties of the State a permanent re- 
 presentative. And therefore it is that, among the Anglo- 
 Saxons, kingship was upheld by the attachment of the weaker 
 classes, and became bound to the whole community by a 
 mutual bond, which of all the creations of the secular State 
 has endured longest and most firmly.* 
 
 * As regards the origin of the Prerogative in England" (1830), in 
 
 Anglo-Saxon kingship, see the clever which the historical dates have been 
 
 monograph of Allen, " Inquiry into carefully collected. But the appearance 
 
 the rise and growth of the Royal of the treatise at the time of the 
 
The Anglo-Saxon Monarchy, 17 
 
 The honorary prerogatives of the kingly office are next 
 formed in the following way. They resulted from the idea 
 that the embodied authority of the State, if it is to stand 
 above the community, must be itself the undisputed head of 
 the society. Accordingly the king has the highest grade of 
 "Weregeld," viz., in Mercia 30,000 sceatts, equal to 7200 
 shillings, or 1201bs. silver ; as high, therefore, as the " Were- 
 geld " of six Thanes or thirty- six Ceorls. In other districts 
 the simple '' Wite " of the king is apparently not higher than 
 that of the archbishop ; but the amount of the royal " Were- 
 geld" is doubled by the '^ Cynebot " of equal amount, which 
 is demanded, not by the family, but by the whole nation for 
 the life of " its king," thus giving expression to the idea that 
 in reciprocal possession the king belongs not merely to his 
 family and his class, but to the whole community and the 
 nation at large. The next-of-kin of the king are also, by the 
 simple " roj^alwere " and by larger contributions (Cn. ii. 58, 
 Appendix iv.), ranked above the Prelates and Thanes, and 
 form, under the name of ''^thelingi," the only legally recog- 
 nized hereditary nobility of the Anglo-Saxon period. The 
 early recognized capital punishment for regicide, and for har- 
 bouring seditious vassals of the king, belongs pre-eminently to 
 the class of political or magisterial prerogatives. A higher 
 degree of " Weregeld," and a fine for the king's vassal, and 
 the higher XDOsition of the vassal as ^'compurgator," create 
 at once a social prerogative, and a recognition of magisterial 
 authority. An especial protection extends even down to the 
 godchild, the groom, and the man whom the king honours 
 by deigning to drink in his house. To the social side of the 
 kingship belongs finally the formation of a Eoyal Household, 
 
 Pteform Bill, and the abstract argu- places in the foreground. Turner,, 
 
 ments employed, have caused the author on the other hand, is un^jrejudiced^ 
 
 to entirely mistake the authenticated " Anglo - Saxons," Supplement (iv.) 
 
 development of a king from social p. 262, For the historical facts as to 
 
 causes. In the background one can ^lla, of Sussex, vide Breda, " Eccle- 
 
 perceive in this author the idea of siastical History," i. 15 ; " Saxon 
 
 usuri^ation and a continual dislike of Chronicle," anno 449-495; Lappen- 
 
 monarchy : everything that is im- berg, i. 566. The etymology of tho 
 
 mature and anomalous in the develop- name " King " is dubious, 
 ment of kingly power he accordingly 
 
 VOL. I. fi 
 
18 
 
 Constitutional History of England. 
 
 the four chief offices in which, as in other Germanic king- 
 doms, are those of the chamberlain, the marshal, the steward, 
 and the cupbearer.** 
 
 The rights of sovereignty in the State are more slowly 
 developed than the prerogatives of the king. To designate 
 him as the highest official in the realm, the terms, " Hlaford " 
 and " Mundbora " of the whole nation are used (Chron. Sax. 
 anno 921, and under Eadward the Confessor). "Whilst the 
 word " Hlaford" expresses the lordship over the whole nation, 
 which has to swear faith and allegiance to him, the term 
 *' Mundbora" expresses a i^rotector and guardian, '' defensor et 
 jxitronus.'' The indefiniteness of the appellation is in keep- 
 ing with the facts. It was indeed a process of slow forma- 
 tion in which the royal sovereign rights of later times were 
 not yet sharply defined. An analogy with private lordship 
 still exists everywhere ; just as the oath of fealty taken to the 
 
 * * The liouorary prerogatives of the 
 Mng belong pre-emmently to the social 
 side, and it is accordingly hot by mere 
 chance that among the Celts in Eng- 
 land, as on the continent, court offi- 
 cialism plays a more important part. 
 ^Nationality, and the strong ascendancy 
 of the great landed proprietors, com- 
 bined to make the kingships there find 
 pleasure in posing as the heads of 
 great and noble households. The pe- 
 dantic importance with which the law 
 of Wales fixes the rank and the per- 
 quisites of the twenty-four court offices, 
 according to their position at the 
 king's marshal's and vassal's tables is 
 very characteristic. Kemble's" Anglo- 
 Saxons," ii. cap. 3, contains a chapter 
 on the king's court and household. 
 The chamberlain appears under the 
 name of " Burthegn " " Hordere," " Cu- 
 hicularius" " Camerarius" and " The- 
 saurarius." The marshal is known as 
 '"Steallere," "Horsthegn," '' stalnlator;' 
 " strator renis" According to the literal 
 interpretation of the term, " overseer of 
 horses," his duty was to superintend 
 everything connected with the royal 
 equipment, and thus he had an especial 
 authority over the warlike followers; 
 the frequent mention of it points to a 
 certain importance attached to this 
 
 court office. The steward ("Truchsess") 
 appears as " dcqiifer,^' " discifer regis ; " 
 the Anglo-Saxon name was '"Disc- 
 thegn," The cup-bearer is found only 
 in Latin records as '■'■jnncerna" " jj»/;«- 
 cerniisJ' The smaller offices are so 
 incidentally mentioned that from this 
 single fact alone their small impor- 
 tance can be estimated. But even 
 the higher offices are only honourable 
 dignities for the "great Thanes," to 
 whom the king, according to circiun- 
 stances, also entrusts the command of 
 his troops, or to whom he gives some 
 high position in his coimcil ; but with 
 no court office, as such, are specified 
 State duties connected. The position 
 of the " great Thane," and of the high 
 official of State or Court, is frequently 
 united in one person ; but everywhere 
 the signatures of the Prelates, of Duces 
 and Minutri (Thanes), appear as the 
 proper constituent parts. A title de- 
 rived from a court office only occurs 
 occasionally in the case of a few Thanes, 
 an'd only among such as are not in- 
 vested with the higher rank of Ealdor- 
 man (Dux, Comes) in the central 
 administration, the signature of the 
 Ealdorman always preceding those of 
 the others. 
 
The Anglo-Saxon Monarchy. 19 
 
 Mng is T^'ord for word the oath of service taken by a private 
 man to his Hlaford. Nevertheless very important changes 
 in the social order in the army, and in the court of justice, as 
 well as in the Church, originate in the power of the Sovereign. 
 I. '^]bc i^lIltarD ^uprcmacg was already contained in the 
 old Ducal dignity, as being the highest command in the army, 
 and is undisputed throughout the whole of the Anglo- Saxon 
 times. Both before and after the union of the kingdoms the 
 king fights in person at the head of his army, in the innu- 
 merable battles recorded in Anglo-Saxon history. Next to 
 the king, Ealdormen appear most frequently as commanders 
 representing him ; his place is also often filled by a marshal 
 (steallcre), or some other great Thane. A general vicegerency 
 of an Ealdorman includes also the delegated command of the 
 -army. With this exception, there cannot be found, in the 
 whole Anglo-Saxon period, any trace of the active command 
 of the army being attached to any office or possession. 
 Separated, again, from the leadership of the army is the 
 power of deciding as to war and peace, and of regulating 
 the distribution and equipment of the contingents. The 
 decision on these matters originally rested with the people, 
 without whose assent no national war could be entered upon. 
 In later times, too, the king determined on such matters 
 in the national council, which in the small kingdoms is 
 identical with the county assemblies. After the consolidation 
 of the great kingdoms with their subdivisions, the right of 
 deciding the distribution of the contingents, under the direction 
 of the royal governor, falls to the county assembly. (1) 
 
 (1) The military sovereignty must Idg character of these debates, regarding 
 
 distinguished with regard to its later amount and distribution, appears also 
 
 development according to its three in the laws (Athlr. vi. 32. sec. 3). 
 
 component parts. c. The personal command of the 
 
 «. The decision touching war and national army. From the supreme com- 
 
 jpeace was from ancient times the con- mand over the army proceeds the right 
 
 cern of the people, wherever a real to appoint all the otlier leaders. The 
 
 " national war " was to be undertaken. punishment for omitting to join the 
 
 h. The decree as to the distribution army varied according as the king was 
 
 cind equipment of the contingents was present in person or not. In the former 
 
 left to the individual shires in which case the disloyal soldier might forfeit 
 
 the governor sat in council with the his property and his life (Athlr. v. 28, 
 
 ■county assembly. The administrative vi. 35 ; Cn. ii. 77). 
 
20 Constitutional History of England. 
 
 The traditional limitations of the military power have no 
 bearing ujDon the armed courtiers and personal vassals of the 
 king ; to summon them to his standard was a personal rights 
 while their equipment was the business of the '' Steallere." 
 In the place of the old broken-down militia there stood now 
 a force better versed in arms, equipped, and for the most part 
 maintained, by the king's household, and by those of a few 
 great lords who had the means of provisioning their men 
 during a campaign. They were bound to their lord by a 
 personal oath, which had not yet any connection with a fief 
 of land, but which was only taken '' on condition that he keep 
 me as I am willing to deserve, and fulfil all that was agreed 
 on when I became his man, and chose his will as mine." 
 Herein there was only the first step to the later " feudal 
 system." The Gesith-man may be a free landed jDroprietor, 
 owner of a grant of folkland or loanland under very various- 
 conditions, or he may be landless and dependent solely upon 
 the maintenance he receives in his lord's household. We 
 perceive in the numerous feuds of the petty kingdoms with 
 each other the wars carried on by a retinue of followers, and 
 consequently these armed followers themselves attained side 
 by side with the decay of the old land militia a wider extent 
 and importance. The unsuccessful struggles with the Danes 
 showed the unwieldiness and occasional uselessness of the old 
 national array so clearly, that in the combats for deliverance, 
 under Alfred the Great, the personal organization by the 
 king is throughout a prominent feature. The relation of 
 personal service to the king, " Thaneship," extends by degrees 
 to all possessors of five hides and upwards. From these 
 times we meet with many occasions upon which, without 
 any resolution on the part of the National Council, the 
 people willingly followed the personal summons of the 
 king, d--') 
 
 (1") Originally, the position of the riors, who under their leader or lord 
 personal followers and of the armed had won the victory, remained, in peace 
 courtiers was quite different from a also, the nearest surroundings and corn- 
 legal point of view. Immediately after panious (comites) of their chieftain. As 
 a conquest, the flower of the war- the kingdom grew, the possibility, and 
 
Tlie Anglo-Saxon Moimrchy. 21 
 
 The military constitution of the national army and that of 
 the royal retinue became in this way to a certain extent fused. 
 Decisions touching peace and war could no longer be com- 
 IDletely in the hands of the national council, although that 
 council was, as a matter of fact, almost always consulted, and 
 claimed at least the right of giving or withholding its consent 
 when there was any question of exceeding the customary time 
 of service, of entering upon winter campaigns, of naval prepa- 
 rations, and wars of conquest in distant parts, or generally of 
 any unusual services. Similarly, in the county assemblies, 
 the disposing powers of the royal officers in equipping the 
 contingents had to be enlarged. In two generations after 
 yElfred's day, peaceful inclinations again had the upper hand; 
 the kingdom again became powerless to resist the Danish 
 invaders. Bold adventurers from among those northern war- 
 riors soon gain the position of great king's Thanes. The 
 landed proprietors are only too ready to abandon the real 
 war service to the newly formed retinues, who had been gained 
 over by the gifts of offices and grants of folkland. The 
 heavy-armed, experienced soldiery now consist for the most 
 part of landless men under the command of great Danish 
 Thanes. Already under Cnut a standing guard of three thou- 
 sand housecarls appears — a class of soldiers with articles of 
 war of their own, and completely severed from landed pro- 
 perty. But as this institution, standing as it did in complete 
 contradiction to the proprietary, financial, and social con- 
 
 "with it the desire to increase the mimber able and separate transactions of the 
 of the followers grew also stronger county assemblies. In the complete 
 (Kemble, i. 142). But seeing that the ruin of the State, out of which ^Elfred 
 king chose his Ealdormen and Gere- the Great raised his people, the obser- 
 fas from amongst his nearest followers, vation of the old constitutional forms 
 and appointed them to posts of confi- became impossible. Alfred introduced 
 dence, the "follower-system" became a system of successive service, accord- 
 fused with the supreme offices, and ing to which in long campaigns the 
 formed the later "Thaneship." In soldiers relieved each other; he built 
 process of time this double relation magazines for the provisioning of the 
 was sure to react upon the altered army, at the expense of the State, and 
 position of the popular decisions con- framed new regulations for the conduct 
 corning war and peace. The carrying of marine warfare and for the defence 
 on of war was in the ninth century no of fortresses. But the question of the 
 longer compatible with a war system, extent of these arrangements has never 
 dependent on the resolutions of a been definitely settled, 
 national council, and on the innumer- 
 
22 Constitutional History of England, 
 
 ditions then existing, could not possess stability, it soon fell 
 to pieces. An ever-recurring feeling of insular security pre- 
 vented any lasting reforms in the military organization, either 
 by a definite distribution in proportion to amount of property, 
 or by regular arrangement and drilling of the masses capable 
 of bearing arms. And this is what finally brought the Anglo- 
 Saxon kingdom to ruin. The energy which, among tlie Lan- 
 gobardi, distributed military service on the principle of the 
 Eoman centuries according to landed and movable x^roperty, 
 or which, as in the Carlovingian constitution, gave the State 
 an immediate right to a fully equipped man for every four or 
 five hides, was unknown to the Anglo-Saxons. This state 
 of things explains the intricacies which in later times arose 
 whenever a military summons was really issued (as, for 
 instance, in the fatal year 999), for the allotment of the 
 contingent in each district and sub-district could be disputed. 
 Even the grants of folkland were not utilized for the purpose 
 of regulating a certain proiDortion of men. The Anglo-Saxons 
 had neither a perfected form of the " beneficial " system nor 
 a "seniorat" {vide p. 95). The folkland was partly given 
 away as an Allod, and partly revocably granted, with various 
 burthens attached, but everywhere with the reservation of 
 defence and guard duty, but not charged with supplying any 
 fixed number of shields as an actual tax. Very numerous 
 grants were made to the great Thanes in retm-n for services 
 done, and in expectation of services in the future ; they 
 were an expression of favour, but no basis for fixed war 
 service. This is the most characteristic expression of the 
 laxity under which the Saxon military system generally 
 sufiered.(l'^) 
 
 (I'O From the military rights of the 495). " Ut illi qui in Jiostem i^errjere 
 
 kmg follows also the buildiug of castles. non potuerint, juxta antiquam et ali- 
 
 It was of great importance to utilize at arum gentium consuetudinem ad civitates 
 
 stated times, for such warlike purposes, novas et ironies ac transitus joaludium 
 
 the small freemen, whose services in operentur, et in civitate atque in marcha 
 
 actual warfare were seldom required. u-actasfaciant." The system of forti- 
 
 We find the same transition in the Hcations in the Anglo-Saxon times 
 
 Carlovingian legislation (Carol, ii. was, in consequence of the difficulty 
 
 Edict. Pistense, anno 864, c. 27. vol. i. of providing an adequate gari-ison,. 
 
The Anglo-Saxon Monarchy, 23 
 
 II. W^z 3jutiicial ^uprcmacji of tje Hing was the most 
 important of the permanent powers which accrued to the 
 chieftains in the transition from the old dukedom to the 
 regal dignity. As " Mundbora " of the whole nation, the king 
 was the supreme judge in the land, with power over limb, 
 life, and property. The royal judicial office, however, still 
 retained the formal character of the Germanic magistracy. 
 It included the right of ''regulating," of "administering," 
 and of '' executing," but not the right of '' x)ronouncing the 
 sentence," which belonged to the members of the community. 
 In the united kingdom it was impossible for the hereditary 
 supreme magistrate, in consequence of the extent of his 
 territory, to sit in judgment in the old traditional i)laces 
 of justice (although instances occur of the exercise of this 
 right) ; but the legal supremacy in its regular course displays 
 itself in the ruling power which appoints the Ealdormen and 
 Shir-gerefas as royal justiciaries in the people's courts, and 
 commissions these again to appoint the witan who find the 
 judgment. As protector of the weaker portion of his subjects 
 and of the general freedom, the king provides a speedy course 
 of justice, and facilitates the prosecution of rights, by the 
 frequent holding of court days in the subdivisions of the 
 counties (Hundreds). The Hundred Court, which exists from 
 the tenth century, appears in England as a branch of the 
 County Court instituted by later positive arrangement. In 
 order to shorten the way for litigants, to dispose of the ever- 
 increasing mass of legal business, and to render it possible 
 for the poorer freemen to fulfil their duties without being over- 
 burthened, the less important matters were delegated to a 
 local court, held every month, which sufficiently accounts for 
 the indefiniteness in the limits of the jurisdiction of the 
 County Court, and its position as a superior tribunal with 
 respect to the Hundred Court, and for the presidency of the 
 Shir-gerefa in both. It is further the king who allows the 
 
 very faulty, and eventually, when the the king to tlje building of castles can 
 times of danger -were over, always fell be proved, 
 into decay. But no exclusive right of 
 
24 Constitutional History of England. 
 
 Manor Courts to enlarge their jurisdiction over petty criminal 
 offences, who extends this jurisdiction to certain free allodial 
 possessors, and who lends to the Manor Court the character 
 and authority of magisterial power, besides defining and regu- 
 lating the relations between private and public courts. The 
 position of private magistrates as *' Thanes of the king " 
 prevents such rights as reside in them from being changed 
 into mere rights appertaining to property, towards which 
 result the interests of the landed classes were ever urging 
 them. It was just these interests of the upper classes and 
 the attachment to custom which jealously guarded the tra- 
 ditional jurisdiction of the courts. Though the royal judi- 
 ciaries were only representatives of the king, the king was 
 not allowed to arbitrarily hold his court in rivalr}^ with 
 theirs ; but his province was merely to act as subsidiary to 
 the others, supplying deficiencies in cases of a failure of 
 justice, or where, from the high position of one of the liti- 
 gants, an impartial administration of justice could not be 
 obtained or expected from the County Court. This subsidiary 
 position is most definitely laid down in Eadgar, iii. 2 : " Let 
 no one go to the king on account of a suit, except when his 
 right has been denied him in the court, or he cannot attain to 
 his right" (so also in Cnut, ii. sec. 17). It is the old prin- 
 ciple, seen also on the continent, that when the lower magis- 
 terial powers refuse to do justice, the higher should interfere 
 to compel its being done. In this sense '' the king in the 
 national assembly" appears as the highest judicial tribunal 
 in the land, in which capacity he deals with the failure of 
 justice, and judges powerful litigants ; that is, he appoints, 
 according to custom, a number of impartial *^ Witan " to find 
 upon the question of Eight ; analogous to the manner in 
 which Ealdormen and Shir-gerefas in the Hundred Courts 
 appoint judges out of the number of those lawmen or suitors 
 in the county privileged to attend the court. In the later 
 laws it is laid down as a universal i^roposition that " no 
 one has any jurisdiction (socne) over the king's Thane, but 
 the king alone " (Athlr. iii. 11) ; w^hich, from the numerous 
 
The Anglo-Saxon Monarchy. 
 
 9r; 
 
 significations of the word " socne," may be understood to 
 mean, that over the great Thanes in the Witenagemote, 
 against whom it would, moreover, be difficult to obtain justice 
 in the country, the high jurisdiction of the king in the 
 Witenagemote should at once be exercised. — In the j)rovince 
 of criminal jurisdiction especially, the assistance of the legis- 
 lature was early needed to restrain blood-vengeance and to 
 improve the method of proof by compurgators, who, after the 
 tribal constitution had become dissolved, were cliosen very 
 irregularly from amongst neighbours, whom the powerful noble 
 can find only too speedily, but the poor man only with the 
 greatest difficulty. At this point the kingly power, at an 
 early period, shows itself active in affording the protection 
 of the law to the weaker suffering under the oppression 
 of the stronger. Numerous laws were directed against 
 private feuds. Certain of the compurgators were nominated 
 and summoned by the royal bailiff; and thus inequality 
 in degrees of power were in some measure obviated. For 
 breaches of the peace we early meet with an extensive 
 system of punishments inflicted on life and limb. Breaches 
 of the law led to an extended system of fines for the 
 I)rotection of the person, of honour, of domestic authority, 
 and of property. And here, finally, the royal judicial 
 supremacy appears in the form of the privilege of pardon, 
 but only so far as it is opposed by no private right to satis- 
 faction (Wihtr. 26 ; Ine 6, pr. sec. 1 ; Alfr. 7, pr. ; Athlst. 
 vi. 1, sees. 4, 5; Edm. ii. 6; Edg. iii. 7; Athlr. iii. 216; 
 Cnut, ii. 67). In Edg. iii. 2 it is generally laid down that 
 where any one finds the judgment unduly hard, he may appeal 
 for clemency to the king. (2) 
 
 (2) The legal power of the kings royal judicial supremacy shows itself in 
 
 •had become already established in practice in the following points : — 
 
 the small kingdoms long before they a. In the right of appointing^ the 
 
 became united into larger principali- Ealdormen and Shir-gerefas as judi- 
 
 ties. This legal power, however, only claries. These officers exercise also a 
 
 comprises the right to hold a court. decisive influence upon the appoint- 
 
 The pronouncement of the sentence by ment of the judicial committees of 
 
 jnembers of the community constitutes the community. In the first place 
 
 during the whole Anglo-Saxon period the agreement of the parties de- 
 
 a part of the "orcZo J «d^c^■or^(m." The cides ; failing that, we never hear 
 
2G Constitutional History of England, 
 
 III. '(ITfie ^oIlC0=Suprcmai:g of tjlt i^ting proceeds from his 
 position as " the highest maintainer of the peace." This peace- 
 controlHng power is the outcome and extension of the military 
 command and the criminal jmisdiction, with w'hich latter it 
 is in England even at the present day allied. By the grant 
 of the royal protection, special persons, places, and times 
 became so hallowed that any violence done them was visited 
 with condign punishment ; and where a breach of the jDeace 
 would have been committed, according to the law of custom, 
 the punishment was increased, because of the '* special peace 
 of the king," The special laws concerning peace extend — 
 
 (1) To certain places : to the j)alace of the king and its 
 surroundings (Athlb. 3, 5 ; Ine, 6 ; Alfr. 7 ; Cn. ii. 59) ; the 
 residences of the upper classes, and, under other names, those 
 of the lower classes as well, but more esjpecially as '^ Cirik- 
 frith " to churches and monasteries. 
 
 (2) To certain times : to the time when the militia is sum- 
 moned (Alfr. 40, sec. 1 ; Cn. ii. 61) ; to the popular and court 
 assemblies (Athlb. ii. 8 ; Athlr. iii. 1 ; Cn. i. 82) ; to market- 
 meetings, meetings for taxation, and guild-meetings (Ine, 6^ 
 sec. 5 ; Athlr. iii. 1) ; to the coronation day of the king ; and^ 
 
 of a selection of judges by the com- socne of the private individual cannot 
 
 munity, because, by reason of the in- extend over a royal TJiane as a royal 
 
 equality of property possession and officer ; at least this may be the dubi- 
 
 from the class interests which were ous sense of the passage referred to 
 
 dominant in the great courts, there above (Athlr. iii. 11, "?id7i man nage 
 
 ■was no room for it in proceedings in socne ofer ctjnges pegen, huton cyng 
 
 which the mass of the freemen only *>?/(/'')• 
 
 took part as spectators. In criminal c. As a matter of course the king- 
 proceedings, however, the accused par- nppoints the local justices on the royal 
 ticipated in tlie selection. demesnes, as well as on those portions 
 h. As supreme judge over " liheri of the folkland which have remained 
 homines" the king allows the Manor under his immediate control, and in 
 Courts idso a judicial power. In this privileged districts also, whilst ho ac- 
 seuse the lord of the manor was royal cords many exemptions in his capacity 
 " Thane " in his especial capacity of of supreme magistrate, 
 magistrate. The magistrate himself d. The king as magistrate directly 
 is liable to a fine for disobedience interferes where his appointed judge 
 (Athlst. iv. 7), and is, togetlier with has neglected his duty (Cn. ii. sec. 17, 
 the Gerefa, nominated as official re- cit. ; Edg. iii. sec. 2, cit. ; Athlst. ii. o). 
 corder in quarrels concerning barter The purely subsidiary position of the 
 and exchange (Athlst. ii. 10, pr.). royal right of decision was still recog- 
 The Land-Hlaford has to take care of nized at the beginning of the Norman 
 stolen cattle until the owner is found epoch as customary law (Will. i. 43,. 
 (Edg. iv. 11; Athlr. i. 3, etc.). The " 
 
Tlie Anglo-Saxon Monarchy. 27 
 
 with regard to the Church, to fast-times and fast-daj's (Alfr. 
 5, sec. 5, etc.). 
 
 (3) To certain persons : widows (Athk. y. 21 ; vi. 26) ; 
 nuns (Alf. viii. 18) and the whole clergy; apparently also to 
 the possessions and personal property of the clergy (Athlb. 1 ; 
 Edw. Conf. 1, sec. 1). Moreover, the king was accustomed, 
 OH ascending the throne, and on special occasions, to proclaim 
 ''general peace orders," which primarily were nothing but a 
 confirmation of the lex terrce, according to which breaches 
 of the peace were punishable in the popular courts by custom- 
 ary law. The consent of the National Assembly, which 
 usually accompanied it, the solemn tow taken by the powerful 
 nobles present, the enjoining of their official duties upon the 
 royal governors, bailiffs, and lords of manors, gave to these 
 proclamations of peace a heightened power, which was never- 
 theless again forgotten in troublous times, thus necessitating 
 perpetual repetitions. In the course of the Anglo-Saxon 
 period the king's peace took the place of the common, or 
 people's peace {rolksfnede), which once x^roved the basis of 
 social order. The king was thereby authorized, with the 
 consent of the National Assembly, to reform the old system 
 of composition, to threaten heavier offences with punishment 
 of life and limb, outlawry, and forfeiture of estate ; to abolish 
 blood-vengeance, and, by means of bail, to secure the appear- 
 ance of the guilty parties before the court. In all these 
 directions the Anglo-Saxon period makes comparatively speedy 
 progress. From the position of the highest maintainer of the 
 peace was deduced a regulating power, which, without the con- 
 sent of the National Assembly, created (beyond the province 
 of ordinary breaches of the peace and breaches of right) new 
 offences. For these heavy fines were fixed, whenever the 
 judges recognized in them a breach of the proclamation of 
 the royal peace. (3) 
 
 (3) The police power is a de- taining to the maintenance of the 
 
 velopment of the legal and military peace. From the power of punish- 
 
 powers combined, out of which latter ing is developed first the idea of a 
 
 proceed the legal grounds, the forms, preventative power. The right to com- 
 
 and the means of constraint apper- mand peace by means of personal orders- 
 
28 Constitutional History of England. 
 
 The blending of the ofi&ce of supreme maintainer of the peace 
 with that of commander-in-chief leads fm^ther to a union of 
 the organization of the militia, its institutions, its districts, 
 and its officers, with the objects pursued by *' maintenance of 
 the peace." The summons of the array may take place in 
 the counties, even in times of peace, for the purpose of pur- 
 suing and apprehending peace-breakers (Edw. et. G., sec. 6 ; 
 Cn. ii. 2, 29; ii. 48, sec. 6). The hundreds and tithings of 
 the national militia are made responsible in the person of 
 their i^sepositi for the maintenance of the peace; that is, 
 for the arrest, safe-keeping, pursuit, and denunciation of 
 peace-breakers. An important institution of this character 
 was, moreover, that which compelled dangerous characters 
 to find security for their good behaviour (Edm. iii. 7, sec. 1 ; 
 Edg. iii. 7; Athlr. i. 4; Cn. ii. 25, 30, 33). Further still, 
 landless persons were obliged, under threat of the withhold- 
 ing of legal protection, to join a *' tithing," i.e., a small 
 community with a responsible head, ^^ prsepositus,'" *' head- 
 borough," or to seek some landowner as their lord, who would 
 guarantee their appearance before the court. As a general 
 principle of law this is first laid down in Edg. iii. 6: "And 
 every man shall find security, and the surety shall lead him 
 and hold him to all right, and if any such do wrong and 
 break out, then shall the surety bear what he should bear. 
 But if it be a thief, and the surety can lay hold on him 
 within twelve months, he shall deliver him over to justice, 
 and shall receive back what he has paid." 
 
 lay in the military command of the ntilized for carrying out the measures 
 king. Among the warlike tribes of dictated by the peace-jurisdiction. A 
 the continent the notion of military general proclamation of peace was 
 service and punishment in default, usually issued by the kings on their 
 which was part and parcel of the accession. In the course of generations 
 military organization, was extended to people became accustomed to refer 
 the province of law, and led to an en- back the rules of the civil Law in these 
 largement of the powers of the magis- proclamations of peace, so oft repeated, 
 tracy. In England peace-jurisdiction is so frequently confirmed in the National 
 immarily the outcome of the judicial Assemblies, and so continuously em- 
 power and the duty of protection ployed by the courts of law— so that 
 iimincUiim) combined, and '' mund" the old " folkspeace " passes into a 
 and "/r/f/i " appear to have the same " king's-peace," which includes the 
 signification ; and, on the other hand, sanction to punish all the heavier 
 the institutions of the militia are crimes and oftences. 
 
The Anglo-Saxon Monarchy. 29 
 
 For such as are not established in the household or on the 
 land of a Thane, the tithings of the military organization are 
 now made use of, and the man without a surety has to join 
 these in such a way that either a special surety or the ^' lorse- 
 jjositus " is answerable for him. This is insisted upon in 
 Cn. ii. 20 as an universal institution of the country: — "And 
 we will that every freeman be brought into a Hundred and a 
 tithing, whoever will be entitled to purgation by oath, and to 
 where, if any one kills him after he is more than twelve winters 
 old, or be he no longer worthy of the rights of a freeman, 
 be he one of the household or servant. And let every one 
 be brought into a Hundred and under security, and let the 
 surety constringe and lead him to all his rights." 
 
 The system of police security appears thus to have been 
 definitely worked out. Every Thane is responsible for his 
 household, and his village Gerefa for the peasantry who 
 were settled on his lands. The other independent freemen 
 had to endeavour to gain so much confidence among the 
 free i^easantr}^ that these latter through their headborough 
 would undertake the security for them. The money-responsi- 
 bility fell finally upon the community as a common duty, 
 which in Norman times was inaccurately (from an external 
 point of view) described as a "mutual security." Of course 
 this system made it difficult for any landless man to change 
 his habitation. A right of free migration was certainly 
 recognized as an established principle ; and all Hlafords are 
 ordered by law not to prevent any " Uhcr homo " from looking 
 for another lord or Hlaford-socn (Athlst. iii. 4, iv. 5, v. 1). 
 But the departing freeman had first to prove that he had com- 
 l^letely fulfilled all his duties to his former lord, and that he 
 had obtained permission of the latter to leave his service ; 
 otherwise the new^ master cannot receive him (Edw. ii. 7 ; 
 Athlst. ii. 22, iii. 4, v. i. ; Edm. iii. 3; Cu. ii. 28). In con- 
 nection with this system of a local police was a further re- 
 sponsibility of the Hundred for the due pursuit of thieves and 
 for the iDroduction of their members before the court. Accord- 
 ing to an isolated document, it was attem^Dted to create, as on 
 
Constitutional History of England. 
 
 the continent, a presentment making it the duty of the 
 Hundred to give information on oath (Athek. iii. c. 3., sec. 
 3) ; but the exact form of this cannot be gathered from 
 the Anglo-Saxon laws. The insular position of the country, 
 and the pre-eminently peaceable character of the later Anglo- 
 Saxon times, developed the maintenance of the peace to such 
 a perfection, that the chroniclers give an pJmost Arcadian 
 picture of the peacefulness and security of the land in the 
 time of ^Elfred the Great and at some subsequent periods. (3'^) 
 IV. W^z <l^£bcnue of i\)t ^nglo=^a.xon iH:ings has, primarily, 
 the same foundation as that of every great landowner, in 
 the private property of the king; which is acquired, pos- 
 
 (3^) The system of "mutual sure- 
 ties" has formerly, in a very exaggerated 
 manner, been made the basis of the 
 •whole Anglo-Saxon constitution by 
 arbitrarily referring maxims of the 
 Norman period to former centuries. 
 This is the case with Maurer's treatise 
 on the " Freipflege " (1848). As 
 against this it is necessary to review 
 all the information we possess as to the 
 Anglo-Saxon surety, as, for instance, 
 that given by Schmid in his "Glos- 
 sariuin " (pp. 644-649). Of very de- 
 cided merit in clearing up doubts is 
 Marquardsen's work, " Ueber Haft und 
 Biirgschaft bei den Angel-Sachsen " 
 (1851), with the results of which 
 Kourad Maurer ("Krit. Zeitschrift," 
 vol. i. pp. 87-96) agrees, after careful 
 investigation. A still fuller review 
 of the numerous opinions on the sub- 
 ject is given by Waitz (" Verfassungs- 
 Geschichte," i. pp. 424-473). The 
 meaning of all this legislation is that, 
 as on the continent (in the " Edictum 
 Pistense" and the " Capitula Lango- 
 bardorum"), those without any pro- 
 perty — " dne lyroprietatihus in regno 
 nostra degentes, atque non liabentes res 
 aid substantiain, quibus constringi 
 possint " — should be brought before 
 the court by some resident, and 
 vouched for — " wf eos prxsentent aid 
 2)ro eorum malefactisrationem reddant" 
 (cf. Waitz, "Die Verfassung," iv. p. 
 363). Where a village has under- 
 taken to find bail, the opponent only 
 comes upon the iprcepositus, who, in 
 
 case he cannot bring the bailee before 
 the court, has to pay the fine himself, 
 which he if possible recovered from the 
 guilty party or eventually from his 
 peasantry. This proceeding, so far as 
 its consequences are concerned, led to 
 the tithing being made answerable, 
 which in Norman times was described in- 
 correctly as " mutual security." This 
 state of things I also find indicated 
 in the Leges Edw. Conf., cap. 20, sec. 
 4 (Harley's text) : " Quod si facere 
 non poterit " (if the praipositus cannot 
 clear himself)" restauraret dampnum, 
 quod ipse fecerat, de p)roprio foris- 
 fadoris quantum duraverit, et de suo ; 
 et erga justitiam emendent, secundum, 
 quod legal iter judicatum fuerit eis;" 
 and, according to Hoveden's text, cap. 
 19, sec. 4, " Quod si facere non possit, 
 ipse cum Frithhorgo suo damnum res- 
 tauraret de propria tnalef actor is quan- 
 tum duraret. Quo deficiente, de suo et 
 Frithhorgi suiperficeret et erga justitiam 
 emendaret." With reference to the 
 further responsibility of the inquisi- 
 torial duty of the Hundred, the Anglo- 
 Saxon laws mention the pursuit of 
 thieves and the production of members 
 of the community before the court 
 (Edg. i. 5; Cn. ii. 20; Hen. 8, sec. 2; 
 Will. i. 22, iii. 3, etc.). The Hundred 
 is responsible in suhsidium for the villa 
 for the non-discovered murdrum (Edw. 
 Conf. c. 15, ] 6). The principal passage 
 relative to the presentment is that in 
 Athlrd. iii., c. 3, sec. 3, certainly only 
 an isolated one. 
 
The Anglo-Saxon Monarchy. 31 
 
 sessed, enjoyed, and is subject to alienations and testa- 
 mentary dispositions, in the same manner as other Bocland. 
 Besides the king, the queen also (and here is a difference 
 from the usual matrimonial proiDerty law) can possess, 
 manage, and dispose of estates in land in her own name. 
 The king's rights of usufruct in the folkland, and in all the 
 land that had not been assigned to individuals, on the 
 occupation after the conquest (either because it was, from 
 the nature of it, not suitable for grants, or that it chanced 
 not to have been distributed), w^ere originally much more im- 
 portant. These estates, which remained at the disposition of 
 the community at large, fell to the disposition of the highest 
 Hlaford ; but with the reservation that the National Assembly 
 retained its right to give or refuse its consent, whenever Folk- 
 land was to be converted into Bocland, i.e. to be irrevocably 
 granted away. Large portions of the folkland were, indeed, 
 in most parts of the country made over to the Ealdormen, 
 Shir-gerefas, and other royal officials in lieu of a salary, 
 .and certain portions formed, until the close of the Anglo- 
 Saxon period, the customa.ry endowment of various offices. 
 Great portions of the folkland, again, were lost by gifts to 
 churches, monasteries, and foundations. A large part of 
 what remained was utilized in maintaining the armed retinues 
 of courtiers, and the personal servants of the king, in reward- 
 ing services rendered, and in bestowing marks of favour. 
 Although they were legally revocable, yet such grants were 
 for the most part permanent ; with the exception of rents and 
 services occasionally reserved, the immediate enjoyment was 
 thus lost to the king. In the course of time, the universal 
 •eagerness for the acquisition of land, the power of the great 
 nobles, and the influence of the favourites, led more and 
 more to that allodification, which is chronicled in many 
 existing records. From this time, accordingly, only single 
 and separated rights of usufruct flow to the king from these 
 sources. Especially springing from the original position of 
 the conquered land, and from the right of disposition over 
 unappropriated property, there arose a royal right extending 
 
32 Constitutional History of England, 
 
 over harbours, landing-places, and military roads, which 
 became the som-ce of customs and dues ; also a right to salt- 
 works and lead-mines, to flotsam and jetsam, and treasure- 
 trove. A royal right with ill-defined limits attaching to 
 forests is also probably deducible from the same principle. 
 In Cnut's time, police regulations concerning forest and the 
 chase appear, in which were included important rights of 
 usufruct. (4) 
 
 The profits derived from the control of matters of war,, 
 justice, and police became more important to the kings, as in 
 course of time their private enjoyment of the folkland and 
 unoccupied land ceased. 
 
 From the military power of the sovereign, first arose the 
 right to the services of the people in the building and keeping 
 in repair of the royal residences and castles, which services 
 were rendered by the small freemen of the national militia, 
 as a common burden. From the system of personal vassalage 
 springs, again, the right of heriot, by virtue of which, on the 
 death of the vassal, the armour or a pecuniary equivalent 
 falls to the king. In the time of Cnut, when the position of 
 the public officers as Thanes had become more developed, 
 there appeared a general statute (Cnut. ii. sec. 72) which fixed 
 the heriot of the earl at eight horses, four suits of armour, 
 
 (4) The financial rights are dealt subject of common enjoyment. In 
 with at length by Kemble, ii. pp. 42- course of time, with the assistance of 
 87. The king's rij;hts of usufruct in the police control, a sort of forest 
 the ager puhlicus, or folkland, were im- royalty arose, the ancient form of which 
 portant up to the later Anglo-Saxon was doubtful, but which in the corn- 
 times. From the original circum- prehensive Constitutiones de foresta of 
 stances connected with the conquest, Cnut is indicated by an extensive 
 arose further a royal right over the system of forest and hunting laws, re- 
 high roads, harbours, and landing- serving important privileges to the 
 places, which was the medium for sport - loving rulers of the land, 
 especial peace proclamations, and for The forest laws of Cnut already 
 the tolls payable by ships and forei2;n distinguished the " higher chase " 
 merchants. Property thrown up by the as regal, from the lower chase. The 
 sea was regarded as abandoned, and existing text is, however, merely a later 
 was the subject of a re-grant (" Cod. Latin translation and revision, which 
 Dipl.," No. 809), or formed an im- affords no reliable evidence of the age 
 mediate source of revenue under the of many of the rules contained in it. 
 name of naufragium (Leg. Hen. i. 10, All these sources of revenue may be 
 sec. 10). The right of forest was described as " direct," in contrast to 
 originally an outcome of conquest, the following, which proceeded from 
 through which the existing woods be- the magisterial rights. 
 came folkland, or common ; that is, the 
 
The Anglo-Saxon Monarchy. 33 
 
 and two hundred mancus of gold ; and so on in descending 
 proportions was fixed the heriot of the greater and smaller 
 Thanes. In Cn. ii. sec. 74, seq., a usufructory right of ward- 
 ship and marriage was recognized, which was, however, cer- 
 tainly only intended to affect the widow and children of the 
 vassal who had been directly equipped by the king. (4'') 
 
 From his judicial authority arises the right of the king 
 to forfeited property. Bocland, as well as movables, accord- 
 ing to the later laws of the kingdom, fall to the king in 
 consequence of treason, theft, and other offences. Much more 
 considerable are the numerous fines, which in the manorial 
 courts are payable to the private magistrates, and in the 
 royal courts are reduced by the fixed portions reserved to 
 the Ealdorman and Shir-gerefa. (4^) 
 
 From the police control, besides the extensive system of 
 fines, there proceeded a privilege of market, which was turned 
 to profit by means of the reservation of certain paj'ments. 
 The police control led further to an increase in the system of 
 tolls, which were levied in harbours and navigable rivers ; and 
 
 (4'') From the constitution of the marriage, see Kemble, ii. 80. 
 army proceeded the right to acquire (4'^) From the judicial authority flows 
 
 tlie assistance of the national militia, a considerable right to fo;feited pro- 
 
 whenever a residence or a castle of the pertv. As early as the lawo of Ine, the 
 
 king was to be built or walled round. forfeiture of goods and chattels followed 
 
 The performance of these duties, as a upon lighting within the king's palace 
 
 part of the trinoda rtecessitas, was, as a (Ine, sec. G), treason (Alfr. sec. 4 ; 
 
 rule, reserved in all deeds of grant, Atlilst. ii. 4 ; Athlr. v. 30, vi. o7 ; Cn. 
 
 even of the freest description. From ii. 57) ; and harbouring and succouring- 
 
 thespecialriglit of vassalage proceeded, thieves (Athlst. i. sec. 3, aud other 
 
 again, the right to lieriots. The heriots laws). The Anglo-Saxon records give 
 
 of Bishops, Ealdormen, and Thanes are many instances of forfeiture botli of 
 
 frequently mentioned in the records of Bocland and of movables for robbery 
 
 the tenth century ("" Codex Dipl.," 492, and other oflences. Much more im- 
 
 593, 699, 716, 957, 967, 979, 1173, 1223). portant were the profits arising from the 
 
 It is doubtful, however, whether they numerous fines (Edg. ii. 3 ; Athlr. vii. 
 
 were a general incident of the right of 8 ; Cn. i. 8). In later times the whole 
 
 thaneship, or were only demanded of of the royal fines were granted to the 
 
 such followers as had actually received landowners. The laws of Cuut already 
 
 their equipment from the king. In the show a reversion of the old rule, and 
 
 laws of Cuut ( Cn. ii. sec. 72) the heriot enumerate six offences as a royal mono- 
 
 appears as firmly fixed for the earl, for poly, the fines accruing from which are 
 
 the higher Thane who " stood near the still reserved ta the king (Cn. ii. 12-15). 
 
 king," and for the lesser Thane. It In "Wessex and Mercia the same priu- 
 
 is also mentioned in Domesday Book ciples are applied ; according to tlie 
 
 as a settled source of revenue. As to Dane law, these privileges were some- 
 
 the profits arising from wardship and what circumscribed. 
 
 VOL. I. D 
 
'34 Constitutional History of England. 
 
 to the raising of protection moneys from merchants, Je^YS, 
 and other foreigners who needed protection. (4^^) 
 
 On the other hand the right of direct taxation was in the 
 beginning unknown to the Anglo-Saxons. The Germanic 
 chieftain might exact tribute from vanquished peoples, but 
 ^* from his own people he only received ^oresents, especially 
 cattle and fruits." Such honorary gifts were jDresented on 
 the occasion of the meeting of the popular assemblies. Like- 
 wise, when the king journeyed in the district over which his 
 military and legal jurisdiction extended, he and his suite were 
 entertained free of expense ; and this custom became extended 
 to the journeys of the royal governors and messengers and 
 their trains. It is equally erroneous to regard as taxes the 
 duties and payments, Cyninges Gafol, which accrued to 
 the king from his demesnes, from the folkland, or from 
 conceded rights, or as protection-money paid to the proprietor 
 of the soil, although they were so regarded by Kemble and 
 others. The Germanic community, great and small, state 
 as well as parish, was based upon a personal relationship 
 in the military and legal functions, and retained this character 
 with more tenacity than we find in the structure of the Koman 
 or Celtic states. Only in a condition of the deejiest degrada- 
 tion, under ^thelred the Unready, could the National Assem- 
 bly be induced to levy a tribute upon the country, to buy off 
 the horde of Danish pirates. This tax, which was apportioned 
 to the several hides, was then repeatedly paid as tribute to 
 the invader, and from time to time also to the king, under 
 the colour of protection-money, to enable him to guard against 
 
 (4^) From the police control was cle- documents of enfranchisement, accord- 
 veloped a market right. The closely ing to which an equivalent or a perma- 
 ■connected right to raise tolls in har- nent revenue might accrue to the king, 
 hours, and from the transport on the From the maintenance of the peace 
 main roads and navigable streams arose undoubtedly the right to protec- 
 brought the king indirectly consider- tion accorded to foreign merchants, and 
 able revenue. Without doubt the king later extended to the Jews (Leges, 
 decided which landing-places should Edw. Conf., sec. 25) as the source of 
 be opened to all, gefn'tJied; whence tlie protection tax. This right to pro- 
 arose the privilege of a free harbour. tection, with a claim to Weregeld, is 
 The right to raise tolls was more fre- accordedonly to actual foreigners (Edw. 
 quently the subject of grants to private and G. 12, Athlr. viii. 33; Cn. ii. 40; 
 persons, and yet more frequently of Hen. 10., sec. 3, 75, sec. 7). 
 
The Anglo-Saxon Monarchy, 35 
 
 fresh invasions. The tax became finally fixed as danegdd 
 at twelvepence for each hida. It was, however, merely a 
 sign of the decline in the last century of the Anglo-Saxon 
 state. Its origin, its name, the irregular manner of levy, and 
 the exemption of the clergy from it, all make this danegeld 
 appear as an anomaly. (4*^) 
 
 Of course there was no such thing known in the Anglo- 
 Saxon times as an exchequer administration. The free right 
 of disposal of the king over all the State revenues is shown 
 hy an account given by Asser, according to which ^Elfred 
 devoted one half of his revenues to the Church and the other 
 half to civil purposes. Out of the civil half he allowed one 
 ihh'd for his warriors and followers, one third for hospitality, 
 and one third for the innumerable artists and builders whom 
 he had collected around him from foreign parts. 
 
 V. '^f)t ^BrotCCtoratC of tj^C (JT^urc!) forms the last important 
 right of the crown. It originated in the fact that the recep- 
 tion of the new faith and of the priesthood throughout the 
 whole country was decided by edicts of the kings and the 
 National Assembly. Hence, even in later times, the contro- 
 versies among the clergy touching the time of celebration 
 of Easter and other ecclesiastical differences were settled by 
 the king. Among the original insignificant kingdoms in the 
 
 (4'') It is well known that a riglit of of time the confusion of mere custom 
 
 taxation did not exist in the Germanic with these reserved rights caused many 
 
 kingdom. Tacitus speaks of gifts of a mischievous extension of them, 
 
 cattle and fruits of the earth. Lodg- Against these abuses, which are so fre- 
 
 ing and entertainment on progresses quently referred to in later times, tlie 
 
 through the realm were extended from well-meant provision [of Cnut was di- 
 
 the person of the sovereign to those rected (Cn. ii. 69, sec. 1). With refer- 
 
 of his retinue, and, after the fasliion ence to the historical circumstances of 
 
 of all honorary gifts, from being a mere the first Danegeld, see Lappenberg, i. 
 
 matter of courtesy became a kind of 423. Tliese shameful tributes had 
 
 right. And this soon led to the right risen in 1018, to 82,5001bs. of silver, 
 
 of lodging and entertainment being ex- The apportionment according to hides 
 
 tended to the royal messengers and was also acted upon in making naval 
 
 servants, and came to iuclude the pro- preparations. In the year 1008, by au 
 
 Tiding of horses, the transport of bag- express resolution of the Government, 
 
 gage, and the maintaining of the train a ship of war was furnished by every 
 
 of followers. Many possessions and 310 hides. "With regard to the im- 
 
 profitable rights belonging to the king munity of the clergy, see Leg. Edw. 
 
 were granted to monasteries and lauded Conf. cap. 11. Under, Eadward the 
 
 proprietors with the express reserva- Anglo-Saxon Chronicle mentions the 
 
 tion of such honorary gifts. In process Danegeld as abohshed. 
 
36 Constitutional History of England. 
 
 British Isle it could not easily be forgotten that the Church 
 owed its toleration, its reception, and its dominion to the 
 authority of the king; and that the rich endowment of 
 bishoprics and monasteries was due in great measure to his 
 liberality in granting Bocland and in gifts of private property. 
 The papal throne was too far distant to be able to raise 
 pretensions to rule in a community which was neither wont 
 nor inclined to dissociate authority from the personal presence 
 of the ruler. The native prelates, again, in these small Anglo- 
 Saxon states, stood so near the indigenous population, that 
 it was difficult for them to raise exaggerated hierarchical pre- 
 tensions. On the other hand the Church was obliged, as 
 throughout the world in the Middle Ages, to endeavour to 
 attain an independent position for its servants, if its official 
 organization was not to be confused with the military, legal, 
 and police constitution of the \2iiiy. The ro^^al jDrotectorate, 
 therefore, api^lies rather to the outward framework of the 
 Church, and does not interfere with its inner life and adminis- 
 tration of details. The Anglo-Saxon king exercised the right 
 of appointing the Bishops ; in the face of which, the right 
 of election which the Church aspired to in its canon law, could 
 not practically assert itself any more than the occasional 
 attempts at nomination by the papal throne. And again, 
 in the monasteries, the manner of their foundation frequently 
 led to a royal right of appointing the abbots. Just as indis- 
 putable is the right which resides in the king of sanctioning- 
 the resolutions of the Ecclesiastical Councils. A further 
 union between the ecclesiastical and temporal community 
 arose from the association of the prelates with the Thanes 
 in the Witenagemote, and from the appearance of the Bishop 
 and the Ealdormen together in the County Assembly. In 
 an insular seclusion the idea of the close bond of com- 
 munion between Church and State is fostered and kept 
 alive. (5) 
 
 (5) The protectorate by the king of impartial manner by Lingard, " History 
 
 the Church comprises in the first place of tlie Anglo-Saxon Church," i. 89. 
 
 the royal right of appointing prelates. The great majority of precedents proves 
 
 This has been recognized in a fairly that the bishops especially were ap- 
 
The Anglo-Saxon Monarchy, 
 
 37 
 
 The sum total of these honours, powers, and jDrofits formed 
 itself under the Anglo-Saxon sovereigns into an hereditary 
 family right. It is certain that the royal landed property 
 contributed at first to this conception; yet this element of 
 hereditary descent does not by any means preponderate in the 
 Anglo-Saxon kingship. But more decisive was probably the 
 feeling that a permanent personal authority was necessary for 
 the present form of the community, as a counterpoise to the 
 elass-privileges which were growing up. The first object to 
 be attained was the abolition of the struggle of the powerful 
 families and their dependants for the possession of the supreme 
 power. This end was attained so soon as the right of one 
 of the princely families that sprang from Wodan was estab- 
 lished beyond all question. The unity of the succession, and 
 a certain precedence accorded the firstborn, was a natural 
 though not an absolutely necessary deduction. The rule that 
 in the case of private property the last will of the owner is 
 
 poiuted aud displaced at the free will 
 and option of the king. It is also a sig- 
 nificant fact that so many royal chap- 
 lains were raised to episcopal seats 
 (Palgrave, i. 173, 174). According to 
 Stubbs' view, the choice by the clergy 
 was the rule in peaceful times, and for 
 the less important seats. On the other 
 hand, appointment by the king in the 
 National Assembly is frequent in the 
 case of archbishoprics and the larger 
 dioceses, when the consent of the 
 National Assembly to the admission of 
 a new member was regarded as a matter 
 of course, as was proved by their 
 consecration by their fellow-bishops. 
 
 The right of the king to give his 
 consent to the resolutions of the clergy 
 originally dates from the fact of tlie 
 reception of the new faith at court, with 
 the consent of the National Assembly. 
 In olden times the king even appears 
 in^ the capacity of president, at assem- 
 blies which bear the character of proper 
 ecclesiastical councils (Cod. Dipl. No. 
 IIG, Willibald vita Bonifacii, ii. p. 338). 
 When Church and State became some- 
 what more separated, the principle 
 was certainly adhered to, that any 
 change in the external institutions of 
 
 the Church, such as the regulations 
 for the observance of the Sabbath, 
 fasts, feasts, and Church dues, should 
 be sanctioned by the king and Witen- 
 agemute. The great question of mon- 
 asticism in the tenth century was 
 repeatedly deliberated upon in the 
 Witan (Kemble, ii. 189). The enact- 
 ments of the General Council in the 
 Anglo-Saxon legislation often form two 
 categories : first, Ecclesiastical, and 
 secondly, Temporal. (Leges ^thelstan, 
 Eadmimd, Cnut, etc.) Both categories 
 were, however, published as "King's 
 Laws," and their contents show it to 
 have been generally received that new 
 obligations could only be imposed upon 
 laymen by the king in the National 
 Assembly. The might of the sovereign 
 is seen again in ecclesiastical disputes. 
 In the first two epochs of a struggle 
 between the king and the ecclesiastical 
 hierarch3% at the time of Bishop Wilfrid 
 and Archbishop Dunstan, the king tri- 
 umphantly asserts a control over the 
 resolutions of the Chiu-ch, and over the 
 right of appointing and dismissing pre- 
 lates, against Eome as well as against 
 the ecclesiastical councils at home. 
 
38 Constitutional History of England. 
 
 final, was observed also in the case of the succession to the 
 throne. As in the old folk-law, martial prowess was regarded 
 as the necessary condition of complete fitness in the com- 
 mmiity, so it remained in the highest degree the necessary 
 condition of the Anglo-Saxon kingly dignity. The times of 
 the ''boy kings" could not come until the West- Saxon dynasty 
 had been consolidated by the unbroken succession of three 
 glorious rulers. But just as the old Germanic village com- 
 munity tested the prowess of the youth in times of yore, sO' 
 now the voice of the people could not be excluded in considering 
 the question, whether the monarch to be appointed was worthy 
 to lead the martial array of the nation. The Church also, 
 from the time when it decided the preliminary question, 
 whether a Christian marriage in accordance with God's laws 
 had been concluded, and whether a legitimate heir had sprung 
 from the union, laid claim to a share in recognizing the new 
 ruler from this point of view. Accordingly it resulted that 
 in the succession to the throne, the younger son was not 
 unfrequently preferred to the elder, and the martial brother 
 of the monarch to the immature and physically or mentally 
 weak son. 
 
 A further result was the retention of a form of election 
 at the enthronement of the new king, when not only the 
 upper classes, but the whole nation, represented by the 
 numerous liheri homines who were present, recognized by 
 acclamation the new sovereign as their rightful ruler. But 
 allowing for this, the character of an hereditary family right 
 was decidedly maintained in the Anglo-Saxon time. " The 
 royal authority was never allowed to be separated from the 
 royal race." The elevation of Cnut to be king of the entire 
 nation of Danes and Saxons, to the exclusion of the youth- 
 ful sons of King Eadmund (1016), was an act of necessity and 
 of military force, for which amends were made twenty-six 
 years later by the unanimous proclamation of Eadward the 
 Confessor, the last king of the race of Cerdic (1042-1066). 
 But the Anglo-Saxon sovereignty still remained a '* personal" 
 dignity and authority over the Angles, Saxons, and Danes. 
 
The Anglo-Saxon Monarchy, 
 
 39 
 
 The king's reign dates only from his coronation ; his ordinary 
 title is not that of king " of the land, " but ** of the people." 
 The feudal notion of a lord of the soil over both land and 
 people is the later creation of the Norman sovereignty. 
 '' Kings were the leaders of the people, not the lords of the 
 soil " (Palgrave, i. 62).t 
 
 t The hereditary nature of the 
 Anglo-Saxon sovereignty is treated 
 from a one-sided point of view, if the 
 feudal principle of primogeniture in 
 landed property is taken as the starting- 
 point, whence it would appear that out 
 of nineteen successions to the throne 
 in the united monarchy, not less than 
 eight were irregular. Even at the 
 zenith of the Anglo-Saxon dynasty 
 ^Elfred takes precedence of his elder 
 brothers, and ^Ethelstan of his legiti- 
 mate brothers. But in the latter case 
 a legitimation by the reigning king, 
 with the approval of the National As- 
 sembly and the clergy, had certainly 
 preceded the accession. Every so- 
 called irregularity in the "West Saxon 
 succession may be referred to testament- 
 ary disposition, to agreements respect- 
 ing claims of inheritance, or to the 
 personal incapacity of the person 
 passed over. iElfred the Great, in his 
 will, expressly makes his title to the 
 throne dependent upon (1) the will of 
 his father, (2) an arrangement with his 
 brother Jilthelred, (3) the assent of the 
 AVitan of W^essex. Expressions in- 
 dicative of popular election are retained 
 for centuries afterwards, such as in the 
 jihrase " chosen and raised " to be king, 
 which recalls the very ancient popular 
 custom of raising upon the shield. In 
 coronation ceremonies there is always 
 a tendency to retain old formulas, even 
 when the original meaning has van- 
 ished. There is in them something 
 analogous to the assent of the "by- 
 standers " in the later popular coin-ts. 
 Palgrave (i. 5G2) describes them as a 
 confirmation of the inchoate title of the 
 sovereign. How firmly the hereditary 
 right of the family stood, is proved 
 
 beyond doubt by the period of the six 
 so-called boy kings and by the solemn 
 recall of ^thelred the Unready (who 
 had been expelled by the Danes) even 
 after the fullest proofs of his incapacity. 
 Still more unjustifiable is it, when 
 certain older instances of the dethrone- 
 ment of the king by the discontented 
 nobles, as in the cases of Siegebert of 
 Wessex and Beornred of Mercia, are 
 cited as precedents for establishing a 
 constitutional right residing in the 
 AVitenagemOte to depose the king. 
 (See Palgrave i. 653, 655.) The 
 question whether an Anglo-Saxon king 
 is to be regarded as " ruler of the 
 peoj)le " or " lord of the soil " cannot be 
 determined from single records, in 
 which the clergy, writing in Latin, ex- 
 press themselves variously according to 
 tlieir individual tastes. Appellations, 
 such as totiiis Britannix MonarchuSy 
 Rex, Bector, Basileus, occur already in 
 the records of the tenth century. Alfred 
 the Great in his will calls himself 
 merely ''king of the West Saxons," 
 his son Eadward on his coins ^^ Bex 
 Ancjlorum." Cnut's style, who calls 
 himself " King of all England " (Eallas 
 Englalandes), "King of the Danes 
 and Northmen," with an intelligible 
 allusion to the idea of a conquered 
 country, is singular. Eadward the 
 Confessor calls himself again '•'■ Bex 
 Anqlorum^^ or "lord of the Angli" 
 (Saxon Chron. 1066). The early- 
 Norman kings call themselves on 
 their coins '''Bex Anglorum" in their 
 charters sometimes " Bex Anglic'* 
 Upon the great seal the title '^ Bex 
 Anglise " appears first under King 
 John (Allen, Prerogative, p. 50, 5). 
 
40 Constitutional History of England. 
 
 CHAPTEK III. 
 
 W^z ffilnion of t^e iBtingtfoms, anti tje Bibisions 
 of t^e iClEalm. 
 
 The social conditions out of which the Anglo-Saxon kingdom 
 arose, led firstly to a plurality of small states. In the separate 
 territories, in which _the petty tribes and followers under 
 their chiefs had settled, that system of iDroperty had also 
 arisen which led to the rise of the royal dignity. The chiefs, 
 although wielding power of various degrees, regarded them- 
 selves all alike as descendants of Wodan. A similar striving 
 after independent authority animated them and their fol- 
 lowers, their petty national and legal assemblies. Closely 
 crowded together, they felt a keen longing after new acqui- 
 sitions of territory, and yearned to satisfy their wonted lust 
 for strife and booty, and thus soon became involved in 
 countless quarrels and feuds, to which no natural limit set 
 bounds. Mingled with these civil feuds were serious and 
 endless struggles with their ancestral neighbouring foes in 
 the west and north, the Britons and Scots. The constant 
 state of readiness for war, which such a condition of things 
 demanded, gave the skilled and better equipped retinues an 
 increasing superiority over the humbler j)easantry, who 
 became more and more reluctant to forsake home and 
 hearth, to engage in a profitless warfare with their kindred 
 neighbours. In the course of the earlier generations of Saxon 
 settlement, these petty wars had destroyed a number of small 
 chiefs and kingdoms, of which history has not even preserved 
 to us the names. 
 
Union of the Kingdoms, and Divisions of the Realm. 41 
 
 After the territorial boundaries had become more settled, 
 there appeared at the commencement of the seventh century, 
 seven or eight greater and smaller kingdoms : Kent, Sussex, 
 Essex, Wessex, East Anglia, Mercia, Deira, Bernicia ; the two 
 last became early united and formed the original Northumber- 
 land. Historians have described this condition of things as 
 the *' Heptarchy," disregarding the. early disappearance of 
 Sussex, and the existence of still smaller kingdoms. But this 
 grouping was neither based upon equality, nor destined to 
 last for any length of time. It was the common interest 
 of these smaller states to withstand the sudden and often 
 dangerous invasions of their western and northern neighbours ; 
 and, accordingly, whichever king was capable of successfully 
 combating the common foe, acquired for the time a certain 
 superior rank, which some historians denote by the title of 
 *' Bretwalda." By this name can only be understood an 
 actual and recognized temporary superiority; first ascribed 
 to ^lla of Sussex, and later passing to Northumbria, until 
 Wessex finally attains a real and lasting supremacy. It was 
 geographical position which determined these relations of 
 superiority. The small kingdoms in the west were shielded 
 by the greater ones of Northumberland, Mercia, and Wessex, 
 as though by crescent-shaped forelands — which in their strug- 
 gles with the Welsh kingdoms, with Strathclyde and Cumbria, 
 with Picts and Scots, were continually in a state of martial 
 activity. And so the smaller western kingdoms follow^ed the 
 three warhke ones ; and round these Anglo-Saxon history 
 revolves for two whole centuries until in Wessex we find a 
 combination of most of the conditions, which are necessary to 
 the existence of a great State.* 
 
 * As to the principal features of the The smaller kiugdorps which have 
 «o-calle(i Heptarchy, compare Lappen- been named, in addition to the Hep- 
 berg, i. p. 203 et seq., 242 seq., 277 seq. tarchy, are the kingdom of the Jutes 
 Kemble, "Anglo-Saxons," cap. 1. A in the Isle of Wight, Suthrige, or 
 detailed sketch of the particulars of Surrey, Hecana, or Hereford, Middle- 
 the separate states is given by Pal- anglia, Elmeta, the land of the Huri- 
 grave ("Commonwealth," Cap. ii.), cas, the land of the Lindiswaren, and 
 arranged in chronological tables ; and others. The '* Bretwaldaship," at the 
 by the tables of kings affixed to tlie time of the Heptarchy, has been the 
 first volume of Lappenberg's history. subject of various misconceptions, the 
 
42 Constitutional Historij of England, 
 
 Fairly well and evenly populated, protected by no natural 
 boundaries, and ever obliged to be in a constant state of 
 military preparation against the Welsh, Wessex exhibits in 
 its development some similarity to the great Marks of 
 Germany. Military discipline, a legtil succession, and a 
 tolerably well-regulated internal administration, kept the 
 Anglo-Saxon military organization here in better order than 
 elsewhere, until, at the commencement of a new century, a 
 king (Ecgberht, 800-836), who had been brought up at the 
 court of Charlemagne, took the reins of government into his. 
 hand. Sagacious and energetic, he subjected the Mercian 
 group of states, and won a recognized sovereignty over the 
 whole country of the Angles and Saxons south of the Humber. 
 
 Under Ecgberht, the kingdom of the Anglo-Saxons first takes- 
 its position among the European states. With him begins, 
 a period of internal i)eace, beneficial for the consolidation of 
 the constitution, and for the intellectual development of the- 
 people. Soon, however, recurs a period of unfortunate 
 struggles with Danish and Norwegian pirates, whose mode of 
 warfare brings the military array of the United Kingdom into 
 disorder. But the common misfortune which befell the 
 country at the same time strengthened the feeling of unity 
 in the West Saxon portion of the land. Under Alfred the 
 Great, the Saxon people rise to throw off the yoke of the 
 
 more so as the word lias been erro- Freeman " Conquest," i. Appendix B) 
 ueously brought into connection with The union of the kingdoms under 
 the Britons, whilst it etymologically Ecgberht caused the introduction of 
 expresses only the " powerful far-ruling the name " England " as the collective- 
 one." Bseda gives a detailed list ol" denonnuation. An old register of the 
 seven Bretwaldus : ^lla of Sussex, Abbey of St. Leonard in York (cited 
 Ceawlin of AVessex, ^thelberht of in Dugdalc's " Monasticon ") contains 
 Kent, Redwald of East Anglia, Ead- the somewhat curious notice : " memo^ 
 win, Oswald, and Oswi of Northum- ranclum quod anno domini 830 Eghertus 
 bria. The Anglo-Saxon Chronicle rex totius Britanniai in Parliamento 
 says nothing further about the earlier apud Wirdoniam mutavit nomen regni 
 times than that jEUa had tirst ex- {de consensu popidi sui), et jussit illud 
 ercised an extensive sway. Later, de cxtero vocuri Angliam." William of 
 the Anglo-Saxon Chronicle, a.d. 827, Mai mesbury says that Ecgberht brought' 
 calls King Ecgberht " the eighth king the kingdoms into a " uniforme domi- 
 who was Bretwalda." This Bretwalda- nium,'" and that he called this "Anglia." 
 ship has very correctly been referred But Ecgberht only calls himself in one 
 to its real 'signification by Kemble single charter of the year 828 "King 
 ("Anglo-Saxons," ii. c. 1. pp. 7-19), as of the English," elsewhere, generally,, 
 being an actual Hegemony (c/. also "Kiug of Wessex." 
 
Union of the Kingdoms, and Divisions of the Realm. 43 
 
 invaders, and to regulate by treaty their relations ^itli the 
 Norsemen. A generation later the brilliant government of 
 ^thelstan brings the Danish portions of the country into 
 complete subjection. The realm and dynasty have now 
 attained the x^innacle of that peculiar development which 
 later times have associated with the name of Alfred. He, 
 the deliverer of his fatherland from the Danish yoke, the 
 monarch in whose person the noblest moral and intellectual 
 qualities of his race were combined with martial prowess, 
 ai^peared in later generations to a grateful people as the 
 author of all that was honourable and good, extending from 
 ancient to later times. Three successive governments, those 
 of Alfred, Eadward, and ^Ethelstan, supplemented somewhat 
 later by the fortunate government of Eadgar, have irrevocably 
 founded monarchy as the personification of the political unity 
 of the British Isle ; after that, indeed, follows a second period 
 of struggles with the Danes, in which the ancient royal race 
 shows itself at times almost as degenerate as the Merovingians 
 and the Carlovingians of later times. After a generation of 
 incredible weakness and humiliation, under iEthelred II. the 
 nation exchanges its old royal race for the energetic rule 
 of Cnut, the Dane, whose line quickly dies out, and is followed 
 by Eadward the Confessor, the last legitimate heir of the West 
 Saxon royal house. 
 
 The century from the accession of iElfred the Great to the 
 death of Eadgar (871-975) is accordingly the era of con- 
 solidation, in which the country and people form a group, the 
 framework of which has endured with marvellous stability 
 until the present day. The formation of the English counties, 
 and in great measure of their subdivisions also, dates from 
 this century, in which the Anglo-Saxon laws have exj)ressly 
 called the county and hundred districts divisions of the realm, 
 of which the tithings, although erroneously, are considered 
 the lowest member. 
 
 I. '^Tfic jformation of tjc ^nalis^ Counties or S^j&uxs was 
 the product of the later unity of the kingdom. Ecgberht's 
 kingdom had certainly not yet attained to any unity in tho 
 
44 Constitutional History of England. 
 
 political administration, but only to a recognized suzerainty, 
 under which the former kings continue as mediatized under- 
 kings. But after the dying out or removal of these mediatized 
 chieftains, near kinsmen of the ruling house (^thelingi), or 
 other nearly related or connected great Thanes, succeeded 
 to the iDlace of these under-kings, until the advancing unity 
 of the realm gradually brought all these rulers down to the 
 position of mere government ofQcials. Besides this, in the 
 greater kingdoms, which had early attained a stricter unity^ 
 a division was made into districts, which were newly formed 
 by the executive. The periodical assembling of the Witan 
 for holding the great central court of justice, appeared im- 
 practicable in districts that had become of too great an area. 
 Similarly, the organization of the militia required to be 
 arranged according to divisions of the land, of not too wide 
 an extent. This want was satisfied by the formation of ad- 
 ministrative divisions under the name of ^' Scire " (derived 
 from Scijran, to divide), which, at the time of their origin, 
 were just as much an arbitrary formation as are our new 
 ''divisions" of counties. The abstract name *' Scire " (not 
 (fan, ga, which does not occur in the Anglo-Saxon laws) is 
 accordingly used also for the greater districts of the eccle- 
 siastical administration, the bishops' dioceses, etc. In 
 Wessex, where at a comparatively early date an organized 
 administration existed, we find mentioned among Ina's laws a 
 prefect of the shire (Ine, 36, sec. 8), and the change of 
 residence from one Scire to another (Ina, 39). Similarly 
 in the great Mark known as Mercia, an administrative sub- 
 division must soon have become necessary. Incidentally, 
 too, even before the time of ^Elfred, certain names denoting 
 ^'scires" are mentioned, as such '^Hamttinscir " (in 755), 
 *' Defenascir " (in 851). When after the deluge of Danish 
 invasion, and the unutterable confusion under Alfred (after 
 880), the kingdom came to be divided with the Northmen, a 
 thorough territorial division appears to have been made for 
 the purposes of the army, of law, and for the system of the 
 maintenance of the peace ; which we might have conjectured 
 
Union of the Kingdoms , and Divisions of the Realm. 45 
 
 from internal reasons would have been the case, even if it 
 were not substantiated by proofs. Although under /Ethelstan, 
 Eadgar, and Cnut, principally in consequence of the union 
 and subsequent separation of the territory surrendered to 
 the Danes, many modifications may have been introduced, 
 the century of the zenith of the Anglo-Saxon monarchy is the 
 period in which was laid the foundation of the division into 
 counties. Owing to the preponderance of the northern in- 
 vaders, who returned after ^E their ed's time, a permanent 
 portion of the Danish element was retained, so that from 
 thenceforth the counties were formed into the three great 
 groups of the Saxon Law, the Dane Law, and the Law of 
 Mercia. At the close of the Anglo-Saxon period, Simon of 
 Durham, and Aldhelm, Abbot of Malmesbury, give the follow- 
 ing list of thirty-two counties, which forms a safe basis upon 
 which to proceed. 
 
 ^' Anglia liabct trir/inta duo Sciras extra Cumhcrland et Corn- 
 walas, fin Cormvalas sunt scptem ^m/t.^ Scirx.J Sunt has 
 triginta duo Sc'irde divisse ixr tres leges : West Sexenalaga, 
 Den elaga, Marchenelaga . 
 
 1. West Sexenalaga hahet novcm Seiras : SutJisexia, SutJucai, 
 Kent, JBcrocscira, Wiltcscira, Suthamtescira, Somersetescira, 
 Dorsetescira, Devenascira. 
 
 2. Denelaga hahet quindecim Sciras : Ehorascira, S noting - 
 hamscira, Dcorhiscira, Leorcestrescira, Lincolnescira, Norham- 
 tunscira, Huntedunescira, Grantehrigeseira, Xorthfolc, Sudfolc, 
 Eastsaxc, Bedefordscira, Hertfordscira, Midlescxa, Bukingehani- 
 scira. 
 
 3. Mcrchcnelaga hahet octo Sciras: Herefordscira, GIouccs- 
 trescira, Wircestrescira, Scrohscira, Cestrescira, Steadfordscira , 
 Warewicscira, Oxenefordscira . ' ' 
 
 According to the position of the territorial divisions these 
 thirty-two permanent counties form the following three 
 groups : — 
 
 a. The historical distribution into counties prevails on the 
 southern and eastern borders of the kingdom, which, at first 
 conquered from the sea, became thickly populated by Angles 
 
46 Constitutional History of England. 
 
 and Saxons and early attained to a j)olitical organization. 
 Here were formed from the two kingdoms of Kent and Sussex, 
 the later comities of the same name. The kingdom of the 
 East Saxons formed the counties of Essex and Middlesex. 
 East Anglia is split up into the territory of the North-folk 
 and the South-folk, and in later times into the counties of 
 Norfolk and Suffolk. In Wessex the settlements of the Wil- 
 saetan, Dormsaetan, and Samorsaetan form the later counties 
 of Wilts, Dorset, and Somerset, which retained the ancient 
 names of old independent kingdoms. 
 
 h. The second great territory is formed of Mercia, the old 
 great Mark against the Britons, and of the interior of the 
 country. Here the administrative formation of the shires is 
 shown by the fact that all counties were called after the name 
 of some place which had acquired a certain importance, and 
 was suitable for the meeting place and the centre of the 
 administration. All names of counties here have an Anglian, 
 Saxon, or northern nomenclature, denoting a place ; such as 
 -ham, -ford, -ton, -byrig, -wick, -by, -cestre (castnim) ; Hert- 
 ford-shire, Buckingham-shire, Northampton-shire, etc. 
 
 c. The great Northumbrian kingdom, the northern portion 
 of the land, after stormy and varying fortunes, became in 
 some parts colonized at a later period, and unequally formed. 
 The more northern part (Bernicia and others) belonged later 
 to Scotland; in the southern portion Lincoln, York, and 
 Durham formed counties called after a principal town ; Eut- 
 land and Cumberland are, on the other hand, clanish names ; 
 Northumberland and Westmoreland were named from geo- 
 graphical peculiarities, and were not received into the rank of 
 the counties until a later period. 
 
 After these events great differences must for a long time 
 have subsisted between a governorship, formed out of an old 
 mediatized kingdom, and one that proceeded from the admini- 
 strative division of a greater kingdom ; differences which 
 only in process of time were adjusted by legislation and con- 
 tinuous practice. The laws regulating the rights and duties 
 of the royal Eaidorman and Shir-gerefa must be regarded 
 
Union of the Kingdoms, and Di 
 
 iviswns 
 
 of the Iteabn. 47 
 
 also in the light of such adjustments. All adjustments must 
 have the same tendency, to make these territorial divisions 
 as divisions of the jurisdiction of the king, in war, law, and 
 police, dependent on his will. Hence the traditional principle 
 — '' Divisiones sciranim regis proprm sunt.'" (Edw. cap. 
 13.) (1) 
 
 II. 'S^f)e li^unlJrctfS appear in the statutes as the regular 
 sub-districts of the county only after the tenth century, under 
 Eadgar. They must, however, be anterior to this date, for 
 the Hundred is the old Germanic division of the military 
 system, which recurs among all Germanic races, as also 
 among the Saxons on the continent. That the name soon 
 became applied to a district, which after the settlement had 
 
 (1) The divisiou into oouuties or 
 shires has by later k^gal tradition 
 been directly attributed to ^Elfred, and 
 the diiference in origin between the 
 historical and administrative shires been 
 ignored. To what an extent the word 
 *' shire" or "division " is used to denote 
 a public government district, is shown 
 by the fact that the earliest mention of 
 a shire in the Saxon Chronicle relates 
 to a bishop's diocese, " biscopscira " 
 (Chr. Sax. 709). And in the laws of 
 the jlnglo-Saxon kings " shire " often 
 means an ecclesiastical diocese. (Edm. 
 ii. 4; Edg. iii.3, 5; Athlr. v. 6; vi. 1, 
 sec 3, 21.) Gradually the "shire " be- 
 comes the exclusive appellation for the 
 great county districts for the purposes 
 of military and legal organization. 
 Among the laws this meaning first 
 occurs in Ina, 36, sec. 1, 39 ; Alf.'ST pr., 
 sec. 1. That under J^lfred a thorough 
 territorial division took place is credibly 
 asserted by William of Malmesbury (De 
 Gest. Angl. ii. 4), but he only speaks 
 of a division " in centurias quas hundred 
 dicunt." Ingulf (" Historia Croyland," 
 i. 41) says very positively ; " totiiis Au- 
 {jli^ imrjos et provincias in comitatus 
 2)rimiis omnium commutav it ; comitatus 
 in centurias, id est hundredas, et in de- 
 €imas,le. tritingas divisit:' By later 
 critical investigations (Palgi-ave/ Quar- 
 terly Review, 1829, vol. 67, pp. 289— 
 298), it has now been established that 
 this writer was not the old Anglo-Saxon 
 abbot, but a pseudo-Ingulf of the end 
 
 of the thirteenth or commencement of 
 the fourteenth century, who, however, 
 drew his information from the old 
 clironicles. In point of fact his asser- 
 tion agrees with all the rest. The 
 Saxon chronicles before the time of Al- 
 fred know only of the old divisions 
 after clan names, and territories; Cant- 
 waraland (Kent), Westseaxan, Suth- 
 seaxan, Eastseaxan, Middelseaxan, 
 Eastengle, Northanhymbraland, Suth- 
 anhymbraland, Myrcnaland, etc.; but 
 after ^Elfred's days the customary terms 
 became altered, and the various manu- 
 scripts use only the word Scir(Kemble, 
 i. 63). The most probable date of a 
 thorough division into provinces is 
 shortly after 880, i.e. after the peace 
 between .Eltred and Guthrun. A 
 proof of this is furnished by William 
 of Malmesbury, and others in the list 
 quoted in the text. Quite identical 
 with it, only with ditferent ortho- 
 graphy, is the list given bv Bromton 
 (X Script, ed. Twysden, p. 956). The 
 country between the Kibble and the 
 Mersey, the Lancasliire of modern 
 times, does not appear in Anglo-Saxon 
 times as a separate department. A few 
 small shires, which had been for some 
 time independent, were in later times 
 incorporated with others, as AVinchel- 
 combeshire with Gloucester. As to the 
 system of the division into counties 
 compare Palgrave, i. 117, and the in- 
 troduction to the Census of 1851. 
 
48 Constitutional History of England, 
 
 to provide one hundred men for the militia, can be deduced 
 from the variously interpreted passage of Tacitus (Germ. cap. 
 6), "quod lorimo numcrus fuit jam nomen ct honor est ; " but it 
 follows with greater certainty from the nature of the case 
 and from later indisputable circumstances. Certain it is- 
 that, soon after the settlement, the militia was organized 
 as far as possible in equal contingents, which became a 
 territorial division, so soon as it became necessary to apportion 
 the duty of furnishing the contingents according to extent of 
 landed possessions. As, however, legal rule on this point was 
 never estabhshed, as necessity and ability to supply it were 
 continually producing changes, owing to the vicissitudes of 
 the times, the diversity of tenures, and later to the frightful 
 ravages of the Danes, the distribution of land remained even 
 in still later times a matter of arrangement, and was left to 
 the decision of the county under its royal governors and 
 bailiffs. 
 
 The rule in this case which has been preserved to us 
 was, *' Divisioncs liundredorum et u-apentagiorum comitihus ct 
 mcecomitihus cum judicio comitatus " (Eadw. Conf. 13). And 
 hence it is clear why the Hundred is recognized so com- 
 paratively late as a fixed territorial division, why the Saxon 
 Chronicle does not mention the Hundreds, and why the Saxon 
 documents concerning property so seldom describe the position 
 of estates w^ith reference to the Hundreds. As districts of 
 the early militia organization, and consequently of the peace- 
 control, the Hundreds were certainly in existence long before 
 Alfred's time. As to the universal appearance of the 
 Hundreds in the Germanic militia system, the work of Y. 
 Peucker {" Das Kriegswesen der Germanen ") gives a new 
 and convincing proof. The silence of the Anglo-Saxon legal 
 authorities of the early centuries cannot be entitled to any 
 regard, on account of the extreme rarity of their allusions to 
 the military system. But it may be taken as certain that at 
 the reorganization of the State by Alfred, a thorough revision, 
 or redistribution, was made of the districts furnishing con- 
 tingents. William of Malmesbury (ii. 4) expressly describes 
 
Union of the Kingdoms^ and Divisions of the Realm, 49 
 
 these new divisions made by Alfred, as " Centurias, quas 
 hundred dicnnt.'' In the language of "Wales and Hibernia, 
 the word ^' cantrcd'' is used instead of Hundred, and in the 
 north we find the term '^ Wapentake," derived from a military 
 usage in mustering the troops. When the monarchy was 
 at its prime, the Hundred in the Anglo-Saxon statutes denotes 
 a sub-district of the shire, geographically limited, with its 
 separate assemblies for the purposes of army, justice, and 
 maintenance of peace. In these later times the Hundred 
 Court is the ordinary court for freemen, and holds its sittings 
 every month. The division into Hundreds in the form which 
 it assumed at that time remained in existence almost to 
 our own day. As in the division into counties, here also an 
 historical and an administrative principle worked in different 
 directions, and created great inequalities. In the southern 
 portions of the country, which early became thickly populated, 
 the number of Hundreds was very large : — in Kent, sixty- 
 two ; in Sussex, sixty-four. The midland counties are to a 
 certain extent different, Dorset having forty-three, Suffolk 
 twenty-one, and Essex twenty Hundreds. In the north, 
 where the population was thinner, the cultivation more de- 
 fective, the land poorer, and the organization developed at a 
 later period, the numbers are remarkably small : in Warwick, 
 four Hundreds ; in Cumberland and Westmoreland, four 
 Wards ; in Stafford, Worcester, Kutland, five Hundreds ; in 
 Leicester, Nottingham, Derby, Lancaster, six; in Durham 
 and Northumberland, six Wards; in Cornwall, nine Hundreds. 
 In large provinces sometimes an intermediate division between 
 County and Hundred arose, as the " Trithings " (or third 
 portions) of Yorkshire. (2) 
 
 (2) The division into Hundreds is Angliam. Kescio an medietas. Magni 
 
 often referred to in old records as a hahentur qui vel 40 rel 30 numerant. 
 
 union of a hundred liidx,ox families; Midline 10: quidam duas tantum et 
 
 from erroneous confusion with these, a nonnidli (ut Hundredi de Chetliam^ 
 
 hundred villx. are sometimes made out Warden, etc. in Comitatu Cantii) unica 
 
 of them, as in Bromton (ed.'Twysd. p. sunt contenti" The correct view pro- 
 
 956), and Ranulphus Cestr. (i. 50). bably is, that the occupier of a peasant's 
 
 Spelman (p. 365) says on this point, hide, familia, should furnish one man 
 
 '■'■ Nusquam {quod scioi) reperiuntur IQ{) to tlie original settlement of small 
 
 vilJx in ali'iuo Hundredo per totam peasantries; so that frequently at the 
 
 VOL. I. E 
 
50 
 
 Constitutional History of England. 
 
 III. .^ tiibisiou into ^itj)ings, ^cotljfngs, Bccania^ has been 
 €iToueouslj held to be a general territorial division of the 
 Anglo- Saxon period. This mistake ^as caused by the account 
 given by the pseudo-Ingulf, who informs us that .Elfred 
 divided the counties ^^ in ccnturias, id est hundredas cf in 
 dccimas, id est tritJiingas ; '' in this a mistake is ah'eady 
 apparent in the word *'trithing." The division into tithings 
 for the purposes of the old mihtary array, in which the 
 numbers ten and one hundred can be proved to have been 
 nearly everywhere the units of the organization, was indeed 
 very ancient. The national militia had likewise alwa^'s had 
 its ''tithings,'' but these did not lead to a division of territory, 
 for the apportionment of the contingents remained a shifting 
 matter of administration for the smallest divisions, much 
 more than for the greater ones. What the Anglo-Saxon 
 statutes really contain touching the Tithings (dccania?, or 
 theotings) is limited to the following : — According to Atheist. 
 
 time of the first colonization a Hundred 
 contained a hundred hides iiuder the 
 plongh. But as the districts for con- 
 tingents were more permanent thau 
 the state of cultivation, the Himdreds, 
 in then* later state, contained much 
 more than a hundred hides under the 
 plough ; sometimes less, where there 
 had been a falling ofi" in prosperity. 
 The gi-eat Hundreds in the north, 
 ^vhich had been formed later, are. taking 
 the one hundred hide standard, dis- 
 proportionately large (in Lancashire, on 
 the average three hundred English 
 square miles), whilst many a small 
 Himdred contains scarcely more than 
 a quarter of a mile. Hence it is that 
 later historians expressly assert the in- 
 dehniteness of the hide-measurement 
 <cf, Gervas, Tilb. i. cap. pen., '• Dialog. 
 <.le Scaccario," ^'hiindndiis ex hydarum 
 idiqnod centenis, sed non detenm'natis 
 constat: quidam enim ex lyhirihus, 
 quidam ex pauciorihus constant.") This 
 inequality led, in the later Middle 
 Ages, to "the division in some counties 
 of Himdreds into halt-Hundreds ; 
 whilst, on the other hand, two Him- 
 dreds, or one and a half, were some- 
 times united for the purposes of ad- 
 muiistration. ThepLi'sistent retention of 
 
 the division into Hundreds is explained 
 by the fact that the Hundred Court 
 was held every four weeks as a regular 
 court (Edw. ii. 8 ; Edg. i, 1, iii. 5), and 
 thus the conservative character of all 
 judicial systems became communicated 
 to the Hundred. That administrative 
 convenience was largely considered in 
 the earliest divisions, is proved by the 
 fact that, whenever possible, the Hun- 
 dred grouped itself round a given place, 
 suitable for a centre. Of the 799 
 names of Hundreds, Wapentakes, or 
 Liberties, which are in existence at 
 the present day. no fewer than 36"2 are 
 identical with a town lying within them 
 ("Introduction to the Census of Great 
 Britain," 1851; also as to the Himdreds 
 generally, see Landau. " Territorien." 
 '215, 216). In certain counties a middle 
 division occurs. In Kent there are to 
 be found several Hundreds united 
 under the name of Lathes, which exer- 
 cised the same judicial powers as the 
 Himdreds. In Sussex is found a 
 division into Kapes, without any juris- 
 diction, which remained with the Hun- 
 dreds. York and Lincoln were divided 
 into Thrithings (third parts), which 
 still exist under the name of Eidiugs. 
 
Union of the Kingdoms, and Divisions of the Realm. 51 
 
 vi. 4, the members of the Tithing should, on summons, join 
 in pursuing criminals. According to Athlst. vi. 8, sec. 1, 
 those who rule the Tithing (the heads) should meet the 
 Hyndemen in London every month to maintain the peace. 
 According to Edg. i. 1, 2, notice of a theft should be given 
 to the Hundred men and Tithing men. According to Edg. 
 i. 1, 4, no one was allowed to possess chattels (cattle) unless 
 he had the certiificate of a Hundred man, or a Tithing man. 
 According to Cn. ii. 26, every free man shall be brought 
 into a Hundred or Tithing, for the purpose of police sureties. 
 It is evident that these quotations refer to police institutions 
 and constabulary societies formed of the inhabitants, but not to 
 local districts, or village marks. In numerous records of this 
 period, the position of estates is determined by reference 
 to the Hundred, but never to the Tithing-district, Among 
 the innumerable details contained in Domesday Book, the 
 words '^ decania, decenna, teothing, tything," do not once 
 ■occur. The local districts of the Anglo-Saxon administration 
 were, for the most part, determined according to the tenures 
 of the properties. The numerous settlements made by 
 *' coloni,'' upon loan-land, the submissions of the allodial 
 peasants to a Hlaford, as well as the subsequent extension of 
 the jurisdiction of manorial courts over the allodial peasants, 
 rendered the type of dependent communities the prevailing 
 one, and a territorial division according to free peasant 
 villages impossible. Difficult as it is to obtain a reliable 
 picture of the local organization of the kingdom, at this, 
 its lowest stage, it is perfectly clear that the nature of the 
 existing societies absolutely excluded a territorial division into 
 '' Tithings." (3) The existing local societies, on the other 
 hand, are as follows : — 
 
 (3) The local divisions of the Anglo- landed property which ^Uved is said 
 
 Saxon territory can never be clearly to have drawn up, "■ talem rotulnm 
 
 understood from historical sources. The edidend, in quo Mam terrain Ancjliai 
 
 old error that the Anglo-Saxon " Theo- in comitatns, centurias, et decurias de- 
 
 thing " is a geographical local district, scripserat ; " whilst William of Malmes- 
 
 has, however, become established owing bury only says that it had been ordered, 
 
 to a passage in the pseudo-Ingulf, who " ut omnis Anglus haheret et centuriam 
 
 connects the matter with a register of et decimam" Ingulf makes of this. 
 
52 Constitutional History of England. 
 
 Lordships with their tenants and dependents. First in 
 importance were the royal demesnes, on which a royal bailiff 
 combined the management of the estate with the levy of the 
 royal dues, with the legal jurisdiction over the tenants, and 
 with other functions of militia and police. A similar position 
 belonged to the Gerefa of great private estates. These villeins 
 and servants do not exactly live in regular villages, but are 
 settled in the vicinity of the lord's seat (afterwards the 
 "manor"), and increase in numbers as landless wanderers 
 come and settle amongst them and put themselves under the 
 police i3rotection of the lord of the soil. Ten families form 
 the smallest community recognized for police purposes, and 
 for the appointment of a provost (prsepositus). As such, under 
 the later system of police sureties, they form their own police 
 union as a manorial Tithing, as well as a court for the settle- 
 ment of local disputes ; by later grants of land this was 
 extended even to the allodial peasantry settled among them, 
 " super omncs allocliarios, quos eis haheo clatos " (Codex DipL 
 No. 902). 
 
 Incidentally, too, the parishes under the spiritual office of 
 the parson were associated with these, though the former 
 were formed independently, embracing both freeholders and 
 \illeins, servants and landless settlers, and were therefore 
 bodies suitable for initiating the separate local government 
 system in England in later centuries. 
 
 Larger wiions of more independent folk, united for the 
 administration of justice under a royal or manorial Gerefa, 
 
 *'Mf omnis indigena in aliqiia centuria village court, exercising a formal jiiris- 
 et decima existeret ; " the former -words diction, analogous to that of the Hun- 
 express an association of persons, the dred under its Hundred-man, and the 
 latter contain a description of a local county under its Shir-gerefa ; which 
 district. As the militia system of the gives the idea of a system of many 
 fourteenth century had introduced local thousands of judges chosen by the 
 tithings under a petty constable, the people ! Instead of this chimerical net- 
 pseudo-Ingulf thought that this state work of smaller and smaller courts 
 of thiuiis was already existing ia Anglo- of law, we can only find in reliable 
 Saxon times; and he brought the system authorities that picture of local admin- 
 of police sureties (in the confused way istration which I have delineated ; 
 in which the author of the Leges Edw. within which no free village courts 
 Conf. 20, describes it) into connection and villages can possibly be formed of 
 with it, fantastically portraying the a mere militia system. 
 *' decenna " under its tenth man, as a 
 
Union of the Kingdoms^ and Divisions of the Realm. 53 
 
 and often freed from the duty of ap23earing as lawmen in the 
 Hundred, were for the most part entirely or partially co- 
 ordinated with the Hundred. This was an advantage for 
 those who participated, and their legal duty was lightened 
 in that, under the guidance of a magistrate, they formed 
 a separate judicial district, with the powers of a Hundred. 
 Of equally vital importance to the freeholders in their relation 
 to the neighbouring Thanes, was the protection of a powerful 
 magnate ; to which were sometimes added certain advantages 
 of wood and pasture. The question here is not one of sub- 
 mission of person and property, but of a magistracy (soca), 
 under which the heritable property of the '' socmanni," and 
 their immediate obligation to serve in the military array, 
 remained unchanged. Towards the close of the Anglo-Saxon 
 period the grant of a whole Hundred sometimes occurs. For 
 instance, under Eadward the Confessor, a certain Hundred 
 in Berkshire was granted to the Abbot of Abingdon, and a 
 Hundred in Surrey to the Abbot of Chertsey, with the com- 
 mand " that no royal Shir-gerefa hold court there," or interfere 
 in legal matters (Cod. Dipl., 840-849). 
 
 An analogous but more compact creation is found in the 
 numerous royal or manorial Burhs, which constitute, under 
 a separate Gerefa, a special jurisdiction, in which a Burh- 
 gemote, held three times a year, is combined with the Hundred 
 Court (Edg. iii. 5 ; Cn. ii. 18). The origin of the Burh is ap- 
 parently due to the need of a military protection in the Danish 
 times. A hill with a rampart of earth or a strong wall, was 
 sufficient protection against the sudden attacks of robber 
 bands. In the statutes "Burh" or ''Byrig" signifies also 
 a single fortified building (Edm. ii. 2; App. iv. 15; Athh*. 
 iii. 6), as well as a town (Athlst. ii. 20, sees. 1-4; Edg. iv. 2, 
 pr. 3, 4, 5; Athlr. ii. 5, sec. 2; ii. 6; Cn. 34). Discerning 
 rulers like Alfred made use of the remains of old " civitates'' 
 and ''castra'' and other advantageous positions for such 
 fortifications, and the protection which these afibrded was 
 readily sought by the neighbouring freeholders, tenants, and 
 vassals, and also by landless men and small tradespeople 
 
54 Constitutional History of England. 
 
 who were living amongst the servants and followers of the 
 landlords. The differences in the legal position of the people 
 thus crowded together rendered expedient the appointment 
 of a special royal magistrate (Gerefa), who was also endowed 
 with extraordinary military, police, and financial functions. 
 At the close of the Anglo-Saxon period the Biirgcnscs, and 
 in later times the constitution of the English municipal 
 boroughs, arose from these beginnings.* 
 
 Wedged in among these numerous degrees of jDroperty and 
 power came the rest of the freemen, who on their heritable 
 possessions preserved intact their independent position in 
 the military, legal, and police institutions. In many parts 
 of the country these peasant communities lay close enough 
 together to enable a free teothing to be formed out of ten or 
 more households. But often where the free peasants were 
 scattered about at great distances, it was with difficulty that 
 they were brought together into a " teothing," while the 
 greater part of them had already been incorporated into the 
 system of lordships, magisterial, and bailiff jurisdictions. 
 
 In the inner administration of the country these various 
 local groups clash with each other and are not kept distinct. 
 Most of them have no exclusive local jurisdiction ; the majority 
 do not form exclusive local districts. A separate magistracy 
 of the king or of a landowner does not exclude military duty 
 
 * The formation of the Biirhs is, the Burgenses as such were not released 
 
 according to the convincing reasoning from military duty is shown by many 
 
 of Kemble, not in any way imme- accounts given by the Domesday Book 
 
 diately connected with the British- (e.g. Bury St. Edmunds, 371). But 
 
 Eoman towns of the fifth century, which many Burhs were favoured by being 
 
 Gildas, in the sixth century, represents rated for the purpose of furnishing the 
 
 as being already forsaken and in decay. contingent at a small landed property 
 
 Still the existing ruins would in later scale of 5 hidse, 15 hida3, or 20 hides 
 
 times be utilized for the jiurposes of (Chester at 50, Shrewsbury at 100' 
 
 fortification. In certain places the hidse). Of course the royal dues were 
 
 name " city " was retained in memory jDroportionately raised, and hence the 
 
 of an old " civitas.^* The peculiar life burhs became more important for the 
 
 of the Burhs is due to the fact that finance control than for the defence 
 
 the free tenants, tenants on granted of the country, as the fortresses had 
 
 land, dependants, servants, and bonds- again been allowed to fall into ruins, 
 
 men of the king, as well as of private Kemble (ii., pp. 470-478) has selected 
 
 lords, lived densely crowded together, from the Anglo-Saxon Chronicle the 
 
 and that under the Burh-gerefa the names of eiglity-eight places, all of 
 
 legal, police, and finance administra- which may in some measure be re- 
 
 tions were united in one x^erson. That garded as fortified. 
 
Union of the Kingdoms ^ and Divisions of the Realm, b^ 
 
 in the Hundred. The tenants within the jurisdiction of 
 private courts, in quarrels with outsiders, come under th& 
 jurisdiction of the Hundred Court. The i^oHce organization is 
 arranged partly according to the military and partly accord- 
 ing to the legal districts. Thus within the narrow limits of a 
 castle, and in the vicinity of a lord's '^ mansus,'" freeborn men 
 might be living close together under manifold legal conditions, 
 having very different duties to fulfil towards the king or their 
 own mesne lord. 
 
 Hence we are led finally to the negative conclusion that 
 there existed no sj'stematic formation of local districts, and, 
 moreover, that the Tithing was no such local division.** 
 
 ** All these local distinctions cross and peace control, even above the 
 
 and overlap in the most varied fashion. interests of property. This lethal rule. 
 
 But it remains firmly established that however, does not exclude the fact 
 
 the personal liability to military service that dependence on property is the 
 
 continues independently of the sub- most important element in regulating 
 
 jection to a magistrate's jurisdiction, the conditions of life, and that the 
 
 and that the peasant farmers, who were division into separate estates with their 
 
 actual tenants, in case of disputes with tenants represents the prevailing local 
 
 third persons, appeared before the royal division. "Instead of the earlier 
 
 Hundred Court. The legislation ac- division into free landowners and land- 
 
 cordingly remains based upon the old less freemen, a division of the people 
 
 constitution; tliat is, upon the free into landlords and tenants has been 
 
 community. County and Hundred introduced" (K. Maurer, "Miinchener 
 
 assemblies are now, as formerly, active Krit. Ueberschau," ii. 59, 60). 
 in all matters affecting military, legal, 
 
56 Constitutional History of England. 
 
 CHAPTEE IV. 
 
 W^t Ofiias of iSalUorman anlr Sb6it=C5crefa. 
 
 A MUTUAL bond of union connects the districts with the arrange- 
 ment of the offices of the Anglo-Saxon kingdom, namely, the 
 two principal offices of Ealdormau and Shir-gerefa. In them, 
 as in the districts, an historical and an administrative principle 
 clash together. The former is predominant in the origin of 
 the Ealdorman, the latter in that of the Shir-gerefa. 
 
 I. 'S^fie IBaltiorman, iBux, (ITomes, is the highest civil official 
 of Anglo-Saxon times. When the union of the smaller king- 
 doms with the greater began, the sovereignty of the new 
 common ruler was confined at first to privileges and profits, 
 whilst the former petty state retained its own General 
 Assembly, and, with a sub-king at its head, preserved its 
 military and legal system. The oldest Ealdorman was actu- 
 ally a Viceroy, '' suhrcguhis,'' which title often occurs in the 
 signatures to Anglo-Saxon documents. In his decrees he 
 used the royal st^de : " cum consiUo episcoporum, optimatum- 
 que meorum.'' The province of such Ealdormen embraced, in 
 fact, a former independent state. He was not unfrequently 
 the subjected king in person, or a member of his family, or 
 else ^' /Ethelincfi,'" near kinsmen of the reigning Over-king, 
 were appointed to such places of trust. The name '' Ealdor," 
 too, is a reminiscence of patriarchal chieftain-lineage of a 
 former period. It does not signify a man old in years, but 
 the ''superior,'' ''senior,'" in a higher, more exalted position. 
 Even in the times of the Heptarchy the military, legal, and 
 
The Offices of Ealdorman and Shir-Gerefa, 57 
 
 police organization draw closer together. The Ealdorman 
 becomes more dependent upon the central administration. 
 The new administrative division of the great kingdoms into 
 shires causes the appointment of new governors, who are 
 ■at first merely the highest district officials, and whose district 
 assemblies do not involve any customary right of indepen- 
 dence. The mention of Ealdormen with such official positions 
 runs side by side with the gradual rise of the division of the 
 kingdom into shires. In the early organized kingdom of 
 Wessex the Ealdorman is mentioned in Tne's laws, which the 
 king promulgated with the advice *'of all his Ealdormen" 
 (Ine, pr.), and in which also the disobedient Ealdorman is 
 already threatened with the loss of his shire (Ina, 36). The 
 small kingdom of Kent appears at the commencement of the 
 eighth century to have had as yet no Ealdormen, whilst on the 
 other hand, in a National Assembly, held in 814, the names 
 of three Duces of Kent and sixteen Duces of Mercia are found 
 among the signatures. Hence it is clear that even before 
 iElfred's day necessity had led in the greater kingdoms to 
 administrative governorships. The confusion caused in the 
 original state of affairs by the invasion of the Danes and 
 the reorganization of the whole land by iElfred led to 
 a greater uniformity in the administrative character of the 
 Ealdormen. This assumption is confirmed by the Eigils- 
 saga of Iceland, c. 21 (K. Mam-er, " Krit. Ueberschau," i. 86), 
 which tells us, "^Elfred the mighty had taken away from all 
 Skatconunge'' {i.e. viceroys) ''their name and their power. 
 Jarls, those were called from henceforth who had been called 
 kings, or kings' sons." In the flourishing period of the 
 Anglo-Saxon monarchy the Ealdorman now appears as the 
 governor appointed by the king in a threefold capacity. 
 
 (a) Together with his County Assembly he directs the 
 equipment of the mihtia and the apportionment of the con- 
 tingents, and brings them to the royal army. He may also, 
 when commissioned by the king, take the command of the 
 whole army, in which capacity he is mentioned on important 
 occasions in the Anglo-Saxon Chronicle, which speaks of 
 
58 Constitutional History of England. 
 
 Ealdormen as commanders of single comities (in the years 
 837, 845, 851, 853, 905), or Ealdormen simply as commanders 
 of a whole army (in 851, 871, 894, 992, 993, etc.). In the 
 statutes this capacity is regarded as being a matter of course. 
 
 ih) He presides at his County Assembly, as at the ordinary 
 National Court (Ine, 50; Alfr. 88; Edg. iii. 5). "Let there 
 be held . . . twice a year, a Shir-gemote, and let there be 
 present at the Shir-gemote, the Bishop and the Ealdorman, 
 and both shall here administer spiritual and temporal rights ; " 
 which is almost word for word repeated in Cn. ii., sec. 16. 
 
 (c) As guardian of the peace within his district, he exercises 
 the royal police jurisdiction. To him the peace proclama- 
 tions of the king are, in the first instance, directed. The 
 right of supplementing ordinances, which lies in the royal 
 maintenance of the peace, gives him also a derivative licence 
 to issue peace proclamations within his district. The breach 
 of his peace is punishable by the infliction of a special peace 
 fine (Athlr. iii., c. 1). Any man who intends to change his 
 master, must give notice to him (Alfr. 37). After a breach 
 of the peace has taken place, his duty is to prevent feud, and 
 to protect the weaker party (Alfr. xlii. sec. 3) ; to take surety 
 from men accused as breakers of the peace (Edm. iii. 7, 
 sec. 1) ; and to assist the inhabitants of royal burghs to the 
 utmost, in securing bj.'eakers of the peace (Athlr. ii. 6). 
 
 The combined position which proceeded from these various 
 functions was one of the highest dignity and the highest rank, 
 which, according to the legal system of the times, found 
 expression in a weregeld, as high as that of the bishop, and 
 four times as high as that of the common Thane (App. vii. 2, 
 sec. 3) ; in an increased punishment for breach of the Burg- 
 peace (Ine, 6, 45 ; Alfr. 40) ; in an increased Burgbryce and 
 Mundfyrd (Alfr. 3. ; Cn. ii, 58 ; App. iv. 11) ; in an increased 
 fighting Wite (Alfr. 15, 38 ; A^^p. iv. 12) ; and in a special 
 right of asylum (Athlst. iv. 6, sec. 3 ; v. 4, sec. 1 ; App. iv. 5). 
 For official income he had the use of considerable portions 
 of the folkland, and a third of the forfeits, fines, and other 
 royal dues which fell to the king. The Ealdorman in this 
 
The Offices of Ealclorman and Shir-Gere fa, 59 
 
 position is the most eminent official in the kingdom, and has 
 the first place in the temporal council of the king ; but only 
 in his capacity of governor, whose right depends upon the 
 king's commission, and whose office expires as soon as this 
 is withdrawn. In the beginning the Ealdorman had certainly 
 been a successor of the king of the country, and at his appoint- 
 ment the form of election by the popular assembly probably 
 continued for a long time. But a free right of election could 
 not possibly be recognized, if the incorporation of the media- 
 tized kingdom was to last ; indeed, the kingship asserted as 
 a principle a right of deposition (Ine, cap. 36). It is told of 
 iElfred, that he emphatically reminded his state officers 
 *'that they had their office from God and from the king." (1) 
 Certain changes were brought about during the last century 
 
 (1) On the office of Ealdorman and 
 Earl, Heywood " On Eanks," pp. So- 
 il?, contains a lengthy exposition. 
 The Latin terms, Bux^ prvice2)s, and 
 comes, are very arbitrarily interchanged, 
 as also are consul, yatrlcius, i^rxfectus, 
 according to the fancy of the cleric who 
 drew up the record. The introduction 
 of analogies of the comes, dux, and 
 senior of the Carlovingian constitution 
 is also confusing, for these dignities 
 had different territorial, possessorial, 
 and national foundations, and an early 
 history of another type. It was quite 
 natural that in the aristocratic develop- 
 ment which the political organization 
 took, the class of Ealdormen should be 
 identical with a small number of the 
 greater landowners. The office of 
 Ealdorman appears at an early period 
 attached to the great families, but is 
 not hereditary. Amongst Ealdormen 
 whose names have been handed down 
 to us, instances occur of father and 
 son following immediately one another, 
 but this is very seldom ; on the other 
 hand, the deposition of an Ealdorman 
 is very rare; and intermarriages be- 
 tween the Ealdorman and the families 
 of the Anglo-Saxon kings are very 
 common. All these conditions are the 
 expression of the power wielded by 
 certain great families, and of a strongly 
 marked class privilege, but not as yet 
 of an hereditary nobility. Still less, 
 under such a condition of things, could 
 
 the office of Ealdorman be elective, of 
 which even Kemble speaks erroneously 
 (ii. 126). Among the statutes of Ead- 
 ward the Confessor (cap. 32a, sec. 2, in 
 Lambard's text), the following isolated 
 and extraordinary notice appears de 
 herotocMis. " Erant et alise potestates 
 et dignitates constitute, qui Heretoches 
 apud Anglos vocahantur, scilicet harones, 
 nobiles, etc. Latine vero dicebantur due- 
 tores exercitus; apud Gallos, capitales 
 constahularii, vel marechalli exercitus. 
 Isti vero viri eligehantur per commune 
 consilium — et per singulos comitatus in 
 pleno folcmote, sicut et ricecomites pro- 
 xinciarum et comitatuum eligi dehent^^ 
 etc. This pretended election, as well as 
 the name "Heretoches," is quite foreign 
 to Anglo-Saxon ideas. It must not be 
 forgotten that these statutes are a private 
 work dating from the twelfth century,, 
 in which the learned author intro- 
 duces, in a hundred places, his own 
 knowledge of the continental popular 
 rights, a knowledge accessible to the 
 clergy. Seeing the heavy weight of 
 Norman officialism, at the time that 
 work was written, nothing would be 
 more popular than the idea of a free 
 geueral election of the highest officials 
 in the county. Not merely the right 
 of deposition, which was a recognized 
 right (Ina, c. 36, Cod. DipL, No. 1078), 
 but all the monuments of Anglo-Saxon- 
 law and history, are opposed to the 
 idea of elected Ealdormen. 
 
60 Constitutional History of England, 
 
 by the influence of the Danish element. Among the northern 
 pirates, we find, besides the kings, commanders-in-chief called 
 Jarls. This northern term was related to the Anglo-Saxon 
 Eorl, which from time immemorial signified a man of great 
 rank, and was well adapted to be blended with the Eorl or 
 Earl. For some time accomits of battles speak of Ealdor- 
 men on the Saxon, and Earls on the Danish side. As 
 early as the statute of Eadward and Guthrum there occurs 
 (in c. 12) the common name Earl (also in Edg. iv. 15). 
 The influence of the Danish element naturally gained strength 
 in the second period of the Danish rule after ^thelred (Athlr. 
 iii. 12). Under the reign of Cnut, history records only 
 the appointment of new " Earls." Cnut's law touching the 
 amount of the heriot (sec. 7), only speaks of "Eorl;" in 
 the Shir-gemote (Cn. ii. 18) we again find the term " Ealdor- 
 man." More important still w^as the breach which was at 
 that time made in the ancient position of the noblest Anglo- 
 Saxon families. Danish families, and sometimes also bold 
 warrior upstarts, in a great measure supplant the old race of 
 the Ealdormen, and with the varying fortunes of battle the 
 governorships also become thoroughly altered in character. 
 In times anterior to these it had been often found advisable, 
 for the protection of the country, to unite several shires under 
 one Ealdorman. Under iEthelred this tendency to centralize 
 the commander's office increases, evidently in order that the 
 whole army of a district may be more speedily massed, and 
 employed with greater eflect, at the points threatened by the 
 enemy. 
 
 With this idea Cnut formed four great provinces, at the 
 head of each of which a great Eorl was placed, w^hose rank 
 answered to a ducal rank, even according to the higher 
 standard of the Continent. Under Eadward the Confessor, 
 this grouping of the counties is again altered, and for a 
 short time we hear once more of Ealdormen and Eorls side 
 by side. But as since Cnut's day the idea of a higher and 
 greater governorship had been attached to the appellation of 
 "Eorl," the title which was considered the higher, became, 
 
TJie Offices of Ealdorman and Slnr-Gerefa. 61 
 
 as is usually the case, the dominant one. The Anglo-Saxon 
 Chronicle after 1048 speaks only of Eorls. In the language 
 of later times, the old honourable title of *' Alderman" T^'as 
 only retained for the authorities in inferior local administra- 
 tions. (Leges Hem\, vii. sec. 2; yiii. sec. 1; xcii. sec. 1.) (l") 
 II. '(ITj^c ^JKce of S6it=9Cr£fa appears to have been a 
 second official position under the Ealdorman, instituted for 
 the administration of the whole county. In rank coming 
 next after the Ealdorman {Ealdormannes ginrpri, Alf. xxxviii. 
 sec. 2), the sheriff attained in process of time an increased 
 importance, and at the close of the Anglo-Saxon period had 
 become the most important official of the active adminis- 
 tration. In marked difference to that of the Ealdorman, the 
 office contained no remains of the old royal dignity, but had a 
 IDurely administrative, even a pre-eminently economic charac- 
 ter, which was caused by its financial connection with the 
 great landed properties. Every Anglo-Saxon magnate had to 
 collect rents, payments in kind, protection moneys, and dues ; 
 to superintend the service of his followers, to settle their 
 disputes, and to satisfy the royal demands relative to the 
 military array and the legal and police duties. The officer 
 appointed with full power to fulfil these functions was called 
 Gerefa, a name which includes also the ordinary estate-bailiff. 
 In a higher degree, however, the king needed in the different 
 districts of his kingdom a head-gerefa for the exercise of his 
 rights of usufruct and to undertake the varying duties of the 
 royal administration. This gerefaship so thoroughly pervaded 
 the whole life of the Anglo- Saxon times that in the Norman 
 period the collections of ]private law found occasion to remind 
 
 (1") The alteration of title is the tion must have only materially af- 
 
 first change referable to the Danish fected the constitution of the army, 
 
 times. The substantial change made The holding of the county court in 
 
 by Cnut is of more importance, when such au extensive district was prac- 
 
 he divided the country into four con- tically impossible. Tlie old smaller 
 
 siderable provinces, in 1017. Wessex county districts remained in existence, 
 
 is reserved by Cnut for himself ; East as court assemblies, in which now the 
 
 Anglia is entrusted to Thurkill; Shir-gerefa regularly presided. Hence, 
 
 Mercia to Eadric Streona (who, as an with this change, a separation of the 
 
 Anglo-Saxon, still bears the title of civil and military administration was 
 
 Ealdorman) ; Northumbria to Eric, as brought about, 
 an upper governorship. This altera- 
 
62 Constitutional History of England. 
 
 their contemporaries of its original signification. Thus, in 
 the laws of Eadward the Confessor we read (cap. 32), *' Grcve 
 mitem nomen estj^otestatis; ajmd nos autem nihil melius videtnr 
 esse, quam prmfectiira. Est enim multiplex nomen : Grcve 
 enim dicitur de scire, cle ivaepentagiis, de hundrcdo, de hurgis, 
 de villi s." 
 
 In the statutes the appellation cijningcs-gerefa is accord- 
 ingly not unfrequently carefully added to distinguish the royal 
 gerefa in the popular court from private gerefas (Alfr. 22, 
 34 ; Cn. i. 8, ii. 33). The county administration of the united 
 kingdom afforded, as the royal rights were increasingly de- 
 veloped, the most urgent occasion for the appointment of such 
 an official, who was called by the king in his public edicts 
 '*his gerefa: " ''If one of my gerefas will not do this, he is 
 guilty of disobedience towards me, and I will find another 
 who will" (Athlr. ii. 26). Equally significant in relation to 
 the official status of the gerefa is the official penalty or 
 punishment for disobedience, with which he is summarily 
 threatened in case he allows himself to be bribed (Athlst. v. 
 1, sec. 3) ; if in his office of judge he passes an unjust sentence 
 (Edg. iii. 3) ; if he does not keep the proper court day (Edw. 
 ii. 7, 8) ; if he does not collect the fine for refusal of justice 
 (Edw. ii. 2) ; and if he neglects his duty in maintaining the 
 peace (Athlst. ii. 26, pr. v. 1, sec. 2 ; vi. 8, sees. 4, 11). The 
 frequent mention of the punishment for disobedience {ofer- 
 liyrncs) and deposition in case of non-fulfilment of duty, 
 mark the personal position of this powerful officer. Although 
 with the ever-increasing importance of the office an eminent 
 local man was generally chosen to fill it, and at times and 
 in certain localities regard might be paid to the wishes of the 
 county assembly, yet there is here even less api^earance of 
 an elective office than in the case of the Ealdorman. 
 
 In the official business of the Shir-gerefa his financial duties 
 and the management of details of business stand in the fore- 
 ground. Whenever royal demesnes (Athlst. ii. pr.), folkland, 
 usufruct, and other roj^al dues, have to be superintended in 
 a county district, the Shir-gerefa is the controlling official, 
 
The Offices of Ealdorman and Shir-Gerefa. 63 
 
 unless a more special administration has been organized. 
 Without prejudice to the Ealdorman's office, he ^as always 
 regarded as the responsible officer of accounts. The same 
 intimate connection with the royal revenues brings the Shir- 
 gerefa also within the sphere of the military, legal, and 
 IDolice jurisdictions. 
 
 1. "When the military array was called out, the first duty 
 -was to collect the fines for neglecting to appear, and money 
 contributions for the equipment of the soldiers, which came 
 in when the contingents were apportioned (" Trihuta expecli- 
 tionalia,'' Cod. Dipl., No. 362). In the whole business of 
 equipping and apportioning the contingents the Shir-gerefa 
 acted as the Ealdorman's assistant. Where delay would be 
 dangerous, he occasionally leads his troops in person against 
 the invading pirates. For like reasons he heads the hastily 
 summoned soldiery for the pursuit of peace-breakers (Athlst. 
 vi. 8, sec. 4). The employment of the militia organization 
 for police purposes necessarily required a local officer. In 
 later times, when the Earl more and more retired into the 
 position of an upper governor, the Shii'-gerefa, sitting with 
 the Thanes in the county court, probably conducted the current 
 business of the militia and police administration as completely 
 and as regularly as he certainly did the legal business. 
 
 2. In the legal department the getting in of fines (Edw. ii. 
 2) and the confiscation of forfeited estates (Codex Dij)l., No. 
 •328, 1258) was without doubt the primary business of the Shir- 
 gerefa. A further duty was to carr}^ out the various sentences 
 of the court (Athlr. i. 4, pr. sec. 1 ; Cn. ii. 33). 
 
 In his presence contracts of sale and exchange bargains 
 were concluded (Athlst. ii. 10; Edm. iii. 5). The Ealdorman 
 :and the bishop are the regular presidents of the great county 
 <30urt ; but even here the Shir-gerefa, according to the records, 
 is the assistant of the Ealdorman (Codex Dipl., No. 765), 
 and his presence in the capacity of financial officer is 
 indispensable. 
 
 But we find him already in the older statutes as the sole 
 justiciary of the king in the popular court, especially in trans- 
 
64 Constitutional History of England, 
 
 actions touching fines and forfeits (Withr. 22 ; Alfr. 22, 34 ; 
 Edw. i. pr. ; Athlst. ii. 22). In later times, the more the 
 Ealdorman is restricted to the mihtary command of the greater 
 provinces, the more entirely does the Shir-gerefa become the 
 regular leader of the Shir-gemote, and down into the Norman 
 times there exists a condition of things, in which the holding 
 of the county court by the Shir-gerefa is regarded as a time- 
 honoured custom. 
 
 3. In the business of maintaining the peace, the gerefa is- 
 again the coadjutor of the Ealdorman. He must in his shire 
 ''before all else undertake the responsibility that all keep the 
 peace " (Athlst. vi. 10). Police functions especially are allotted 
 to him, which would be hardly suitable to the Ealdorman in 
 his high and princely position, such as tracking cattle-stealers 
 (Athlst. vi. 8, sec. 4) ; taking steps against the harbourers of 
 thieves (Athlst. vi. 8, sec. 2), the control over the completion 
 of bargains of sale and exchange, etc. "If there be a man 
 there who is untrustworthy towards the people generally, the 
 king's gerefa shall go forth and take surety for him " (Athlr. 
 i. 4). As royal executive officer he had also to assist the 
 Church in getting in its dues and in other civil matters (Athlst- 
 i. pr., sec. 4 ; Edg. i. 3 ; Athlr. viii. 8, 32 ; Cn. i. 8). (2) 
 
 (2) As to tlie position of the Shir- of Kemble from " rof " or "refan," c7rt- 
 
 gerefa Spelman's Glossariiim, under mor, clamare, hannire, hannitor. Spel- 
 
 the word "grafio" contains abundant mau derives it from "reafau," to rob, in 
 
 material, -which is the basis of all tlie the sense of the later feudal " distress "" 
 
 English traditional explanations of the as applying to the collector of the royal 
 
 subject (see also Kemble, " Anglo- fines. With this would agree the later 
 
 Saxons," ii. c. 5, especially the list usual form, " reeve," as would also the 
 
 of names of the Shir-gerefas in the real position of the gerefa, whicli is 
 
 eleventh century, Kemble, ii. l-il-143). rendered into Latin by exactor. This 
 
 The disputed points are the follow- corresponds also to the etymology of 
 
 ing : — the word " Schultheiss," in Germany 
 
 1. As to the derivation of the word (see Max MllUer, Lectures, ii. 231). 
 gerefa (as of the German " graf "). The 2. Whether, in addition to the Shir- 
 derivation from " grau," or " gravio " in gerefa, there existed other principal 
 the sense of senior has been set aside by officers of the shire, is a doubttul point 
 Grimm. The derivation attempted by suggested by the fact that in the statutes 
 Grimm from " ravo," tigmim, tectum^ sometimes a " shirman " is mentioned, 
 domus, aula, according to which it as in Ina, cap. 8, where the shirmau 
 should mean a " comes," or "socz?(8" or other judge (Deman) is intended. 
 (Deutsche Grammatik, ii. 736 ; Recht- In the Codex Dipl. an "^thelwiue 
 salterthumer, p, 753), is quite as far- scirman " occurs (No. 761) ; but in 
 fetched and incredible as that of Lam- another place he is called " JEthelwine 
 bard from " gereccan " rf^ere ; and that Shir-gerefa." In these same statutes. 
 
The Offices of Ealdorman and Shir-Gerefa, 65 
 
 If the administration of the county in these points was 
 centred more and more in the hands of the Shir-gerefa, this 
 must certainly be true, in a still greater degree, of the inferior 
 local jurisdiction in the Hundreds. In the most prosperous 
 period of the Anglo-Saxon kingdom, the Hundred Court was 
 held twelve times a year as the common court for ordinary 
 disputes between the freemen (Edw. ii. 8 ; Edg. i. 1 ; Cn. ii. 
 17). By degrees the more special obligations to be fulfilled 
 by the Hundreds accumulate — to maintain the police control, 
 to bring their members before the court, and to pursue 
 thieves (Edg. i. 5 ; Cn. ii. 20; Hen. i. 8, sec. 2 ; Will. i. 22, 
 iii. 3, etc.) It might have been supposed that, in view of 
 this, each Hundred had a Hundred-gerefa appointed by the 
 king, but this is not anywhere mentioned in the records. 
 In the '' Constitutio de Hundredis " (Edg. i. 2, 4, 5), a 
 " hundredes-man " is named, but in intimate connection with 
 the tithing-man of the militia, and appointed for special 
 police-business, and it appears that by this name a special 
 officer of the militia is intended, who may be compared with 
 the " chief constable " of later centuries. But on the other 
 hand, where the presidents of the Hundred Assembly gene- 
 rally are referred to, the '* Shir-gerefa " is not definitely 
 mentioned, but the "king's gerefa." "I will that every 
 gerefa hold a gemot every four weeks " (Edw. ii. 8) ; ''that a 
 gemot be holden in every Wapentake, and that the twelve 
 oldest Thanes go thither and the gerefa with them " (Athlr. 
 iii. 3). In the general regulations for magistrates, gerefas 
 are, as a rule, mentioned (Edw. i. 1 ; Edw. ii. 2 ; Athlst. ii. 
 26, iv. 7, V. 1, vi. 11). We can only conclude fi-om such 
 
 occur the forms " scirigman," " scires- no other foundation than the passage 
 man,""scireman;"(No3.761, 732, 929, quoted above (Leges Edw. Conf.de 
 972, 1288). By these names may simply Heretochiis, c. 32a), " sicut et vice- 
 he meant the Shir-gerefa, as Kemble comitesprovinciarum etcomitatuumeligi 
 and. Schmidt conclude; but it is also debent;" the style alone of which 
 possible that there was a special " scir- sufficiently designates it as expressing 
 man " for military organization, and for merely the opinion of the private author, 
 certain police functions, as an elective The Anglo-Saxon accounts taken from 
 officer of the old order. statutes, documents, and historians all 
 3. The opinion formerly current in indicate a free appointment and de- 
 England that the Shir-gerefa was ori- position of the Shir-gerefa at the will 
 ginally an elected popular officer, has of the king. 
 
 VOL. I. -R. 
 
66 Constitutional History of England. 
 
 language that the administration of the Hundreds was not 
 thoroughly uniform throughout the country ; as some Hun- 
 dreds, and many districts combined with the Hundreds, had 
 special magistrates. But apart from this, the official business 
 of the Shir-gerefa, his especial financial, legal, and police 
 duties were so bound up with the Hundred Assembly, that 
 he must have been the actual prefect of all Hundreds which 
 were not exempted from his control. This is identical, too, 
 with the state of things which in the Norman period we find 
 to be the customary and ancient one. (2'') 
 
 III. Hogal CStrefaS for narrower districts and townships, 
 and for special administrative purposes, in addition to the 
 Shir-gerefa, arose from the form which the royal rights and 
 the territorial conditions had taken, all which have been 
 described above (Chap. IH. sec. 3). 
 
 Firstly, in Hundreds, and even in still greater sub-districts 
 of a county, special magistrates might be appointed, as the 
 royal gerefa in the Thing of the five burgs (Athlr. iii. c. 1), 
 which was a special district of Danish colonists, where he 
 was even appointed to sit side by side with the Ealdorman. 
 According to another principle, the great royal forest-districts 
 led to the appointment of the Swan-gerefas, who occur as early 
 as Ecgberht's time (Codex Dipl., 219), but who in the later 
 " Constitutio de foresta " of Cnut are the chief officers for the 
 
 (2^^) "Whether the Shir-gerefa was were united into " Lathes " for the ad- 
 the regular president of the Hundred ministration of justice. Later times 
 Court, or whether there were special prove that the sittings of several Hun- 
 under-magistrates in the Hundreds, dreds were generally taken together, 
 cannot be categorically decided. But and held at one and the same time ; 
 the negative proposition can be main- and in like manner later conditions of 
 tained, that the very frequent mention things show us that the sheriff could 
 of the Hundreds and their gemotes appoint substitutes, on his own re- 
 in later times must have led to the sponsibility. The legal collections of 
 mention of the Hundred-gerefa, had the Norman period do not afford re- 
 such an officer belonged to the con- liable proof on this question. In the 
 stitution of the Hundred. Doubts Leges Hen. i. 8, sec. 1, we read, " Presit 
 might arise, in view of the large Hundredo unus de meliorihus et vocetur 
 number of Hundreds, in each of which aldremannus;" 91, sec. 1, ^'■Aldremannus 
 a single man could not hold a court hundredi" An Ealdor of a Hundred 
 every four weeks, but in the majority only occurs in Edg. iv. 8, 10, and evi- 
 of counties the number was so moderate dently signifies the magistrate, and not 
 that there would be no impediment. a particular title of office. 
 In Kent the numerous small Hundreds 
 
TJie Offices of Ealdorman and Shir- Gere fa. 67 
 
 administration of forests. The gerefa system extends also to 
 townships; Burh-gerefas, or simply gerefas, are found in 
 towns which had formed round a burg, on old demesne lands, 
 folkland, or under special royal protection ; a Port-gerefa in 
 towns which, as commercial centres, were of special impor- 
 tance for the collection of the royal dues, as in London and 
 Canterbury. In London he has the position of a Shir-gerefa. 
 The royal letters were addressed to "the Ealdormen, Bishop, 
 and Port-gerefa ; " and high officers of the royal household, 
 as well as great Thanes, are mentioned as holding these 
 lucrative posts. A Wic-gerefa is found as royal magistrate in 
 smaller townships. In many considerable towns the royal 
 magistrate of the Burh-gemote retained even in later times 
 this less pretentious title. Even in London in the seventh 
 century the king's Wic-gerefa is mentioned, whose place was 
 in later times taken by the Port-gerefas. 
 
 A similar system of gerefas existed, as we have mentioned, 
 for the great private landed estates. Bishops, Ealdormen, 
 and greater and lesser Thanes had to raise dues from their 
 estates, to settle the disputes of their dependants, and to take 
 upon themselves the responsibility in the numerous pro- 
 clamations of the military array, and of the maintenance of 
 the peace. Such lords' *' Tungerefas " might be simple 
 bailiffs. In greater townships, and where an extended juris- 
 diction {saca et soca) had been accorded them by royal grant, 
 they might actually have the importance of a royal Wic- 
 gerefa. The term '' socn-gerefa," however, only occurs once 
 in the old Corporation Statutes of London. The landed 
 Thane, too, is himself regarded as the responsible wielder 
 of an official authority (Athlst. iv. 7). (3) 
 
 (3) As to the special gerefas for dis- Kemble (ii. 146). A Port-gerefa is 
 
 tricts, towns, and administrative func- met with in London, Canterbury, Bath, 
 
 tions, see Kemble ("Anglo-Saxons," and Bodmin (Kemble ii. 148). In 
 
 ^^" T'V, W' }^^~^^^^' London the two Port-gerefas appear 
 
 Ihe Burh-gerefa is less frequently in early times in a certain connection 
 
 mentioned m statutes and records than with the Shir-gerefa of Middlesex 
 
 tne importance of the Burh-gemote (in the so-called libertas civitatum, 
 
 would lead us to expect. Some names appendix, xxiii. 4). 
 
 of gerefas m royal Burhs are given by The Wic-gerefa is met with also in 
 
68 Constitutional History of England. 
 
 The universal system of royal gerefas pervades the Anglo- 
 Saxon administration in all directions, and forms a remark- 
 able feature in it. From the days of jElfred numerous 
 judices, pr^fecti, prsepositi, are appointed, all of which names 
 are but Latinized expressions for a word of wide signification 
 — *'gerefa." The body of these officials forms a uniform whole, 
 as is shown by the fact that in Eadgar's time the King con- 
 firms the appointment of the whole body of his father's officials 
 (Edg. iv. 2, pr.). The financial rights and the general develop- 
 ment, of the royal powers had led to this system of royal 
 appointments. The Anglo-Saxon Chronicle makes King 
 Withred say at the National Assembly at Baccanceld in 694: 
 "It is the king's business to appoint Eorls, (?) Ealdormen, 
 Shir gerefas, and Judges " (Monum. Hist. Britt. i. p. 324). 
 In an Anglo-Saxon record (Cod. Dipl. 996) w^e find the same : 
 *' illius autem est, comites, duces, optimates, principes, prsefectos, 
 judices sseculares statuere.'' This record is, indeed, not genuine, 
 and betrays the hand of a cleric ; but, like the most of these 
 documents, it is of very ancient date, and expresses the con- 
 ceptions which were regarded as traditional. The expression 
 ''royal Thaneship " embraces frequently in this sense the 
 sum total of magisterial offices. Offences of officials are 
 generally to be visited with fine and loss of thegnship 
 (" thegenscypes et omni judiciaria dignitate privatur,*' Leges 
 Hen. i. 34, sec. 1). In close connection with landed property 
 this thaneship spread over the whole country, and supplanted 
 the popular offices and popular elections of the ancient con- 
 stitution. Of elections in the modern sense of the term 
 there is no reliable trace to be found, neither in the imperial 
 nor in the county administration (Palgrave i. 118). 
 
 "Winchester (Chr. Sax. 897 ; Schmid, That the landowners might be re- 
 
 Glossaium, 598). presented by their gerefa in the royal 
 
 The private magistrates of the court in taking oaths in certain special 
 
 Bishops, Ealdormen, and Thanes may cases is recorded already by Athlr. i. 
 
 also include the humblest bailiffs. sec. 1. Much that is incapable of proof 
 
 The gesithcundman, who (Ine, 63) is touching the election and business of 
 
 described as travelling about " with the lords' gerefa is narrated (as usual) 
 
 his gerefa, his smith, and his nurse," by Anstey, "Guide to Constitutional 
 
 certainly took with him no magisterial History," p. 125. 
 officer, but merely a menial servant. 
 
The Offices of Ealdorman and Shir-Gerefa. 69 
 
 The fully developed Anglo-Saxon political State is a joint 
 creation of great landed interests and a royal prefectural 
 system, scarcely containing any of the characteristics of a 
 Germanic constitution such as Tacitus describes. The 
 actual State is embodied in comparatively few persons, 
 namely, the Bishops, Ealdormen, and Shir-gerefas, appointed 
 by the King. The local administration ramifies into a system 
 of gerefas in narrower circles, interwoven with a similar 
 system of manorial magistrates. A lowering of the political 
 importance of the freehold tenants, of the landless freemen, 
 and of the whole labouring population in consequence, is 
 unmistakable. But the constitution of the courts modifies 
 this character. In the Hundred Court, and even in the 
 Manorial Courts, the passing of sentences is not an individual 
 act of the magistrate, but is a determination of the freemen 
 acting in the capacity of judges and compurgators. In the 
 County Court the royal magistrate is surrounded by still more 
 influential Witan as Judges. Similarly the county adminis- 
 tration in military affairs and the maintenance of the peace is 
 carried on in active co-operation with the Thanes of the county, 
 and probably too with deputations from the Hundreds and 
 analogous districts. On a higher level the King administers 
 justice in the Witenagemote with the counsel and consent of 
 still more powerful prelates and great Thanes. That this 
 strong aristocratic element still co-exists with an universal 
 system of royal magistrates is explained by the general 
 composition of the State. There existed a number of powerful 
 landowners, but their landed interests were not concentrated 
 at one point. Originally there were no great estates, which 
 might be compared to the " possessiones " which existed in the 
 old Eoman provincial soil. In the territory of the small king- 
 doms of former days a numerous middle Thanehood had grown 
 up with an average possession of five hides each ; but there 
 were no separate great estates, whence a territorial supremacy 
 could have proceeded. After the union of the kingdoms the 
 royal possession and the royal power towered so far above the 
 most powerful great Thane as to render it practicable to 
 
70 Constitutional History of England. 
 
 maintain a central administration by means of governors 
 and ajDpointed magistrates. But on the other hand the 
 Prelates and the Thanes were, as a body, so numerous, so 
 richly endowed with estates, and so firmly established in their 
 landed rights, that as a class they almost engrossed the 
 magisterial offices. In harmony with this condition of things 
 is the concentration of the central authority, ''the King in 
 the Witenagemote " as an assembly of landlords invested 
 with offices and officials possessed of land (below, cap. VI.). 
 Its composition is grounded on the right of appointing, of 
 summoning, and of granting, which the King exercises within 
 the army, law, police, and Church constitution; and which 
 again ministers to the united influence of Prelates and great 
 Thanes at court and in the Witenagemote. The preponderance 
 of these families, often closely connected with each other, 
 compels the King more and more to fill the important offices 
 *' with their assistance," and thus at an early period a state 
 of things is established in which the power of the great 
 landed interests does not show itself in the form of con- 
 centrated feudal small states, but in a corporate form with 
 a controlling influence upon the exercise of royal powers. 
 
( 71 ) 
 
 CHAPTER V. 
 
 '^it anglo-^axon CTftutc]^. 
 
 The conversion of the heathen Anglo-Saxons by resolutions 
 of the King in the National Assembly had led to the foundation 
 of a bishopric in each of the several kingdoms. Towards the 
 close of the seventh century these bishoprics were united 
 under an Archbishop Theodore, upon whom the Pope's choice 
 had fortunately fallen, and became in consequence an element 
 of centralization which wrought jDOwerfully in preparing the 
 way for the subsequent union of the kingdoms. The Church 
 thus bound together was and remained a national Church, of 
 an essentially different nature from that existing among the 
 Britons and in Roman countries. Her origin, her institu- 
 tions, and her establishment were the free act of the organized 
 powers of the State. Her clergy belonged, with few exceptions, 
 to the native families. Her constitution did not originate in 
 an adoption of foreign institutions, but in national necessities. 
 In this Church also, the wise and the ignorant, the teacher 
 and the disciple, certainly stand in relations to each other, to 
 which the organization of the militia, the courts, and the 
 maintenance of the peace are inapplicable. As a school for 
 the people, the Church must at all times be organized from 
 above downwards ; she performs her functions only by means 
 of officials who are dedicated entirely and solely to her service, 
 and independent of birth and property. The union of the 
 kingdom only affected the constitution of the Church so. far 
 as to gradually remove undue inequalities in the formation 
 
Constitutional History of England. 
 
 of the dioceses, and to bring the ecclesiastical districts into 
 as much harmony with the division into shires as appeared 
 necessary for a common transaction of spiritual and temporal 
 affah's. 
 
 I. 'iTfic Institutions of t]^C Cj^urcJ comprise the three grada- 
 tions next mentioned. 
 
 1. The hishoprics, which originally were identical with the 
 territory of the separate kingdoms, remained unchanged in 
 the smaller ones, whilst in the greater kingdoms of Wessex 
 and Mercia the administrative principle of division into shires 
 led to a corresponding increase in the ecclesiastical districts 
 by a division into eight dioceses. And so at the close of the 
 Anglo-Saxon period there were in existence, with some changes, 
 seventeen dioceses, the majority of which began as early as 
 the time of Theodore to unite and form provincial synods 
 under the direction of the Metropolitan of Canterbury. A 
 second archbishopric for the group of northern dioceses became 
 consolidated after many vicissitudes, but it was unable, in the 
 disordered condition of affairs in the north, to attain, either 
 externally or internally, to perfect equality with Canterbury. 
 Every Archbishop and Bishop is, according to Anglo-Saxon 
 ideas, the original holder of ecclesiastical authority. In tem- 
 poral matters, too, he was " to take part in the sittings of 
 the court, adjust differences, and restore peace in conjunc- 
 tion with the temporal judges, prevent wrong-doing in taking 
 of oaths and in trials by ordeal, connive at no unjust measure 
 or false weight ; in short, to keep watch over the maintenance 
 of spiritual and of temporal law." (Thorpe, "Institutes 
 of Ecclesiastical Polity," ii. 312.) (1) 
 
 2. The monasteries and reHgious corporations were of special 
 
 (1) As to the formation of the Anglo- graphie der Angel-Sachsischen Zeit.") 
 
 Saxon Church, see especially Palgrave, The historical grouping is as follows: — 
 
 " Commonwealth," cap. xi. ; Kt-mble In the little kingdom of Kent (1) the 
 
 ii. c. S ; and Henry Soames, " The archbishopric of Canterbury was and 
 
 Anglo-Saxon Church " (1S45-6); Lin- continued to be the mother-bishopric 
 
 gard, "History of the Anglo-Saxon ofthe whole of England, besides whichi 
 
 Church" (1S45) ; Dugdale, "Mouas- in quite early times, (2) the bishopric 
 
 ticon Anglicanum " (Edited by Calif y, of Rochester had arisen. For Essex 
 
 &c., London, 1817); Lappenberg, i., arose (3) that of London; for Sussex 
 
 pp. 185-195. ("Die Kirchliche Geo- (4) Selsea, in later times Chichester. 
 
The Anglo-Saxon Church. 
 
 73 
 
 importance in this epoch. A monasterial institution was 
 the first need of Christianity, as a gathering-place and shelter 
 for missionaries, teachers and scholars. The exigencies of 
 sustenance, personal safety, and mutual help in their mission- 
 work, kept on foot for a long time this mode of living in 
 common ; the late origin and very diverse organization of the 
 parish Churches was favourable to it. The number and 
 endowment of monasteries, and especially of nunneries, is 
 ever on the increase. At an early period men and women, 
 even of royal lineage and from the families of the great 
 Thanes, show a predilection for entering upon monastic life. 
 The clergy of the great cathedral churches retain in later 
 times their original monasterial connections and institutions, 
 according to which the prebendaries continue to bear the 
 title of '' monks." According to the conditions of society 
 of those days, the foundation of superior schools could be 
 effected only by a union with the members and possessions 
 of such corporations ; just as the beginnings of charitable 
 
 In East Anglia (5) the bishopric of 
 Dimwich in Sutfolk was first founded, 
 from which again for Norfolk (6) that 
 of Elham, later Norwich, was separated 
 oflF. For the great territory of Wessex 
 (7) the bishopric of Dorchester was 
 first founded, from which (8) that of 
 Winchester was severed; then was 
 further founded a third (9) bishopric at 
 Sherborne, later removed to Old Sarum 
 and then to Salisbury. From the last 
 named again were separated off (10) the 
 bishopric of Wells, and (11) of Kirton, 
 afterwards at Exeter. The adminis- 
 trative principle of the shires, according 
 to which these dioceses contained one, 
 two, or three counties each, was here 
 tlie rule. In Mercia from the (12) 
 head bishopric of Lichfield (in later 
 times Chester and later Coventry) 
 were severed the bishoprics of (13) 
 Worcester, (14) Hereford, and (1.5) Lin- 
 coln. The northern kingdom of Deira 
 had retained as its chief bishopric, that 
 of York (16), which extended also over 
 Bernicia, and after the formation of 
 the great kingdom of Northumbria, 
 stretched still further. As a separate 
 bishopric, arose that of Lindisfarne 
 
 (17), later Durham. A considerable 
 portion of the great diocese of York 
 went over to the Scotch Bishops. In 
 an anomalous position stood the Bishop 
 of the Isles of Sodor and Man, who 
 after the Norman period was subject to 
 the Archbishop of Droutheim, and 
 came later under private patronage. 
 There is here to be found no connection 
 of any sort between these and the 
 bishoprics of the old British Church. 
 (Palgrave, i. 152-154.) The abbacy of 
 Ely was as late as the reign of Henry I. 
 first raised to the rank of a bishopric ; 
 and in 1109, the bishopric of Carlisle 
 was founded for Cumberland. The four 
 bishoprics of Wales, by the conquest 
 of the country some centuries later, 
 "were incorporated with the English 
 Church system. The formation of the 
 offices here was exactly opposite to 
 the process of formation in the State 
 — first the formation of the Bishops' 
 sees, then that of the parishes; in 
 a much later period that of the arch- 
 deaconries and rural deaneries. The 
 archdeaconries are associated with the 
 county districts, and the rural deaneries 
 with the Hundreds of later times. 
 
74 Constitutional History of England. 
 
 and pious foundations could only gain stability and endurance 
 in the permanent conditions of property afforded by such 
 corporations. " In the neighbourhood of the cathedrals were 
 gathered together the maimed, the lame, the blind, the home- 
 less and friendless, to be fed, clothed, and cared for for God's 
 sake" (Kemble, ii. 440). This may explain the dispropor- 
 tionate favouritism shown to these corporations by the most 
 enlightened monarchs, such as Alfred the Great, espe- 
 cially under the heavy visitations of the Danish period. The 
 Anglo-Saxon period concludes with a great number of perma- 
 nently endowed monastic cathedral corporations, irregularly 
 scattered throughout the kingdom, and with very unequal, and 
 in some places over-wealthy possessions. (2) 
 
 3. The foundation of parish churches in England took 
 place slowly and imperfectly. For a great length of time, 
 according to Baeda, the bishops still wandered about their 
 dioceses with their assistant clergy ; and even in the middle 
 of the seventh century Saint Cuthbert journeyed from village 
 to village. But from the days of Archbishop Theodore the 
 creation of settled parishes began in greater numbers, slowly 
 extending from the southern parts of the country towards 
 the north ; endowed often with parcels of land by generous 
 Thanes, they became after the introduction of the system of 
 church-tithes more uniformly enriched by the tithes of their 
 
 (2) The monasterial foundations anothel- fourth was set apart for the 
 (Kemble, ii. c. 9) were originally school founded by him, and the re- 
 promoted by the customs of the raaining fourth for the neighbouring 
 early missionaries. The clergy lived churches and monasteries and their 
 in communities, even when they were ministers. Both spiritual and temporal 
 not monks, and followed the rule of the nobles spent considerable sums in 
 Benedictine or some other order. Under charity, in its primary signification ; 
 the protection of the kings this spirit of a portion of the booty made in war, and 
 community, especially in the highly a portion of the fines payable to the 
 honoured nunneries, assumed a national Church, was also ordered to be paid to 
 character. The real need of the times the poor. All such foundations, how- 
 we must estimate according to the views ever, found no stability in the system 
 of an Alfred, and not from the later of temporal administration, for such 
 and changed position of affairs. Asser contributions were speedily spent and 
 tells us that Ji]lfred was wont to dedi- forgotten ; hospitals and almshouses 
 cate a full half of his royal revenues belonging to the monasteries and cathe- 
 to ecclesiastical purposes: of this he drals formed just those permanent insti- 
 assigned a fourtli to the poor, a fourth tutions on which the system depended, 
 to the two monasteries he had founded, (Kemble, ii. c. 11.) 
 
The Anglo-Saxon Church. 75 
 
 parochial districts. The Canons of Archbishop Ecgberht (Ex- 
 cerpta Ecgberhti, Thorpe ii. 100) show us what the early 
 Church of those days aimed at. The parish church was to 
 be endowed with a hide (mansus) of land, and this hida should 
 remain free from all public burthens, whilst all property 
 beyond this amount should be subject to manorial dues and 
 State burthens. The laws of Eadgar and Cnut of a later 
 period contain the rule that every landowner may endow a 
 church situate on his Bocland, with a third of the tithes, 
 provided there be a graveyard united with it; where there 
 is no graveyard, the tithes are payable as before to the 
 *' parent " Church, and a new income is to be provided by its 
 founder for the chapelry. 
 
 These attempts, similar in character to the ordinances of 
 the Emperor Louis (Pertz ii. 626), were, however, only partially 
 successful, and even at the close of the Anglo-Saxon period 
 the endowments were somewhat scanty compared with the 
 possessions of the cathedral churches and abbeys. Mean- 
 while, the Church income, which was at first centralized, 
 becomes more and more distributed amongst and firmly 
 attached to the bishops' sees, monasteries, and parsonages. 
 A settled endowment of the parsonages became the rule in the 
 ninth century. In Domesday Book an " Ecdesia sine terra'' 
 is a rarity. From the manner of the foundation there resulted 
 an extensive right of patronage over the benefices. The 
 Norman Domesday Book, in which the list of them is imj)er- 
 fect, specifies hardly more than 1700 churches, endowed with 
 parcels of land of from five to fifty acres, and showing a very 
 unequal distribution of the ecclesiastical benefices in the 
 various parts of the kingdom. (3) 
 
 (3) As to the nature of the eccle- appear to have been omitted, owing to 
 
 siastical benefices, Domesday Book tlie original object of the book. In the 
 
 alone gives us reliable information legislation, the continual increase in 
 
 (Ellis, Introd. i. pp. 286, 295). Glebes the number of parish churches is visible 
 
 of more than 50 acres (as one of 83, in the distinction of various classea In 
 
 one of 100, and another of 120 acres of a principal church (hllfod mynster) 
 
 pasture land) are solitary instances ; on breach of the peace is visited with a 
 
 the other hand, a church without land penalty of £5 ; in ordinary churches of 
 
 is also a rarity in the great register 120 shillings ; in still smaller of 60 
 
 of land. But churches without land shillings, and in chapels of 30 shillings 
 
76 Constitutional History of England. 
 
 These institutions of the Church, as regards her property 
 as well as her ministers, are firmly bound up with the 
 secular state. 
 
 II. '^1^0 ^ropertg of t^e ^fturcj attained an extent which, 
 at the close of the Anglo-Saxon period, towers far above the 
 importance of the royal revenues. Intellectual and industrial 
 labour alike require property for their maintenance and de- 
 velopment ; but intellectual labour has been always compelled 
 to associate itself with the existing system of property. In 
 the Middle Ages it was obliged to acquire great landed estates 
 in order to keep on terms of equality with freehold owners. 
 The amount of Church property, as a whole, long retained 
 that relative importance which the intellectual life, centred 
 in the Church, might well claim, in comparison with military 
 life or industrial pursuits. The separate elements may be 
 grouped in the following order : — 
 
 1. The landed property of the Church had to maintain itself 
 on an equal footing with the fully secured allodial estate, at 
 a time when such property was a necessary condition of full 
 legal capacity and equality. But it is an old experience that 
 recently converted races know no bounds in their liberality 
 towards the Church. Following the example of King iEthel- 
 bert, who bestowed his palace with its lands upon St. Augustine, 
 the Anglo-Saxon kings and magnates also made rich gifts. 
 The manifold Anglo-Saxon records lead one to suppose that 
 almost every princely personage bestowed some such gift on 
 departing this life. A person entering a monastery not un- 
 frequently brought his whole fortune with him ; the children 
 of distinguished parents brought at least a donation of lands. 
 Eecovery from severe illness and escape from disasters, as 
 
 (Athlr. viii. 5 ; Cn. i. 3, sees. 1,2; Hen. elusion that the Saxon parishioners 
 
 79, sec. 6 ; App. iv. 3). The raainte- also participated to a certain degree in 
 
 nance of the parish churcli afforded the the management of the Church property 
 
 first reason for the participation of whicli had been formed from their con- 
 
 the community in the control of the tributions. The Church of the later 
 
 Church property. The analogy of the Middle Ages, when her pretensions 
 
 parochial system of northern countries were at the highest, would scarcely 
 
 and of the later rights of the parish- have recognized such participation, had 
 
 loners in England justify the con- it not been founded on ancient custom. 
 
The Anglo-Saxon Church. 77 
 
 well as joyous events, were commemorated by donations, 
 which the clergy, whose co-operation at the making of wills 
 was indispensable, commended to the consciences of rich 
 sinners agitated by the fear of death. Even the severe losses 
 which the Church experienced through the destructive frenzy 
 of the Danish pirates were soon made good by donations 
 from converted Danish magnates. According to the manner 
 of property in those days, to landed estates were attached 
 reserved dues, services, and rights of protection over tenants. 
 Profitable rights of this description might also be the im- 
 mediate subject of the bounty. Koyal donations especially 
 include tolls and market dues, forests, harbours, fisheries, 
 mines, and rights of pasturage. There are further attached 
 to great landed estates, the magisterial rights which had 
 become extended by grants, and the whole lordship over the 
 soil in its Anglo-Saxon conception. Thus arose the landed 
 property of the Church, almost continually growing and 
 increasing, until, in the case of many cathedrals and monas- 
 teries, it was equal to that of the temporal great Thanes ; 
 and compared with it, the single parcels of land belonging to 
 the parish chui'ches bore about the same proportion as the 
 small yeoman freeholds of that time bore to the lordships of 
 the Thaini regis, (a) 
 
 2. The payment of tithes was almost as important for the 
 permanent and uniform endowment of the ecclesiastical insti- 
 tutions as the possession of landed property. As in the whole 
 
 (a) The landed property of the declared their wish to free the eccle- 
 Church is dealt with by Kemble, ii. siastical estates within their realms 
 c. 10. To give an instance of the from " temporal burthens, labours, 
 unequal distribution of landed pro- duties, and contributions," but hereby 
 perty, it will be sufficient to mention only burthens attached to land were 
 that the district of Chilcombe (a part meant, and it is expressly declared 
 of the possessions of the bishopric of that the three common burthens, " ex- 
 Winchester) is reckoned at 100 hides peditio exercitus, burgorum constructio, 
 (Cod. Dipl. 642). However, such a i^ontium refedio,^^ are not included, 
 concentration of estates, which might Few grants to the Church can be 
 have led to separate territories was just cited without the reservation of these 
 as little possible with ecclesiastical common burthens, which later juris- 
 estates as with temporal magnates, prudeuts have styled the " trinoda 
 from whose grants they principally necessitas " (Palgrave, i. 156, 157, 160, 
 arose. It is true that King Wlthred 161). 
 of Kent and ^thelbald of Mercia 
 
78 Constitutional History of England. 
 
 of Christendom, so in England as early as the end of the 
 eighth century, the united exertions of the clergy led to a 
 recognition of the right to tithes by the National Assemblies 
 of Mercia and Northumberland. A decided legal recognition 
 'was first made in ^thelstan's " Constitutio de Decimis,'' since 
 which time the temporal power agreed likewise to these taxes 
 being raised by the royal gerefas. One third part of the tithes 
 was to be expended on repairing the church, a second for the 
 ministers of God, the remaining part for God's poor and for 
 needy labourers (Athlrd. viii. 6). Nearly every subsequent 
 reign confirmed afresh the legal liability to tithes with the 
 assent of the Witan. The Church accordingly gained a right 
 of direct taxation much earlier than the temporal State, (b) 
 
 3. Besides the tithes there were periodical contributions of 
 minor importance, as burial-service fees, candle-dues, and 
 plough-alms, contributions which, at first depending on liber- 
 ality, became local customs, and were at last recognized 
 in the decrees of the National Assembly. To such belongs 
 also a Church rate {Ciric sceat), which was to be paid on St. 
 Martin's day by every free household, and regulated in a 
 certain proportion to the produce of household and farm ; but 
 a general carrying out of this measure, in spite of legal recog- 
 nition, was not achieved, and in Norman times it is only 
 met with as a customary tribute paid by certain individual 
 estates. As occasional sources of income may be mentioned 
 the numerous gifts made by believers, consisting of movable 
 goods, such as crosses, rings and jewels, provisions, etc. ; 
 
 (b) The Church tithes are first men- tance " of the bishops, and is addressed 
 
 tioned in the written law in a synodal to the gerefas as an oflBcial notice, 
 
 decree of the year 786 (Selden, c. 8, Later recognitions are to be found in 
 
 sec. 2), which proves their confirmation Edw. i. 2 ; Edg. ii. 1, 2, 3 ; iv. 1, sees, 
 
 by tlie temporal power by decrees of 3, 4; Athlr. v. 11; vi. 17; vii. 1, sees. 
 
 the kings of Mercia and Northumber- 2, 4, 7 ; viii. 6-9, 14, 15 ; Cn. i. 8, 11 ; 
 
 land in their National Assemblies. Edw. Conf. 7. 8. That a third of the 
 
 Liability to tithes is next recognized tithes is to be expended on repairing 
 
 in the law of King Eadward and the church is relocated by Athlr. vii. 
 
 Guthrum about the year 900 (E. et. G. 6 ; but the fines payable to the Church 
 
 c. 6), briefly mentioned in Athlst, iii. shall also be used for the same purpose 
 
 1, but at full length in an ordinance (Athlr. v. 57), that the bishop especially 
 
 respecting tithes (Athlst. i. sees. 1-5) (Edm. i. 5), and every one generally, 
 
 with two rather different texts. The should contribute to the repair of the 
 
 ordinance speaks only of the " assis- church, by Cn. ii. 65. 
 
The Anglo-Saxon Church. 79 
 
 which, in the wills of the Anglo-Saxon magnates, are extended 
 to presents of whole herds of horses, oxen, sheep, and pigs — 
 '^ pro salute animdey (c) 
 
 III. W^t political position of ftc ([Bccksiastfcal piinfstcrs 
 
 shows a more complete and closer union between the Church 
 and the laity than in most countries of the continent. Whilst 
 Christianity in other countries took its rise in the poorer 
 classes of the population, in England the conversion began its 
 work with the kings, their households and followers, their 
 Witan and Comites, and spread downwards from them into 
 the communal and family life of the people. It was natm-al, 
 therefore, that the result should be a close connection with 
 family, community, and government. The clergy belonged to 
 the nation's *'' family-life," for, from the very first, they were 
 taken from all classes of society, from the king's son down to 
 the bond-theow. Monastic life, with its strict observance of 
 the rules of the order, certainly demanded the sacrifice of 
 family ties ; but, on the other hand, the secular clergy were, 
 and continued to be, to a great extent, in the married state. 
 The injudicious zeal of Dunstan, indeed, endeavoured to 
 bend even the secular clergy under the rules of the order. 
 In a time of great abuses and a threatened alienation of the 
 Church, the clergy should belong exclusively to the spnitual 
 profession. The force of custom was, however, so strong in 
 
 (c) Among the small periodical con- general Church contribution, but that 
 
 tributions, the Ciric-sceat has been the its levying found an obstinate resis- 
 
 subject of a prolix discussion, which tance in the opposition the yeomen 
 
 is connected with the disputed posi- especially showed towards it, and was 
 
 tion of the " Church-rate " of to-day. accordingly, in spite of all ordinances, 
 
 Its nature has been nowhere exactly only partially carried out. Kemble 
 
 described, yet there are many reasons (ii. 460, suppl. D.) endeavours to main- 
 
 for believing that it was intended to tain a thoroughly fictitious view. A 
 
 be a gift of the first-fruits of the field good discussion of the question is found 
 
 after the model of the Mosaic law, in Schmid(Glossarium, 545-547). From 
 
 The mention of it in the statutes is the success that attended their imposi- 
 
 exceediugly frequent (Ine, 4, 6; Edg. tion, the innumerable absolution moneys 
 
 ii. 2, 3 ; iv. 1 ; Athl. vi. 18 ; vii. 4 ; for fasts and penitences may be included 
 
 viii. 11; Cn. i. 10; ii. 11). The col- in the periodical Church tributes. From 
 
 lection of it was especially inculcated the multiplication of these means of 
 
 upon the gerefas (Athlst. i. 4), under grace the penitentiary books of this 
 
 threat of excommunication (Edm. i. 2). period give an extraordinary picture of 
 
 It can therefore hardly be denied that the abuse of an idea originally proper 
 
 the legislation intended to recognize a and moral. 
 
80 Constitutional History of England. 
 
 the national Church that a score or two of years later the 
 ecclesiastical regime was not materially changed, and celibacy 
 did not become an established rule of the Anglo-Saxon 
 Church. The clergy belong to the civil community through 
 the liability of their corporate estates to the payment of 
 common burdens. With unimportant exceptions, the deeds 
 of grant even to the most favoured monasteries declare their 
 ever-recurring '^ trinoda necessitas " — the perpetual liability to 
 '' Brycgbote, Burhbote, and Fyrd " — to which are joined many 
 other services reserved to the King ; whilst on the other 
 hand the Church participated in all rights and privileges of 
 landed property. Hence was preserved a feeling of common 
 interests and rights bound up in a close bond of union. The 
 Canons show that on the part of the Church there was no 
 attempt to obtain fundamental immunities in this respect, 
 even though a monastery here and there endeavoured in its 
 deeds of grant to acquire some special benefit. As an 
 established principle, the clergy remained subject to the 
 secular authority, viz. the royal military, legal, police, and 
 finance control; subject, however, to the following general 
 rules : — 
 
 1. The obligation of the clergy to military service was not 
 abolished by any Anglo-Saxon statute, although no compulsion 
 was used towards the higher ordines. The latitude of ad- 
 ministrative arrangement of the militia in the County and 
 Hundred Assemblies readily allowed of substitution ; the 
 interests of neighbours, however, took care that the eccle- 
 siastical estates furnished contingents for the national defence 
 as nearly as possible pro rata, and that the favour shown to 
 the Church should at all events not increase their own obliga- 
 tions. (1) 
 
 (1) Immunity from military service portion of ecclesiastical property is 
 
 was never directly stated (Palgrave, i. expressly mentioned, and sometimes 
 
 156, 157). We tind in times of danger even the customary number of the 
 
 the higher clerics frequently amongst troops, as in a large grant to a mon- 
 
 the warriors and amongst the slain ; astery, " expeditionem cum duodecim 
 
 yet a personal summons of tlie clergy vasallis et cum tantis scuHs exerceant " 
 
 is never spoken of. An obligation to (in 821 ; Cod. Dipl. 272). To look 
 
 furnish soldiers according to the pro- to this was the duty of the Shir-gerefa. 
 
The Anglo- Saxon Church. 81 
 
 2. The judicial duties of the clergy were as follows : in a 
 dis^oute with the laity they must seek justice in the Hundred 
 and Shir-geiQote, to the criminal jurisdiction of which they 
 were subjected, equally with the layman. Clergy appear 
 amongst the judging Witan (Alfr. 38, sec. 2). They appear 
 especially active in the administration of oaths, and in con- 
 ducting the ordeals (Edw. Conf. c. 9). Clerics perform the 
 functions of notaries in cases of contract, grants, and wills, 
 *' quon'iam tahelUonum usus in regno Anglm non Jiahetur " 
 (Matth. Paris, Hist. Hen. iii.), and appear also as taking 
 depositions (Edm. iii. 5 ; Athlst. ii. 10) ; under their super- 
 intendence marriages are contracted (App. vi. 8). They are 
 consulted as arbiters and councillors in actions at law. They 
 are employed everywhere as clerks of the court. Even the 
 office of Shir-gerefa was, in certain cases, filled by clerics^ 
 and if the ecclesiastical canons in general forbid their exercise 
 of that office, it is only a proof that such an occupation 
 was legally permissible. A privilege is accorded the clerics 
 only in the case of taking of oaths, in which the apiDlication 
 of the ordinary principles would have led to hardships ; but 
 here at the same time the special credibility of a servant 
 of God was taken into consideration. This purgation by 
 oath was regulated and facilitated by the passing of special 
 laws (Athlr. viii. 15). Of more importance than such moderate 
 favours, appears the peculiar legal jurisdiction, which was 
 formed in the interests of the Church, in causis ecclesiasticis, 
 and for clerical delinquencies. This was without detriment 
 to the secular legal jurisdiction, and only applied to the new 
 relations which arose from the ecclesiastical ordinances, 
 and which could not be considered as suitable objects for the 
 judgment of the national courts in the form they then had 
 (Edw. et G. 12 ; Cn. ii. 48, 53). Beyond this aji exemption 
 of the ecclesiastics from the secular judicial jurisdiction was 
 never established during the Anglo- Sa^^on period. (2) 
 
 _(2) As regards jurisdiction, Kemble of conducting law suits by cletics. 
 
 (ii. 378) rightly remarks that the afford a coinplete proof of their sab 
 
 numerous precautionary measures con- jection to the secular jurisdiction, as 
 
 tained in the statutes as to the manner an established principle. (He citesr 
 
 VOL. I. 
 
 \3l%^" 
 
82 Constitutional History of England. 
 
 3. The principle by which they were subjected to the secular 
 criminal jurisdiction brought the ecclesiastics also under the 
 police jurisdiction of the Crown. The duty of maintaining 
 the j)eace was extended naturally and particularly to clerics. 
 On their landed estates they were responsible for their tenants, 
 servants, and dependants, with all the strict obligations that 
 later legislation imposed for the maintenance of the peace- 
 From the system of special peace proclamations, there resulted 
 fi further co-operation of the ecclesiastical and secular 
 authorities to secure the peace of ecclesiastical persons, 
 possessions, and seasons, but this was founded upon the 
 ^a^ing's peace" (Will. i. 20). (3) 
 
 This universal interweaving of the clergy with the secular 
 community led further to their employment in the offices 
 of the middle and higher grades of the administration. In 
 the County Assembly the Bishop, Ealdorman, and Sheriff 
 preside together, but with this proviso, that matters of a 
 purely ecclesiastical character are generall}^ determined 
 separately. Under these circumstances the Bishop could also 
 take cognizance of purely secular matters, such as the 
 control over weights and measures, the rules of inheritance, 
 cind other affairs, which appear in later times in England 
 as remarkable extensions of the ecclesiastical jurisdiction. 
 
 Athlr. 18, 19 ; Athlr. viii. 19-24, 27 ; of capital offences they were to be 
 
 Cu. i. sec, 5 ; ii. sec. 41 ; Hen. i. confined in prison, until the sentence 
 
 64, sec. 8 ; 5, sec. 7 et seq. ; 57, sec. 9). of tlie Bishop had been passed (Edw. 
 
 Their endeavours to gain immunity et G. 4, sec. 2 ; Cn. ii. 43). But a 
 
 from the secular jurisdiction can be recognized ecclesiastical court is not 
 
 perceived, however, in the following found until the Norman period (Leges 
 
 points. In disputes of the clerics Will. I. sec. 4 ; Hen. i. 57, sec. 9). 
 among one another, the Church in (3) In the province of maintenance 
 
 early times insisted that the parties of the peace, the express duty was ira- 
 
 should refer the matter exclusively to posed on the Bishops of restoring order, 
 
 the ecclesiastical superior (Canon, Edg. and, in conjunction with the secular 
 
 7). The priest found guilty of murder judges, of j^reventing wrong ("Insti- 
 
 was deprived by the ecclesiastical tutes of Eccles. Polity, Thorpe, ii. 312). 
 
 authorities of his priestly consecration. The Bishops enjoy a special right of 
 
 find handed over as a layman to the asylum in analogy to that of the Ealdor- 
 
 criminal jurisdiction (Alfr. 21 ; Athlr. man. In addition to the King's 
 
 vii' 2G; Cn. ii. 41). Clerics were sub- peace the Church-peace is especially 
 
 ieet, in addition to the fines or penalties mentioned as God's command (Athlr. 
 
 of the secular authorities, to a special v. 10, 21 ; vi. 13, 2G); and is even set 
 
 Church penalty (Edw. et G. 3 ; Athlr. above the King's peace (Cn. ii. 1, sec. 
 
 viii. 27 ; Cn. ii. 5, sec. 3). In the case 1 ; App. iv. 1, 31). 
 
The Anglo-Saxon Church. 83 
 
 As the support of the ecclesiastical authorities is a duty of 
 the Shir-gerefa (Athlst. i. pr. sec. 4 ; Edg. i. 3 ; Athlr. viii. 8, 
 32 ; Cn. i. 8), so also it is made the Bishop's duty to superin- 
 tend and sujDport the Shir-gerefas. The punishments for dis- 
 obedience inflicted upon the gerefa who neglects his official 
 duties, or delivers an unjust sentence, are to he enforced by 
 the Bishop (Athlst. i. 26; Edg. iii. sec. 3). It is not clear 
 whether, and if so how far, these divided official functions, 
 which mutually acted and reacted on each other, extended 
 downwards into the Hundreds. But upwards they meet in 
 "the general National Assembly, in the appearance of the 
 Bishops and greater abbots in the Witenagemote among the 
 King's Thanes, of whom they always take precedence. 
 
 The bringing of the clerics under the duties of the com- 
 munity led immediately to ranking the clergy according to 
 the class relations of those times. As in the Anglo-Saxon 
 thaneship public duty and office combine with possession of 
 property to form a class privilege, so do they also among 
 the higher ranks of the clergy. In the civil State, property 
 leads to office ; in the ecclesiastical, office leads to ]Droperty, 
 and places the Bishops and greater abbots upon an equality 
 with the great Thanes, and the beneficed clergy with the 
 ordinary Thanes of the county. The equalization of the 
 Bishops with the Ealdormen — that is, with the highest digni- 
 taries of the civil State — was brought about with complete- 
 ness, and knew no exceptions. This was done in the 
 matter of the "Weregelt (App. vii. 2. sec. 3 ; Hen. i. G8, sec. 
 6) ; of the compensation for murder (Edw. Conf. 12, sec. 5) ; 
 of the Bishop's Borg and Mundfyrd (i^lfr. 3 ; Cn. ii. 58 ; 
 App. iv. 11) ; of the Burhbryce (Ine, 45 ; Alfr. 48) ; of the 
 gage of battle (Alfr. 15; App. iv. 12); the Bishop's right of 
 asylum (Athlst. v. 4; App. iv. 5); and the punishment for dis- 
 obedience (Hen. 35, sec. 1 ; 87, sec. 5). In the same manner 
 the position of the priest as " Mass -thane " was in word and 
 deed established by law. He is worthy of the rights and the 
 Weregelt of a Thane (Athlr. v. 9; vi. 5; viii. 28; Cn. i. 6, 
 sec. 2). The Weregelt was fixed among the northmen alike 
 
84 Constitutional History of England. 
 
 for the Mass-thane and the secular Thane at 2000 thrymsas 
 (App. vii. 2, sec. 5), and in proportion to it was the higher 
 value of the priest's oath (Wihtr. 16, 17, 18; App. vii. 2).. 
 The amount of the Weregelt, however, was a matter of 
 dispute (Dialogus Ecgb. 12; Thorpe ii. 92), the later opinion 
 being that it was decided by birth-rank (Hen. i. 68, sec. 3). 
 The lower orders of clergy had in the scheme of penalties 
 the ordinary position of the liher homo or ceorl. 
 
 The National Assembly, finally, forms the central point in 
 which the civil State becomes bound up with the ecclesiastical. 
 Under the personal direction of the King, affairs of ecclesias- 
 tical polity were here in the first place discussed mostly by 
 the Prelates exclusively; but all the secular decrees of the 
 so-called Legislature of this time were framed by Thanes and 
 Prelates in common. The profession of the Church forms 
 herein a counterpoise to the preponderating influence of 
 XDroperty. In the decrees of the National Assembly this co- 
 operation of the clergy is as perceptible in its leaning towards 
 the side of humanity, as the governing power of the kingship 
 is seen in its defence of the liberty of the subject. This 
 periodical personal meeting of the King with Prelates and 
 Thanes kept alive the idea of a final unity of civil and 
 ecclesiastical authority in human affairs. The two powers 
 strove, by harmonious co-operation, to realize the higher 
 calling of the State. The ever-renewed and ever-enlarged 
 protection which the royal power bestowed to the Church was 
 requited by the clergy by repeated admonitions to respect 
 and obedience to the sacred and inviolable person of the 
 King, '' the hallowed lieutenant of Christ," as he is called 
 in a Saxon homily, the *' Christus Domini," as an eccle- 
 siastical assembly at Cealchyth, in 785, styles him. In 
 conformity with this the secular laws regard the King as 
 Christ's representative, " Cristes gespeha " (Athlr. viii. 2, 42), 
 as the '' vicarius Sumvii Regis " (Edw. Conf. 17). Even Ine 
 of Wessex calls himself "mid Codes gife West Seaxena 
 Cyning " (Ine jDr.). On the other hand, kings, whose aim 
 was the civilization of their peo^jle, the introduction of science 
 
The Anglo-Saxon Church. 85 
 
 and art, the peace of the realm, and improvements in the 
 administration, were obliged to foster the Chm'ch and obey 
 her judgment and her counsel, as was done by ^Elfred and 
 Charlemagne.* 
 
 The Anglo-Saxon Church was certainly not a perfect ex- 
 j)ression of the doctrines of the Holy Scripture, but a form 
 of Christianity, with a strong admixture of superstition and 
 formalism. Of course the worship of saints and relics, sub- 
 mission and liberality towards the clergy, due observance of 
 imposed penances and fasts, were her chief doctrines, and for 
 these ignorance, superstition, and an evil conscience afforded 
 more scope than for any other doctrine. But the Church 
 existed, and existed as a great moral power, in a period in 
 w^hich physical strength and possession of ]3roperty were 
 almost the only recognized forces. She contained within her 
 that kind of Christianity of which the times were capable ; 
 just as the secular State embodied that idea of liberty which 
 the times could understand. This Christianity, beyond all 
 dispute, had blended together the Saxons, Angles, and Jutes 
 of the sixth century, and welded them into one peace-loving 
 and law-abiding people, had humanized their manners, en- 
 'couraged habits of industry, stamped upon all the institutions 
 of the community a milder and kindlier character, had elevated 
 the intellect, and produced in men like Bseda and Alcuin 
 
 * TliG nimiber of the clergy, espe- wardiug his brave warriors according 
 
 •daily of the inferior orders, and of the to their merits. With regard to the 
 
 monks was very great. The peaceful position of the clergy (cf. below, Cap. 
 
 inclinations of the Anglo-Saxon popu- Vl.), the amount of the Weregelt was, 
 
 lation, after they had become firmly according to the law of the northerners, 
 
 settled, and had 'devoted themselves to fixed expressly at two thousand thrym- 
 
 the industrious cultivation of the soil, sas, the same as that of the civil 
 
 the disappearance of the adventurous Thane (App. vii. 2, sec. 5), that of 
 
 spirit of enterprise, and of the prospect the Bishop and Archbishop at eight 
 
 of booty, the increasing influence and thousand and fifteen thousand thrymsas 
 
 rich possessions of the Church, at- (App. vii. 2, sees. 2, 3). As regards 
 
 tracted the lower classes in almost in- the marriage of clergy, we find even 
 
 credible yet well-authenticated numbers that of Bishop "Wilfrid (Kemble, ii. 
 
 to her service. The Venerable Bseda 383). As against the danger of the 
 
 himself allows that by the immoderate abuse and the alienation of the Church, 
 
 squandering of State property the de- the picture given by Kemble (ii. 325) 
 
 fence of the country was endangered, will apply also to this period, 
 and the King rendered incapable of re- 
 
86 Constitutional History of England. 
 
 geniuses of the first order, such as can onty arise from similar- 
 surroundings. 
 
 When, then, for two long epochs the kingdom was inundated 
 by hordes of northern ^Dirates, when the newly consolidated 
 kingdom, labouring under unspeakable distress and disorder, 
 seemed likely to succumb once more to the fate attending the 
 migration of nations, then for a second time the Church 
 accomplished a great work of conversion, which, effecting a 
 marvellous change, brought the barbarian hordes of pirates 
 into peaceable relations with the land and the people, and 
 effected, with surprising rapidity, the blending of the two 
 nations into one. 
 
 This position of the Church and her popular internal organi- 
 zation determined likewise the relation of the Anglo-Saxon 
 Church to the papal chair. The national exclusiveness which 
 is shown in the retention of the mother tongue in the Liturgy 
 and the Prayers, prevented the Pope from obtainmg any 
 considerable influence. The zealous endeavours of Wilfrid 
 brought about, indeed, a conformity in some important doc- 
 trines, but no enduring influence of the Curia upon the English 
 Church government. It was only in the times of Arch- 
 bishops Dunstan and Odo that a Piomanizing tendency sprang 
 up, in the face of the resistance of the majority of the clergy, 
 a tendency that conceded to the head of the Eoman Church 
 a supreme authority, and in certain cases put it into actual 
 l^ractice. This tendency was, in the last century of this 
 period, the prevailing one ; but more in aims than in results. 
 When the great number of Anglo-Saxon statutes is considered, 
 the close of the period can point to only a very small influence 
 exercised by the Papal Decretals. The Anglo-Saxon eccle- 
 siastical law remained a national one in a fuller measure 
 than in any other country of Europe. 
 
 Note to Chapter Y. — Cl^C l*rlatt01l which had been spread from the north 
 
 t0 ti)C Jiapal cljair had been fora long by the Scotch missionaries, did not 
 
 time but little more than one of piety, recognize the supremacy of the Bishop 
 
 combined with a respectful remem- of Eome, and the binding power of 
 
 brance of the missionary labours of councils, which he alone had convoked; 
 
 Gregory the Great and St. Augustine. and she had also other notions as ta 
 
 The British Church, on the other hand, the time of the Easter Festival, the 
 
The Anglo-Saxon Church. 
 
 87 
 
 priestly solemnization of matrimony, 
 etc. The work and influence of this 
 Chm-ch within the Heptarchy were 
 quite as significant as those of the 
 Roman Church. It was only at the 
 end of the eighth century that Wilfrid, 
 with all the spirit and energy of his 
 character, first represented the Eoman 
 primate in the Anglo-Saxon Church, 
 and in some matters, such as in the 
 celebration of the Easter Festival, 
 gained a notable victory. The Anglo- 
 iSaxon Church has to thank the restless 
 struggles of this man, carried on often 
 by objectionable means, for its adhesion 
 to the religious system of Europe, with 
 all its weighty consequences. As early 
 as the ninth century a continental 
 writer calls the English " maxime 
 fnmiliares apostoUcse sedis," and the 
 Anglo-Saxons became the most active 
 and successful of Roman missionaries. 
 But this relation ever remained merely 
 an authority at a considerable distance, 
 and one which contented itself with 
 the functions of arbiter on special oc- 
 casions, when the opinion of the Apos- 
 tolic chair was sought in consequence 
 of internal dissensions. The best 
 proofs of this are the laments which 
 from time to time the clerical profession 
 emits, that no Church was in a worse 
 state of bondage than the English 
 {vide Kemble, ii. 324). 
 
 A new epoch commences with the 
 invasions of the Danes, Once again 
 the irreconcilable hatred of the vagrant 
 warriors directed itself against the 
 peaceable settlements of the Anglo- 
 Saxons, and with especial fury against 
 the rich seats of the "lazy" monks, who 
 were held in contempt by the warriors. 
 But as the most evil days have pro- 
 duced the best Christians, the Church 
 raised itself triumphant from unutter- 
 able ruin to the work of converting the 
 Danes, who, after they had accepted 
 
 Christianity, entered into relations of 
 loyalty and fellowship with the Anglo- 
 Saxon population. With their con- 
 version not only did the selfish, faithless 
 spirit of the old worshippers of Odin 
 ajjpear to be overcome, but from the 
 midst of the Danes themselves went 
 forth the most zealous priests and the 
 highest prelates of the Anglo-Saxon 
 Church. In this period it is Dunstan 
 who, with his well-known strivings 
 after the elevation of spiritual power, 
 represents subjection to the papal see. 
 With the Danish element a new spirit 
 was also brought into ecclesiastical 
 controversies, and with characteristic 
 energy the descendants of the old 
 Yikings threw themselves into the dis- 
 putes concerning the new faith. The 
 spirit of asceticism in the progressive 
 portion of the Church is an expression 
 of the deep dissension in the national 
 spirit, which had its origin in the in- 
 vasion of the Danes, and in the growing 
 contrast between poverty and wealth. 
 It is certainly by no mere chance that, 
 two centuries after Wilfrid, not only a 
 portion of the clergy, but the secular 
 magnates also, strove eagerly for the 
 unity and power of the Church under 
 the papal primate, for the celibacy of 
 the clergy, and for the deliverance of 
 the ministers of the Church from the 
 bonds of secularism, and that these 
 aims for many years showed a party 
 tendency. The Vretched condition of 
 things which showed itself shortly after- 
 wards under yEthelred II. proves to the 
 unbiassed judgment that in Church 
 as well as in State, licentiousness, rude- 
 ness, and sensuality called aloud for 
 energetic interference. The hierar- 
 chical tendency in this period advanced 
 a step further. But the formal ad- 
 herence to the Curial system was first 
 brought about by the Norman conquest. 
 
88 Constitutional History of England. 
 
 CHAPTEK VI. 
 
 ^^t ^nglo--Sa^'ou ariass=tdations, anb \\}t ISTational 
 Assemblies. 
 
 The mutual relationship between property and the perform- 
 ance of duties to the State, which has its origin in the duties 
 we have described, forms the first basis of the English class- 
 relations. The military, legal, and police systems, and even 
 the Church, are so dependent upon the performance of duties 
 attached to property, that, so far as regards the immediate 
 claims of the community, the landless man is as good as 
 non-existent ; and the small one-hide property is only capable 
 of satisfying those claims in an incomplete and scanty manner. 
 "With the development of private property, the number of 
 subjects capable of performance of duty to the State decreases ; 
 the majority of the free-born subjects appear only capable of 
 performing such duty in the service of the propertied classes, 
 and in this sense lose their position of national independence. 
 The whole nature of landed property contains a ]progressive 
 tendency towards dependence, which continually strives after 
 a legal recognition. I proceed to show how in the Anglo- 
 Saxon period the power given by possession and the legal 
 title, arising by the performance of State services, operate 
 in the formation of classes. 
 
 1. The dependence of the landless classes upon property is 
 recognized by King and National Assembly; the kind of 
 family relations which have hitherto subsisted become State 
 relations. Attachment and fealty to the lord is seen to be 
 
Anglo-Saxon Class-relations. 89 
 
 a duty that can be enforced. To defend the lord becomes a 
 recognized right and the duty of the vassal ; treason on his 
 part against his lord becomes, like treason against the King, 
 an inexpiable offence. The oath of allegiance taken to the 
 lord is worded like that taken to the King: — " Sicut homo 
 debet esse fidelis domino siio, sine omni controversia et seditione, 
 in manifesto, in occulto, in amando quod amahit, nolendo quod 
 nolet.'' Personal service is considered a lasting necessity. 
 When a man has been slain, his lord receives the penalty as 
 a legal compensation, as the King does where independent 
 persons have been killed. The man stands under the special 
 *' peace " of his lord. And any person, too, who has a claim 
 against the man, must appeal in the first place to the lord, 
 and afterwards to the King's court. For this the lord must 
 admonish his man to fulfil his legal obligations towards third 
 parties as well as towards the State, though how far this re- 
 sponsibility for, and quasi-representation of, the man went, in 
 respect of reparation for wrong committed, and of penalties, 
 cannot be quite clearly ascertained from the passages in the 
 statutes. These principles are primarily mentioned as ap- 
 I)licable only to the personal followers, but it appears to be 
 understood that they were equally applicable to settlers upon 
 the soil, " cosaeten,'' " gehuren,'' and tenants upon mesne-land 
 (amongst whom there might be even slaves). The power of 
 arrest residing with the lord, w^as certainly extended over all 
 dwellers upon the soil of the landlord, whether they were 
 personal servants, tenants, or their belongings.* 
 
 2. The higher duties in the military and legal systems 
 led to the legal recognition of a higher class, to the notion 
 of Thaneship, the Anglo-Saxon gentry, and to further grada- 
 tions. Even before the time of ^E If red, the retinue which 
 the King and the magnates employed in the service of war, 
 
 * As to the recognition of a legal of which see Schmid, App. p. 405) 
 condition of dependence of the serving have incorrectly been brought into con- 
 classes, and those who were settled nection with the later feudal system, 
 upon granted land, compare especially Those relations of dependence are still 
 K. Maurer, "Krit. Zeitschrift," ii. pp. regarded as personal, and may be com- 
 331-365. The purely personal oaths pared with the modern regulations for 
 of the Saxon period (for the Formula menial servants. 
 
90 Constitutional History of England, 
 
 and appointed to the royal military offices, are distinguished 
 in the ranks of the Ceorls, as a more honoured class. Whether 
 the Thane was a landed proprietor, or only a grantee of folk- 
 land, or land held of a superior, or whether he obtained his 
 subsistence only in the royal household, military honour and 
 the expensive service of the heavy-armed soldier caused the 
 whole class of Thanes to stand higher in the social scale than 
 the ]30Ssessors of one hide, and the landless man. The higher 
 character of the services performed appears now as a sufficient 
 reason for the higher legal status of the man in the scale of 
 punishment, in giving credible evidence, and in participation 
 in legal j)roceedings. The immediate standard for estimating 
 a man's worth is the w^eregeld, which has been fixed in a pro- 
 portion of two hundred shillings to twelve hundred ; that is,, 
 it places the Thane six times as high as the ordinary free 
 man. Among the North Angles the scale is as 266 thrymsas 
 (= 200 shillings) to 2000 thrymsas. The last-named sum 
 is doubled for the gerefa, and doubled again for the Ealdorman 
 or the Bishop. 
 
 But since under Alfred and his successors every estate of 
 fiYQ hides is reckoned in the militia system as one heavy- 
 armed man, the rank of a Thane becomes the right (as such) 
 of the possessor cf five hides ; and the dignity of Thane 
 is an accumulation of rank and possession, service and office, 
 like the later title of the Barones, Where two degrees of 
 the higher rank occur, as a twelve hundred man (thane) 
 'and six hundred man (gesithcundman), the former may 
 denote the man bound to military service with an estate of 
 five hides, the latter the warrior without such free posses- 
 sions. The fine or compensation which the King, or the lord 
 of a murdered man receives, is graduated in a similar manner 
 (thirty, eighty, or an hundred and twenty shillings). In the 
 same manner was calculated the protection of the house-right 
 where the peace of the township has been infringed (five, 
 fifteen, or thirty shillings, and in the case of a bishop sixty, 
 and archbishop ninety shillings). Analogous again are the 
 fines for violating chastity and the munditim of widows .. 
 
Anglo-Saxon Class-relations. 9 1 
 
 As the whole legal system of this period primarily rests upon 
 the legal protection which is afforded by fines, the higher 
 rate of compensation being invariably a recognition of a higher 
 class privilege. Where landed property has become a con- 
 dition precedent to performance of service to the State, a 
 larger property becomes a title to a higher position in the 
 community. And where a higher standard for the normal 
 performance has been fixed, the smaller freeborn man, on 
 the other hand, no longer appears as a "full man." The 
 majority of the freeborn sink down to incomplete subjects in 
 respect of the community — to a lower class. The primitive 
 origin of this maxim in the practice of the national courts 
 proves that we are here concerned with legal conceptions.*"^ 
 
 3. From the co-operation of both these conditions the 
 notion of territorial lordships is developed. The master and 
 landlord was in possession of the actual power to dismiss his 
 gesith, and deprive his tenants of the land they held from 
 him. From this position of authority follows de facto the 
 right of the lord to decide disputes among his gesith and 
 tenants. An a^Dpeal to the King's court against the will of 
 the lord, would have immediately jeopardized the economic 
 position of the ''man." But the claims of third parties 
 also were first to be brought before the lord ; in fact, they 
 were generally settled through his mediation. That portion 
 of the fine (wite) which is paid by independent persons 
 
 ** The gradations of classes accord- been miicli dispute as to the position of 
 
 ing to the weregeld, the application of the " syxhynde man," who in Wessex 
 
 similar gradations to the whole system occupies a middle place between the 
 
 of penalties and to the value of the " twelfhyndeman " and the " ceorl," and 
 
 corroborating oath, is common to Anglo- appears also later to be identical with 
 
 Saxon law and to the national laws on the " gesithcundman." Apparently this 
 
 the continent. But the wide and early intermediate grade did not maintain 
 
 inequality in property is seen among itself long. (See Schmid, Gloss, v. 
 
 the Anglo-Saxons in the gi'eat distance Gesith and Thegn : Maurer, Krit. Zeit- 
 
 between the classes (two hundred to schrift, ii. 60,62, 396, 510; Lappen- 
 
 twelve hundred shillings, for instance) ; berg, i. 569-573.) In conclusion I may 
 
 whilst on the continent the contrasts generally refer to the well-known 
 
 are proportionately less. The normal maxims of tlie German popular laws, 
 
 standard of two hundred shillings for and to the digest of them in Lappen- 
 
 the ceorl (as equivalent to the twyhynde berg, i. p. 601 et seq. .- Schmid, Glossa- 
 
 man) is found at first in Alfred, x. 18, rium ; and K. Maurer, Ueber das 
 
 sees. 1, 2, 29, 39, 40, and later as a W^esen des altesten deutschen Adels, 
 
 tolerably uniform standard. There has (Munich, 1846), pp. 123-198. 
 
92 Constitutional History of England. 
 
 to the royal sheriff, falls in this case to the lord, as an 
 analogous recognition of his rights as a mediator. When 
 thereupon the extended responsibility of the lord for all the 
 settlers on his soil became added, police duties brought with 
 them corresponding police rights, and responsibility for his 
 *' man " (for which again the lord himself was allowed to de- 
 mand security) led to a right of arrest and other preventive 
 measures. Through the recognition of the State, there arose 
 out of a domestic *' imperium'' a ^'jurisdictio,'' which was 
 the real and effectual court of law for the dependants. As 
 the power of these magnates increased, further royal privileges 
 passed gradually to the territorial lordships ; and from the 
 time of Cnut even an inferior criminal jurisdiction. Where 
 within such close lordships free allodial peasants were still 
 found scattered as settlers, there was at last practically no 
 other way of subjecting them also to the lord's court, than by 
 royal grant. (Cod. Dipl. No. 902.) Now when we consider 
 that the greatest landlords possessed, in the person of their 
 armed followers, effectual means for the maintenance of the 
 peace in their immediate neighbourhood, and that their 
 powers as landlords and masters and their legal and police 
 jurisdiction became more interwoven in each succeeding gene- 
 ration, there were present here the germs of a system of small 
 states, analogous to those on the continent. The great lord- 
 ships with their numerous magistrates now ranked alongside 
 the Hundreds. Nominally, indeed, the county jurisdiction 
 includes in itself all these lordships, but in the face of a 
 <3ompact " saca ct soca'' the interference of the Shir-gerefa 
 was now merely an excejDtion, and a royal reservation.*** 
 Through the effect of this legislation the classes which have 
 
 *** As to tlie importance of the Gloss, v. socn.) The blending of those 
 Anglo-Saxon landlordism, seethe essay economic and legal conditions was so 
 •of Zopfl, " Alterthiimei- des deutschen unavoidable that even the powerful 
 Eeiches und Reclits," vol. i. No. v. personal iniinence of Cnut could not 
 pp. 170-211, in which, however, the change anything therein, and it is 
 analogies drawn with the state of since Cnut's time that the royal 
 affairs on the continent are to be used rights of sovereignty appear mere 
 witli caution. (See further the well- reservations in reference to the lord- 
 grounded treatise of K. Maurer, ii. ships. (Cu. i. cap. 12.) 
 pp. 49-56 ; Lappenberg, i. 572 ; Schmid, 
 
Anglo-Saxon Class-relations. 93 
 
 been formed by the varying scale of property appear now also 
 in a legal gradation of ranks, which afford numerous parallels 
 to the class-formations of the continent.**** 
 
 In the first class are the great Thanes, i.e. the owners 
 of great lordships, and with armed followers. "We gather 
 from the records, as also from the nature of the case, that 
 their number was small, and may be compared with that of 
 the later " haroncs majores.'' They are, as a rule, distinguish- 
 able by the exercise of a separate jurisdiction " saca et soca'' 
 to the extent of a Hundred Court. According to a passage in the 
 Chronicum Eliensc, an estate of about forty hides was in those 
 days regarded as the minimum of landed property for such 
 a great Thane. They fill the high offices of State, and the 
 secular dignities of Ealdormen, and appear as the actual 
 leaders of armed retinues. But the incompleteness of this 
 class privilege is demonstrated by the fact that in regard to 
 their Weregeld they are twelf-hyndemen, like the smaller 
 Thanes, and only have a higher Were in their capacity as 
 Ealdormen, or by virtue of some special official dignity. On 
 a par with them stand in the ecclesiastical hierarchy the 
 Bishops and certain great abbots, but the Bishops, raised both 
 by dignity and property, stand on a high-er grade of Were than 
 the other Thanes. (1) 
 
 **** On the Anglo-Saxon class dis- tion of the tribunals is concerned, is 
 
 tinctions, which result from this com- (if certain grants be excepted) not 
 
 bination, there is a comprehensive different from the saca et soca of an 
 
 monograph by Saml. Heywood, " Dis- ordinary Thane over a single estate, 
 
 sertation upon the Distinction in The inheritance of an Ealdorman's 
 
 Society and Eanks of the People under dignity is (with perhaps the exception 
 
 the Anglo-Saxon Government," (Lon- of the county of Cheshire) only an 
 
 don, 1818, 8vo); c/. Hallam, "Middle actual and not a legally recognized 
 
 Ages," app. iii. ; K. Maurer, " Ueber institution. Even at the close of this 
 
 das "Wesen des altesten deutschen Anglo-Saxon period, in the family of 
 
 Adels" (Munich, 1846), pp. 123-196; the Majordomus Godwine there is as 
 
 and " Krit. Zeitschr." ii. 415, 31 ; ii. yet no inheritable dignity to be dis- 
 
 30-68, 388, et seq. ; Kemble, " Anglo- covered. The troublous times that fol- 
 
 Saxons," c. 7 ; Stubbs, " Const. His- lowed, especially the Danish struggles, 
 
 tory," i. c. 8. were in this particular also favourable 
 
 (1) The position of the secular to the aristocratic element. The 
 
 great Thanes in the civil gradation of reason why the Danish period leaves 
 
 the "Weregeld and the legal compensa- behind it in the constitution so few 
 
 tion is not different from that of the traces, is that it brought about only 
 
 class beneath them. In like manner a partial alteration in tlie persons of 
 
 their lordship (saca et soca) over a the Thanes, and a local colonization, 
 greater district, so far as the constitu- 
 
94 
 
 Constitutional History of England. 
 
 A middle rank (to a certain extent the '' middle class " of 
 the period) is formed by the thousands of " comity Thanes," 
 possessors of more than ^nq hides of land and of martial 
 retinues (twelf-hyndemen and six-hyndemen). The first 
 named, as Witan, constitute the regular County Assembly, 
 and, where they are numerous enough, the Hundred Court 
 also. 
 
 The appointment of Thanes to royal offices is, moreover, so 
 much a matter of course, that the term Thane is used promis- 
 cuously to denote a royal officer, royal warrior, and a greater 
 landowner. Outside the ecclesiastical hierarchy the ordained 
 priests are included in this class as *' Mass-thanes," whose 
 Weregeld was, however, in later times, variously determined 
 according to their birth-rank (Leges Hen. i. c. 68). (2) 
 
 The third class is formed by the smaller landowners, who 
 still form an active element of the Hundred Court. Next 
 
 (2) As to the position of the county 
 Thanes, see Schmid (Glossar., pp. G64- 
 668). The apparently unsurmountable 
 difiSculties are solved by the later form 
 of the militia, which after Alfred's 
 days includes (1) the possessors of five 
 hides, as such, (2) the heavy-armed 
 vassals in the service of the King or 
 of a great landowner independently of 
 their own freeholds ; and again by the 
 fact that the state and court offices in 
 the household of the King, and of the 
 magnates, are at the same time mili- 
 tary offices. Tlianeship is accordingly 
 a mixture of the conditions of pro- 
 perty, of a military profession, and of 
 an office, for whicli the general appel- 
 lation Thane is as suitable an expres- 
 sion as the later word '' J5aro." This 
 denotation of the "Men" embraces to a 
 certain extent the full active citizen- 
 ship of the times. Hence, and from 
 other sources, the express mention of 
 " Thanes without land of their own " 
 (Athelstan, vi. 11; c/. In. 45, 51) is 
 readily accounted for, as well as the 
 various mention of Thaini without pos- 
 session or with very small possessions, 
 in the Domesday Book. 
 
 Thehalf-developedhereditary quality 
 of Thauehood is further accounted for, 
 which, so far as it was dependent upon 
 jjroperty, was a matter of course, but 
 
 so far as it was dependent upon mili- 
 tary vassalage was as yet in the begin- 
 ning of its develoi^ment. The idea of 
 a ruling class is shown in the fact that 
 the ceorl no longer becomes at once 
 a Thane from the mere acquisition of 
 five hides, but only " when he has a 
 church and a kitchen, a bellhouse and 
 a seat in the castle gate and a special 
 office (sunder-note) in the King's hall " 
 (Schmid, app. v. Of secular rank, sec. 
 2). On the other hand, in the essay 
 upon Weregeld (cap. ii.) possession 
 alone seems to be indicated as a con- 
 dition precedent : " And when a ceorl 
 comes to have five hides of land for 
 the King's array, and he be slain, let 
 him be compensated for two thousand 
 thrymsas" (sec. 9). "And if he even 
 comes to have helmet and armour and 
 a sword inlaid with gold, if lie has no 
 land he is still a ceorl (according to 
 Lambard's text — " although he has not 
 the land, he is still sithcund ") (sec. 
 10). These stages of transition and 
 mixed conditions occur also in the de- 
 velopment of the lower nobility uj^ou 
 the Continent. An express mention of 
 the fact that Thanes could have other 
 Thanes as "vassals," is to be found in 
 the treatise upon the secular ranks 
 (Schmid, app. v. sec. 3 ; cf. Edg. ii. 3 ; 
 Athlr. viii. 8; Cn. 1. a. e. ii. 32, sec. 1). 
 
Anglo-Saxon Class-relations, 95 
 
 to these come, infra classem, the landless people, who were 
 in the service of the household, or settled upon a lord's lands 
 and forced hy law to put themselves under the *' peace- 
 security" of a Thane, or of a tithing-confederacy. They are 
 all Uhcri Jiomines, but only in a technical sense, in contrast 
 to the serfs. They still perform military services, but mostly 
 in the train of greater proprietors ; whilst the common military 
 duty of the small proprietors exists chiefly in name and in 
 case of need. From these common characteristics the whole 
 class in the later Anglo- Saxon period is comprehended under 
 the term ceorls. On account of the normal Weregeld of two 
 hundred shillings they are called ''twyhyndemen." And here 
 it is especially characteristic of England that the general 
 dependence of the lower classes upon great landed proprietor- 
 ships does not, as in France, rest upon the " seniorat " {i.e. 
 the recognized representation of the small man in the matter 
 of military burdens by the greater landed estates), but upon 
 the police protection of the Hlaford over all the settlers on 
 his soil. The comparative neglect of the military system 
 had already in those daj's caused the class distinctions to be 
 determined more by the police than by the military constitu- 
 tion, and gave the aristocracy more the political position 
 of police magistrates than of " seigneurs " in the continental 
 sense of the term. (3) 
 
 These class-gradations are regulated by quasi-mutual 
 ^engagements, partly by property and partly by profession. 
 
 (3) The position of the free ceorl wrongly denied ; Kemble, for instance, 
 is now only connected with political falls into the fundamental error of 
 rights by the fact that the ceorl may regarding all civil dependence as 
 perform the duties of a judge in the " slavery." The ceorl has his were- 
 Hundred Court, where local circum- geld in his own right, is capable of 
 stances permit. In other respects the bearing arms, of possessing freehold 
 mass of the ceorls have ah-eady sunk property, and also of rising to a higher 
 to the position of passive members of rank by the acquisition of a five-hide 
 the State. So much the more are the estate. The later law of settlement 
 landless men, Welshmen, the freed- certainly binds the mass of tlie labour- 
 men, and the villeins infra classem. ing classes de facto to the soil, with- 
 (See Stubbs, Const. Hist., "i. 80.) The out on that account creating slavery in 
 whole of the third rank, as regards its a legal sense. But it is certainly true 
 political importance, at the close of the that the name of the ceorl had a 
 period is dying out. But the civil somewhat contemptible secondary sig- 
 freedom of the ceorl at the close of the nification. 
 Saxon period has been frequently and 
 
96 Constitutional History of England, 
 
 Like property, they too are inheritable by birth, and with each 
 generation approach nearer to the character of birth-ranks. 
 The great offices and prelates' x)laces are not inheritable : but 
 as a matter of fact they are, under ordinary circumstances, 
 regranted to the heir of the great Thane. The lesser Thanes 
 appear in still greater numbers as hereditary classes through 
 property and the entrance of their sons into the same relation 
 of service; the sons also have ''Thane-right" even before 
 they succeed to the paternal possessions. This hereditary 
 division into grades affected most the ceorls in their low posi- 
 tion, which was becoming by degrees almost despised. In 
 contradistinction to the ceorls, the higher and politically influ- 
 ential classes are grouped together as ''eorls." And already 
 expressions appear signifying hereditability, as " ceorliscman," 
 *' ceorlborn," *' thegenborn," '* ethelborn." In considering 
 these class-distinctions two views are met with ; the some- 
 what older of the two regards the ordinary freeman as the 
 normal basis of the State, and the higher class as an increase 
 of honour. After Cnut's day, on the other hand, the Thane 
 is looked upon as the liberalis homo properly speaking, in 
 contradistinction to whom the ceorl is described as ilUheralis 
 (Leges Cnuti, iii. 21, 25), without intending thereby to call 
 in question the ceorl's character of freedom as regards civil 
 rights. Compared to the liheralis homo the Thane thus 
 again appears as liberalior. And beyond all dispute in this 
 lies the bright side of the Anglo-Saxon foundations. It was 
 the Church which left it open to all classes to mount up, as 
 their right, to the highest dignities in the land. But in the 
 secular state also the right to rise into the higher ranks was 
 kept oi^en to all. Firstly, in the case of the hereditary servant, 
 by the laws relating to emancipation. In the case of Welsh- 
 men by a law enacting that a stranger also should rank as a 
 Thane, if he possessed five hides of land. In the case of the 
 ceorl, by a law that he also gained Thane-right on the acquisi- 
 tion of five hides of land, etc. A merchant was to rank as 
 a Thane if he had thrice crossed the seas. By royal grant 
 of a high office (and the consequent endowment with an 
 
Anglo-Saxon Class-relations. 
 
 97 
 
 estate), the ordinary Thane might rise up to be a King's Thane 
 and an Earl. As at the Carlovingian Court, here also court 
 offices were the direct way of putting new families on an 
 equality with older ones ; with regard to this the laws say, 
 ''let it be an incitement to worthy deeds that through God's 
 grace a slavish villein can become a Thane, and a ceorl an 
 Eorl, in the same way that a singing man can become a 
 Priest, and a clerk a Bishop." 
 
 The elements of property that have hitherto been described, 
 and their gradations according to legally recognized classes, 
 when taken together, show the possible participation of the 
 people in the collective will, and the political constitution of 
 the Anglo-Saxon state. But this national representation dis- 
 plays, in the following degrees, the same stages of development, 
 by which on the continent the original popular assemblies of 
 the German! were transformed into the later assemblies of the 
 
 opti mates. 
 
 * According to the testimony of 
 Tacitus there was among the Germani 
 a time during which the service for 
 the army and duties in the law court 
 were, as an established principle, the 
 same for every freeman, and conse- 
 quently the deliberation on matters of 
 common interest was participated in 
 by all the freemen under equal con- 
 ditions. Among the small tribes the 
 great judicial assembly naturally be- 
 came identical with this deliberation 
 on common matters. But this condi- 
 tion of things must necessarily change, 
 so soon as a number of small con- 
 federations united and formed a larger 
 community, which soon began to occur 
 in consequence of common warlike ex- 
 peditions and common defence of terri- 
 tory. The great undertakings of the 
 national migrations which were de- 
 pendent upon joint operations of war 
 on a very large scale, must have been 
 preceded by numerous combinations 
 forming greater confederacies. As a 
 rule these greater unions were based 
 only upon the recognition of a common 
 leader in war and upon a council formed 
 by the chieftains of the individual 
 tribes for the time being. A blending 
 
 VOL. I. 
 
 together of the sub-tribes to form a 
 common legislative assembly was for 
 local reasons as yet impracticable, and 
 presupposed a closer union than was 
 aspired to anywhere. Hence, in the 
 whole range of authentic history we 
 find only a single mention of such a 
 joint parliament among the Saxons on 
 the continent, in which thirty-six de- 
 puties (twelve each from Eastphalia, 
 from Engern, and from Westphalia) 
 took part. (Ex Vita S. Lebuini auctore 
 Hucbaldo Elnonensi. Pertz, ii. 861.) 
 Among the Anglo-Saxons a republican 
 assembly of delegates of such a descrip- 
 tion could not originate in the same 
 manner. Their expeditions in search 
 of conquest were from the first^ de- 
 pendent upon a permanent position 
 accorded to the minor chieftains. 
 Hence the early origin of hereditary 
 principalities, which, after endless 
 struggles, submit themselves to greater 
 kings and after Ecgberht (821) and 
 Eadward the Elder to one king, under 
 whom, however, the special National 
 Assemblies of each of the former 
 separate kingdoms live on for a long 
 time. But it is only after the time of 
 Eadward the Elder that the periodical 
 
98 Constitutional History of England. 
 
 (1) The oldest form of the popular assembly is a consequence 
 of the fundamental Germanic idea of law and law-courts, 
 according to which the mere ordinances of the magistrate 
 could not alter the customary law established by tradition 
 (i.e. the traditional procedures in civil and criminal law), 
 being as they were rights inherent in every free-born man. 
 This conception and the constitution of the tribunals act and 
 react upon each other; as justice is dealt by free fellow-men, 
 no despotic command from without can compel the judges to 
 swerve from the legal usage. To effect a change in the lex 
 terrse, the higher authority of the whole people must be 
 required to induce the judges to accept the new law. In this 
 sphere the German regarded those in authority over him 
 merely as the head of a decreeing assembly. 
 
 (2) This original basis of a legislative assembly becomes 
 modified, shortly after the settlement of the tribes, by the 
 influence of property. The regular military service, as well 
 as the practice of judging in the courts, gradually becomes 
 concentrated in the middle and upper classes of landowners. 
 As the result of their usual independent activity in military 
 and legal matters, participation is confined in a narrower circle 
 to the Witan, the boni, probi, legales homines as they are termed 
 in the Latin official language, before whom the smaller 
 common freemen recede into the position of mere bystanders. 
 It is the habit of activity in details, which nourishes the 
 interest and establishes a higher right to participate in action 
 for the common good. Shortly after the migration of nations 
 popular assemblies even of smaller tribes appear everywhere 
 to be essentially assemblies of the " boni liomines,'' who, under 
 various national appellations, form not the whole, but yet the 
 leading element of the assembly. 
 
 (3) With the union of the smaller tribes (civitates) into 
 greater confederacies and kingdoms (such as Franks, Goths, 
 etc.), the general popular assemblies altogether cease. Assem- 
 
 existence of united parliaments of the are found rather in the monarchy of 
 Optimates is in any measure authenti- Charlemagne, 
 cated. The analogies applicable here 
 
Anglo-Saxon Class-relations. 09 
 
 blies of such a description would for geographical and econo- 
 mical reasons, owing to the mode of communication and 
 travelling in those days, have been utterly impracticable, and, 
 as a fact, never did exist. The representation of the collective 
 people by the "honi homines" was accordingly limited to a 
 narrower circle of *' meliores seu optimates terrse,"" who included 
 the most eminent members of the army, the Law Courts and 
 the Church. 
 
 (4) Hand in hand with the ever increasing power of j)roperty, 
 the hereditary family kingship comes into being, as the head 
 of the concilicum optimatiim described above. But to the king- 
 ship falls not only the right of fixing the place and time of the 
 Assembly, but also that of its inseparable incident, the personal 
 summons of the meliores terrse. In this, due regard was paid 
 both to ancestral dignity and also to the objects of deliberation 
 on military, legal, and ecclesiastical affairs, for which their 
 ready co-operation was essential. The popular Assembly has 
 now become the " Consilium Regis,'" the King, the "arbiter'^ 
 as to the persons to be summoned; in which functions the 
 influence of those who were customarily summoned, and 
 the effectual result of the deliberation, materially limited 
 the exercise of choice. It certainly was understood that be- 
 yond the circle of those specially summoned, persons residing 
 in the neighbourhood, and when the militia was called out, 
 those summoned to compose it, and in coronation and court 
 festivities a still larger circle, should participate, not as 
 equally privileged members of the consilium, but merely as 
 " bystanders." Only when the continuous line of the family 
 kingship was broken, or when the kingship showed itself in- 
 capable, or fell into dissension owing to usurpation, a right 
 of wider circles to join in deliberation revived as a reserved 
 right of the collective people. 
 
 Such was also the course of the Anglo-Saxon folk-motes ; 
 after the union into larger kingdoms the National Assemblies 
 (concilia) are gathered round the person of the King. In the 
 smallest kingdoms, as in Kent, the ordinary Law Court 
 Assemblies remained identical with the popular Assembly. In 
 
100 Constitutional History of England, 
 
 the larger kingdoms, the National Assembly could only include a 
 narrower circle of " meliores terrse.'" In a still greater measure 
 was this the case after the union of the so-called Heptarchy. 
 It was then the King's right not merely to fix the place, but 
 to personally summon the '* optimates terrse,'" according to the 
 purpose of their deliberation, touching common war opera- 
 tions, common institutions or changes in the military and 
 legal system, or in the Church. Common regulations as to 
 the militia and operations of war were necessarily deliberated 
 upon with the leaders. The leadership which was acquired 
 by ownership of land is now lodged in the great Thanes, who 
 with their numerous armed retinues form the active army. 
 The legal leadership is based on the of&ce of the Ealdorman 
 appointed by the King from among the great Thanes. From 
 this point of view the Ealdormen and the other great Thanes 
 were to be summoned to attend the National Assembly, as 
 well as those Thanes who had been appointed to command 
 in consequence of their military experience. 
 
 Common alterations and changes in the lex terrce and 
 the legal system were necessarily discussed with those who 
 habitually presided in the tribunals. These are again, the 
 Ealdormen appointed by the King, and with them the Shir- 
 gerefas ; the great Thanes also, apart from these offices, as 
 having special courts of their own over their own people. 
 Since the diminished influence of the military element the 
 legal system mainly influenced the constitution, and the term 
 "Witan" {Juristor, Ilechtskundige) from this point of view 
 is regularly used to denote the members of the National 
 Assembly. 
 
 Upon ecclesiastical affairs those were necessarily consulted 
 whose province is doctrine and the cure of souls. These were 
 the Bishops appointed by the King, and when great monasteries 
 sprang up, certain abbots with them. The great landed pro- 
 j)erty of the Prelates put them upon an equality with the 
 great Thanes, and, coupled with their ecclesiastical dignity, 
 gave them the first place. From the nature of its organiza- 
 tion the Church is less connected with the individual county 
 
Anglo-Saoaon Class-relations, 101 
 
 assemblies than with the central national assemblies, where 
 the ecclesiastical influence becomes concentrated, and the 
 spiritual and temporal estates are bound together. The 
 hand of the clergy is distinctly visible in the numerous de- 
 crees for moderating class-privileges. Ecclesiastical matters 
 are discussed in the first instance, and as a rule exclusively, 
 by the prelates.** 
 
 These premises are corroborated by all the accounts touch- 
 ing Anglo-Saxon national assemblies, which after the time of 
 Eadward the Elder appear in great numbers. The Witen- 
 agemotes are formed out of the prominent elements in 
 army, court, and Church. They meet from time to time, 
 to settle the disputes between the various elements in the 
 community, and to discuss and enact in common the most 
 important measures for the present and the future. The 
 summoning of the members takes place by royal writ. But 
 as an acknowledged capital did not exist for the customary 
 place of assembly, the King determines such place of meeting, 
 varying his choice extensively, according to time and circum- 
 stances — which necessitate a call by express summons. As 
 property is a condition of all the chief positions in the 
 Commonwealth (with this difference, that in the secular con- 
 
 ** Particulars as to 147 W^itenage- putes between powerful Thanes and 
 
 motes from the year 698 to 1066 are prelates, and popular grievances of 
 
 given by Kemble, vol. i. pp. 207-230. all sorts, especially complaints of the 
 
 Tlie name Witenagemote is a conven- denial of justice. The Witenagemote 
 
 tional one. In the records they were is not so much a Court of Appeal as 
 
 styled, like all the Saxon Law Court a supplementary resource for those 
 
 Assemblies, gemotes, "Co?7i»?iine co?2Ci- who were unable to obtain justice in 
 
 Hum, curia magna, assisa generalis, the county. The enacting character 
 
 placitum universi populi, placituvi om- of the Assembly is expressed in 
 
 Ilium liberorum et hominum," etc. The the style : — " (Ina) per commune conci- 
 
 subjects for deliberation included, as Hum et assensum omnium episcoporum 
 
 we see from the extant Anglo-Saxon et principum, comitum, et omnium sa- 
 
 laws, decrees as to war and peace, and pientum et populorum totius regni;" 
 
 resolutions as to the legal system, but ^' Edgardus rex consilio sapientum;" 
 
 especially as to the maintenance of the ^^ sapientes consilio regis AtJielstani in- 
 
 peace, and police regulations. In addi- stituerunt,'" " Rex Edmundus et episcopi 
 
 tion to these, we have the separate sui cum sapientibus const itnerunt" Its 
 
 group of ecclesiastical atfairs. The consent is expressly mentioned in the 
 
 recorded decrees of course form only conclusion of contracts, summoning 
 
 the portion which appeared to be of the army, in ecclesias^tical ordinances, 
 
 permanent importance. The current but most frequently in the allodifica- 
 
 business included settlement of dis- tion of Folkland. 
 
102 Constitutional History of England. 
 
 stitution property leads to office, and in the ecclesiastical 
 constitution office to property), a representation of property 
 is also inherent in the Assembly ; but not of bare possession, 
 but of iDroperty according to the duties it performed to the 
 State ; of property in proportion as it effectually fulfils civil 
 functions. And therefore it is that we find no trace of elected 
 members; for neither in the army, the tribunals, nor the 
 Church is the principle of election, in the modern sense, 
 applied. No trace occurs of a special representation of the 
 cities, since they have no independent existence, either for 
 the tribunals, the army, or the Church, but are absorbed in the 
 county. No trace is visible of the representation of manors as 
 such ; for the great Thanes actually form for the purpose of 
 the militia their own divisions, and in the legal system their 
 own manorial courts ; but military and legal duties are still 
 legally incumbent upon the individual under Thanes. Hence 
 we find also no trace of a recognized hereditary nobility, 
 neither a higher one for the great Thanes, nor a lower one 
 for the other Thanes ; but an actual inheritance of jDroperty 
 and influence, which both actually and in the common per- 
 ception must begin to appear like a "birth rank." *** 
 
 *** As to the component parts of brought with them a numerous train 
 
 the Wltenagemote, the signatures of of Thanes, priests, and others. The 
 
 the decrees which have been preserved ascendency of the Bishops and the 
 
 to us, give authentic information. They great Thanes silenced the voice of the 
 
 begin generally with the names of the freemen and the retinue. Only ^vhere 
 
 roj^al family and the bishops ; then a new King was to be acknowledged, 
 
 follow those of some lyrincipes, duces, was the acclamation or dissatisfaction 
 
 and court officials, i.e. Eaklormen, and of the bystanders regarded as of any 
 
 other great Thanes. Then those of moment, and this was a reminiscence 
 
 '''■ milites" i.e. Thanes, thirty, forty, or of old times. An elective principle 
 
 more in number, who have received a exists only among the subordinate 
 
 writ of summons. The greatest number splieres. In all the important offices, 
 
 of signatures that has been hitherto on the one side the needs of army, 
 
 discovered amounts to one hundred and law courts, and Church, for an exten- 
 
 six ; frequently we meet with numbers sive political system, have established 
 
 between ninety and a hundred; and the principle of royal appointments, 
 
 more frequently smaller numbers occur and on the other side the social law 
 
 down to twenty and less; in connec- prevails, which modifies the over- 
 
 tion with which we must particularly weening power of property by royal ap- 
 
 observe that very often special assem- pointnieut, without which the offices, 
 
 blies were holden for the ancient divi- as on the continent, would have been 
 
 sious of the kingdom. As in the case appropria-ted to themselves by the 
 
 of the county assemblies there were magnates on account; of their property, 
 
 also bystanders. The "men" of the The judgment of Palgrave (vol. i. 118) 
 
 county were nearly always present, and is historically correct, 
 still more regularly the magnates 
 
Anglo-Saxon Class-relations. 103 
 
 The indefiniteness of these conditions and the intermingling 
 of later institutions has attached various fictions to the Saxon 
 Witenagemote. Sometimes it is described as a House of 
 Lords, sometimes as a House of Commons, and at any rate 
 as a legislative and tax-granting assembly. As a matter of 
 fact, it was neither of the first two, nor was it, again, in the 
 later sense of the term, a tax-granting body; it was rather 
 a Consilium Regis, formed out of the leading elements m 
 the army, in the law court, and in the Church, a representa- 
 tion, so to speak, of the masses of property according as they 
 actually fulfil their political functions. But the decided 
 ascendency of the great Thanes in these assemblies is un- 
 mistakable, and this ascendency compels the weaker kings 
 to fill the great offices according to their advice, and to enact 
 the most important measures according to their counsel. This 
 appears the more distinctly, as with the decay of the common 
 military array, the armed force becomes concentrated in the 
 great Thanes and their skilled soldiery. The counterpoise 
 which the ecclesiastical constitution at first afforded, after- 
 wards loses its power. Especially after the conversion of the 
 Danes to Christianity, the prelates' sees pass even more com- 
 pletely to members of the same distinguished families, which 
 on the secular side of the State dominate as great Thanes. 
 Persons and tendencies became on both sides more homo- 
 geneous. In the aimless confusion of the political system 
 under ^thelred, this aristocratic character of the constitution 
 becomes established ; under Cnut it is an accomplished fact ; 
 under Eadward the Confessor the highest dignity in the realm 
 is but a shadow kingship. 
 
104 Constitutional History of Eiigland. 
 
 CHAPTEE VII. 
 ^6£ ^ccaD anb jfall of t^^ ^nalo-^axon BfnQtom. 
 
 State and Church should knit together what society sepa- 
 rates. The vital strength of a political system is there- 
 fore to be measured according to the antipathies which it has 
 been able to surmount. These were in England less antago- 
 nistic than those which the dangerous soil of the Eoman 
 provinces presented to the Germanic settlers : yet the Saxons, 
 Angles, and Jutes, had also to struggle on the British Isle 
 with considerable national, social, and ecclesiastical discord- 
 ances, over which at last they were unable to gain the 
 mastery. 
 
 I. As a national antipatjbg that of the Keltic-British element 
 was first to be overcome. The barbarous warfare of the early 
 centuries had partially annihilated the Eomanized Britons, 
 i3artially ousted and driven them back, but to some extent 
 had also incorporated them. The haughty conquerors now 
 called them "the strangers," "waelen." The formation of 
 the English language, in which many words relating to 
 domestic life and the occupations of women are of British 
 origin, proves that the Saxon settlers also took to themselves 
 native women for wives, without giving up their own stronger 
 tribal peculiarities; a certain number of the Britons were 
 also kept as servants. Where the Germanic settlements were 
 only partially able to people the district, even British land- 
 owners remained in possession of their peasant farms, or at 
 least retained a holding on granted land. The incorporation 
 of British provinces in the. Christian times was brought about 
 
The Decay and Fall of the Anglo-Saxon Kingdom. 105 
 
 generally under better conditions. Later times recognized 
 even a higher class-privilege in the case of " waelen " pos- 
 sessing five hides of land. Christianity, and a life led side 
 by side for centuries, triumphed over national animosity. A 
 consequence of this intermingling, however, was that in the 
 great province of Mercia, the Germanic nationality could 
 not form its political system with the same uniformity and 
 durability as elsewhere. 
 
 A further antipathy arose from the tribal diversities existing 
 among the Germanic settlers themselves. Angles, Saxons, 
 and Jutes originally hardly differed in their language, their 
 law, and their customs. But the contrasts became somewhat 
 more sharply defined, after the individual chieftains with their 
 followers and soldiery had formed small states upon their 
 own possessions. For more than two centuries the so-called 
 Heptarchy displays a picture of a struggle full of vicissitudes, 
 in which the chronicles mention not less than a hundred 
 battles and campaigns ; in consequence of which the more 
 peaceable small states became subject to the three larger and 
 more warlike ones. It was highly important in this crisis 
 that as early as the end of the seventh century, the larger 
 portion of the Anglo-Saxon Church should have become 
 united under Archbishop Theodore. After the ecclesiastical 
 unity had worked powerfully for a century and a half, and 
 prepared the way for political unity, the country, at all events 
 as far as the Humber, is united under the supreme sovereignty 
 of Ecgberht (827). The common calamity of the Danish 
 wars, and the common deliverance by Alfred, com^Dleted the 
 internal blending of the peoples. The brilliant reign of 
 iEthelstan shows us the old tribal diversities truly removed : 
 the differences of the Heptarchy have ceased to exist. After 
 Eadward the Elder, the union of the formerly separate 
 National Assemblies has been successfully achieved. 
 
 But meanwhile a new antipathy had arisen through the 
 invasions of the Danish and Norwegian pirates, who, with ever 
 larger armies, succeeded, after endless ravagings, in becoming 
 masters of the country about the year 878. The southern 
 
106 Constitutional History of England. 
 
 portion of the kingdom, it is true, rouses itself under iElfred 
 to victorious struggles. But the hard- won peace between 
 iElfred and Guthrun leads only to a division of the kingdom, 
 in which Norfolk, Suffolk, Cambridge, Ely, a part of Bedford, 
 and great districts in Mercia subject to Wessex, were given 
 over to the Danes. A relatively small number of the foreign 
 warriors sought to establish themselves here in the military 
 settlement of the ''five Danish burgs," Lincoln, Nottingham, 
 Derby, Leicester, and Stamford, with which were at times 
 reckoned York and Chester. In other districts the more 
 scattered invaders took possession wherever possible of the 
 greater estates. As usual, the proprietary class was espe- 
 cially affected by the conquest. Still on the whole this first 
 stratum of Danish settlement showed itself so unstable, that 
 before the death of Eadgar the dynasty of the Cerdics had 
 again become lords of the Danish provinces. The influence 
 of peaceful settlement, marriage, and above all, the unceasing 
 labours of the Church in this the prime of the Anglo-Saxon 
 kingdom, effected, except in a few places, an assimilation of 
 the Danish element. The independent confederation of the 
 Danish cities was again dissolved after the subjection of 
 Leicester and York (918). But under ^thelred the Unready 
 there was a second period of invasion by Danes, who 
 were superior both in importance and civilization to the 
 rude hordes of the earlier epoch. The result of varymg 
 engagements leads (1016) to a division of the kingdom 
 between Eadmund Ironside and Cnut, in which the northern 
 portion of the country is abandoned to the Danes. After the 
 murder of Eadmund the southern portion also submits to the 
 powerful Danish king, not indeed as to a conqueror, but as 
 to " one chosen " by the Witan to be head of the whole 
 kingdom. The quarter of a century of this Danish dynasty 
 certainly left behind it weighty consequences. Though the 
 total number of the northern invaders did not perhaps amount 
 to one-tenth of the whole population of the country, yet a 
 deeply rooted dis-union had arisen in the leading class, a dis- 
 union which was all the more fatal in its consequences, as Cnut 
 
The JDecay and Fall of the Anglo-Saxon Kingdom. 107 
 
 knew no other means of consolidating his rule, than by mur- 
 dering, banishing, and supplanting the popular old families. 
 The great assembly of the Witan of the kingdom exhibits 
 from that time forward a curious mixture of Danish great 
 Thanes with Saxon Lords and Prelates, whose respective 
 ideas and interests, although not described by the laconic his- 
 torians of the times, can be gathered from the events of the 
 period. This internal disunion divided the old mother country 
 of the dynasty of Wessex less than the rest ; but the great 
 territory of Mercia, owing to its always mixed population, 
 and to the Anglo-Danish Thaneship, became a region upon 
 which no reliance was to be placed in times of serious danger. 
 Things were worst in the northern districts, in which there 
 was an almost undistinguishable blending of tribes which 
 might easily lead ambitious governors to declare themselves 
 independent. Under Eadward the Confessor the prominent 
 Danish element, coupled with the opposition against the 
 hierarchical tendency of the Church, appears in the family 
 of Earl Godwine, which, being in possession of the great 
 governorships, had now reduced the kingship to a mere 
 shadow of sovereignty. (1) The antipathy of the nationalities, 
 
 (]) The antipathy of the nationalities 85-103. In the An2:lo-Saxon statutes, 
 is primarily dependent upon the con- the traces of it are hardly discernible, 
 tinuance of the British-Keltic national The tribal contrast in the kingdom of 
 element (Lappenberg, i. 122, et seq., the Anglo-Saxons and Danes appears 
 104 seq.). A statistical proof of the of no great importance in the treaty 
 strength of the Keltic element is no- between Eadward and Guthrun (Edw. 
 where to be found. In the language, et G. 3, 6-9). In Cnut's day a dif- 
 in which Whitaker considers that ferent line is mentioned for the 
 there are still three thousand words of " triaoda necessitas" Cn. ii. Q^ ; for 
 British origin, it is evident that the denial of justice, Cn. ii. 15, sec. i. ; for 
 numerous Gaelic words relating to Hdrmocn, Cn. ii. 62; differences ex- 
 domestic life and small domestic occu- isted in tlie royal privileges, Cn. ii. 15 ; 
 pations, point to marriage with British and in the purgation fri>m a<"cusation 
 women, or to British domestic servants. of treason against the king, ^thlr. xi. 
 In general it was the western counties, 37 ; for security in the case of thefts, 
 towards the borders of Wales, which Wilh. i. 3. sec. 3 ; i. 21, sec. 2. Already 
 showed an intermixture with the Keltic in the earlier Danish period Eadgar 
 element. It is especially prominent in had secured to the Danes the preser- 
 the counties of Dorset, Somerset, Wilts, vation of their law (Edg. iv. 12, 13). 
 and Devon, which Jj]lfred the Great In still greater measure was this the 
 was the first to incorporate, and also case in the second period ; notably in 
 in Cumberland. The tribal diversities Cnut's reign, in which a Dane law 
 of the Angles, Saxons, and Jutes, are " Danelage," a^ a collective expression 
 exhaustively treated by Lappenberg, i. for certain special legal maxims (Pro- 
 
108 Constitutional History of England, 
 
 however, became alike injurious to both dynasty and kingdom, 
 when it coincided with another disintegrating force. 
 
 II. This was the social contrast of the propertied classes, 
 which for centuries had been undermining the Anglo-Saxon 
 commonwealth in its very foundations. In many districts the 
 first settlement had laid the foundation of a free peasantry in 
 a comparatively weak manner. The customary forms of the 
 military and judicial system, under the feuds of the Heptarchy 
 had, in almost equal degrees, contributed to the degradation 
 of the smaller landowners. Ecgberht's kingdom was already in 
 great districts entirely portioned out into estates and manorial 
 possessions. The great misery which both epochs of the 
 Danish invasion spread over the country brought about the 
 almost universal ruin of the small freeholds which then 
 existed, the result of which was seen in Cnut's laws and 
 manorial grants. The strength of the freedom of the common 
 people, the self-respect and the martial excellence of the 
 Anglo-Saxon Ceorl, diminished from century to century, in 
 spite of the guardian power which the King wielded. Even 
 the prosperous times of the monarchy only delayed but did 
 
 vincial law) is distinguished from the population called them " Danes," from 
 *' West Saxenalage," and from the the nearest coast from which they 
 " Merchenalage." That these were not sailed, without inquiring concerning 
 thoroughly different systems of the the more distant lands from which they 
 whole Civil Law is proved by state- started. Were all the formations of 
 ments as to the real meaning of these words and syllables, which in proper 
 differences. A further tribal aflfinity names and names of places are quite 
 between the invaders from the Scandi- as much "-Anglish" as "Danish," to 
 navian lands and the Angles and Jutes be taken as evidence of Danish origin, 
 of the first settlement, existed from quite half of England could be de- 
 the very first. In later times this scribed as Danish, and the Anglo- 
 question has become the subject of a Saxon element represented as the 
 party controversy, in which an attempt declining and subordinate one. {Cf. 
 was made to prove that the Germanic contra: Donaldson, "English Ethno- 
 foundation of England was not attri- graphy," Cambridge Essays, 1856.) 
 butable to the Angles and Saxons {i.e. The Danish element certainly prepon- 
 the former inhabitants of Schleswig- derated in Noifolk and Suftblk, and 
 Holstein), but to the Danes and Den- along the coast line between the 
 mark (E. I. H. Worsaae " An account Humber and the Forth ; it may divide 
 of the Danes and Norwegians in Eng- the north and north-west fairly equally 
 land," 1852). The Norsemen who from with the Anglo-Saxon. The computa- 
 the eighth to the eleventh century dis- tion which gives the number of the 
 quieted Europe are hordes of the great Norsemen who stayed in the country 
 Teutonic family, who, coming from at two hundred thousand, is probably 
 Norway, Denmark, and Sweden, in- rather too high than too low. 
 fested the continent. The Anglo-Saxon 
 
The Decay and Fall of the Anglo-Saxon Kingdom. 109 
 
 not prevent this process of dissolution. As yet no civic and 
 industrial life was able to develop itself, to raise the ancient 
 freedom to new strength and new honour upon the foundation 
 of new modes of property. No new principle of military 
 service had been discovered, which should prevent it from 
 exercising a destructive influence upon the smaller landowners. 
 Thorough reforms, such as the Carlovingian laws attempted, 
 appeared in England less urgent, because its insular position 
 continually induced carelessness. The mild sway of the royal 
 race of Cerdic, under the advice of their spiritual and secular 
 Thanes, was ever averse to violent aggression, and only cared 
 for a well ordered administration, without touching the legal 
 basis of the military system, viz. vassalage and a popular 
 army. Cnut's energetic nature preferred, when in peril, to 
 rely for the support of the royal throne upon a mercenary 
 guild of three thousand Huscarls, which could find no per- 
 manence among the popular customs, the conditions of pro- 
 perty, and the finances of the time. The militia, however, 
 continued in its wonted groove. Cnut had also found it advis- 
 able to conclude a peace with the Church. In like manner 
 he allowed the accumulation of landed property to go on 
 without interruption. Like a meteor, therefore, the pheno- 
 menon of the powerful Norse king passed by, without solving 
 any one of the problems of this political government. Still 
 less capable of such a task was the weak rule of the last heir 
 of the old royal house of Wessex. (2) Under the feeble rule 
 of Eadward a third antipathetic force comes into great pro- 
 
 (2) For the social forces opposed to ing public needs. The same picture 
 
 the constitution I must refer my is drawn by Lappenberg, i. 460 ; cf. also 
 
 readers to the picture given in cap. iii. Stubbs, Const. Hist., i. 211. " I'he co- 
 
 of the local land distribution. This hesion of the nation was greatest in 
 
 was the primary evil which the Anglo- the lowest ranges. Family, township, 
 
 Saxon State, in spite of its numerous hundred, county held together when 
 
 excellent supports, could not hope to Ealdorman was struggling with Ealdor- 
 
 eradicate (vide Kemble, i. 252). Wil- man, and the King was left in isolated 
 
 liam of Malmesbury says of the national dignity. Kent, Devonshire, Northum- 
 
 assemblies of this time, that as often bria had a corporate life which Eng- 
 
 as the Eorls assembled in council, the laud had not, or which she could not 
 
 one chose this and the other that topic; bring to action in the greatest emer- 
 
 they were seldom agreed in any good gencies. The Witenagemote represented 
 
 opinion ; they deliberated more con- the wisdom, but concentrated neither 
 
 cerning domestic treason than concern- the power nor the will, of the nation.'* 
 
no Constitutional History of England. 
 
 minence, the way for which was prepared in the course of 
 the preceding generations. 
 
 III. This was the opposition of the tccksiastical to tje rogal 
 power. From the earHest times the Church had been the 
 reconciling element among national antipathies; she had 
 helped the triumph over the smaller dynastic states; she 
 had shown herself in the early Danish times once more as the 
 reconciling polity-creating power. But the Church could 
 never have attained to this powerful position, except upon the 
 broad basis of landed property ; this property to the extent 
 of about one-third in the kingdom was, in the later Anglo- 
 Saxon times, in her hands. Her higher tasks were thence- 
 forth entangled with interests of proj)erty, which in two 
 directions opposed the demands of the State. First of all, 
 the Church was the chief impediment in the way of changes 
 in the military system, which were every day more urgently 
 needed, for she absorbed through her expansion the posses- 
 sions of the State in the Folkland, and so deprived the sove- 
 reign of the means of keeping on foot the requisite number 
 of skilled warriors ; this was admitted by Bseda even in his 
 time. The modest share borne by the Church in the decayed 
 militia was not sufficient; there was needed besides for the 
 military requirements of the day a very great increase in 
 the numbers of the Thanes. But the powerful interest of the 
 Church was antagonistic to any fresh distribution of the mili- 
 tary burdens ; for every firm and more just distribution on 
 the landed property affected first of all the possessions of the 
 clergy, who were little inclined to make sacrifices for such 
 ends, and still less to allow a secularization of Church lands. 
 And yet no permanent military constitution was possible with- 
 out serious demands upon Church property. It would have 
 required a violent reformer to beat down the opposition the 
 spiritual Witan would make to such changes ; in short, the 
 monarchy in this critical century lacked its Pepin or Charles 
 Martel. — In another direction, the Church assisted still further 
 the expansion of ''landlordism" in the legal system. Being 
 herself in possession of privileged lordships and estates, she 
 
The Decay and Fall of the Anglo-Saxon Kingdom. Ill 
 
 contrived to gain before all else an extension of the power of 
 private jurisdiction ; and in conjunction with the secular mag- 
 nates she thrust down the free people deeper and deeper into 
 the condition of a dependent tenantry. The entry of the most 
 noble classes into the Church had been a blessing in those 
 times, during which she had to accomplish, in the face of 
 violent selfishness, the great task of educating the people. 
 But after she had herself become the greatest propertied 
 power, and especially after Danish times, she appears ever 
 more deeply bound up with the interests and the dissensions 
 of the order of Thanes, in whose factions she took part in a 
 very worldly manner. This worldly mindedness is indeed 
 opposed in the Church by a strong ascetic tendency. But this 
 new tendency is a Eomanizing one, which finds its ideal head 
 in Eome, and in the struggle between Dunstan and Eadwig 
 does not shrink from humbling the power of the King. The 
 Church, in the reigns of Eadgar and Cnut, had become already 
 a buttress of the temporal power. Eomish views and Eomish 
 ' proclivities, the traditions of the Eoman empire and a capital 
 of the world, the legislation of the emperors and the popes, 
 have all become part and parcel of the aims of the Anglo- 
 Saxon clergy — aims which, from personal inclinations, E ad- 
 ward the Confessor was only too ready to further. About the 
 middle of the eleventh century all these hostile elements in 
 the State presented themselves in such a combination that a 
 strong will alone would have been able to cope with them. 
 The reign of J^lfred the Great and his immediate successors 
 had pointed out in all departments the direction reforms must 
 take in order to restore to the State its waning power. But 
 the dynasty of Cerdic was not destined to remain the creative 
 power in England beyond the single century of its glory. 
 Whilst want of xDublic spirit, disputes, and open violence were 
 conspicuous at all points, the Anglo-Saxons in this critical 
 period experienced the misfortune of having a personally 
 incapable royal family. The settlement of the warlike Danish 
 Thanes had severed the ties which once bound the Anglo- 
 Saxon magnates to the royal house. Beside them stands a 
 
112 Constitutional History of England. 
 
 powerful and intriguing band of Prelates, who, associated with 
 the families and proprietary interests of the nobles, are bent 
 on the consolidation of their own power internally, and the 
 insuring of their own privileges, whilst externally they aim at 
 extending the sphere of their power, partly by a closer union 
 with Kome, and partly by an alliance with the Norman duke. 
 With the decay of the old county constitution, with the ever 
 stronger oppression and deeper humiliation of the freemen, 
 national feeling and national strength sink down, and the 
 country is prepared for becoming the prey of the foreign 
 conqueror. It is always the military constitution which is the 
 weakest point in this organization of the Anglo-Saxon State, 
 a weakness which shows itself in the fact that the united 
 kingdom could never entirely obtain the mastery over its 
 British and Scotch neighbours on the borders. All the good 
 institutions fall into decay, the burghs and strongholds are 
 neglected, and the soldiers' guild of Cnut is soon dissolved. 
 A few decades of peace, and the non-appearance of any foreign 
 foe, appear sufficient to cause a relapse into the old state of 
 carelessness in which men's minds are only occupied with the 
 struggles of the nobles, and with the Church. From Church 
 and State harmony and self-dependence have disappeared. (3) 
 
 (3) As to the ecclesiastical anti- love to describe the rough national 
 
 pathies of later times, cf. Chapter V., manners, the drunkenness and coarse 
 
 Note **. Under King Eadgar internal debauchery of the nation. Eadward 
 
 peace and order are certainly restored, tries to escape from the secular high 
 
 but this is apparently due to the fact life of his times into quiet monastic 
 
 that Archbishop Dunstan rules in the rest ; but there again the national 
 
 King's name. During the long miser- Anglo-Saxon feeling of the clergy in 
 
 able period of ^thelred II. the prelates their deviation from the Eoman Church 
 
 in general appear devoid of character annoys him. Hb is a foreiguer in his 
 
 and untrustworthy. In the statutes of manner of life, and he surrounds him- 
 
 these times the moral condition is self with ti.e friends of his youth, and 
 
 visible in the serious warnings which with French chaplains, whom he makes 
 
 are especially addressed to the clergy Bishops. The court-language is already 
 
 (uEthlr. V. 4. seq. ; iv. 2 ; Cn. i. 6, 26). Frankish. Frankish body guards and 
 
 In Eadward the Confessor, as well as in Fiankish gerefas of the burghs at last 
 
 Godwine and his military dependents, drive the Danish Thanes into open 
 
 are embodied two great contrasts in the opposition, which ends with the victory 
 
 life of the later Anglo-Saxon period. of Godwine; ami the King is henceforth 
 
 The King, educated in exile upon the placed under the guardianship of the 
 
 soil of France, is disgusted with the secular magnates. According to a 
 
 drinking bouts and manners of the An- credible record, in his last hour the 
 
 glo-Danish magnates; and the clerical childless Eadward appointed his 
 
 chroniclers with their Norman leanings brother-in-law Harold to be his sue- 
 
The Decay and Fall of the Anglo-Saxon Kingdom, 113 
 
 Dismal indeed as the picture of the last generation appears 
 to an historian, yet out of the confusion of this epoch two 
 bright features gleam forth, features which the changes 
 wrought by time have not been able to efface. The first is 
 the preservation of the Germanic judicial system, which still 
 surrounded personal freedom with protecting barriers. Judg- 
 ment delivered by peers (jxires) and the forms of compurgation 
 might fail the weak man as against the powerful man ; but 
 they remained a strong bulwark against the arbitrary action 
 of royal and manorial magistrates. Even in the beginning 
 of its decay the Anglo-Saxon judicial j)rocedure still gave the 
 impression of a fair trial ; accordingly it was for this reason 
 that the fundamental principle of "trial by peers" was ever 
 jealously clung to by the heavily burthened ceorl, as the point 
 which alone lends value to the legal conception of freedom. 
 Even in the greater lords' courts the old ordo judicioruiii 
 appears to have kept its place. A formal court assembly of 
 the soccagers (theningmanna gemot) is indeed mentioned in 
 the case of royal soccagers (Cod. Dipl. 1258). The feelings of 
 the Anglo-Saxon Thanes did not incline towards arbitrariness 
 and severity, and the later accounts show us at least that in 
 the private courts a regular practice had become formed, as 
 
 cesser. But Norman writers suppress Thanes and peoj^le, still held together 
 
 or deny this decisive fact. On the more than elsewhere. When the great 
 
 other side a former verbal promise is army of the Norman duke had already 
 
 quoted, which Eadward is supposed to set foot upon English soil, the military 
 
 have given in favour of the Norman array of Mercia, and the greater 
 
 Duke "William, and which Harold is number of the secular magnates still 
 
 said to have acknowleged with weighty held aloof from the conflict in faithless 
 
 oaths, when he found himself by chance neutrality. The decisive battle of 
 
 in the power of the Norman duke. Hastings (Senlac) was only a struggle 
 
 The latter part of Eadward's reign is a made by the jDeasant army of "Wessex, 
 
 network of intrigues within the oli- with numerous followers and mer- 
 
 garchy, among which a portion of the cenaries. The men of Kent, the 
 
 high born clergy already regarded with national army, in the consciousness of 
 
 hope the Norman duke and the new fighting for the national existence, 
 
 Frankish culture. A number of the struggled with a persistence and 
 
 spiritual lords had long since turned to bravery which seem to show that with 
 
 the rising sun, and prepared for the all the dissensions and degeneracy of 
 
 open espousal of the Conqueror's cause. the ruling classes, the heart of the 
 
 In the decisive struggle for the national Saxon people generally was healthy, 
 
 existence of the realm, Harold found A striking picture of this decisive 
 
 himself almost entirely dependent struggle is given by Freeman (" Nor- 
 
 upon the strength of the old kingdom man Conquest," iii. 450-507). 
 of Wessex, in which State and Church, 
 
 VOL. I. T 
 
1]4 Constitutional History of England. 
 
 well as a manorial system, which differed according to the 
 locality. The confederate element in the tithings, and in the 
 various voluntary unions or guilds into which the inhabitants 
 round the burghs entered, preserved some vigour to the institu- 
 tion for maintaining the public peace. The second permanent 
 legacy was the develoiDment of family life and of the character 
 of the people by the national Church. It is true, that in no 
 other European country had the conversion to Christianity left 
 behind it such deeply rooted and enduring effects as here. 
 This fact is only apparently concealed by the later attitude of 
 the superior clergy, and by the faithlessness of Danish Thanes, 
 in whom the new Christian dogmas had not yet overcome the 
 old spirit of Odin-worship. But so far as the Christian 
 •element was permanently blended with the national Anglo- 
 Saxon, there was manifest in high and low a moral core of 
 benevolence, truth, and faith, w^hich found expression in the 
 mild sway of the Anglo-Saxon lords as contrasted with the 
 rule of their greedy successors. On these foundations it was 
 possible to build up afresh a vigorous monarchical system. 
 But what the weak and expiring dynasty of the Cerdics was 
 unable to compass was, through the dispensation of Pro- 
 vidence, to be vouchsafed to this country by the hand of a 
 foreign conqueror. 
 
( 115 ) 
 
 ^ SECOND PEEIOD. 
 THE ANGLO-NORMAN FEUDAL STATE. 
 
 CHAPTEE VIII. 
 ^50 ^ropertn <33ascs of t]&c aSTorman jpeubal ^tatc' 
 
 William I., 106G-1087 
 William II., 1087-1100 
 Henry L, 1100-1135 
 Stephen, 1135-1154 
 
 Henry II., 1154-1189 
 Richard I., 1189-1199 
 John, 1199-1216 
 Henry III., 1216-1272 
 
 With this period State and society enter into new relations. 
 The Anglo-Saxon Commonwealth appears suddenly invaded 
 by a conquest, by the thrusting in of a tribe originally 
 
 * From tlie sources and literature I 
 may specially mention — (1) (a) The 
 so-called '■'■ Leges et constietudines quas 
 Wilhehnus rex post adquisitionemAngUai 
 omni populo Anglorum concessit tenen- 
 das," for the most part not new de- 
 crees, but Anglo-Saxon law, in so far 
 as it was recognized by the Conqueror 
 (with certain additions, for example, 
 e. 22, 31) in a Latin and French text. 
 To these is added (h) a short statute 
 having reference to the criminal pro- 
 cedure between English and Franks 
 in an Anglo-Saxon and Latin text; 
 (c) " Carta Wilhelmi Conquistoris de 
 quibusdam statutis'' etc., in Latin text, 
 with distinct traces of interpolation; 
 {d) Carta Wilhelmi concerning the 
 separation of the spiritual jurisdiction 
 from the temporal, which, according to 
 Spelman, must be placed about the 
 year 1085 (c/. Schmid, "Gesetze der 
 Angelsachsen," Ivi. to Ixi. and the 
 ^opy PP- 322-357). Without doubt the 
 
 first-named, " Leges Willielmi " contain 
 real ordinances, which have only in 
 later times been brought into the form 
 of a continuous statute. The genuine 
 originals are to be found reprinted in 
 Stubbs' " Select Charters," pp. 83-85. 
 The so-called ^^ Leges Henrici I. et 
 Eduardi Confessoris " are private works 
 dating from the twelfth century, con- 
 taining Anglo-Saxon law as applied 
 under Norman rule, and hence given 
 under the Anglo-Saxon records of law. 
 (2) The le'gal works of Norman 
 jurisprudence are, Glanvill, " Trac- 
 fatus de Legihus et consuetudinihus 
 Anglix, tempore Henrici IL compositus " 
 upon the procedure in the Curia 
 Regis, printed among others in 
 Phillips' " History of English Law," 
 vol. ii. ; Bracton, "De Legibus et con- 
 suetiidinibus Angliie" (Loudon, 1640), 
 an exhaustive exposition of the private 
 law and procedure of the period from 
 1240-1255 (a new edition by Traver* 
 
116 
 
 Constitutional History of England. 
 
 northern, which, on the soil of Normandy, had adopted French 
 language and customs, and brought over with it a peculiar 
 military and legal system. The Duke of Normandy is recog- 
 nized as King of England by a formally summoned National 
 Assembly. The old controversy, whether William the Bastard 
 conquered England, or under what other title he acquired 
 possession of the country, may be considered as decided by 
 the Conqueror himself, who declared that he had entered 
 upon the possession of the country as the designated testa- 
 mentary heir and legitimate successor of King Eadward. 
 
 Twiss); Britton (Ed. by Nicliolls, 
 1865) and Fleta, two abridged law- 
 books dating from the time of Edward I. 
 A general survey of the legal sources 
 of this period occurs in Biener, "Engl. 
 Geschwornen-Ger,," vol. ii. App. vi., 
 pp. 83-99. A copious survey of the 
 history of the French, Norman, and 
 English sources ' of law is given by 
 Brunner in Von Holtzendorff's " Ency- 
 klopoedie," ii. 4. A new contribution 
 to the collection of the sources is M. M. 
 Bigelow's " Placifa Anglonormannica 
 from Will. I. to Kich. I." (London, 
 1879). 
 
 (3) State Treaties and Administra- 
 tive Eecords of the Norman times in 
 Kymer's " Fxclera, conventiones, litterx 
 etc." (new ed. 181G to 1830 ; 3 vols, in 
 G parts, A.D. 1066-1391). The admi- 
 nistrative records, which from King 
 John downwards were chronologically 
 enrolled, and lately in part described, 
 and in part published by the Eecord 
 Commission, fall into the following 
 principal groups: (1) Patent-rolls from 
 1200-1483, formerly preserved in the 
 Tower, containing the regular acts of 
 Government inclusive of foreign trea- 
 ties, grants of oflSces, privileges, etc. 
 Cf. " A description of the Patent-rolls 
 in the Tower of London," by Duffus 
 Hardy, (1835). " Rotuli lifterarum 
 clausarum in turri Londinensi asser- 
 vati," 2 vols. (2) Law Court records and 
 pleas since Hen. II., printed in part, 
 ^'- Placitornm abbreviatio'^ (London, 
 1811) ; " RotuU curicx regis," ed. Pal- 
 grave. (3) Calculations and Transac- 
 tions of the Exchequer, partly in print 
 (Rotuli ohlationum et finium,^ Magnus 
 Rotulus Pipx, etc.). In addition the 
 *' Dialogus de Scaccario " in Madox ; 
 " The History and Antiquities of the 
 
 Exchequer of the Kings of England," 
 2 vols. (London, 1769) is, through the 
 reliable reprint of the Eecords, a book 
 of great general value. As to the 
 State Land Eegister, Domesday Book, 
 see note ***. 
 
 (4) Treatises on the History of 
 English Law : Sir M. Hale's " History 
 of the Common Law," 2 vols. ed. Eim- 
 mington (1794) ; Eeeve's " History of 
 the English Law " (3rd ed., 1814). A 
 curious, but much used and useful 
 collection is to be found in " Henrici 
 Spelmanni Codex legum veterum statu- 
 iorum regni Angliai ah ingressu Gui- 
 lelmi I. usque ad annum 9 JSenr. III." 
 Printed from Spelman's papers by 
 Wilkins, p. 284 et seq., and in Howard, 
 " Anciennes loix des Fran9ois," Eouen, 
 1760, vol. ii. pp. 120-428. An excel- 
 lent exposition of the sources with 
 introductions is that bv Bishop Stubbs, 
 "Select Charters" (1874), pp. 79-425. 
 For the legal procedure, cf. M. M. Bigc- 
 low, "History of the Procedure in 
 England from the Conquest" (London, 
 1880) ; Forsyth, " History of the Trial 
 by Jury " (new ed., 1857) ; Brunner, 
 " Entstehung der Schwurgerichtc " 
 (1872). 
 
 (5) General History of England : 
 Lyttleton, '' History of Henry II." 
 (London, 1767), 3 vols. ; Hallam, 
 "Middle Ages," cap. viii.; Lappen- 
 berg-Pauli, " Geschichte von England." 
 vols. ii. and iii. The principal work 
 on this period is Freeman's " History 
 of the Norman Conquest of England," 
 vols, i.-vi. (the first two volumes in 
 the 3rd edition). Important additions 
 for the Norman period are also given 
 by Stubbs, " Constitutional History," 
 vols, i., ii. (1874). 
 
TJie Property Bases of the Norman Feudal State. 117 
 
 This was the only manner in which the new monarch could 
 gain the permanent obedience of his new subjects and make 
 a stand against immoderate pretensions on the part of his 
 followers. It was not, therefore, the tribe of the Normans, 
 but Duke William who had got possession of the country, 
 with a title from the pretended will of Eadward, with the 
 ■consent of the highest authority in the Church, and with the 
 consent of the National Assembly, by means of numerous 
 allies and paid soldiers. As a matter of fact, as well as of 
 right, it was possible to treat the country in this way as a 
 personal acquisition, as the ''Seigneury," ''Dominion," "terra 
 regis Anglica,'' " terra meet'' — a designation frequently found 
 in the records : " GuUelmus I. conquestor dicitur, qui Angliam 
 conqitisivit, i.e. acquisivit (purchased), non quod siibegit" 
 (Spelman, Glossary). The mutual relations of the Saxons 
 and Francigense, however, remained for many generations 
 hostile. The conquered people repaid the haughtiness of the 
 victors by attempts at rebellion ; and when these failed, by 
 silent animosity towards the newlords andtheir French customs. 
 The best way of considering the period is therefore that of 
 a permanent military occupation which (with its numerous 
 fortifications and the maintenance of paid soldiery) led to a 
 thoroughly new military organization. But the same change 
 was also founded on the needs of the country. The Anglo- 
 Saxon Commonwealth had fallen through internal dissension, 
 a defective organization of its military array, and the faulty 
 distribution of the military burthens. To regain the unity 
 and power that was lost, in the place of a discordant system 
 of national militia and personal vassalage, the whole of the 
 landed property in the country, so far as it was able to bear 
 the necessary burden of heavy armed trooxDS, had to adopt the 
 principle of a standing army based upon the revenue derived 
 from the land. This was almost a common need with all the 
 Germanic states that had risen on the ruins of the old world ; 
 and in the centuries of striving after it, isolated elements of 
 the feudal system appear already in the Anglo- Saxon period. 
 But there was still wanting such a permanent and uniform 
 
118 Constitutional History of England. 
 
 bond of service as was compatible with the personal freedom 
 of the obeying party and the honom' of a freeholder ; hence 
 the manifold preliminary arrangements, attempts, and re- 
 lapses. The period of the feudal system dates from the time 
 when the featm-e of military burthens becomes predominant 
 in landed property, and the grants, to which the character of 
 military pay is attached, give the warrior a permanently 
 dependent position. England is the only state in which, 
 through special circumstances, a systematic application of 
 this system was possible, which made the State in some 
 measure the sole proprietor, thence proceeding to a fresh 
 distribution. It was the position taken up by William as 
 the legitimate successor to King Eadward which settled this 
 question also. In treating as rebels King Harold and those 
 who fought on his side, and the Saxons who afterwards 
 oi)posed William, a legal justification was found for a general 
 confiscation of landed estates. The inheritance of Eadward, 
 the possessions of the family of Harold, and the remainder of 
 the old Folkland were immediately seized as royal demesnes. 
 By virtue of grants, the leaders of the conquering host entered 
 into the possessions of the rebel great Thanes, and in like 
 manner the warriors serving immediately under the Duke 
 were endowed with estates that had become vacant in the 
 different parts of the country. The great feodaries could 
 either immediately furnish their contingents or do so by sub- 
 infeudation, by which means a portion of the Saxon Thanes, 
 who had not been compromised in the war, could remain as 
 under-vassals upon their old estates. In like manner the 
 possessions of the churches and the monasteries were re- 
 tained to them, and in some instances even increased. The 
 object that the royal administration now pursued for a century 
 was to impose, upon the whole mass of old and new possessors, 
 an equal obligation to do service for reward. The standard 
 adopted in carrying out this system was approximately that 
 of the five hides possession of the Anglo-Saxon jDeriod ; yet 
 with a stricter rating according to the value of the produce. 
 At that period an estate of such a productive value would be 
 
The Property Bases of the Norman Feudal State. 119 
 
 bound, at the royal command, to furnish one heavy-armed horse- 
 man for a forty da3's' service in the year {scmtium unius militis). 
 
 The legal incidents of these newly-organized modes of 
 property** were only definitely established in the reign of 
 Henry II. ; but conclusions and interpolations show us that 
 the royal administration adapted the feudal customs that had 
 been formed in Normandy to the territorial conditions which 
 existed among the Saxons : '^ ilUs (that is to the Anglo-Saxon 
 laws) tmnsmarinas leges Neustrim quse ad regni pacem tuendam 
 cfficacissim^e videhantnr adjecit'' ("Dialogus de Scaccario"). 
 The English feudal system is made up of these two elements. 
 Five legal incidents stand out here sharply defined, which in 
 some measure difier from the continental feudal system. 
 
 1. '^Tj^c Conditional |Bercl5itabilitii of ftc CHrant According 
 to Norman-French custom, such hereditability has been con- 
 sidered the rule in Anglo-Norman fiefs. (1) Yet the form of 
 grant ^' dcdi et concessi tihi et heredihus tuis,'' only means a 
 concession amounting to a continuous military pay. The 
 
 ** As to the law incidents proper fiefs down to King John is doubted by 
 to the feudal system, the views of Palgrave (i. 385). He says it was at 
 Littleton, Selden, Coke, and Blackstone that time that the writ de terris liber- 
 are clearly condensed in the compre- andis first was framed, that until tliat 
 liensive note of Hargrave to Coke on day the investiture of the new feoflee 
 Littleton, 191. The proceedings at the was regarded as the subject of a fresh 
 great act of homage in the court held compact. It is true that the so-called 
 at Salisbury are recorded in the Anglo- Carta Wilhelmi (iii. 5) contains the 
 Saxon chronicle in the same terms as express assurance : " Prout statutiim 
 they are narrated in the " Annales est eis, et illis a nobis statutum et con- 
 Waverlienses," A.D. 10S6 ; " ifc/^we t'ene- cessum jure heredltario in perpetuum, 
 runt coram eo harones sui, et omnes ter- per commune consilium totius regni 
 rarii liujus regni, qui alicujus pretii nostri." But this passage belongs to 
 erant, cujuscunque feodi fuissent, et the spurious additions,which in Stubbs' 
 omnes homines sui effecti sunt, et jura- "Charters" have been rightly repu- 
 verunt illi JideJitatem contra omnes ho- diated. Xevertheless, in the Xorman- 
 mines " (I. Eeport on Peer's Dignity, Prankish feudal law the hereditability 
 34). The technical terms of feudal-law, of the fi ef had become so far established 
 " food, feudum, barones, vavassores, that the King could not deny it without 
 felonyrelief,"etc., appear in the Domes- driving the whole of the vassals to re- 
 day Book here and there mingled with sistance, besides the great vassals who 
 the older expressions. The word "/en- were at all times ready for revolt. The 
 dum " had hitherto occurred in no con- hereditability has never from the first 
 temporary source of the Anglo-Saxon been seriously disputed. The weak 
 law. The term "baron" is said to point lay only in the defects of the 
 occur for the first time in a letter from administration of justice, especially in 
 Pope Nicholas II. to Eadward the Con- the want of a right of action to compel 
 lessor (Heywood on Pianks, 210). the King to renew the fief. 
 
 (1) The hereditability of the English 
 
120 Constitutional History of England. 
 
 enfeoffment of the heir only took place conditionally upon 
 his being a man capable of fighting ; and that of the heiress 
 only where there was a failure of males, and in order that she 
 might marry a warrior and one acceptable to the militar}^ 
 €hief . Accordingly it was natural that the feoffee could neither 
 sell nor mortgage the estate, nor make it a security for his 
 debts, nor dispose of it by will ; and hence follow these further 
 legal incidents : 
 
 2. 'iE^hz Helcbium, I^eltcf. As an acknowledgment that 
 the feudatory only possessed the estate on condition of doing 
 military service, a certain quantity of weapons and accoutre- 
 ments or a sum of money were rendered by Norman custom, 
 when a change of the person bound to service took place ; 
 out of which proceeded at last a fixed recognition-money of 
 one hundred shillings for each knight's fee. In a certain 
 sense the Prima Scisiua, Primer Seisin, is an addition to this. 
 For greater security the King, as lord of the fee, could take 
 possession of the estate after the death of the vassal until 
 the successor proved his title, or, where necessary, pleaded 
 and obtained his right, and bound himself to pay the re- 
 levium. According to old feudal custom the lord could in this 
 way claim a whole year's income. (2) 
 
 3. jF^utial ^artis{)ip antr i^lantaae. As it is an act of 
 favour on the part of the feudal lord, to give the fee to one 
 personally incapable of military service, so he can take back 
 the estate, when the heir is a minor, and can exercise in 
 
 (2) The reliefs are based upon Nor- vassal. Now the Exchequer siibsti- 
 
 man-French customary law. With re- tuted for this position the Franco- 
 
 gard to the Saxon Thanes the King Norman feudal idea, according to 
 
 could also refer to the laws, of Cnut ii. which the lord is from the first the 
 
 70, 71 ; and probably this is the mean- actual owner, and grants by investi- 
 
 ing of the Leges Williclmi I. 20, in ture to the new feoflee a " dominium 
 
 "which with unimportant deviations cle ?joi'o "'(Stubbs, i. 261). The pay- 
 
 from the original, the law of Cnut is ment of the heriot in horses and 
 
 translated ; similarly in Hen. I. c. 14. weapons ceased with the Assize of 
 
 The question has been materially elu- Arms (27 Henry II.), according to 
 
 cidated by Freeman and Stubbs. The wliich the weapons of the deceased 
 
 "heriot" in the Anglo-Saxon sense should always be preserved to the heir, 
 
 continued as an obligatory duty of Since then a sum of money, amounting 
 
 the heir to " make payment," but yet to 100 sli., was fixed for each knight's 
 
 therein was recognized an liereditary fee. 
 right of possession residing in the 
 
The Property Bases of the Norman Feudal State. 121 
 
 person or through a custos the rights belonging to it, 
 and continue this wardship, enjoying the proiits, until the 
 completion of the heir's twenty-first year, without rendering 
 any account (Glanvill, yii. 9, sec. 6). As tutor legitimus of 
 the ward's person he might also give the heir in marriage 
 when the latter has arrived at a proper age, and on such an 
 occasion can exact money payments ; a custom which arose 
 under circumstances when the nearest agnate was wont to 
 drive a bargain concerning the marriage of the ward. In 
 failure of sons, the heiress remained under this profitable ward- 
 ship until her majority, and when she had come of age, was 
 married by the feudal lord to a husband, who now became the 
 real feodary. In the spirit of the old wardship the marriage 
 of the female ward was also regarded as a money business. 
 The revenue rolls show us how, in Normandy also, female 
 wards were given away for 100, 600, and 700 livres of Anjou 
 (Madox, i. 520 ; Glanvill, vii. 12, sec. 1). (3) 
 
 4. ^I'tiS, auxiita. The original destination of the fief as 
 a means of obtaining service for the lord binds the vassal to 
 an extraordinary contribution in extraordinary cases of honour 
 and necessity, notably to ransom the lord who has been taken 
 prisoner, to endow the lord's eldest daughter, and when his 
 eldest son is made a knight {pur faire Fitz-Chevaler). These 
 three cases are mentioned in the Grand Coutumier and 
 amongst the Normans in Naples and Sicily as the customary 
 ones, but do not absolutely exclude other urgent cases, espe- 
 cially contributions made by the under-vassals towards the 
 reliefs and aids which their lord pays to his feudal over- 
 lord, and for the paj^ment of his debts. (4) 
 
 (3) Feudal wardsliip and marriage of consenting to the marriage of every 
 
 are certainly derived from Norman- heiress, from the circumstance that 
 
 French feudal customs, for to have otlier\Yise the feudal lord could have 
 
 founded them upon Cnut's Thane law a vassal forced upon him. Ths assent 
 
 <Cn., ii. 72-75) would have been less was not to be refused without "-justa 
 
 advantageous for the Exchequer. More cama" hut neglect in obtaining it is 
 
 exact information is given by Glan- punished with the loss of the fief, 
 
 vill, vii. 12, according to which the (4) The Auxiha will be treated of 
 
 marriage of the daughters of the crown more fully under the head of Finan- 
 
 vassal is derived from the tutela legi- cial Administration. 
 iima of the feudal lord ; but the right 
 
122 Constitutional History of England. 
 
 5. 'iE^z iSsc^eat, Jforfciturt of Wyt jficf, is the last decisive 
 jDoint in which the conditional value of the grant appears. 
 The former takes place when the feudatory dies without heirs 
 capahle of succeeding to the fief ; a case that must frequently 
 have occurred, inasmuch as, until the time of Henry VIII., 
 there was no right of disj^osing of lands by will. Still more 
 frequent was forfeiture on account of "felony," which includes 
 almost all important crimes, regarding them from the point 
 of view of disobedience towards the feudal lord. The especial 
 harshness of the English feudal law adds to the formal at- 
 tainder on account of "treason and felony," a corruption of 
 the blood or disability of the descendants to succeed to the 
 inheritance. (5) 
 
 These are the five points of the feudal system, round which 
 for centuries the most important dealings with the vassals 
 revolve. As to their origin the oldest authorities are remark- 
 ably silent ; no statute introduced the feudal system into 
 England, or in any way regulated its details. The charters 
 of William contain merely a general recognition of the con- 
 ditions of property. Nor is there any trace of bestowals of 
 fiefs through which the Saxon Thanes either sought after or 
 received a re-grant of lands to be held "according to feudal 
 law ; " and it cannot have originated in the framing of the 
 deeds of feoffment, for these were only expressly formulated 
 in much later times. It was rather the practice of the finance 
 control and of the courts which in course of time developed 
 its details from the following combination of circumstances. 
 
 When the Conqueror conferred investiture upon one of his 
 faithful followers, there lay in the use of the customary words 
 a reference to customary legal relations on the side of the 
 grantee, and of the thing granted. 
 
 1. The grantee subjects himself through the words " devenio 
 
 (5) The right to property for which Forfeiture on account of crimes i& 
 
 no heirs can be found was already even in tlie Anglo-Saxon period not 
 
 found in the Anglo-Saxon law (Cod. confined merely to treason, as is gene- 
 
 Dipl., No. 1085), but, in consequence rally supposed, but also took place in 
 
 of the want of a right of disposing by the case of other serious crimes. But 
 
 will in the case of the feudatory, at- in the feudal law still stricter prin- 
 
 tained new and unheard-of dimensions. ciples of felony were also applied. 
 
The Property Bases of the Norman Feudal State. 123 
 
 homo Tester'' to the law, as established in Normandy, and as 
 it is administered according to the custom there ; and the 
 Anglo-Saxon cannot in this matter claim a right different 
 from that of the Norman. 
 
 2. The thing granted is, as a matter of com^se, granted 
 according to the rights which the preceding possessor had ; 
 that is, with all the burthens and duties which originated in 
 the conditions of the Anglo-Saxon Folkland and land granted 
 to tenants, and in the conditions attached to the alienation 
 of Bocland : the Norman also was in these matters to have 
 no greater right than the Saxon. Where these two relations 
 were not in congruity, the Crown was naturally inclined to 
 put in force whichever right was more favourable to itself. 
 But in other respects it was necessary that the feoffees should 
 be treated as nearly as possible alike. Hence in the Ex- 
 chequer and the Curia Eegis (that is, from a financial as well 
 as a legal point of view) new principles were formed which 
 kept the middle path between Norman and Saxon customs, 
 and blending both together produced after some fluctuation a 
 uniform law. And from these points of view all the details 
 of the feudal law can be explained. 
 
 The most important deviation from the continental system 
 lies in the institution of arriere-vassals. The Conquest itself 
 a^nd the mixture of nationalities had rent asunder the natural 
 bond subsisting between the great vassals and their followers, 
 so that the Conqueror could successfully put in practice the 
 maxim that every under-vassal and greater freeholder must 
 take the oath of allegiance to the King immediately, by which 
 means, as regards military service, all subjects of the realm 
 should be immediately under the King. Consequently every 
 oath of fealty, which is sworn to the private feudal lord, 
 excepts allegiance to the King, " salva Jide dehita domino et 
 heredihus ejus " (Bracton, ii. 35, sec. 8). By this maxim which 
 came into complete operation in England, the key-stone was 
 inserted in the edifice of the feudal state ; and a final sanction 
 was added towards the end of the Conqueror's reign, at a 
 great extraordinary court and muster of the feudal militia,. 
 
124 Constitutional History of England. 
 
 held at Salisbury ; with regard to which the Saxon Chronicle 
 uses the words : '' Omnes iirsedia tenentes, quotquot essent notee 
 melioris x>cr totam Angliam, ejus homines facti sunt, et omnes 
 se illi suhdidere ejusque facti sunt vasalli, ac ei fidelitatis jura- 
 menta ijrcestiterunt, se contra alios quoscunque illi fides futuros''' 
 (Chron. Sax., a.d. 1086). By a great act of homage the 
 infeudation of the whole of the landed property in the country 
 was here proclaimed as a law of the kingdom. It was, 
 indeed, an important event in English history, when William 
 made his faithful followers, from the greatest magnates down 
 to the squireless knights and the freeholders, kneel down 
 before him, and placing their folded hands in the hands of 
 their royal master, swear to him the oath of fealty on 
 account of their possessions. This act alone necessarily gave 
 the English political life a different direction from that of the 
 continental states. 
 
 Connected with this systematic introduction of the feudal 
 system, in the years 1083-1086 a comprehensive proj)erty- 
 register of the kingdom, the '^Domesday Booh,'" *** was drawn 
 up with unexampled completeness and accuracy; a register 
 invaluable to the Norman political administration, and 
 equally so, as a trustworthy groundwork, to the historian. A 
 division of the land into knights' fees does not appear in this 
 land register ; but a perfect foundation for a future list of fiefs 
 was laid in it by the registration of townships and hides, 
 embracing not only agricultural soil, but landed property, 
 with all its appurtenances in the shape of customary services, 
 dues, and safe-conduct money. The existing conditions of the 
 land and soil remain in the lower stratum unchanged, but 
 
 ### The origin of the Domesday 1862, etc.). Thirty-four counties ap- 
 
 Book is described in Lappenberg, ii. pear, but not the counties of North- 
 
 143-154. It was officially printed in umberLand, Cumberland, IVestmore- 
 
 the year 1783, in two folio vols. : to land, and Durham, which were as yet 
 
 which were added four supplementary not in the secure possession of the 
 
 registers and indices, in two additional Normans ; Lancaster does not appear 
 
 volumes of the Record Commission, to have been organized as a county 
 
 1816 (Explanatory treatises by Kel- until Henry III. ; London, ^Vinchester, 
 
 ham, 1788 ; Sir H. Ellis, " Introduc- and certain other cities are also want- 
 
 tion to the Domesday Book," 1833). ing. The attested sum total of the 
 
 Lately, the Latin text has also been men was 283,242; that of the regis- 
 
 printed for certain counties in extenso, tered " hides " about 225,000. 
 without the abbreviations (London, 
 
The Property Bases of the Norman Feudal State. 125 
 
 henceforth they form material for new tenm'es m accordance 
 with feudal law. 
 
 At the head of these masses of property stands the King 
 with a reservation of more than one thousand manors, to- 
 gether with numerous chases, parks and forests, formed out of 
 possessions, for the reservation of which the old relations 
 between the Saxon royal house and the Folkland gave a good 
 title. The former possessions of the great Anglo-Saxon 
 Thanes, and county Thanes, which had become vacant by 
 death, flight, and outlawry, form the principal material for 
 l^roviding for the vassals of the King; the Saxon Thanes 
 who still remained in possession are to be found principally 
 among the suhtcncntes of the Norman magnates. The 
 possessions of the Bishops and the monasteries are incor- 
 porated into the new system of property, with the proviso 
 of a duty to furnish their contingent to the feudal militia. 
 The freeholders who still existed, the landowners bound 
 to magisterial duties {sochemanni), and the hurgenses kept 
 their places almost unchanged. In like manner the Anglo- 
 Saxon peasants, ceorls, villani, remain as they were; also the 
 farm labourers (hordani), although these also w^ere partially 
 supplanted by servants whom the Norman lords had brought 
 with them. In the still remaining serfs {servi), who were 
 few in number, no change can be seen. As Domesday Book 
 states the several modes of property existing at the close of 
 the Anglo-Saxon period {tempore Regis Eduardi) , . SiS well as 
 those at the accession of William, and when this land-register 
 was framed, the changes which had taken place in these 
 descriptions of property may be surveyed from the following 
 table : — 
 
 Tempore 
 
 Ediia 
 
 •di 
 
 
 Tein2)ore 
 
 WWielmi. 
 
 
 Chief proprietors and otliers 1,5991 
 
 Vassals of the Crown . 
 
 600 
 
 King's Thanes . 
 Milites 
 
 • 
 
 
 326 
 213 
 
 Subtenentes . 
 
 
 7,871 
 
 Tenentes et subtenentes 
 
 
 2,899 
 
 Liberi homines 
 
 
 10,097 
 
 Ecclesiastici 
 
 
 
 1,564 
 
 Ecclesiastici . 
 
 
 994 
 
 Sochemanni 
 
 
 
 . 23,404 
 
 Sochemanni . 
 
 
 23,072 
 
 Burgenses . 
 
 
 
 17,105 
 
 Burgenses 
 
 
 7,968 
 
 Villaui 
 
 
 
 . 102,704 
 
 Yillani . 
 
 
 108,407 
 
 Bordarii 
 
 
 
 74,823 
 
 Bordarii 
 
 
 82,119 
 
 Cottarii 
 
 
 
 5,497 
 
 Cottarii . 
 
 
 5,054 
 
 Servi . 
 
 
 
 . 26,552 
 
 Servi . 
 
 
 25,156 
 
126 Constitutional History of England, 
 
 Hence we perceive that extensive changes have only taken 
 place in the great landed estates, and that in the course of 
 the Conqueror's reign the last Saxons have been ousted from 
 the lands and from the position of great Thanes and Bishops. 
 The grades of landed proprietors at this time are therefore as 
 follows : — 
 
 1. About six hundred persons and corporations appear as 
 secular and ecclesiastical Crown vassals (tenentes in capite), 
 but in very different degrees. About forty lords (the later 
 Baron es majores) are enfeoffed of an aggregate of estates, 
 which may be compared with the lordships of the Saxon 
 great Thanes, but they are scattered about in different 
 counties. About four hundred warriors (the later Barones 
 minor es) who served immediately under the Duke, were 
 enfeoffed of single knights' fees or manors. The line of 
 demarcation between the two is in this period merely one 
 founded on fact, and a changing one. Among the spiritual 
 lords the landed possessions of the majority of the Bishops 
 and certain great abbots may be compared with those of the 
 great secular feudatories ; the great majority of fees are also, 
 Irom this point of view, small. It is only when many small 
 and doubtful forms of possession are added to these that the 
 number of 1400 tenentes in capite appears, as given by Ellis. (1) 
 
 2. The second rank is formed by 7871 suhtenentes. As the 
 greatest feoffees had to furnish a whole company of heavy 
 armed soldiers, subinfeudation was a suitable, if not a neces- 
 sary, method of furnishing the contingent due. For the 
 
 (1) The number of the tenentes in registered iu one county, 180 in two 
 
 capite is given by Ellis at 1400, but or more places); 10 Comitissx ; 20 
 
 many very obscure elements are reck- other women and daughters, and a 
 
 oned among this number. The ex- few collective appellations, Homines 
 
 tracts referred to in Kelham, give as Libert Eegis, etc. 
 
 follows : — I accordingly assume the existence 
 
 (a) Ecclesiastical entries ; 19 Arch- of at least COO Crown vassals in round 
 bishops and Bishops (among them a numbers. The Anglo-Saxons had al- 
 few Normans); 20 Canon /e^■; 5G Abbots, ready been ousted from the greater 
 Abbesses and Abbeys ; '68 EcclesicX ; 11 possessions; Waltheof is mentioned as 
 Preshyteri ; 2 Diaconi : 3 Cajyellani ; being the last Ealdorman, and Wulf- 
 altogether 153 single entries. stan as the last Bishop. Among the 
 
 (b) Secular lords ; 10 Comites ; 394 small Crown vassals, however, we find 
 other lords (among whom 214 are many with Saxon names. 
 
The Property Bases of the Norman Feudal State. 127 
 
 Norman soldier this signified a fresh grant on the part of his 
 €hieftain ; for the Saxon Thane, who was left in possession, 
 it meant a limited recognition of his possession with fresh 
 burthens. At the time of Domesday Book the partition 
 of great estates into subfees had only been begun in a 
 limited degree. But Crown vassals and corporations are 
 even then both met with as under- vassals. (2) 
 
 3. The rest of the population, who were not subject to 
 military service, were mostly, though not entirely, incorpo- 
 rated with the great estates in which they had for the most 
 part a precarious or heavily burdened possession, to which 
 were added also certain other burdens by reason of the feudal 
 duties of the lord of the soil. As a constant companion of 
 the feudal system is now added a tax duty {tallagmm), to 
 which all inhabitants of town and country were subject, who 
 were not bound to the feudal military service. The chief 
 groups are : — 
 
 10,097 liberi homines, among whom, however, the names did 
 not yet imply possession of freehold estates. (3) 
 
 (2) Among the 7871 suUenentes, It is apparent from many instances 
 
 about one-half of the names are still that ecclesiastics and great vassals, 
 
 Saxon; the Domesday Book makes with the royal licence, freed their 
 
 mention of "taini" in nearly all whole estates from furnishing feudal 
 
 •counties (e/". Heywood, pp. 'S^^, 120, troops, by creating by subinfeudation 
 
 135, 200, 208; see also Ellis, i. 143). a certain number of sub-vassals once 
 
 Division of large estates by subin- and for all. Landed estates belonging 
 
 feudation permanently deprived the to abbeys are frequently mentioned, 
 
 great vassal of the en'ioymeut of pro- which, once granted to English Thanes, 
 
 prietorship, and was therefore avoided became under William subinfeudated 
 
 as much as possible. Only for the in accordance with Norman feudal law 
 
 spiritual corporations there existed (Freeman, iv. 479). 
 from the first a certain necessity for (3) Of the 10,097 liheri homines and 
 
 this course. It is expressly declared 2041 liheri liomines commendati, 4:iS7 
 
 of Archbishop Lanfranc that by order are met with in Norfolk, and 7470 in 
 
 of the King he enfeoffed the farmers Suffolk, that is in Danish counties, 
 
 on his lordships (the "threnges") as According to the Dane law the 
 
 under-vassals : prxcepit rex, ut de eis compensation for the liber homo was 
 
 nnilites fierent ad terram defendendam. three marks, that of the socmannus only 
 
 Especially for the landed estates of the twelve eras. Hence the appellation 
 
 cathedral chapters ten knights were would seem to express a somewhat 
 
 enfeoffed, and for this purpose lands higher grade than that of the soc- 
 
 of the value of £200 were assigned. mannus, although other passages seem 
 
 On the other hand, under 'William to make this doubtful. The old com- 
 
 Kufus, the Abbot of Komsey was still mendatio was also interpreted by the 
 
 allowed to furnish three knights to Normans as a subinfeudation, though 
 
 the feudal militia, without a formal it merely signified the finding of a 
 
 subinfeudation (Stubbs, i. 262, 263). landlord as an act of agreement be- 
 
128 
 
 Constitutional History of England. 
 
 23,072 sochemanni, hereditary possessors, who are only 
 subject to the magisterial jurisdiction (soca) of a landed 
 proprietor without being incorporated with an estate as 
 tenants. (4) 
 
 7968 Burgcnses, the great decrease in whose numbers is 
 explainable from the desolation caused by the war. (5) 
 
 108,407 villani, the new term for settled ceorls or the 
 proper villeins. (6) 
 
 82,119 Bordarii, that is, agricultural servants, workmen, 
 and labourers, but who were often in possession of houses 
 and small plots of land. (7) 
 
 tween the lord and the " commended." 
 In the land register this relation is 
 treated of as an oblatio feudi, and con- 
 sequently as a transferable " real 
 rio:lit," residing in the feudal lord 
 (Freeman, v. 463, and Index, s.v., 
 " Commendatio "). 
 
 (4) The 28,072 socmanni are recorded 
 in almost exactly the same number as 
 existing at the time of Edward. The 
 institution must accordingly be based 
 on a fixed legal conception, and this 
 can only be the Saxon legal jurisdic- 
 tion. In the treatise of Spelman, " De 
 Natura Brevium" they are mentioned 
 as having a title with specified ser- 
 vices, as suitors exempt from the 
 common popular courts, and only 
 really bound in their own court, and 
 capable of having others in villenafjio 
 under them. Certain socmen are met 
 with again as under-vassals, and in 
 possession of a whole manor (Ellis, ii. 
 
 (5) The Burgenses had been reduced 
 by war from their original numbers 
 (17,105) ; Domesday Book describes 
 the condition of decay and the number 
 of forsaken houses in many individual 
 towns. 
 
 (6) The villani (108,407) embrace the 
 m'ass of the Anglo-Saxon ceorls in the 
 position of peasants on the lord's 
 estates, as well as a number of the 
 old peasant proprietors and hereditary 
 possessors, at the time of Domesday 
 Book. It is difficult to believe that 
 among the still doughty array of the 
 peasants of Wessex and the "men of 
 Kent," an hereditary proprietorship 
 
 should have wholly vanished. As to 
 the degradation of the villani in this 
 period, see below in cap. xx., para- 
 graph iii. For the rank of the " liher 
 homo" the possession of a peasant farm 
 was without any decisive influence : 
 " Item tenementum non miitat statinu 
 liher I non magis quam servi. Poterit 
 enim liher liomo tenere ]purum villena- 
 gium, faciendo quicquid ad villenagium 
 jyertinehit, et niliilominus liher erit, cum 
 hoc facial ratione villenagii^ et non 
 ratione personx. suai " (Bract., ii. c. 8). 
 
 (7) The 82,119 Bordarii are regu- 
 larly mentioned in the Domesday Book 
 after the villani, as being still inferior 
 to these. According to Du Cange, the 
 term answers to our " cottager," that 
 is, denotes the labouring classes, to 
 whom, in addition to their dwelling, a 
 garden and a few acres of land had 
 frequently been given. 
 
 A survey of these conditions is ren- 
 dered more difficult by the fact that 
 the Latin text of Domesday Book 
 very frequently translated the Anglo- 
 Saxon terms in an arbitrary manner ; 
 that the commissioners in the different 
 counties did not make use of a uniform 
 rule of expression, that one and the 
 same term might embrace locally dif- 
 ferent legal relations ; that on the other 
 hand similar conditions were denoted 
 in different places by different legal 
 terms ; and, finally, that our knowledge 
 of the smaller kinds of property is ex- 
 ceedingly defective. As to the state 
 of things at the close of this period,. 
 vide below, cap. xx. 
 
The Property Bases of the Norman Feudal State. 129 
 
 The rule which determined the further development of 
 these conditions was manifest : namely, that the Saxon could 
 not claim more than the Norman, and that the lower classes 
 (apart from the obligation to feudal military service) must 
 subject themselves to the limitations and burdens laid upon 
 them by the upper classes. 
 
 By the extension to these classes of the oath of fealty, the 
 reliefs, escheats, and forfeitures, it came to pass that after 
 many generations the maxim of jurisprudence was formulated 
 "that the King is the universal lord and original proprietor 
 of all the lands in his realm, and that no one possesses or can 
 possess an}^ portion of them, which is not derived mediately or 
 immediately from a grant by him." The new order is a 
 thorough arrangement of society into ranks according to 
 military service, an immediate and effectual subordination of 
 the upper classes in military obedience to the King, and con- 
 sequently a still stricter subordination of the lower classes. 
 The whole landed property became thus uniformly subservient 
 to the State, and has remained so to this day. 
 
 The legal construction of the English Feudal System was 
 deduced by the author of this work in the second edition of 
 his "Englische Communal- Yerfassung," and his "Englisches 
 Verwaltungs-recht " (1863-1867), from the legal soui'ces and 
 printed records then available, but has been since that time 
 completed and rectified by the copious investigations of Free- 
 man, "Norman Conquest," vols, iv., v., and vi. (1871-1879), 
 and Stubbs, " Constitutional History," vols. i. and ii. The 
 material result of these valuable investigations (with a few 
 supplementary additions on my part) are as follows : — 
 
 The belief which has come down to us from Selden and the 
 antiquarian school, a belief which was hitherto universally 
 received, that William I. divided the English landed property 
 into military fees, is erroneous, and results from the dating 
 back of an earlier condition of things. Equally erroneous is 
 the statement which has been repeated for centuries, that the 
 English real property was at a certain period distributed into 
 60,215 knights' fees, of which 28,015 were in the possession 
 
 VOL. I. K 
 
130 Constitutional History of England. 
 
 of the Church, and the rest in the hands of secular vassals. 
 These computations were arbitrarily set up by later anti- 
 quarians, by reference to the number of the hides, and are at 
 least twice as high as they should be. The figures in this 
 case are among the many numerical exaggerations of the older 
 historians.* 
 
 Domesday Book does not contain a '' fee-roll," but a 
 '* property-roll," upon which in later times the fee-rolls were 
 framed. Palgrave rightly maintained that in that great 
 register there is nothing to be found about " knights'-fees " as 
 a special kind of tenure of landed property. The term feudum 
 is, in the language of the land-register, a general expres- 
 sion for landed property under the new ruler. The term 
 miles appears, as a rule, to be merely a translation of the 
 Anglo-Saxon " thegn." Domesday Book simply describes 
 the real property with its customary burdens and services, 
 without making any mention at all of new burdens and 
 services resulting from the new feudal bond, and even without 
 any intimation that the new military service is different from 
 the old. The land is not divided into knights' fees, but into 
 Jiidse ; where the "men" of one or other great landlord are 
 spoken of, the expression evidently refers, as a rule, only to 
 the old Anglo-Saxon vassalage, or to the commendatio to a 
 Hlaford as an institution of the Anglo-Saxon police control. 
 It was only in the succeeding generations that the feudal 
 military service was definitely apportioned on the basis of this 
 register, and that the claims of the royal feudal lord in the 
 exchequer were consistently enforced. 
 
 The occupation of the country after the battle of Hastings 
 began with those counties from whose levies Harold's army 
 
 * The estimate of Higden in the accepted the quotation, and has made 
 
 " Polychronicon " (i. c. 49) of 60,015 of it a tralatitium. C/. Stubbs, i. 424. 
 
 knights' fees is contradictory of the fact At the close of the period, Stephen 
 
 that the Treasury itself could at no Segrave, a minister of Henry III., 
 
 time give a correct estimate of the computes the number of kniglits' fees 
 
 number of knights' fees. From Higden at 32,000, and even from such a number 
 
 that number passed into the so-called the knights' scutage could never be 
 
 " Eulogium," out of which again raised. 
 Seldeu, in his notes to Fortescue, has 
 
The Property Bases of the Norman Feudal State. 131 
 
 had been formed. In these a general confiscation of the 
 landed property of the "rebels " took place, so that among the 
 tenentes in capite scarcely a single Saxon name can be found. 
 From thence the Conquest spread further towards the West 
 and the North, until in 1070 the occupation was mainly 
 completed. In this further occupation the principle is still 
 adhered to, that participation in the struggle against William, 
 as the legal heir to the crown, entailed as a legal consequence, 
 not indeed, outlawry, but forfeiture of landed property ; as the 
 result of which re-grants were at once made to Normans and 
 to certain favoured Angli. Those Angli, on the other hand, 
 who had not taken part against him, or who had comj)romised 
 themselves less, were allowed, by " redemption," to receive 
 back their possessions from the King, as an act of his favour ; 
 accordingly, those who participated in his grace, received a 
 royal writ (hreve), which appears from that time necessary 
 and sufficient for all purposes as a title of possession. The 
 technical term for this is " inhreviare,'' According to the 
 diversity of various cases, the inbreviatio is bestowed in 
 consideration of small, greater, and often very large dues, 
 and the *' redemption " is granted either for the whole or 
 only for a part ; widows and poorer members of a family are 
 sometimes allowed a small portion as a charitable provision. 
 The theory and manner of expression of this "redemption," 
 which are consistently maintained throughout Domesday 
 Book, make it appear as a royal gift, by which the new lord 
 of the whole country allows the former possessor a certain 
 share in the soil. Later jurisprudence was able, accordingly, 
 to deduce, with plausible reasons, from these *^ redemptions " 
 the character of a conditional grant (tenure). The ecclesi- 
 astical estates alone were conceded to the corporations who 
 were in possession of them, without the humiliating form 
 of inhreviatio, because the theory of personal forfeiture ap- 
 peared not to be applicable to them. Yet in the next reign, 
 the system of tenures in all its bearings was extended even 
 to these. 
 
 The landed property thus granted or redeemed was, accord- 
 
132 Constitutional History of England. 
 
 ing to the Conqueror's plan, to be uniformly employed in 
 forming the heavy-armed feudal militia. To the newly en- 
 feoffed Norman lords this was the natural feudal custom of 
 their country. To the newly enfeoffed Angli and to those 
 who had redeemed their possessions, it appeared in the light 
 of a just equalization. Yet the accomplishment of this 
 scheme was not effected under William I. In the carrying 
 out of it the difficulty with which the Anglo-Saxon adminis- 
 tration had struggled for centuries immediately returned : a 
 fixed standard for the apportionment of the soldiery was 
 wanting. Since Alfred's time, indeed, the general rule had 
 been observed that a fully equipped man should be furnished 
 for every five hidae ; but it had never been established as a 
 rule of law as in the Carlovingian legislation ; the apjiortion- 
 ment had remained a matter of administration, regard being 
 had to the state of the income at the time and to other con- 
 ditions, and hence it was for the sheriff and the county ad- 
 ministration an object of continual claims. Only in a few 
 places a local legal custom had become established, which 
 accordingly was carefully noted in Domesday Book.** 
 
 ** In my "Geschichte der Commu- be expressly reserved was natural, see- 
 
 nal-Verfassung,"' p. 17, I have pointed ing that the contingent furnished by 
 
 out that the fixing of military service the hundreds remained the same, so that 
 
 according to the standard of the the deficit would have fallen upon 
 
 hide had not in the Anglo-Saxon their neighbours. In like manner 
 
 period become a rule of law. It occurs the privileges of the towns in the later 
 
 accordingly only incidentally in Domes- Anglo-Saxon times must be regarded; 
 
 day Book. In a few cases in the royal tlie military service of which is fixed 
 
 grants the number of the warriors to at five, ten, fifteen, and twenty hides, 
 
 be furnished was determined by privi- and in which we also meet with a 
 
 lege, which number was therefore not money discharge, Chester paying a 
 
 to be exceeded. Thus in tlie case of sum equal to 50, and Shrewsbury 100 
 
 an important grant about the year hides (Lappenberg, i. 613). After the 
 
 800 : *' Verum etiam in expedHionis Conquest this institution appears as a 
 
 necessitatem viri quinque tantum mit- local custom, as in Berkshire (i. 56. 6) : 
 
 tantur" (Coenuulf, 799-802, in Kem- " si rex mittebat alicubi exercitum de 5 
 
 ble, " Codex " Introd. p. li.) And again hidis tantum unus miles ibat, et ad ejus 
 
 shortly after this '■'■ expeditionem cum viclum vel stipendium de unaquaque 
 
 duodecim vamllis et cum tantis scutis hidadabantureiiv.solidi ad ii. menses." 
 
 exerceant" (idem, 821). In the latter Because tlie rate of the five hides was 
 
 case it was a matter of a grant of some only a principle of administration, it 
 
 twenty townships to a monastery (Cod. was in practice much modified, and 
 
 DipL, i. 272). That where great grants maintained itself as an established 
 
 were made to churches and monasteries custom only in certain counties, 
 a definite number of warriors should 
 
The Property Bases of the Norman Feudal State. 133 
 
 Apart from this, the apportionment of the cavaby service 
 (which had now become more expensive) under the new 
 schemes of property, and the valuation of the real estates 
 according to their productive worth, was certain, after so 
 many changes and desolating struggles, to lead to more violent 
 disputes than ever. On the earnest endeavour made to carry 
 out the plan at the time of threatened invasion in the year 
 1085, the King abandoned the scheme, in consequence of the 
 probability of endless disputes ; but he imposed a high tax 
 (Jiydagium) upon the hides, and hurriedly collected a paid 
 army with the other means at the disposal of his exchequer. 
 Connected with this event was the well-considered plan to 
 determine for the future, by means of a land-register of the 
 realm, all the factors according to which, in case of future 
 levies, the number of " shields " to be furnished should be fixed, 
 and the other feudal dues exacted. Upon this basis, after the 
 year 1086, the shares of the great landed proprietors were 
 settled, according to which a heavy-armed man (servitium unius 
 militis) should be furnished for each share. The feuda militum 
 thus computed are no knights' fees of a limited area, but real 
 portions of the profitable free estate. " The knight's fee is 
 no manor, and no hide of a fixed uniform extent, but a unit 
 of possession which imposes upon the owner the obligation 
 of fu];nishing a fully equipped man for the usual period of a 
 campaign. These ' units of property ' comprise not only 
 agricultural land but buildings, rights of cutting timber, 
 mills, fisheries, salt and other mines, tolls, market dues, 
 tithes, etc. ; and also, as the furniture as it were of the soil, 
 the mass of tenants, the greatest cities as well as the smallest 
 villages, and single farms, the formerly allodially free peasant, 
 as well as the serf who had settled on the land, with all 
 customary services, dues, and protection moneys. Through- 
 out the whole of the Middle Ages the normal standard of a 
 knight's fee is not the acre-measure but a ground-rent of 15, 
 and in later times generally of 20 lbs. of silver." *** The 
 
 *** I may repeat these words from Verwaltungsrecht," as they appear 
 the second edition of my " Englisches to have accurately hit the material 
 
134 Constitutional History of England. 
 
 judicial and police system appertaining to a manor are inde- 
 pendent of this ; a manor may be estimated at either more or 
 less than a knight's fee, and as such has no connection with 
 knights' service. It was only after a lapse of time, and in a 
 limited degree, that knights' fees began to be settled on certain 
 and determinate estates. 
 
 Accordingly, after the land register of the realm had settled 
 the factors for the distribution of war burdens for the later 
 generations, William found himself enabled to fix the keystone 
 of his system, by the universal, fundamental and immediate 
 obligation to allegiance, in which he included not merely his 
 own immediate crown-vassals but their under-vassals also, as 
 well as all the greater freeholders in the country, " omnes 
 'prsedia tenentes, qiiotquot essent notde melioris per totam 
 Angliam ; '' and his contemporaries have understood his act 
 in its fullest extent, " milites eorum sihi fidelitatem contra omnes 
 homines jurare coegit^^ (Florence). During the Norman reigns 
 which follow consequences in all directions proceed from this 
 basis. 
 
 The Norman Crown, as the heir of the Anglo-Saxon, re- 
 tained all the powers and revenues of its predecessors, and 
 as supreme feudal lord over all the land added to these the 
 newly acquired feudal rights. The King claims obedience, 
 military service, and tribute, in both characters; all 
 homines are his men; he can summon them to his army, 
 cite them to appear in his tribunals, can rate them in respect 
 of his revenue, without the intervention of an intermediate 
 lord. It is difficult to say what immense consequences might 
 not have proceeded from this twofold position, if, after the 
 fashion of all human affairs, a limitation of them had not 
 
 point. Under Henry II., after the obligation lay jointly and separately 
 
 knights' fees had attained their fullest upon each carucata. Hence even in 
 
 development, there are to be found in those times, a valuation according to 
 
 the liber niger, feuda militum of 2, 2J, the productive results was in existence, 
 
 4, 5, and 6 hides. For example without dividing up the estates into 
 
 Geoffrey Kidel tells us that his father separate knight's fees (Stubbs, i. 264). 
 
 possessed 184 carucatx ( = 100 acres), A copious use of extracts from the 
 
 for which the service of fifteen knights Domesday Book has been made by 
 
 was due, but that no special knight s Freeman (Vol. v. Append. A, B, C, D). 
 fees were formed out of them, but the 
 
The Property Bases of the Norman Feudal State. 135 
 
 arisen in another direction through the circumstance that all 
 royal governments of this period began with a dubious or dis- 
 putable title, and had to struggle with dangerous risings on 
 the part of the great vassals, which took place either alter- 
 nately or simultaneously in England and on the Continent. 
 Immediately after the occupation of England begins the 
 dangerous insurrection of Kalph Guader and Eoger, the son of 
 Fitz -Osborne. For a whole century, until the death of 
 Henry 11. , these revolts continued on the part of the great 
 vassals against the English feudal lordship, which they con- 
 sidered insupportable ; they end with the removal or degrada- 
 tion of all the great families which at the time of the Conquest 
 stood at the head of the martial nobility. In all these 
 struggles the national Anglo-Saxon element cleaves with 
 unshaken loyalty to the Eoyal house, and gains accordingly 
 the most material concessions from moral, as well as from 
 political considerations. The vouchsafing to all a like legal 
 protection, the established system of the central administra- 
 tion, the consolidation of the constitution of the counties, 
 cities, guilds, and all the elements which afford a counterjDoise 
 to the " great vassalage," spontaneously urge themselves 
 upon the Anglo-Norman King as the policy which this state 
 of affairs requires, without partiality either for the one or for 
 the other nationality. t 
 
 William Eufus already makes his '' Angli " significant pro- 
 mises, in order with the help of their faithful soldiery to 
 humble the insurgent magnates, though he certainly does 
 not keep his word. Indeed, the Eoyal feudal suzerainty was 
 turned to account in this reign rather with a display of savage 
 brute force and of greed for money. A quick-witted cleric, 
 Eanulph Flambard, as Great Justiciary, unscrupulously 
 utilized the fiscal part of the royal suzerainty against 
 ecclesiastical and secular estates, and was the first to bring 
 into operation the grasping fiscal principles of the English 
 Exchequer. 
 
 t I may for the following survey of the reigns in Stubbs' " Select 
 refer my readers to the excellent sketch Charters." 
 
136 Constitutional History of England. 
 
 Henry I. begins his reign with a fair-promising Charter, by 
 which he gains the sympathies of the nation for his defective 
 title to the crown. Every sentence of this charter throws an 
 unmistakable light iij^on the maxims of the preceding adminis- 
 tration ; and the promises which the King here made he also 
 kept in the main, by returning to the prudent principles of 
 government of the Conqueror. Like the latter, he avoids the 
 re-grant of territory and judicial powers to the great vassals 
 on any large scale. He centralizes the financial control in the 
 Exchequer, facilitates the access to the Curia Regis, in other 
 directions enlarges the competency of the county courts, and 
 amplifies the charters of freedom of the cities and guilds. By 
 the circuits of his Justiciary and the Commissaries of the 
 Exchequer he brings the royal jurisdiction into immediate 
 connection with the provincial administration, in a manner 
 which obviates the danger of a territorial separation of the 
 manors. 
 
 Next follows the reign of the usurper Stephen, to the exclu- 
 sion of Henry's daughter, the Empress Maud, who had been 
 formally appointed to the succession. Stephen's cavalier- 
 like frivolity endeavours to gain the favour of the vassals 
 by extravagant grants of Crown lands, and by laxity in 
 administering the laws of the land. But so soon as the 
 possibility of winning more adherents by this means is ex- 
 hausted, the defiant opposition of the Barons begins. Even 
 the peaceable magnates and Bishops saw themselves forced 
 in self-defence to fortify their castles, and to prepare for war. 
 In this critical moment Stephen commits the folly of arresting 
 his Grand Justiciary and Bishop Alexander, by which act 
 the clergy are provoked to opposition, and at the same time 
 an orderly political administration altogether ceases. Neither 
 Stephen nor the Empress has any real support in the popular 
 feeling, whilst barons and knights fight nominally under the 
 flag of one of the two claimants, but in reality for their own 
 landed interests. From this time, instead of the former well- 
 ordered administration of the realm, there is seen all the 
 confusion of the continental feudal system — private wars, 
 
The Property Bases of the Norman Feudal State, 137 
 
 fortified castles, the forcible exercise by greater and lesser 
 barons of self-arrogated judicial functions, and of the privilege 
 of coinage — a wild struggle of warriors among themselves, 
 under pretence of siding with Stephen or with Maud, until, by 
 the mediation of the clergy, a compromise is effected in 
 favour of the succession to the throne of Henry, son of Maud. 
 Henry II. ascends the throne without opposition, and with- 
 out any obligation towards either party, with the resolve to 
 rule England as an English King, together with his great 
 possessions on French soil. The basis of government and of 
 the county administration created by William I. and Henry I. 
 now received a systematic form. By the union of the royal 
 central administration with the national county courts, the | 
 power of the great vassals was driven back into proper limits, 
 and with the support of an energetic and loyal official nobility, 
 the formation of which had begun as early as the reign of 
 Henry I., with the appointment of Eoger, Bishop of Sahsbury, 
 the Norman administrative system attains its unequalled 
 systematic development. Even amidst the unfortunate family 
 relations and unfavourable external conjunctures which 
 characterized the latter years of Henry the Second's reign, 
 the internal organization of the Exchequer and the Curia 
 Eegis, and that of the legal, military, and financial system 
 makes consistent progress. And so also under that knight- 
 errant, Eichard I., the internal government, under the conduct 
 of sagacious officers, pursued a course that was in the main 
 orderly ; until under the worthless rule of his successor, 
 John, the crisis supervened, which led to the signing of 
 Magna Charta. 
 
 Within this framework is accomplished the internal con- 
 solidation of a political system, which stands unmatched in 
 Europe in the Middle Ages. 
 
138 Constitutional History of England. 
 
 CHAPTER IX. 
 
 W^z Norman Countg CSobcrnment. 
 
 The Conqueror found on his arrival, a well-ordered division of 
 the country into Shires, Hundreds, and Manorial districts, and 
 a corresponding official system of Earls, Shir-gerefas, royal 
 and private Gerefas. For King Eadward's legitimate successor 
 the retention of this system was a natural condition, and a few 
 years' residence in England must have sufficed to convince 
 the Conqueror that his rule could have no more advantageous 
 basis than the Gerefa-system he found there. The outward 
 fabric of the government of the country thus remained un- 
 changed, but it was enlarged by the new powers that had their 
 origin in the feudal system, whilst in many points it was at 
 the same time limited by the centralization which soon began. 
 I. The office of tj^e 15orl had, in the last two generations 
 of the Anglo-Saxon period, been reduced into the position of 
 an upper governorship, with an ever changing combination 
 of shires, and a frequent change of officials. According to 
 the custom of the country, it involved the highest secular 
 rank, corresponding to the ducal title of the Continent, and 
 continued to do so until the reign of Edward III., for the 
 '^ duces'' of Normandy naturally avoided giving their subjects 
 the title of ^' chix.'' A few Anglo-Saxon Eorls retained their 
 earldoms for a considerable period. In the place of the rebel- 
 lious Eorls, Norman great-feodaries were appointed. Certain 
 lords apparently received the title of Eorl, only because, in 
 Normandy, they had already been Counts. Usually, though 
 
The Norman County Government, 139 
 
 not always, a high military rank was attached to the office, 
 which was conferred hy a special ceremony, that of girding 
 with the sword {gladio comitatus cingi), hut no active com- 
 mand was attached. The rights and profits of the Eorl, i.e. 
 the customary third of the revenues of the county, were at 
 first usually combined with it. But the conspiracy of the 
 Earls in the year 1074, showed plainly enough how 
 dangerous an administration by Earls was to the royal 
 rule. From that time onwards the appointments were made 
 with great reserve ; only such persons received them as had 
 already borne the title of "count" in Normandy; in later 
 times mostly members of the royal family; and in such 
 a manner that the Eorl was removed as far as might be 
 from the actual administration of county affairs. The former 
 administrative office passed into one of the highest dignity, 
 with many honours, but with as few duties as possible. 
 In Domesday Book are recorded the names of ten comites, 
 
 > and a like number of comitissse. The greater number of 
 counties accordingly had no comes. Wherever we meet with 
 one, no jurisdiction is attached to his person, no command 
 in the army, no authority in the county court, and no special 
 magisterial power of any kind. The Eorl is connected with 
 the county, whence he has his name, in no other way than 
 through the " tertius denarius,'' under the sheriff's yearly 
 lease. The earliest Treasury accounts show the payment of 
 such sums, amounting to £11, £16, £20, £33, etc., under the 
 head of tertius denarius. But it is only a donatio sub modo, 
 the grant of a permanent income "for the better suj)port of 
 the dignity of an Eorl ; " it consists in a mere order for pay- 
 ment or precept addressed to the sheriff, and is therefore a 
 
 . right of demand, but no feudal right, and is accompanied by 
 no investiture. Occasionally the Eorl is also appointed as 
 sheriff, even in his own county, as Cospatrick was under 
 William I. An Eorl of this character must render his 
 accounts to the Exchequer, like any other sheriff, and he 
 is only permitted by warrant to retain the tertius denarius 
 (Madox, ii. 164). An Earldom has thus already the character 
 
140 
 
 Constitutional History of England. 
 
 of the later titles of nobility; the same vagueness in the 
 names, which are sometimes taken from a county, and some- 
 times from a city (such as Salisbury, Winchester, Carlisle), 
 sometimes from a township (Striguil, Clare), sometimes from 
 family names (Warenne, De Ferrers). The newly created 
 earl was sometimes allowed a tertius denarius, sometimes 
 a fixed annuity, and in later times neither the one nor the 
 other. The dignity sometimes descended to women, and 
 sometimes not, according to the wording of the grant ; which 
 from the first appears to rest upon patent. To this rule of 
 government only a few exceptions were made in the border 
 counties (the so-called counties Palatine) which had no 
 influence upon the system of county administration. (1) 
 After the withdrawal of the Eorl, the Anglo-Saxon Shir-gerefa 
 
 (1) As to the dignity of the Norman 
 Eorl, see Spelman's " Grlossarium," s.v. 
 Comes ; Selden, " Titles of Honour," 
 iii. 638, et seq. ; Hey wood, "Ranks," 
 p. 95, et seq. ; Madox, " Exchequer," ii. 
 400, etseq. ; " Baronia Auglica," i. c. 1 ; 
 Hallam, " Middle Ages ; " Ellis, " In- 
 troduction ; " " Peerage Reports," iii. 
 178, 211, seq. The dispute of the 
 antiquarian authorities as to when the 
 dignity of Eorl became merely titular 
 is rather a controversy of words. We 
 certainly cannot speak of a mere titular 
 dignity in the case of those comites, to 
 whom a third part of the court dues, 
 fines and other revenues, had been 
 granted. (As to their extent, see Hey- 
 wood, 100, 101, 108.) The decisive 
 question is, how far the Comes as such, 
 had a military command, and how far 
 he controlled the county assembly, and 
 the peace of the county. That he had 
 these powers, upon reference to the 
 governmental documents, must be most 
 decidedly denied; as to the instances 
 in which a Comes governs the county as 
 Vicecomes, see Madox, ii. 400. A local 
 exception is made after the Conquest, 
 in the county of Chester, in which, 
 having regard to the necessity of de- 
 fending the frontier, a general governor 
 was intrusted with the immediate ex- 
 ercise of the jura regalia. After the 
 reign of Henry II., such exceptional 
 cases were not unfrequently called 
 
 " palatinates." Extended powers of 
 this kind were further granted in 
 Shrewsbury, on the Welsh borders, in 
 Durham, on the Scottish boundary, 
 and in Kent, in consideration of the 
 threatened invasions from Picardy. 
 Two of these palatinates were inten- 
 tionally combined with ecclesiastical 
 dignities which were not capable of 
 establishing an hereditary family suc- 
 cession. Such governors are generally 
 called Earls,but frequently otherwise, 
 as in the case of the Marchers of Wales; 
 and where they bear the title of Earl, 
 it is only the latter that is hereditary, 
 whilst the governorship is regarded as 
 a perfectly separate grant (" Peerage 
 Report," ii. 255). Under Stephen, new 
 Comites appear to be created in 
 great numbers, and with extended 
 powers; but these pseudo-earls were 
 deposed under Henry II. For the 
 origin of the later Palatinate of Lan- 
 caster, there were personal reasons in 
 the striving of this house to preserve 
 to itself a family possession, in addition 
 to the crown it had usurped. All 
 these variations, of comparatively 
 small extent, had no determinate bear- 
 ing upon the constitution of the 
 country. The character of the Eorl, 
 as an originally personal dignity, is 
 recognized by the " Peerage Report," 
 iii. 178, 211, 212, etc. 
 
The Norman County Government. 141 
 
 became the regular governor of the county, who ^vas hence- 
 forth no longer dependent upon the Eorl, hut upon the 
 personal orders of the Kmg, and upon the organs of the 
 Norman central administration. 
 
 II. The important office of tj^e T!<rorman FlCCComcs is identical 
 with the old office of Shir-gerefa, now filled by trustworthy 
 Norman lords. Upon French soil there existed a similar 
 system of government under Bailiffs ; who as representa- 
 tives of the duke, himself invested with the Carlovingian 
 dignity of count, bore the title of ^' Vicecomites.'" The official 
 Latin in Norman England adopted the title Vicecomes, but 
 this did not become naturalized in the Saxon vernacular. 
 The Norman term "bailiff," which nearly corresponded to the 
 Saxon " gerefa," was in later times applied rather to the 
 under stewards of the Vicecomes. For the governor of the 
 county, on the other hand, the native population retained the 
 usual name, Shir-gerefa, Sheriff, which consequently, in later 
 times became the prevailing one. Corresponding as it did to 
 the Anglo-Saxon administrative system, the office of Yice- 
 comes was a four-fold one. 
 
 1. As the King's military representative his duty was, in 
 conjunction with the county assembly, to regulate the appor- 
 tionment of the contingents, and conduct the detail business 
 of the military organization. This business became somewhat 
 simplified after registers could be kept with the help of 
 Domesday Book. The sheriff's duty is accordingly, with the 
 aid of such registers, to carry out the royal orders summon- 
 ing the vassals, which orders are issued to him as executive 
 officer. Where a royal castle belongs to the county, he looks 
 to the equipment of the knights, the Serjeants, and foot soldiers, 
 as well as to their supplies, debiting the treasury with all the 
 disbursements. In case of need he also manages the fitting 
 out of ships. In the border provinces he conducts the defence 
 of the county, in case no governor with larger powers has been 
 appointed. After the revival of the old militia system under 
 Henry II., he becomes also leader of the county militia. 
 Wherever for military, judicial, or finance purposes, military 
 
142 Constitutional History of England, 
 
 administration becomes necessary, it is the sheriff who does 
 the work. 
 
 2. As Royal Justiciary, the Vicecomes is the successor of 
 the Anglo-Saxon Shir-gerefa ; he presides in the county court, 
 and holds the customary court-days at stated periods in the 
 county as well as in the hundreds. The judges are the county 
 freeholders. Instead of Thanes and freeholders, we now find 
 vassals, under-vassals, and freeholders ; and Normans instead 
 of Saxons. So far the judicial administration was able to 
 survive with its framework unchanged. But defective adminis- 
 tration of justice and other circumstances led by degrees to a 
 centralization at the royal court, which deprived the Vice- 
 comes of much judicial business ; whilst on the other side, 
 the police spirit of the new regime made the criminal sittings 
 the chief business in the several hundreds. In all cases the 
 customary execution of all judgments, the collection of fines, 
 and the confiscation of forfeited lands, remains the province 
 of the Vicecomes. 
 
 3. As Police Magistrate of the Crown he performs the cus- 
 tomary duties of maintaining the peace, pursuing peace- 
 breakers, if necessary, with the '' hue and cry" of the whole 
 county ; he accepts security for good behaviour, and controls 
 the general surety-system of the tithings. Through the neces- 
 sities of the times these police functions became much ex- 
 tended, and developed into what was soon an unlimited 
 system of police fines. For carrying out these measures, 
 periodical police-court sittings were instituted in the several 
 hundreds under the name of '^turnus vicecomitis '' and ^'visus 
 frankplegii." The more the judicial functions of the sheriff 
 become curtailed, the more prominent is his character of 
 police official. 
 
 4. His office finally as Bailiff of the royal demesnes (gerefa) 
 develops into one of high importance, owing to the form of 
 the Norman administration. As in the Anglo-Saxon period, 
 the management of the royal demesnes is now entrusted to 
 the Vicecomes to administer them as a steward within his 
 district. He takes over these demesnes with the stock upon 
 
The Norman County Government. 143 
 
 them, he makes good the deficiencies as they occur, and covers 
 his disbursements by deductions from the rent according to a 
 fixed scale (Madox, ii. 152). In many counties the remainder 
 of the estates which had been assigned to the Saxon Shir- 
 gerefa to provide his official income (reeveland), were added 
 thereto. The sum total of these estates forms the "corpus 
 comitatus " out of which the annual rent due to the King was 
 primarily payable. 
 
 In later times, when the " corpus comitatus " had become 
 greatly diminished by grants {terrse datse), he only accounts 
 for the " remanens Jirmm post terras clatas," and this too was 
 frequently burdened with current annuities and pensions, 
 which had also to be deducted. An important part of his 
 receipts is formed by the payments made by the tenants 
 to their royal landlord. The payments in kind, consisting 
 in corn, provisions, conveyances, and manual services, ap- 
 pear in Domesday Book as having in great measure been 
 already converted into money, and according to the system 
 pursued by the Treasury, this conversion proceeds, until as 
 early as the reign of Henry I. it has become the rule. To 
 these again are added the customary rights to wrecks, trea- 
 sure-trove, and the other occasional sources of revenue of 
 the old regal finance, and also (in the province of the 
 magisterial functions) the rights to escheated and forfeited 
 property, to various dues and fines, and to the confiscation 
 of the movables {catalla) belonging to executed or fugitive 
 criminals. 
 
 The revenue accruing from such suzerain rights was extra- 
 ordinarily increased by the introduction of the feudal system, 
 and these accretions were more vigilantly guarded by the 
 Norman kings than by their predecessors. The feudal system 
 added relevia and other similar incidental revenues, the large 
 pecuniary value of which led to their being payable directly 
 to the court. At the time of Domesday Book the maxim 
 held good, that only vassals (taini), who possess six maneria 
 or less, should pay their relevium to the Yicecomes. Those 
 possessing more than six maneria pay immediately into the 
 
144 Constitutional History of England, 
 
 Exchequer (at all events this principle is expressly mentioned 
 in two counties). Do. 280, b. 298, b. (2) 
 
 To deal with the numerous financial and judicial duties, an 
 official system became early established, with its clerks {clerici), 
 in whom we recognize the ancestors of our under-sheriffs. The 
 sheriff charges his under-bailiff with the duty of collecting the 
 dues and rents, with distraints and summonses in the several 
 districts {Ballivi Hundredorum) ; and further appoints working 
 officials called " bailiffs " or " servientes " to attend on him 
 and act as messengers, and also travelling under-officials or 
 bailiffs errant. Altogether the financial position of the sheriff 
 between the Treasury and those from whom payment was 
 exacted, became soon so complicated, that (as in many 
 German states of the middle ages) a *' farming" of the office 
 of sheriff arose, with a view of turning the uncertain revenue 
 into a fixed state income. Certainly there are to be found 
 among the sheriffs both farmers (fermors) and administrators 
 {custodes) ; the difference between whom consists in the 
 manner in which they render their accounts. But *' farm- 
 ing" becomes the rule, and in many reigns can be proved to 
 have prevailed in nearly every county. The appointment 
 was sometimes for a quarter, or for half a year, but generally 
 for a year — not unfrequently too for a number of years ; but 
 yet always reckoned from year to year, and revocable at the 
 pleasure of the King. The rent is frequently the same that 
 the predecessor paid {antient ferm), or the old sum with an 
 
 (2) I shall refer again to the Nor- ary is again referred to in cap. 11, and 
 man Vieecomes in his character of his position as police magistrate in 
 military commissary in cap. 10. His cap. 12. The mention made of his 
 special duties in furnishing garrisons police functions in the legal books of 
 for the Burgs arose from the fact, that tliis period is precisely the same as 
 the feudal service of forty days was in- that of the Shir-gerefa in the Anglo- 
 sufficient for the purpose, and that Saxon period, e.g. in regard to the 
 paid standing garrisons were absolutely peace that he had to proclaim, Hen. 79, 
 necessary. Hence the frequent pay- sec. iv. ; as to summonses, Hen. 41, 
 raents for milites and servientes, for sec. v. ; to distraints. Hen. 6. 51 ; sec. 
 horse soldiers and foot soldiers in the iv. ; complaints relating to theft, Hen. 
 Burgs ; and more frequently still in 66, sec. ix. 
 
 the campaigns. (Dialogus de Sc. The leges Wilhelmi especially confirm 
 
 Madox, ii. 422 ; Madox, i. 220, 370, the old police functions of the Shir- 
 
 etc. where a disbursement of £1228 is gerefa. I shall refer at length to his 
 
 mentioned.) The Vieecomes as justici- financial duties in cap. 13. 
 
The Norman County Government. 145 
 
 additional payment {increment). The Exchequer accounts 
 show that a formal rivalry in bidding took place. Once, for 
 instance, the Chancellor, the Bishop of Ely, bids for the 
 counties of York, Lincoln, and Northampton, 1500 silver 
 marks down, with 100 marks additional in subsequent pay- 
 ment; whilst the Archbishop of York bids for York alone, 3000 
 silver marks down, with 100 marks additional payment. 
 
 The farmer-general had at the same time to produce re- 
 spectable men to the Treasury, as sureties for the rendering 
 of an account that was now strictly controlled. Twice a 
 year, at Easter and Michaelmas, the sheriff appears in person 
 before the Treasury. These are the two scaccaria, meaning 
 terms for payment, which were previously announced to all 
 the Crown debtors in the county. At every term a pro- 
 portion of the rent, and other sums due, " summonces,'' have 
 to be paid down as a provisional payment ("_/^rq/br") ; then 
 with the presentation of the receipts follows the " visus 
 compoti ; '^ and in conclusion the " siimma." Often, special 
 commissioners were deputed to investigate the conduct of 
 sheriffs who had exacted payments without giving receipts, 
 or had committed other irregularities. (2^^) 
 
 (2*^) With regard to the rendering prehencli.'^ (Madox, ii, 415.) In cases 
 
 of accounts by the Yicecomes, the where the person from whom the ac- 
 
 " Dialogus de Scaccario," ii. c. 1, 2, 4 counts are clue is a vassal of the Crown, 
 
 (Madox, ii. 407-16), gives the system- short process is made, with distraint 
 
 atic principles obtaining in the time on his fief or personal arrest, but a 
 
 of Henry II. The writ of summons to miles is to be kept in decent imprison- 
 
 present accounts runs : " Vide sicut te ment. An administration of the whole 
 
 ipsum et omnia tua diligis, quod sis ad oflSce by substitutes can only be allowed 
 
 scaccariiim ihi vel ihi, in crastino Saucti by special Eoyal licence. In the Rotuli 
 
 Michaelis, et habeas ihi tecum qiiidquid 5 John a " suhvicecomes pro cancellario" 
 
 debes de vetere firma vel nova, et nomi- is met with in this office. But other 
 
 natim hxc debita suhscripta" Then considerations are also entertained with 
 
 follow the several items. Under cer- regard to money payments. In 12 John 
 
 tain circumstances it is expressed in the men of the county of Dorset and 
 
 sharper terms, " alioquin sic te casti- Somerset pay 1200 marks in silver, 
 
 gahimus, quod poena tua aliis BalUvis " quod Bex constituat eis Vicecomitem 
 
 nostris dabitur in exemplum." (Madox, de se ipsis talem, qui residens sit in 
 
 i. 356.) Representation in delivering comitatibus illis, excepto W. Brieverre 
 
 accounts is only allowed by special et suis," etc. An objection of this 
 
 royal mandates, in later times by kind to certain persons as sheriffs is 
 
 special permission of the president. It not unfrequent. In this way the first 
 
 was imperative that at least one miles separate cases occur, in which an elec- 
 
 should be amongst the substitutes, and tion by the county of their sheriff" is 
 
 not only " clerici" " quia, non decet allowed in return for a money payment. 
 eos pro pecunia vel ratiociniis com- 
 
 VOL. I. T. 
 
146 Constitutional History of England, 
 
 The collective office of the sheriff, as war commissary, sum- 
 moning the lords and knights ; as treasurer, through whose 
 purse the finances of a small province pass ; as police magis- 
 trate, having to execute judgments and maintain the King's 
 peace against the mightiest in the land, clearly shows that, 
 according to the notions of those times, only a Crown vassal 
 or a skilled ecclesiastic was capable of administering such 
 an office. The Norman lords despised no positions of gain. 
 Hence we find at times kings' sons among the sheriffs (for 
 instance, Kichard, the son of Henry IH.) ; the great justi- 
 ciaries of the realm, and other high Court officials ; the 
 Archbishops of Canterbury and York ; numerous Bishops ; 
 and sometimes even a highly placed Eoyal Chaplain; but 
 most frequently the names of Norman lords occur, to whom 
 the office of sheriff afforded a lucrative income in addition to 
 their landed property. Yet the system varied under different 
 reigns. Careless monarchs allowed the magnates to seize 
 the sheriff's office ; in a few cases the office was even allowed 
 to become hereditary, although the personal responsibility 
 was retained. But it was not until the reign of Henry II. 
 that the office became systematically filled from the ranks of 
 the newly formed official gentry; in the last years of this 
 reign it was filled from the same class of officials as the 
 barons of the Treasury and the travelling commissaries. In 
 spite of the important position it afforded, the office remained 
 at all times a purely personal one, dependent entirely upon 
 the will of the King, and therefore revocable. The King had 
 accordingly the power of separating from it several branches. 
 Thus we meet in early times with special "foresters," "cus- 
 tomers," " escheaters," "farmers" of towns, guilds, etc., 
 and in later times special collectors of the tallagia of the 
 fifteenths and other subsidies. The King had also the right 
 to commit his burghs to the care of special burgh-bailiffs, with 
 or without a judicial and financial jurisdiction within the 
 burgh-district. He could also divide the judicial authority in 
 certain districts, and grant exemptions to towns, etc. ; all 
 these special administrative branches the sheriff must support 
 
The Norman County Government, 147 
 
 with his authority, whenever distraints and executions are to 
 be put in force. The King could also introduce modifications 
 into the conduct of the office ; for example, by permitting the 
 controlling power in extraordinary cases to be exercised by 
 substitutes {e.g. for clergy in military matters). And he could 
 finally on this account depose the sheriffs, singly or collec- 
 tively, a popular measure repeatedly resorted to in the twelfth 
 and thirteenth centuries. He might suspend them at any 
 time from office, place custodes over them, investigate their 
 conduct by commissioners, regulate their behaviour by instruc- 
 tions, and impress their duty upon them by new oaths of 
 office. As in the Anglo-Saxon period, there cannot be found 
 any trace of a right to the office, or of a right of the county 
 assembly to appoint to it, nor of an appointment by election. (2^) 
 
 III. 'STfi^ iocal C^oberntnnu of tit S?ub=l3istrfcts within the 
 county is still principally regulated by the nature of real 
 property in just the same manner as under the Anglo-Saxon 
 gerefa system. Through the Conquest and the feudal system 
 arose a change of occupiers of the soil, and with the change 
 in persons a new grouping of possessions ; but the old system 
 of property was in the main retained. The descriptions of 
 the estates in Domesday Book re]3roduce the modes exist- 
 ing at the close of the Anglo-Saxon period, under the partly 
 new names of '' manors," *' honors," and *' burghs." 
 
 1. The manor, " manerium'' or lord's seat, is identical with 
 the " mansus " of the Anglo-Saxon period, comprehending 
 
 (2*^) Of the personally high position except food and drink for a single day ; 
 of the sheriff numerous instances are not to quarter themselves on any one 
 given by Madox. In the " Dialogus," with more than six horses ; to lodge 
 ii. c. 4 (Madox, ii. 417), it is, however, with none who is worth less than £40 
 expressly stated that the Vicecomes income from real estate, and not more 
 need not be a vassal of the Crown. frequently than once a year or twice 
 In later times the official instructions at most, if invited, and then without 
 of the Vicecomes are numerous ; for making a precedent of it ; to take no 
 instance, in 42 Hen. III., an universal present exceeding twelve pence; not 
 oath of office is prescribed, wliich to take more servants with them than 
 throws much light upon the spirit of necessary for their safety on circuit ; to 
 the administration. The sheriffs must see that these servants do not over- 
 swear that they will impartially and burden the land by eating and drink- 
 promptly grant justice to the poor as to ing. or take from any inhabitant sheep, 
 the rich man ; that they will accept corn, wool, movable goods, money, or 
 nothing personally or through others, money's worth. (Madox, ii. 147.) 
 
148 Constitutional Sistory of England, 
 
 the ceorls and dependants who had settled round about it, 
 who for the most part form a union of neighbours, villa, 
 villata. Under the new tenure, the real rights of landed pro- 
 perty have not changed their nature as fiefs. The newly 
 enfeoffed Norman, alike with the Saxon Thane who remained 
 in possession, exercises the usufructuary rights of his pre- 
 decessor, that is, collects the customary dues through the 
 managers of his estates, iwdepositi villse, reeves, bailiffs, or 
 stewards. In the system of police-sureties the villa forms 
 a lord's tithing, where it contains ten or more families. The 
 landowner claims the customary jurisdiction over his people, 
 together with the extensions of it that have taken place by 
 grant, all of which are enumerated in the deeds of grant 
 under the denominations " saca," " soca," " infangtheft," and 
 " outfangtheft." It was merely a new name when this was 
 now called, in the language of the Norman lords, a '^ manor," 
 a name which first appeared with other Norman fashions 
 under Eadward the Confessor. The majority of the manors 
 were now in the hands of Crown vassals ; a considerable 
 number also former Saxon Thanes. (Ellis i. 90.) The 
 Norman Government endeavoured to reduce all these judiciary 
 powers to one uniform system, but certainly not to extend 
 them {vide chap. x.). The Domesday Book, indeed, shows a 
 number of new manors which had been created by division, 
 but in the year 1290 the statute " Quia Emptores " put an 
 end for ever to the creation of new manors, (a) 
 
 2. The formation of lordships (Honors) also reaches back 
 into the Anglo-Saxon period, originating in a group of estates 
 lying close together, over which, in the system of police- 
 sureties, the stewards (prcepositi) of several lords presided 
 
 (a) Touching the manors the Glos- Mansum, Colonia, et eis, et exteris simul) 
 
 sarium of Sumner says as follows : ide7n significarunt, ac ipsis et aliis 
 
 " ante Normannorum tempora vox apud posterioris sevi populis 3Ianerium" 
 
 nos, in chartis aut aliis nostris honse (Ellis, i. 224, 225.) As to the technical 
 
 fidei monumentis, frustra quseritur. A meaning of the words " saca," " soca," 
 
 Normannis (inter alia ejus farinx " infangtheof," " team," " toll" in the 
 
 verba) e Gallia hue adductum conjicio, deeds of enfeoffment, see the treatise 
 
 guorum in Anglia prxcessoribus Hida, of Zopfl, " Alterthiimer des Deutschen 
 
 Familia, Villa, Sulinga, Casata, Man- Rechts " (Leipzig, 1860), i. pp. 170- 
 
 suraj Manens (ut Mansus, Mansio, 211. 
 
The Norman County Government. 149 
 
 — to which lordships were often given a " saca et soca " in an 
 extended measure, and which were in certain matters co- 
 ordinated with the hundreds. The successors of the Saxon 
 great Thanes are now Norman lords, who, following the 
 fashion prevailing in their old home, strove to form exclusive 
 feudal lordships out of these unions. We find in England 
 round certain magnates a small court, a steward {dapifer), a 
 butler (pincerna), a marshal, a chamberlain, etc. — their offices 
 being sometimes even hereditary. The numerous venatores, 
 and half a hundred other classes of higher and lower servants 
 mentioned in Domesday Book, point to the fact that in- 
 ferior vassals of the Crown also imitated this custom. The 
 Normans, fond of pomp, herein vied with the princes of the 
 Continent. But the Conqueror had taken care to assign 
 their possessions to the greatest feudatories in so many coun- 
 ties, that their estate in each county did not differ greatly from 
 that of the inferior vassals of the Crown. They were not able, 
 either locally or temporarily, to consolidate themselves, since 
 the strict law of escheat often brought the same possession 
 back to the Crown several times in a single century. And 
 then the interest of the financial administration pre-eminently 
 kept these greater formations within limits, and, where a favour- 
 able opportunity offered, endeavoured to suppress them. The 
 principal seat of the lord, the " caput haronm'' of later times, 
 might indeed be a meeting-place of the under-vassals for 
 festivities, investitures, legal business, and the holding of 
 manorial court days, but it was not a superior feudal court in 
 the French style. The Norman manors are rather mere unions 
 of estates, which are all granted, transferred, and administered 
 alike, but have not specific sovereign rights attached to them. 
 After the frequent escheats the "honors" which had thus 
 fallen in were often re-granted, diminished in extent, so that 
 later Treasury accounts distinguish expressly between lordships 
 of old and of new tenure. Finally, the prohibition to create 
 new manors also prevented the formation of new honors, (b) 
 
 (h) The appellation " honor " is also tion. Heywood, pp. 188, 189, rightly 
 merely a new name for an old institu- points out that, where in Domesday 
 
150 Constitutional History of England. 
 
 3. The Norman Burghs are in like manner a continuation of 
 the special parochial and judicial districts, which had been 
 formed, in the Anglo-Saxon period, around a fortified building 
 or a castle. Many were severely dealt with and laid waste 
 at the time of the Norman Conquest. William I. took them 
 over wdth their legal constitution, and incorporated the more 
 important of them immediately with the royal demesnes. 
 A list of them, about eighty in all, is given by Ellis (i. 190). 
 A number of such places, which already in the Eoman times 
 had been civitates, continued to be called " cities," which 
 name, however, has no reference to their constitution. In 
 the county system they often form a hundred, and sometimes 
 form several, as where an old and a new town are united 
 together. Like the counties generally, the royal cities, burghs, 
 and towns were treated as special estates, and either incor- 
 porated with the corjms comitatus or given over at the royal 
 pleasure to special " Termors " or particular town bailiffs, 
 custodes, provosts, etc. The Empress Matilda, for instance, 
 farms out London for d6300 rent to Geoffrey of Essex. 
 Where in greater cities several special guilds existed, these 
 again might be the subject of under-leases. For example, 
 in 5 Henry II. the Weavers of London pay five marks in 
 gold as rent for their guild for two years; the Bakers one 
 mark and six ounces in gold; in 11 Henry II., the W^eavers 
 twelve pounds silver, and the Bakers six pounds silver ''pro 
 gilda sua ; " and in like manner the guilds in Oxford and 
 in other places. It will be shown later on how the feudal 
 system began to compel the real estates not subject to the 
 feudal military service, to periodical contributions in cases 
 where the honour and the needs of the feudal lords required 
 
 Book the word " honor " is in cer- as I can discover, the name " honor " 
 
 tain cases met with, it is used alike for is used in the Treasury accounts 
 
 the land and for the fief of ordinary after the time of Henry 11. for the 
 
 vassals. It was not until later times great possessions of earls, of the High 
 
 that it was used in preference for the Constable, and of some few great vas- 
 
 great fiefs : " Possessiones magnas, quas sals. The collection of laws, which 
 
 vulgo vocant lionores." (Henry Hunting- was made about the same time, that of 
 
 don, " De Contemptu Mundi," c. 23.) the Leges Henrici I., certainly uses the 
 
 Probably the expression became a word for those possessions, to which 
 
 technical one in the Treasury. So far several maneria belong. (H. c. 55.) 
 
The Norman County Government. 151 
 
 it. Under the name of '' tallagium'' a taxation of this kind 
 was imposed according to necessity, and as a rule only repeated 
 at several years' interval. It was raised either from indi- 
 viduals or in gross ; in the latter case the households bound 
 to contribute agreed together, in their common pressing 
 interest, how it should be raised. Frequently already existing 
 guilds of merchants, tradesmen, and house or land owners 
 undertook this duty of raising the tallagiicm in considera- 
 tion of especial privileges. But it was still simpler when, 
 instead of the sheriff, whose accounts had without this become 
 complicated enough, the " men of the burgh " themselves 
 undertook to farm it. The King then demands his " taille " 
 from the body of citizens, or from a smaller guild which has 
 undertaken the duty, but no longer from the individual, whose 
 possessions in this manner become again tax-free. In this 
 case a fit and proper person is presented to the Treasury, who, 
 on being ajDpointed *' town-reeve," undertakes with sureties 
 the responsibility for the due payment of the rent agreed on, 
 and collects from the individual the dues and imposts. The 
 official thus appointed is known throughout by the title of 
 " reeve," or " bailiff," in later times also by the Norman name 
 of " mayor." For some time an eager competition took place 
 between the citizens and the Vicecomes or some other lord 
 anxious to outbid them. In process of time, however, the 
 majority of the towns farm themselves, " firma hurgi,'' 
 " fee farm," and thus gain the first step towards their 
 independence. By a charter of Henry I. even the sheriff's 
 office for the county of Middlesex is, according to this system, 
 farmed out to the city of London, '' ad firmam i^ro CCC. 
 lihris ii)sis et heredihus suis ita, quod iijsi cives ponent vice- 
 comitem, quem volueriut de se ipsis,'" etc. ('' Select Charters," 
 p. 103.) 
 
 Even in the Anglo-Saxon period the city of London, stand- 
 ing as it did in regard to population and extent of posses- 
 sions, on an equality with a county, by annexing Middlesex, 
 had gained for itself the position of a county. Its " wards " 
 may be compared with the hundreds. On the accession of 
 
152 Constitutional History of England. 
 
 Eichard Coeur-de-Lion to the throne, instead of the port- 
 reeve, two bailiffs appear as town-reeves, and soon after this 
 a mayor, whose free election (nomination) was granted to the 
 citizens by charter (10 John). After Richard I.'s reign more 
 extended privileges for other cities spring up, such as 
 privilege of market, new guilds, a separate jurisdiction, and 
 free election of their own officials. From the firma hurgi 
 connected with a separate jurisdiction, proceeds the English 
 municipal law, which at the close of this period stands before 
 us developed in clear outlines, but which only presents a 
 number of immunities with no special participation in the 
 general government of the county. 
 
 The separate government of the burghs was in the Anglo- 
 Saxon period especially seen in the case of the royal 
 demesnes. Besides these appear also the mediate towns 
 as a part of the possessions of the great feudatories, though 
 certainly in small numbers and of small extent, in which the 
 lord of the soil collected for his own benefit the customary 
 rents and dues, and held his court. The burden of con- 
 tributing according to the needs of the lord attached also to 
 the persons of the inhabitants, and occasionally comes to light 
 whenever, in consequence of escheat or feudal guardianship, 
 such places temporarily pass ''into the King's hand," and are 
 so entered on the Treasury rolls. This right of levying con- 
 tributions became, as everywhere, a cause of oppression, 
 grievance, and disturbance. How it was exercised by the 
 Norman lords we may judge from the fact that the towns 
 frequently disputed the lords' right, and declared themselves 
 liable to pay contribution only to the King. For this reason 
 the King ai^pears early to have protected these places against 
 ill-usage. The very frequent mention of a special royal 
 licence points to a general control exercised by the Treasury 
 over these tallagia. When lordships escheated, as so 
 frequently happened, the reservation was always made in 
 the new grant of them " that such places should only pay 
 tallagia when the King taxed his own " (Madox, i. 756). 
 What after this still remained of the lords' right of levy* 
 
The Norman County Government. 
 
 153 
 
 ing contributions, finally disappeared generally through 
 purchase, (c) 
 
 It is beyond doubt the finance administration which has 
 before all else influenced the form of local government. In 
 the interest of a uniform financial control the royal manors 
 and the groups of estates were now left to the administration 
 of the Shir-gerefa in a still greater measure than in the 
 Anglo-Saxon period, so that manors and honors pre-eminently 
 appear as lordships in the possession of private landlords. 
 In the burghs, on the other hand, which were a bounteous 
 spring for the replenishment of the royal exchequer, a royal 
 special government prevailed, and was constantly endeavour- 
 ing to form independent communities in consideration of 
 heavy money payments. 
 
 (c) As to the Norman burghs and 
 the gradual origin of municipal law 
 out of the fusion of the modes of 
 taxation of the firma hurgi with the 
 grant of a police jurisdiction (court 
 leet), see in detail Gneist, "Geschichte 
 des Self-government," pp. 104-112, and 
 Stubbs, i. cap. 11, sec. 131. Relying 
 upon the great mass of records con- 
 tained in Merewether & Stephen, 
 " History of the Boroughs," 3 vols., 
 1853, I differ in some particulars from 
 Stubbs, and hold to the view, that the 
 basis of the municipal law is the grant 
 of a separate municipal court, and that 
 the right of citizenship is hence 
 normally extended to all resident 
 citizens, who share in bearing the 
 burden of oflSce, and paying the muni- 
 cipal taxes, " resident householders, 
 paying scot, bearing lot." The favour- 
 ite modern idea, of making political 
 creations proceed from groups of social 
 interests, has given an exaggerated 
 importance to the guild system of the 
 English towns. The so-called ''judicia 
 civitatis Lundonix" as also the guilds 
 at Cambridge, Canterbury, Exeter, and 
 elsewhere, are voluntary unions with 
 certain limited ends and objects in 
 
 view, which have often an importance 
 at the first origin of the firma hurgi. 
 The Municipal Court of Justice (the 
 court leet) on the other hand, with its 
 legal procedure, could not be limited 
 to, or based upon, a private guild. 
 That the mediate towns are a com- 
 paratively inferior creation, is proved 
 by the rare mention of them, the in- 
 significance of the places mentioned as 
 such, and the small number of the 
 baronial charters, when compared with 
 1500 royal charters, upon which is 
 based the formation of the English 
 municipal law. 
 
 In harmony with my deductions 
 Stubbs says (iii. 559): "In 1216 the 
 most advanced among the English 
 towns had succeeded in obtaining, by 
 their respective charters, and with 
 local differences, the right of holding 
 and taking the profits of their own 
 courts under their elected officers, the 
 exclusion of the sheriff from judicial 
 work within their boundaries, the right 
 of collecting and compounding for 
 their own payments to the Crown, the 
 right of electing their own bailiffs, 
 and in some instances of electing a 
 mayor." 
 
154 Constitutional History of England. 
 
 CHAPTEK X. 
 I. W^t Bebelopment of tfie iSorman i^lilitarg ^otuer. 
 
 Upon the basis of the county government we have just de- 
 picted there ensued a change in the powers of the Crown, 
 which shows with startHng rapidity the material sovereign 
 rights of the more modern poHty. Primarily it is the 
 military power which, under the influence of the Norman 
 feudal system, presents new features in every direction. 
 Once the weakest point in the Anglo-Saxon political system, 
 it has now become one of the firmest bases of the Norman. 
 
 1. The decision as to tear and j^eace was at the close of the 
 Anglo-Saxon period still frequently made by the Witenage- 
 mote, and claimed by it as a right whenever extraordinary 
 services were required of the national militia. The limits of 
 this right were, however, not sharply defined; it was at all 
 events an established principle that the King could claim the 
 right of personally summoning his own Thanes. This last- 
 named right was now the universal one, since every vassal 
 of the Crown and every under-vassal had become the King's 
 homo. The military oath of fealty is now taken to the 
 King's person, and holds good for his possessions abroad, 
 ''extra regnmn'' as is laid down in the Charta, Will. I. 3, c. 2 : 
 " Statuimus ut oinnis liher homo foedere et sacramento affirmet 
 quod intra et extra Angliam Willelmo regi Jideles esse volunt, 
 terras et honores illius, etc., defender e.'' (" Select Charters," 
 pp. 83, 84.) This charter has, indeed, been enlarged with 
 spurious additions by a later hand, but it is probably genuine 
 
The Development of the Norman Military Power. 155 
 
 in substance. In any case feudal service extra regnum was 
 enforced by all the Norman kings, and it was not until 
 after the separation of Normandy from the English crown 
 in John's time that cases of direct refusal occur. The 
 Norman was obliged, in the interest of his own possessions, 
 as well as in that of his countrymen in Normandy, and as a 
 condition of his new possessions on English soil, to acquiesce 
 in the condition imposed, that of serving the lung "intra et 
 extra regnum.'' The Anglo-Saxon Thane had to be content if 
 he retained his possessions on similar terms. 
 
 This was certainly the hardest requirement of the new 
 order of things, and one that met with a strong opposition 
 from the vassals. This fact explains the events fraught with 
 such important consequences at the close of William I.'s 
 reign. When in the year 1085 an invasion of the Danes 
 was seriously threatened, the King, by means of a land-tax, 
 brought together a huge paid army of different nationalities, 
 and by heavy taxation and quartering of his soldiers sup- 
 pressed the opposition that was still offered him. In the 
 following year all the greater landed proprietors appeared 
 willingly at the review held near Salisbury to acknowledge by 
 one great act of homage, that all Crown and under-vassals 
 were now the King's " men." And this act proclaimed that 
 the newly formed feudal militia was no popular muster, but 
 an army to be summoned by the King. At the same time 
 the royal prerogative of deciding the question of war and 
 peace was established for all time. As an extension of this, 
 the right of building castles was distinctly recognized as a 
 royal privilege. The " castellatio sine licentia'' is from that 
 time forward an offence threatened with the " misericorcUa 
 regis'' and severe penalties (Hen. I. 13, sec. 1 ; 10, sec. 1), 
 and use was made of it in such an extensive manner that 
 William's reign marked a decisive epoch in the defences of 
 the British Isle. (1) 
 
 (1) For the Norman military system useful matter is also contained in 
 as a whole, cf. Gneist, " Geschichte des Grose's " Military Antiquities." See 
 Self-government," pp. 61-68. Some also remarks in the " British Military 
 
156 
 
 Constitutional History of England. 
 
 2. The equipment of the soldiery and the apportionment of 
 the contingents was in Anglo-Saxon times the subject of trans- 
 actions between the sheriff and the county assembly. These 
 transactions now assume a different form. The Domesday 
 Book laid the basis of a roll of the Crown vassals. According 
 to the extent and the nature of the productive property it 
 could be computed how many shields were to be furnished by 
 each estate, according to the gradually fixed proportion of a 
 ^20 ground rent. The burden of performance was laid in the 
 first instance on the landed property of the Crown vassal. 
 But since Domesday Book was drawn up, subinfeudation 
 had increased, and the actual burden of performance was 
 thus partly transferred to the enfeoffed under-vassal. The 
 manifold subinfeudations, changes of possession, forfeitures, 
 and divisions, were proved by the charters and writs preserved 
 at court, by means of which the rolls were made to correspond 
 with the actual state of affairs. But, in consequence of the 
 
 Biography " (2nd edition, 1846). The 
 innovations are the strict personal 
 service based on property, the uniform 
 apportionment according to free pos- 
 session of real property, and the com- 
 plete enforcement of obedience, by the 
 punishments for felony, and feudal 
 penalties. This strict martial law was 
 introduced from Normandy. It is true 
 there did not exist a military code 
 which could have produced a written 
 Norman feudal law. But the feudal 
 system had already become defined in 
 its details by the regulations of the 
 dukes, and by an early established 
 legal and financial administration. 
 And in Normandy, too, proceeding 
 doubtless from the hierarchy of the 
 feudal system, and from the position 
 of a conquering tribe, a class-privilege 
 had become developed in outline. The 
 Franco-Norman feudal constitution of 
 those times was based upon the seigno- 
 rial idea, which made the great feuda- 
 tory into an hereditary Seigneur over 
 his under-vassals, and which in after- 
 times, favoured by the influence of 
 possession and similar interests, easily 
 made this bond a stronger one than 
 that which bound the under-vassals to 
 their suzerain. In England an oppo- 
 
 site condition of things existed. The 
 possession of the Norman lords was a 
 new one ; the nationality and the 
 interests of their Saxon under-vassals 
 were opposed to theirs, and even 
 their Norman homines were in the 
 main collected from all parts. The 
 Seignorial idea could not accordingly 
 firmly establish itself here. The for- 
 tified places the Conqueror carefully 
 reserved to himself. As the Conquest 
 advanced the first care of the Con- 
 queror was the building of a fortress 
 in the conquered town. The exclusive 
 royal right of fortifying castles, though 
 doubtful in the Anglo-Saxon, is 
 certain in the Norman, period. Of 
 the forty-nine castles mentioned in 
 Domesday Book, only that of Arundel 
 is described as existing " temiiore 
 Echoardi." The castles of Dover, 
 Nottingham, Durham, and the White 
 Tower in the Tower of London, in ex- 
 istence at that time, are not mentioned. 
 This number of strong fortifications 
 with, for the most part, standing gar- 
 risons, certainly exercised a severe 
 pressure upon the adjacent country. 
 The remembrance of the Norman 
 " castle-men " remained throughout 
 the whole of the Middle Ages. 
 
The Development of the Norman Military Power. 157 
 
 numerous disputed cases and varying conditions, a perma- 
 nent roll of tenures was never di'awn up ; accordingly, the 
 number of shields to be furnished was never oJBficially deter- 
 mined. As far as we may conjecture by reference to later 
 statements, the number of shields may be fixed at about 
 30,000.* 
 
 But the Yicecomites were doubtless in possession of the 
 official treasury lists for their county. There was therefore 
 only now needed a personal order of the King issued to the 
 Crown vassals, and at the same time to the under-vassals, 
 who for the purposes of the summons to arms are also 
 '' homines regis ^ But since the duty of furnishing, equip- 
 ping, and provisioning the troops belonged to separate estates, 
 this business had to be undertaken by the government of 
 the county. It was impossible to issue thousands of per- 
 sonal orders directly to the individual vassals, nor were the 
 great feudatories the right persons to be addressed, as their 
 possessions, and with them their under-vassals and horsemen, 
 lay scattered about in many counties. According to the rolls 
 in Domesday Book, the estates of about 130 secular vassals 
 of the Crown were situated in from two to five counties ; 
 those of twenty-nine lords in six to ten ; those of twelve great 
 lords even in ten to twenty-one counties, and the possessions 
 of the great ecclesiastical vassals of the Crown were distributed 
 similarly to these (thirty in two counties ; about thirty in 
 three counties; about six in from three to eleven counties). 
 The procedure consisted in a mobilization order addressed to 
 the Vicecomites, and couched in the following form : *^ Vice- 
 comiti Kancise salutem. Prsecijnmiis tihi quod sine dilations 
 summoneri facias per totam hallivam tuam Archiepiscopos, 
 Episcopos, AbbateSj Priores, Comites, Barones, Milites, et libere 
 
 * See above, p. 130 note, the state- tion. The ofiBcial computation, accord- 
 
 ment of Segrave under Henry III. In ing to which the scutage at the end of 
 
 the liber niger, the number of knights the thirteenth century was calculated, 
 
 who could be furnished by the vassals is based upon an estimate of 32,000 
 
 of the Crown in the ten counties knights'-fees ; but the amount of money 
 
 south of tlie Thames, is given at only really raised fell far short of this 
 
 2047, and these counties apparently estimate (Stubbs, i 432). 
 contained a fourth of the whole popuLi- 
 
158 Constitutional History of England, 
 
 tenentes, et omnes alios qui servitium nobis dehent sive servitium 
 militare vel serjantiae : quodque similiter clamari facias per totam 
 hallivam tuain, quod sint apud Wigomiam in crastino S. Trini- 
 tatis anno regni nostri septimo, omni dilatione et occasione 
 postpositis, cum toto hujusmodi servitio quod nobis debent, parati 
 cum equis et armis eundum in servitium 7iostrum quo eis prdece- 
 perimus. Eodem modo scribitur omnibus Vicecomitibus AngliasJ' 
 (CI. 7 Hen. III. 3.) 
 
 The sheriffs then issued their proclamations to all burghs 
 and market-towns, commanding the vassals to present them- 
 selves " at the risk of forfeiting their fees or of severe penalty 
 according to the King's pleasure." In time of greater urgency, 
 and out of courtesy, special commands could be issued in 
 addition directed to the great Crown vassals and the prelates, 
 and these commands were served by the Vicecomes. Every 
 vassal of the Crown had to see that on his estates so many 
 heavy-armed men were in readiness as according to the feudal 
 list it fell to his lot to furnish. The preparations for equip- 
 ment and provisioning had to be made beforehand on each 
 separate estate, and it was the duty of the great feudatories 
 in each county to make one of their under-vassals or house- 
 hold officers responsible for this. As the total number of 
 the propertied Crown and under-vassals only supplied a por- 
 tion of the shields required, the majority had to be furnished 
 by the equipment of sons, relations, and free dependants 
 {servientes, mounted servants). Since, moreover, the Norman 
 army at all times needed not only cavalry but also masses 
 of infantry, the vassals were readily content to furnish, 
 instead of the superfluous horsemen, a corresponding number 
 of archers or spearmen. The furnishing of contingents 
 thus became much more a matter of detail, and had to 
 be conducted according to the county-divisions. Neither 
 at the time of equipment nor in the field, and perhaps 
 not even at a review, could the soldiers of a great vassal 
 have presented a fixed unity, and hence the vassal's position 
 as hereditary captain {senior, seigneur) could not attain to the 
 importance that it did on French soil. But all these trans- 
 
The Development of the Norman Military Power. 159 
 
 actions were not matters on which the Thanes of the county 
 were to be negotiated with as in the Anglo-Saxon period, but 
 the vassal had to satisfy the royal officer that he had fulfilled 
 the duties the feudal list imposed on him. (2) 
 
 3. The command over the collective feudal army belongs, 
 as a matter of right, to the King, as was the case in the 
 Anglo-Saxon period. All actual leaderships are based upon 
 his personal commission. According to the cavalry system 
 of the feudal militia, the collected troops keep their own 
 " comes stabuW and their '' marescallus,'' as at the present 
 day their adjutant-general and quarter-master-general. The 
 constable and marshal arrange the troops into divisions and 
 companies, settle disputes as to precedence and field badges, 
 in the field as in the tournament ; keep the rolls of their men, 
 and give certificates as to attendance, by which a proof is 
 furnished to the Treasury respecting the feudal duty of each, 
 showing whether it has been performed, bought off, or re- 
 mitted. From these beginnings was developed a military 
 jurisdiction derived from the King. But as every standing 
 army strives to transfer to the civil community the military 
 organization, the same was the case in a high degree with the 
 feudal militia, service in which was based upon real estates. 
 
 (2) As to the recruiting of the serve, or from the constable, the mar- 
 tenants see Grose, " Military Anti- shal, or one of his lieutenants de- 
 quities " (i.65). Thomas, "Exchequer " putecl for this purpose, or the " rotuli" 
 (p. 53). The orders issued to the of the war oflSce. (Madox, i, 656, 657.) 
 sheriffs calling upon them to summon Persons possessing a fraction of a 
 the troops appear to be uniformly knight's fee, do duty for a relatively 
 framed. (Madox, i. 653, 654.) Failure short time ; for instance, the half of a 
 to appear is in the case of the higher knight's fee is computed at twenty 
 clergy only punished with heavy dayseach year. Asearlyasin the twelfth 
 fines (amerciaments) — for instance, century these sub-divisions extend so 
 with sums of 100 marks in silver ; far as one-twentieth of a fee, in which 
 in the case of secular vassals depri- case evidently only the honorary rights 
 vation of their estates appears to be of the Crown vassal, and not his per- 
 the immediate consequence. (Madox, sonal service, are concerned. That even 
 i. 662, 663.) In addition to the per- clerics were sometimes summoned in 
 sonal service of the Crown vassal, the person is proved by a writ (printed 
 prescribed number of heavy-armed in Kymer), addressed to the bishops 
 troops had to be furnished, for whom " eo quo singidi, tarn prxlati quam alii 
 the expression " servientes " becomes in propriis personis venire deheant, ad 
 gradually the prevailing one. (Hey- defensionem coronie et regni nostri " (41 
 wood, 129.) As a proof of the fulfilment Hen. III.). As a rule it is only said 
 of military duty, either a certificate that the prelates have to send " milites 
 from the commander-in-chief would suos." 
 
160 Constitutional History of England. 
 
 The more the vassallage began to feel their importance as 
 a great war-guild and dominant class, the more urgent was 
 their demand to have their constable and marshal for the 
 whole feudal army when upon the peace footing, as the feudal 
 militia in Normandy had long had its hereditary constable 
 and marshal. 
 
 After long hesitation this point was conceded. Under 
 Stephen, perhaps even somewhat earlier, a constahularia and 
 a war marshalship appear established for the whole feudal 
 army, endowed with certain distinctions and fees. Over the 
 army in the field, however, the King reserved to himself the 
 personal command, in addition to the right of ai^pointing 
 the commanding constable and marshal. The official system 
 extended to the inferior commands, to which the names 
 *' constahularia'' and '^ constable" were universally applied 
 from the highest ranks down to the lowest. Certain limita- 
 tions only were recognized in respect of the appointment, by 
 the King, of men chosen from the ranks of the greater, 
 middle, and inferior vassals. The maintenance of these limits 
 was rendered necessary by the indispensable military retinue 
 which accompanied the higher commanders, and not less by 
 the esprit de corps which was rapidly developing among 
 the feudal militia. The skilled service of the cavalry re- 
 quired the practice and training of years, if possible even 
 from boyhood. The system of knighthood, with its admission 
 to full honours, and with the degrees of knight, esquire, and 
 page, was after the Crusades uniformly developed in England. 
 The tournaments flourished under Stephen and Pilchard Coeur 
 de Lion. From the obligation to full knight's service naturally 
 arose the obligation to take up the dignity of a knight, and 
 from time to time royal writs were issued to the Crown vassals, 
 *' ut arma capiant et se milites fieri faciant, sicut tenementa 
 sua quae de nobis tenent diligunt " (Kot. cl. 19 Hen. III.). (3) 
 
 (3) As to the command of the feudal the cavalry are found already in the 
 
 militia, see below, cap. 16, " the great Anglo-Saxon period, (Turner, "History 
 
 offices;" and the "Peerage Reports" of the Anglo-Saxons," iii. 73-75.) In 
 
 (iii. 199b). Beginnings of the guild the Anglo-Saxon records, " Cniht " is 
 
 system and the " master's rank " in a tolerably frequent term for the mar- 
 
The Demlopment of tM Norman Militari/ Power. 161 
 
 Under the firm hand of a martial monarch this Norman 
 feudal army presents an imposing picture, and comes into 
 the foreground as the actual basis of the political and social 
 system. With this military organization the Norman kings 
 hecame, as none had been since the withdrawal of the Eoman 
 legions, lords of the whole land. This military force, assisted 
 by the numerous and strong works of defence, dominates alike 
 ihe western Britons and the northern neighbours, puts an 
 end once for all to the Danish invasions, and turns England 
 into a really united State, possessing in point of power the 
 promise of a great future. In spite of all its outward pomp 
 and personal bravery, this feudal army suffered from the 
 defects inherent in all feudal militias — imperfection of dis- 
 cipline, tactics, supplies, and transport, and the want of 
 weapons effective at long distances. It was also probably 
 never collected together for important service, but was only 
 employed in divisions and at long intervals in wars upon 
 -the. Continent and border-wars, or to suppress isolated in- 
 surrections. But one thing was especially wanting in Anglo- 
 Norman feudal soldiery, a characteristic feature of the feudal 
 militia of the Continent — the " territorial" connection between 
 the under-vassals and the great feudatories. This defect 
 resulted not only from the scattered position of the great 
 feudal estates, but still more from internal dissensions. For 
 several generations the former Saxon Thane did but reluctant 
 
 tial followers. Still, a single instance III.'s reign, deduced the maxim that 
 
 of the conferring of the knight's dignity every vassal, even the under-vassal, 
 
 is no proof of a military system or a is as a liomo regis bound to cause 
 
 privilege of rank formed from it, himself to be knighted at court, paying 
 
 Not until the time of the Crusades the fees for the dignity under a penalty 
 
 is a powerful influence upon military for neglecting to do so. (Mados, i. 510.) 
 
 and social life acquired by the knightly Hence arose the curious circumstance 
 
 order. As to the royal ordinances that the taking up of the knight's dig- 
 
 aifectingthe tournament under Kichard nity was regarded in England as a 
 
 Coeur-de-Lion, see Lappenberg-Pauli " burdensome duty, and one" which the 
 
 (iii. 280). This, moreover, as well as majority endeavoured to escape, being 
 
 the custom of " dubbing the knight," contented with their dignity as " scu- 
 
 is made a source of revenue. Out tarii " (esquires) in the feudal scale of 
 
 of the royal^ charters of the earlier dignities, their maxim being " sufficient 
 
 Norman period, '■' armis et equis se lionor est liomini, qui dignus honor e est '^ 
 
 bene instruant," the practice of the (Coke, " Inst.," i. 231, 233). 
 Treasury about the middle of Henry 
 
 VOL. I. M 
 
162 Constitutional History of England. 
 
 service as an under-vassal to the Norman lord who had been 
 forced upon him. And with the majority of the Norman 
 under-vassals the case was no better, they being a collection 
 of Frankish horsemen and farmers, who now figured on 
 English soil as lords, *'rude upstarts, almost crazed by their 
 sudden promotion, marvelling how they had attained to such 
 a position of influence, and thinking they could do as they 
 liked" (Ordericus, iv. c. 8). Eeal loyalty between the small 
 and great vassals was thus, in the early Norman days, almost 
 impossible ; and with the decay of the royal authority under 
 the usurper Stephen, the small vassallage broke up into a 
 violent irregular soldiery. The military state still lacked 
 national unity. 
 
 These weaknesses of the feudal militia, and the ever-recur- 
 ring conspiracies of the great vassals, caused the revival of 
 the old Saxon national militia more than a hundred years 
 after the Conquest. Disunion in the royal family itself, the 
 influence of the Crusades, the evil example of Normandy and 
 France, and the dissensions with the Church, at that time all 
 combined to make the feudal array an untrustworthy force, 
 against which the King himself sought for some counterpoise. 
 In accordance with the established principle of the Norman 
 crown, the old right of summoning the national defence 
 (fyrd) had never been abandoned. This force was once called 
 together by "William Kufus, although primarily only for the 
 purpose of extortion. (Huntingdon, a. 5, Will. II.) In the 
 North Country the national militia, under Archbishop Thur- 
 stan, had won the battle of the Standard against the Scotch, 
 and again in 1173 the popular army of Yorkshire, under 
 the command of the faithful barons, had warded off the 
 Scotch invasion. This was followed (1181) by the new legal 
 ordinance of the Assize-of-Arms (27 Henry II.), which con- 
 tained the following provisions. Each owner of a knight's 
 fee (not merely as tenant, but by virtue of the universal duty 
 of the community) is to possess a suit of iron armour, a 
 helmet, a shield, and an iron lance, and moreover every 
 knight is to have as many suits of armour as he has knights' 
 
The Development of the Norman Military Power. 163 
 
 fees. Every secular freeholder, possessing in movables or 
 rents sixteen marks, shall in like manner possess a suit of 
 armour, helmet, shield, and lance. Every freeholder of ten 
 marks in goods or income shall have a breastplate without 
 arm-pieces, an iron helmet, and a lance. All burghers and 
 other freeholders shall have a stuffed jerkin and iron helmet, 
 and a lance. Each shall swear the oath of allegiance, and 
 that he will keep these weapons for service at the King's 
 command, and in loyalty towards him. These weapons may 
 not be sold or pledged. In the hundreds and hamlets district- 
 commissions (consisting of men possessing not less than six- 
 teen marks rent in land, or ten marks in movable property) 
 are to be appointed, to assess property for the land army. 
 Eoyal Commissioners are on their journeys to make lists of 
 the names of those bound to this duty, and to sv/ear them in 
 to obey the royal "assize." Freemen only are mentioned, 
 and it is expressly laid down that only freemen shall be per- 
 mitted to take the military oath. Apparently officers (con- 
 stables) had already been appointed in the several hundreds 
 for this militia, which was a force not dependent on feudal 
 tenure. 
 
 With the general summons of the liberi homines thus 
 established — the national army revived on a new legal basis 
 — there could also be combined the summons of the feudal 
 militia, as was actually don-e in a case of great war-peril in 
 the year 1217. {" Select Charters," 343.) 
 
 In another direction also, at about the same time, the 
 national influence of the insular position of the country, the 
 climate, and the mode of life made itself felt among a portion 
 of the feudal tenants. The conquering race had long felt 
 itself secure in its possessions. For more distant warlike 
 expeditions upon the Continent a uniform levying of English 
 feudal forces appeared neither equitable nor, in consequence 
 of the short time of service, feasible. Hence, from the time of 
 Henry II., remissions of feudal service began to be purchased. 
 Varying at first, by degrees a scale for this so-called scutage 
 (scutagia) became fixed ; and thus the feudal military system 
 
164 
 
 Constitutional History of England, 
 
 enters into the province of the financial control (see cap. 14), 
 as the basis of a new system of taxation.! 
 
 t Tlie origin of "scutage" in satis- 
 faction of military service after the 
 reign of Henry II. is carefully given 
 by Madox (i. 625 et seq. and 642 et seq.). 
 (See below, cap. 13, sec. vi.) In the 
 second year of Henry II., for the first 
 time, the Prelates were, on the occasion 
 of a campaign against Wales, allowed 
 to pay twenty solidi on each knight's 
 fee instead of furnishing a horseman. 
 
 In 5 Henry II. the secular vassals 
 also obtain permission to pay two 
 marks for each shield instead of doing 
 service. From this time a satisfaction 
 of feudal service by scntagia becomes 
 more frequent. Where small sums 
 Tvere demanded, tlie commutation ap- 
 peared as a favour, which for a long 
 
 time was not forced on the recipients. 
 But later, when the taxes were fixed 
 at a higher rate, and the demand for 
 scutage was more frequently made, 
 the time of Magna Charta drew near, 
 when the King was obliged to consent 
 to negotiate with his Crown vassals on 
 the subject of assessing the scutagia. 
 Difierent from this, and occurring 
 both earlier and later, was the admis- 
 sion of a substitute in cases of special 
 hindrance, as to which a money pay- 
 ment (fine) was mutually agreed on 
 in each individual case, under the 
 heading, "«e transfretent, pro rema- 
 nendo ah exercitu, ne aheat cum rege," 
 etc. (Madox, i. 657, 658). 
 
( 165 ) 
 
 CHAPTEE XI. 
 
 II. 'E\)t Bcbelopmcnt of tj^c iEorman gS^tiicial ^otocr. 
 
 The judicial system, as the most permanent part of all 
 political organizations, was least affected by change in the 
 transition to the Norman period. Immediately after the first 
 preliminary settlement of affairs, William solemnly bound 
 himself in the fourth year of his reign, *' to maintain the good 
 and weU-tried laws of Eadward the Confessor," merely except- 
 ing certain changes that had become necessary. (Sax. Chron. 
 A.D. 1070.) It is said that he appointed twelve men versed 
 in the law to make a collection of all such laws and customs 
 as were in use in the time of the Saxon Kings. The Saxon 
 population clung to that promise out of affection for their 
 national system of law, and with all the more jealousy, because 
 it afforded a guarantee of personal freedom aga^inst the tyranny 
 and violence of the Conqueror and his followers. In all 
 historically authenticated cases it is apparent that William 
 acknowledged the ancient judicial system; that he wished to 
 do justice, and that he perceived therein a means of main- 
 taining and consolidating his new kingdom. From the time 
 of Henry I. that promise is periodically repeated. In the 
 meaning and language of the time, it was understood to 
 embrace the " lex terrse,'' that is, the whole legal system, in- 
 cluding criminal as well as civil law, procedure as well as 
 positive law. The promise meant: ''Eight shall be spoken 
 by the same persons, and for the same persons, and according 
 
166 Constitutional History of England, 
 
 to the same forms and ]3rinciples as in the Anglo-Saxon 
 clays." * 
 
 Justice is accordingly dealt out by the same i^ersons ; that 
 is, the Norman Vicecomes, as Justiciary, steps into the 
 place of the Saxon Shir-gerefa, and periodically holds the 
 customary courts in the county and hundred. The jurors are, 
 as in the Saxon days, the freeholders of the county. 
 
 A decree of Henry I. (Charters, 103) confirms this with a 
 royal reservation. *' Sciatis quod concedo etprsecipio, ut a modo 
 comitatus mci et hundredo in illis locis et iisdem teiininis sedeant, 
 sicut sederunt in tempore regis Edivardi, et noii aliter. Et si 
 amodo cxurgat placitum de divisione terrarum, si est inter 
 harones meos dominicos, tractetur placitum in curia mea, Et si 
 est inter vavassores duorum dominorum, tractetur in comitatu, 
 Et hoc duello fiat, nisi in eis remanserit. Et volo et j^rsecipio, 
 ut omnes de comitatu cant ad comitatus et hundreda, sicut 
 fecerunt in tempore regis Edivardi,'' 
 
 The collection of laws known as the Leges Henrici 
 Primi, repeatedly represents the county courts as assemblies 
 similarly composed to those of ancient times. Formerly the 
 Hundred Court was. composed of freeholders, but in the County 
 Court the Thanes were the regular judges, and the ordinary 
 freemen only participated as assistant judges, or as mere 
 bystanders. In the place of the Thanes stand now the Crowns 
 and under- vassals and the greater freeholders in their capacity 
 of free landowners. The customary legal system makes them 
 therefore judges: ''Regis judices sunt harones comitatus, qui 
 
 * As to the consecutive liistory of Biener, " Das Englische Gescliwornen- 
 
 tlie Anglo-Norman judicial system, Gericlit," 1852, 1855, 3 vols., and the 
 
 Dugdale's treatise, " Origines Juri- treatises of Brunner, Gundermann, and 
 
 diciales," contains only antiquarian others are very great. It is now well 
 
 matter. Equally perplexing are the established that King Eadward never 
 
 scattered remarks in Spelman's " Glos- published a special code of laws, but 
 
 sarium." More to the point, but often that by the " Leges Eduardi " is meant 
 
 hazardous, is the sketch in Spence's the customary law of tlie country at 
 
 " Equitable Jurisdiction," vol. i. pp. the close of the Anglo-Saxon period. 
 
 139-127. A better treatment of the This is proved by the expression of 
 
 subject begins with Edward Eoss's William of Malmesbury (Gest. Eeg. ii. 
 
 work, "The Judges of England" 11), ^' non quod ille statuerit, sed quod 
 
 (London, 1848-64, 9 vols. 8vo). The ohservaverit:' 
 merits of the German treatise by 
 
The Development of the Norman Judicial Power. 167 
 
 liheras in cis terras liahent ; villani vero vel cocseti, vel qui sunt 
 hiijusmodi viles et inopes personae, non sunt inter jucUces nume- 
 rancW (Hen. I. c. 29).** 
 
 The same actions are now heard before the Norman Vice- 
 comes as were formerly heard by the Saxon Eorl and Shir- 
 gerefa : " omnis causa tcrminetur in comitatu vel hundredo vel 
 Jialimoto sacam hahentium" (Hen. I. c. 9, sec. 4). In like 
 manner the regulations touching suit of court, show that 
 the County Court is to be the proper court for the highest 
 as well as the lowest classes : ** Intersint autem episcopi, 
 -comites, vicedomini, vicarii, centenarii, aldermanni, prsefecti, 
 2)rmpositi, harones, valvasorcs, tungreviiet cmteri terrarum domini 
 diligenter intendentes " (Hen. I. c. 7, sec. 2). The duty of 
 the vassals to do suit of court (secta) was a feudal duty, and a 
 Saxon custom at the same time ; but representation was 
 •early recognized: "si dapifcr ejus legitime facrit ; si uterque 
 nccessario desit, pirsepositus, et saccrdos, et quatuor de onelio- 
 rihus villsB adsint pro omnibus, qui nominatim non erunt ad 
 placitum suhmoniti (Leges Hen. I. c. I. cit. sec. 7). 
 
 The procedure of the tribunals which the Saxon freeholder 
 here sought, was the ancient one, with the Saxon writ of 
 summons, outlawry, security, compurgators, and trial by 
 ordeal. The Norman, on the other hand, preferred a pro- 
 cedure which, furnished with formal pleadings, generally 
 appealed to the duel as idtima ratio. The rule of law 
 
 ** Hence we have at first the old The degrees in the. feudal regime 
 composition of the Hundred Court came into consideration in the legal 
 "with its freeholders, the County Court system only in one special point, that 
 with its Thanes, in whose place now no under-vassal shall be a judge in a 
 stand hardly more than four hundred matter touching his feudal lord (Hen. 
 Crown vassals and the suhtenentes 32, cap. 2), a rule which establishes 
 of Domesday Book. A limitation to the principle of the legal equality of 
 Crown vassals alone, which has been Crown and under- vassals as pares 
 often asserted, is perfectly untenable : in the County Court. As a fact in 
 no Hundred Court, and not many County the province of the judicial system a 
 Courts, could have been sufficiently diflerence between Crown and under- 
 composed of the existing number of vassals is avoided in the expression 
 the tenentes in capite. The suhtenentes used to denote them, which embraces 
 of the Domesday Book are only to all freeholders alike, " lihere tenentes 
 s. small extent invested subvassals, et qui sequuntur curiam de comitatu in 
 but they were beyond all doubt comitatu," etc. " Coram haronibus, 
 libere tenentes, according to the mean- militihus et omnibus libere tenentibus 
 ing of the Anglo-Saxon constitution. ejusdem comitatus." 
 
168 Constitutional History of England. 
 
 which was needed to decide between the two systems had to 
 be determined by royal direction. One chief jDoint, the proof, 
 the Conqueror had ah'eady settled according to a jus 
 mqmim (Carta Will. c. 6 ; Charters, 84). But this was, after 
 all, only a chief point. Moreover, a trial which took place 
 with judges, lawmen, suitors, and compurgators, each of 
 whom claimed their customary law, whilst no party so much 
 as understood the language of the other, was sure to cause 
 for a long time a terrible confusion, in which partiality and 
 corruption were not wanting. At all events, in this mixed 
 law, we find an arbitrariness on the part of the magistrates 
 both in procedure, proof, and judgment ; and a venality 
 that even allowed the ordeal to be avoided b}^ a money 
 payment. With the poor the procedure was somewhat 
 summary. 
 
 The law to be applied was, as understood by the Norman 
 and Anglo-Saxon litigants and judges also, heterogeneous. 
 After long fluctuations the necessity for a unity in this re- 
 spect brought about an arrangement, according to which 
 personal property was generally governed by the Saxon law, 
 real property by the Norman feudal law, whilst the personal 
 family law stood under the influence of the Church. Espe- 
 cially in the law of inheritance did the two systems clash. 
 The Saxon declared an equal right of inheritance in all th© 
 sons ; Norman custom and the necessities of the knights' fee 
 led to the right of primogeniture. A middle course lay in 
 the maxim: ^' Priimim imtris feodum ^^Timogenitus films hahcat ; 
 emptiones vero ct cleinccps acqiiisitiones siias dct ciii magis 
 velif' (Leges Hen. I. c. 70). In the end the Norman lavf 
 triumphs with regard to landed property ; only where 
 numerous old Saxon owners of the soil dwelt close together,, 
 as was the case in Kent, an equal division of the land 
 amongst all the sons (gavelkind) remained a local custom. 
 But it is evident that it was no longer the judgment of the 
 2mres, but only regulations of higher authority (in later 
 times the judgment delivered by the royal justiciaries), that 
 at this iDeriod were capable of laying the foundation of the 
 
The Development of the Norman Judicial Power. 169 
 
 English '' Common law " as a universal law for all 
 classes.*** 
 
 But together with the retention of the laws of Eadward 
 the manorial courts were also retained, as was taken for 
 granted in the law-hooks, and emphatically recognized in 
 the ^' Carta Henrici I." The manorial courts already existing 
 coincided with the customary rights of the Norman feudal 
 lords ; though these latter were in some particulars more 
 extensive. In the mixed law which resulted, a feudal idio- 
 matic phraseology prevailed {e.g. the term ^' curia haronum ") ; 
 yet here the state of affairs, partly old and partly new, 
 required to be separated from one another. 
 
 1. As a matter of course, the occupier of a manor claimed 
 jurisdiction over his villani, a jurisdiction extending over the 
 transfer of property, all disputes arising in consequence, the 
 reservation of services and performances, and disputes of 
 
 the tenants among themselves. 
 
 Later legal language calls 
 
 *** The question as to the form of 
 the procedure before the Norman Vice- 
 comes will always be a most diflficult 
 one to solve. (Biener " Engi. Gesch- 
 wornen Gericht," i. pp. 52-56.) At all 
 events the old tradition that the Con- 
 queror banished the Anglo-Saxon lan- 
 guage from the courts is erroneous. 
 The charters of the first Norman kings 
 are issued in the Anglo-Saxon lan- 
 guage as being the language of the 
 country, a language which William 
 himself endeavoured to acquire. Latin 
 was employed as an official language 
 only; all official transactions of the 
 Exchequer, all judicial rescripts, all 
 reports of the oldest law suits, all re- 
 cords of the curia regis itself, even 
 under Eichard I., are couched in the 
 Latin language. It was evidently not 
 the intention of the Conqueror to ac- 
 knowledge his Norman feudatories as a 
 ruling class, by recognizing their dialect 
 as the language of the country. It 
 was generations later before the French 
 language occasionally appears as the 
 oflficial language of royal ordinances. 
 French was spoken in the courts, but 
 this was a matter of necessity, seeing 
 that the Vicecomites and the secular 
 
 great officers of the realm were for the 
 most part Norman knights. Hence 
 arose the important position of the 
 clerks and under-officials as inter- 
 preters and advocates ; hence also the 
 early development of a class of inferior 
 attorneys can be explained. A trial 
 carried on in French, with an Anglo- 
 Saxon under-vassal or farmer, would 
 have been quite as difficult in the 
 eleventh century as in the nineteenth. 
 In the country and local courts litiga- 
 tion was probably carried on in a 
 curious jargon, about as confused as the 
 rules of law were themselves. Only in 
 the central courts the technical framing 
 of the procedure, and the appoint- 
 ment of Norman lords as judges, 
 brought about an early ascendency of 
 the French tongue, which again later 
 penetrating from the curia regis down- 
 wards, formed a French legal lan- 
 guage. How the procedure in the Royal 
 High Court became formed under the 
 influence of the clerks of the court 
 and the attorneys at the close of the 
 twelfth century is clearly shown by 
 Glanvill's legal works. (See Pliillips' 
 History of English Law, ii. 97-334.) 
 
170 Constitutional History of England. 
 
 this old manorial court sitting in civil causes the '' cus- 
 tomary court," and centuries elapsed before the practice of 
 the courts allowed the peasant class the right to bring an 
 action for recovering their property in the royal courts. 
 
 2. The Anglo-Saxon rule, especially under Cnut, had already 
 extended the manorial jurisdiction to the allodiani. The feudal 
 system now introduced the principle that to the mesne lord of 
 the soil belongs also a judicial control over the land of his 
 grantees. In consequence of this, the Norman landlord ap- 
 pears also to have claimed a subjection to his authority of 
 the freeholders who had been attached to the fee of a vassal, 
 rendering contributions, protection moneys, or performances 
 analogous to the under-vassals. The practice of the Ex- 
 chequer regarded the " right to suit of court and service" on 
 the part of the independent small landowners as naturally 
 included in the grant of the Crown fief. "As soon as a man 
 found himself obliged to do suit and service in the court of his 
 stronger neighbour, it needed but a single step to turn the 
 ]Dractice into theory, and to regard him as holding his land in 
 consideration of that suit and service " (Stubbs, i. 189). The 
 private jurisdiction over the lihcre tenentes that thus arose, 
 was now called "curia haromim'' ("court baron"), audit is 
 apparent from later circumstances that the Norman adminis- 
 tration uniformly recognized such an institution, at least for 
 the disputes of the tenants among themselves. The mode 
 of procedure was left to the custom of the individual localities. 
 " Placita ciijusque curise secundum consuetudines suas agitantur, 
 Solent autem placita ista in curiis dominorum cleduci secundum 
 rationahiles consuetudines ipsarum curiarum, qu^tot ct tain vai'ids 
 ut sunt, in scriptum de facili reduci non possunt " [(Glanvill, 
 xii. 6). The law books, therefore, pass by the |)rocedure of 
 the Court Baron in silence, but teach as an established prin- 
 ciple that it exercises a civil jurisdiction analogous to that 
 of the Hundred Court, in real actions as in actions of debt. 
 It was not until later that i^ersonal actions became as a rule 
 limited to petty matters not exceeding forty shillings ; before 
 bringing a principal action concerning a " liherum tene- 
 
The Development of the Norman Judicial Power, 171 
 
 mentum " the plaintiff was obliged to sue out of Chancery 
 a " breve de recto,'' acknowledging the judicial authority of the 
 King, and his lordship paramount over all landed property. 
 
 3. The manorial courts of later Anglo-Saxon days also 
 exercised a criminal jurisdiction to an unequal and often to 
 a very wide extent. Beyond this, according to the principles 
 of the feudal law, the lord of the fee claimed for the curia 
 feudalis a certain criminal jurisdiction over the under-vassals, 
 or at all events a right of distraint on movable goods, for 
 the purpose of maintaining military discipline. Both prin- 
 <3iples appear blended in the Norman administration, forming 
 a uniform and inferior criminal jurisdiction of the curia 
 haroimm over under-vassals, lihere tenentes, and farmers. 
 This criminal jurisdiction, however, is confined to small 
 offences and thefts in flagranti. For financial reasons all 
 the heavier cases were reserved to the King, and grants 
 of more extensive rights were, from the Anglo-Saxon period, 
 for the most part restricted.! 
 
 t As to the system of the Norman 
 ■curix haronum, see Biener, "Geschichte 
 der Geschw. Ger.," i. 48-56. The 
 later jurisprudence distinguished under 
 technical names the various component 
 parts of the Manorial Court. Tlie civil 
 jurisdiction over under-vassals and 
 freeholders in regard to their depen- 
 dent lands was called Court Baron ; 
 the Manorial Court, in its original 
 jurisdiction over those living upon 
 liefland and domestics, was called Cus- 
 tomary Court. The Court leet, finally, 
 was a royal police court over all living 
 upon the land, first instituted hy later 
 grant. The Leges Henrici I. employ 
 for the Manorial Court the term " Hal- 
 limotum" (Hen. 9, sec. 4; 20, sec. 1 ; 
 .07, sec. 8 ; 78, sec. 2), which seems to 
 belong to the more modern feudal lan- 
 firuage. The most frequent expression is 
 "" saca et soca" The Leges Henrici I. 
 cap. 20 contain first of all the general 
 rule: '^ Archiepiscopi, episcopi, comites 
 et alix potestates, in terris proprige p)otes- 
 tatis sux, sacam et socam habent, tol et 
 theam et infangentheaf ; in cxteris vero 
 per emptionem, vel camhitionem, vel 
 ■qiioqiio modo ^erquisitis socam et sacam 
 
 habent, in causis omnibus, et Jiallimotis 
 pertinentibus, siqjer snos et in suo, et 
 aliquando super alterius homines." Of 
 course, the King has also the same 
 manorial jurisdiction over his own de- 
 mesnes : " omnium terrarum, quas rex 
 in dominio suo habet socam habet ; qua- 
 rundam terrarum maneria dedit, sed 
 socnam sibl retinuit singularem et com- 
 munem. Nee sequitur socna regis data 
 maneria, sed magis est ex pjersonis'* 
 (c. 19). The later Anglo-Saxon deeds 
 of grant contain the clause : " concede 
 el libertatem plenariam, id est sacam et 
 socam, tol et theam, et infangenethef, 
 monbrich, hemsocne, forstell" (cf. Cod. 
 Dipl. iv. 167). That the sense of the 
 words was no longer clearly understood 
 was no hindrance to, but rather a good 
 reason for, retaining them as a formula. 
 AVhen the Norman Kings (as Henry I. 
 on his ascending the throne) were 
 obliged to meet their Crown vassals 
 witli friendly assurances, the manorial 
 rights formed primarily the subject of 
 these promises : " Sacam in terra et in 
 aqua, in silvis et in campis, tolnetum et 
 team, grithbrecam et hamsocnam, fore- 
 steaUum et infangthief, et in fugitivo- 
 
172 Constitutional History of England. 
 
 However well ordered these judicial arrangements might 
 appear externally, their inner life was defective and disordered. 
 The greed and arrogance of the Norman vicecomites and 
 vassals made these courts places of arbitrary dealing and 
 oppression. The rules of court and of law to be applied were 
 for many generations contradictory; the judges were kept 
 asunder in various ways by national antipathy. The Con- 
 queror had intended to have the more important customs of 
 each county determined by commissioners; but this work 
 could not be carried out inconsequence of iDractical difficulties. 
 The private codes which were formed at the same time were 
 entirely inadequate for the task. The conflict of the legal 
 conceptions of different nationalities left a wide field open, 
 which the partiality of the Norman country magistrate and 
 bailiff took advantage of for his countrymen and compeers, or 
 for the highest bidder. It is only from the occasional inter- 
 ference of the King, and the jDartiality of the vicecomites^ 
 which is mentioned as a matter of course in almost every 
 contemporary narrative, as well as from the general detesta- 
 tion in which the office is held, that we can conjecture what 
 manifold injustice is hidden behind the silence of history. 
 These internal defects bring the Anglo-Norman judicial system 
 into a state of agitation, which by a continuous process of 
 pressure from the lower upon the higher class brings about 
 a centralization of justice, in the following order. 
 
 I. '^TJc local courts become gradually limited. As private 
 rights of the landlord (rights of property) they still exist 
 unabridged, so far as the jurisdiction of the manorial courts 
 over the villani extends; that is, as a ''customary court." 
 The jurisdiction of the cuiia haronum, on the other hand, is 
 regarded as a personal grant, and can accordingly be refused, 
 *'7ion sequitur socna regis data mancria, seel magis est ex 
 personis " (Hen. I. c. 19). For financial and political reasons 
 the royal authority (different from that on the Continent) 
 
 rum receptionem super eorum proprlos ipsum exquirere deherent et super tarn 
 homines intra hurgos et extra, tarn plene multos tanorum qiiot ego eis concessi" 
 et tarn directe, quam mei proprii ministri (Lye's Suxou Diet., App. Chart. No. 6), 
 
The Development of the Norman Judicial Power. 173 
 
 impeded every development of the court baron, and without 
 attacking it in principle, gradually neutralized the judicial 
 power of the mesne lords. Different circumstances tended to 
 this result. 
 
 {a) The scattered position of the lords' possessions rendered 
 it an exceedingly difficult matter to form great feudal manors 
 in consequence of the great distances (Hen. I. c. 55). The 
 principal seat of the lord, the " cainit haronim,'" might well 
 be a place of meeting of the under-vassals for festivities, 
 investitures, and the like, but could be no baronial court for 
 the collective vassals, no '^ cour cle haronie'' in the French 
 sense. A court baron of this description was more important, 
 as numerous under-vassals and the personal x^i'esidency of 
 the lord could be added to the ordinary freeholders. But the 
 judicial power of the great feudal lord, as far as can be proved 
 by documents, was only an aggregate of manorial jurisdictions, 
 not different in quality from the jurisdiction of a manor. ft 
 
 (h) To this was added the superintending and rival power 
 of the King as the highest judge in the land, which in the 
 spirit of Norman administration was zealously exercised on 
 account of the perquisites. The Exchequer records show that 
 
 tt The owners of the^greater lord- honor consists of many manors, and 
 ships, surrounded by the officials of there is for all the manors one court 
 their households, held solemn feudal only held, yet are there quasi several 
 courts (Madox, i. 101), and in their and distinct courts for several manors " 
 documentsmade use of a style analogous (Scroggs, 81, 82, cited by Scriven on 
 to that of the royal administration of Copyholds, 6). Regardino- the de- 
 justice : such expressions as " Dapifero fective nature of the manorial means of 
 ineo et omnibus haronihus meis et execution, see Scriven, vol. ii. 757. As 
 liominibus meis Francis et Anglis" are to the lending of lawmen, which in 
 frequently to be found in the " Monas- later times no longer occurs, see Ellis, 
 ticum Anglicanum" and in the i. 236, 237. By the statute. Quia 
 *'Formulare Anglicanum.'" But the jE'm^jfores, 18 Edw. L, the development 
 scattered position of their lands did not is legally curtailed. In the rare cases, 
 permit in practice of any other relation in which in later times the King 
 than that of intermediate Crown makes an hereditary grant of the 
 vassals. The under-vassals could not administration of a hundred, this is 
 come from distances of twenty or a done with reservation of the jurisdiction 
 hundred miles to their feudal courts, of the Royal Judges and Sherifts. A 
 in order to hold sittings once a month, request of the landlords to have their 
 after the fashion of a hundred court. own prisons was refused by the Statute 
 With the caimt haronix the juris- of Merton : '' Magnates p'etierunt pro- 
 diction of several contiguous manors priam prisonam de illis, quos caperent 
 was often united (Heywood, 148) ; but in parcis et vivariis suis. Quod qui- 
 it never went beyond the scale of a dem dominus rex contradixit, et idea 
 plurality of manors. "Although an differtur." 
 
174 Constitutional History of England, 
 
 judicial mandates proceeding from the royal com-t very early 
 admonished the feudal courts to administer justice under the 
 threat that in default the supreme power would intervene. 
 The " writs of right " directed to the small patrimonial 
 courts were openly issued, as letters patent, and were 
 despatched by the Yicecomes. They contained the regular 
 clause, " et nisifeceris, vicecomes liocfaciat, ne amplius clamorem 
 audiamus loro defectu recti.'' Every defect in this customary 
 judicature was made use of for the same purpose. The right 
 of distress which belonged to the mesne lord is only a 
 sequestration without the right of sale. In cases of execution 
 the King must accordingly be appealed to, and the matter 
 given over by writ to the sheriff to be further dealt with. 
 Every complaint, that the manorial court refuses justice or 
 does not properly administer it, transfers civil as well as 
 criminal matters to the Koyal Court ; in like manner appeals 
 by "writs of false judgment." Where the manorial court 
 has not been properly composed (which often occurred, owing 
 to the scattered position of the estates), the matter at once 
 devolved upon the Eoyal Court. All attempts made to form 
 a superior jurisdiction of the greater feudal courts over the 
 sentences passed by a smaller curia, are finally cut short by 
 the Statute of Marlebridge in the rule, " Nidlus de c^tero 
 (excepto domino rccjio) teneat ijlacitum in curia sua de falso 
 judicio facto in curia tenentium suorum ; quia hujnsmodi placita 
 specialiter spectant ad coronam et dignitatem domini regis ^ 
 
 (c) Decisive reasons were also contained in the nature of 
 the law that was to be applied. After the lapse of a century, 
 the administration of justice had become concentrated in a 
 class of professional judges. Compared with this arrange- 
 ment the formation of the private courts became more and 
 more insufficient. In like manner the mode of taking evidence, 
 especially the procedure with compurgators, " legis vadiatio;' 
 became less and less practicable. Whilst in the royal 
 tribunals a reform adapted to the times was introduced, which 
 developed a civil jury, and somewhat later a criminal jury, 
 they were still denied to the private courts, the insignificance 
 
T/ie Development of the Norman Judicial Poicer. 175 
 
 of which rendered such reforms for the most part inapiDhcable. 
 The fact that the private com'ts remained upon their old 
 basis, whilst an untiring legislation brought the Eoyal Courts 
 important improvements, also contributed to the unavoidable 
 decay of the former. 
 
 {d) When in course of time great lordships reverted to the 
 Crown in consequence of escheat or forfeiture, these extensive 
 judicial powers were in the re-grants frequently withheld ; 
 and generally the sub-vassals were made immediate vassals 
 of the King. 'By this means, and also owing to the ultimate 
 interdiction of subinfeudation, the courts baron lost their best 
 lawmen. It was next assumed that where there did not remain 
 at least two freeholders to compose the court, their jurisdiction 
 was suspended. All these defects are seized upon by the 
 higher courts, and private jurisdiction becomes merged of 
 the county and royal courts of first instance. ftt 
 
 II. '^ijC ClTountri Courts, as regular country courts of the 
 liberi homines of the realm, passed over unchanged, with their 
 two grades of Hundred-gemote and Shire-gemote, into the 
 Norman period. In their case also a curtailment of com- 
 petence took place. 
 
 1. The Hundred Court appears with its monthly sittings 
 in the Leges Hen. I. c. 51, sec. 2, '' Dehent cnitem ad singidos 
 onenses, i.e. per annum duodecies, congregari Jnuidrcta.'' In 
 like manner c. 7, sec. 4 : ^^ Dehent aiitem Jmndreta vel wapen- 
 tagia duodecies in anno congregari, et sex diehus antesummoniri.'" 
 In Henry I. 41, sec. 6, it is repeated that a hldford shall 
 
 ttt As a counterpoise to the great mount, by charter, according as the 
 feudal lords, the opposite maxim was necessity of the case required, or on 
 followed in favour of the towns. Lon- petition, and on the payment of high 
 don and certain larger towns obtained dues. In the bishops' sees the grants 
 by privilege a mayor, or a town-reeve, are generally old ; in abbey lands they 
 who apparently exercised the whole took place regularly. In certain char- 
 criminal and civil jurisdiction of the ters of Henry II., a complete exemption 
 Vicecomes, and entirely superseded from all interference of the Vicecomes 
 him. Other towns also, in order to is pronounced, and consequent immu- 
 lighten their judicial duties, began to nity from the suit of court in the county, 
 show a constant tendency to form a Under John grants were made in great 
 special court of their own, which was numbers, which, in the order of things 
 desirable for the wants of a more closely existing in those days, created, at ail 
 packed population. Such grants were events, a special "court leet." 
 now made by the king, as lord-para- 
 
176 Constitutional History of England. 
 
 present his accused man at the hundred. But beyond doubt 
 the hundred court suffered considerable damage from the 
 fact that the court baron became extended with the competence 
 of a hundred court to under-yassals and libere tenentes. The 
 hundreds appear almost everywhere broken in upon by mano- 
 rial courts ; and, owing to the dissensions prevailing among 
 the lawmen, give the feeblest possible guarantee to the weaker 
 against the stronger. It is scarcely conceivable how, at this 
 time, considering the number of the hundred courts, an ade- 
 quate composition of them was possible ; but it is very easy 
 to understand that the Vicccomes, overburdened with business, 
 had little inclination to hear, twelve times a year in each 
 hundred, small civil causes which brought in only small fees. 
 From the supplementary relations, which always subsisted 
 between county court and hundred court, it followed that 
 numerous civil actions were brought into the county com't. 
 That the hundi'ed court was, notwithstanding its apparently 
 small judicial activity, regarded as a regular district court, 
 is explained by the tenacious adherence of the people to a 
 judicial system, which was the last buttress of the social con- 
 ditions of the ordinary free man. The character of lawmen 
 in the hundred court remains the legal mark of the libcri ct 
 legates homines, who keej) their position by the side of the class 
 of knights, and who furnished the most numerous members 
 for the later important trials by jury. 
 
 2. The County Court, now ^' Curia comitafus,'' has, from old 
 custom, jurisdiction in more important cases, over actions 
 brought against Thanes ( now " milites''), and other influential 
 persons. Already in the Anglo-Saxon period its relation to 
 the hundred court was a supplementary one. From the 
 sphere of the hundred courts and courts baron, a number of 
 civil causes are now brought thither. Of criminal offences, 
 we find mention most frequently made of thefts and smaller 
 offences {metletm, verhera, i)lagse, transgressiones). The ac- 
 cumulation of business brought it about that later (as decreed 
 in Magna Charta) twelve sittings were held annually. Even 
 the Leges Henrici 51, sec. 2, say, '' Comitatus his, si non sit opus 
 
The Development of the Norman Judicial Power. 177 
 
 amplius, congregarV It appears, therefore, that in addition 
 to the two legal Shire-gemotes, prorogued sittings were in- 
 troduced, to which, as instituted court sittings or " county 
 courts," only the interested parties were summoned. But even 
 thus the county court was inadequate to settle the great 
 number of small criminal cases. Hence from the county 
 court a " turnus Vicecomitis,'' " Sheriff's Tourn," was separated 
 off — a new institution, belonging to this period, according to 
 which the Vicecomes journeys, at least twice a year, through 
 the several hundreds, and, in the capacity of Koyal Com- 
 missioner, disposes of the petty misdemeanours, which were 
 most practically dealt wdth at the places where they were 
 committed. This turnus Vicecomitis is not to be regarded as 
 an original institution of the hundred, but as a branch of the 
 county court, by virtue of royal commission ; which is referred 
 to by Henry I. c. 8, sec. 1 : " Speciali tameii plenitudine si opus 
 est, his in anno conveniant in hundretum suum quicunque liheri, 
 tarn hudefesty quam folgarii, ad dinoscendum scilicet, si decanias 
 plense sint, etc.'' Similar delegations to a commissioner were to 
 be found in Normandy. On these circuits the whole male popu- 
 lation of the small districts appeared for police purposes, whence 
 it followed that the name of people's court, ''court leet," 
 was customarily applied to these court-assemblies per delega- 
 tionem. Under the Norman fine and fee system there arose 
 from them a local police-court (cap. 12), which was further 
 a subject of grants to landowners and parishes. . From the 
 position of the Vicecomes as royal commissioner, it can be 
 seen why the Tourn is regarded as a royal court of record, 
 whilst the old Anglo-Saxon county court is not one. In the 
 multifarious business thus brought before them, the Vicecomites 
 make use of their higher baihffs as substitutes; the lower 
 bailiffs are employed for summonses, executions, and service 
 at court sittings. (2) 
 
 (2) The county and hundred courts of other passages, describe the county- 
 have of all Anglo-Saxon institutions and hundred courts purely in the form 
 preserved most faithfully their original in which the Normans found them, 
 form, and we find that the Leges Hen- Now that the sheriff, according to the 
 rici, cc. 7, 8, 14, 41, 91, and a number new arrangement, must twice a year 
 
 VOL. I. N 
 
178 Constitutional History of England. 
 
 Numerous and important as the county causes now became, 
 a diminution of their competence is verj- soon visible, owing 
 to the royal reservation of actions touching Crown fees, and 
 of the heavier criminal cases, of the extent of which we shall 
 have to speak later on. In the county court also is seen 
 a tendency to go higher ; the reason for which must be sought 
 in the partiality of the sheriff, and, still more, in the state of 
 the law and judicial decisions. The duties of members of the 
 village communities to act as judges (in Germany styled 
 Schoffen-Verfassung) cease everywhere when compound modes 
 of property and social conditions take the place of simple 
 and uniform tenures. In Anglo-Norman England, the law of 
 possession had from the first to develop itself out of discordant 
 elements, by applying the Norman feudal law to Saxon modes 
 of tenure. In like manner a unity of legal views on the part 
 of the judges was prejudiced by contrasts of nationality, 
 and gradually, too, by those of the modes of tenure, in propor- 
 tion as provincial, civic, and ecclesiastical legal spheres came 
 into daily collision. The diversities of interests and views of 
 social life, as it became settled, effaced the sense of legal unity, 
 and made it necessary that the development of law should 
 proceed from State authority. Decisions had here, at an early 
 period, to be gathered from interpretations and analogies ; for 
 a customary law based upon the " legal customs of the com- 
 munity" would have been a different one in almost every 
 county, hundred, and town, according as nationalities were 
 confused and knights, freeholders, and citizens were blended 
 together. In a still greater measure was this true of criminal 
 law and criminal procedure, in which, for the maintenance 
 of the public peace, the most important principles had to be 
 modified by the higher authorities. 
 
 III. From this internal j)rocess of decomposition can now 
 be explained the position of the royal jurisdiction under the 
 
 hold a poYice-conrt (turnus Vicecomitis), twice a year; and the smaller court, 
 
 we meet (as early, indeed, as the Leges the curia parva hundredi, held every 
 
 Henrici I.) with two sorts of courts in tliree weeks, presided over by the 
 
 the hundred — the great court for the bailiff of the hundred, for the decision 
 
 Frank-pledge, the SheriflTs Tourn, held of petty civil cases. 
 
The Development of the Norman Judicial Power. 179 
 
 Norman name of " CUtia l^egis." Probably at the time when 
 the Anglo-Saxon judicial system was confirmed, many reser- 
 vations demanded by the feudal system were made. Of civil 
 matters, legal disputes as to Crown fiefs were reserved to the 
 King, for his personal instruction of the court ; as were like- 
 wise differences as to advocatise, and the like, out of regard 
 to the state of ecclesiastical relations. The ancient judicial 
 authority of the King could also summon before him every 
 action from the lower courts, partly on account of defectus 
 recti, and partly when it was assumed that in the lower 
 court impartial justice was not to be obtained. 
 
 It was not intended by this, that for all such cases a special 
 court of lawyers should be formed at the royal court. The 
 majority of such cases were referred by commission to the 
 county court or some neighbouring county court, as extra- 
 ordinary matters, not lying within the Jinna of the Vicecomes. 
 Only in case of actions against the greatest magnates, the 
 King sometimes appointed a commission of prelates and 
 vassals of the Crown, to decide the matter at court. The 
 composition of the county courts, which excited little con- 
 fidence, and the want of unity in the principles of law, as 
 applied to rights of property, promoted an appeal to the 
 royal fountain of justice ; especially from the time when 
 special commissioner-judges {justiciarii) , who were free from 
 the animosities and eagerness for fees of the sheriff, began 
 to be appointed for this purpose. So soon as the way was 
 thrown open, under Henry II., a flood of civil causes imme- 
 diately swept into the royal court, which was now opened 
 on payment of fees, to the most varied legal claims. The 
 condition of things resulting herefrom is shown in the treatise 
 of Glanvill, i. c. iii., where a considerable list of reserved 
 civil causes appears, with the further addition " quodlibet 
 placitum de libero tenemento velfeodo potest rex trahere in curiam 
 suam, quando vidt'' (cap. v.).* 
 
 * The jurisdiction of the curia regis vation of civil causes was probably 
 
 will be discussed at greater length in originally limited to the provision in 
 
 connection with the central adminis- the Carta Henrici I., touching litiga- 
 
 tration (caps. 16, 17). The royal reser- tion as to Crown fees. Glanvill, i. 3, 
 
180 Constitutional History of England. 
 
 The course of criminal justice is analogous. Here also at 
 first a reservation was made of certain more serious offences, 
 such being in Cnut's laws reserved to the Crown from the 
 jurisdiction of the private courts (Hen. I. 10). The mass 
 of the reserved cases was, however, at first assigned to the 
 county court for hearing. Only in cases of the prosecution of 
 prelates and the highest vassals of the Crown, and even then 
 only in a few cases, which are recorded in history, did the 
 King make use of his privilege of administering supreme 
 criminal justice through a commission of prelates and vassals 
 of the Crown duly appointed ; and this criminal authority 
 generally commuted capital sentences into confiscations and 
 forfeiture of fiefs. But in this respect the royal reservation 
 increases, and even Glanvill reckons all "felonise contra 
 jpacem regis " among the Crown cases reserved : even frays 
 and brawls, if they are tumultuous in their character, " si 
 accusator adjiciat de pace regis infracta^' (Glanvill, i. cap. 2). 
 The heavy criminal offences aj^pear now as "felonise contra 
 pacem domini regis,'' and in regard to the mode of proceeding 
 as *' placita corona.'' A better spirit is infused into this 
 portion of the legal administration by the severance of the 
 farm interest (firma) from the judicial functions ; which was 
 effected by the appointment of royal justiciarii in the place of 
 the Vicecomes, The reservation of the royal right of inter- 
 ference now develops into a periodical delegation of matters to 
 criminal judges.** 
 
 reckons as reserved cases : *' placitum de coram Ttege vel ejus capitali Justiciario " 
 
 haroniis, pi. de advocationihus, questio (Madox, i. 19 et seq.). 
 status, pi. de dotihus unde nihil, querela ** The original reservation in 
 
 de fine facto, de homagiis faciendis, de criminal matters is summed up as 
 
 releviis recipiendis, de purpresturis, pi. follows in the Leges Henrici, i. c. 10, 
 
 debitis laicorum." Certainly, a more " Heec sunt jura, quse rex Anglise solus 
 
 extended meaning is afterwards given et super omnes Iwmiiies liahei in terra 
 
 by Glanvill's words (i. 5): ''quodlibet sua: infractio pads regise per manum 
 
 placitum de libero tenemento vel feodo vel breve datoe ; danegildum ; placitum 
 
 potest rex trahere in curiam suam, hrevium vel prsecejjtorum ejus contemp- 
 
 quando vult," From the time of Henry torum ; de famuHs suis uhicunque 
 
 II. begin the numerous cases of pay- occisis vel i'njuriatis ; infidelitas et 
 
 ments for the acceptance of tlie cause prodicio ; quicunque despectus vel mali- 
 
 at the royal court under the heading loqnium de eo ; utlagaria; fitrtum 
 
 "we placitet nisi coram Rege de tene- morte impunitum; murdrum ; falsaria 
 
 mentis suis; neponatur in placitum nisi monetx mese ; incendium,; hamsocna; 
 
The Development of the Norman Judicial Power. 181 
 
 The reign of Henry II. is a period of transition, which in 
 its centrahzing spirit brings the more important matters 
 through travelhng judges to the court (curia), and which also 
 by forming a body of professional judges prepares the way for 
 a more solid system of justice in the whole realm according 
 to the principle of unity. The system of royal justiciarii 
 about the middle of this epoch forms such a connected whole, 
 that a special exposition of the central administration is 
 needed (cap. 17). The transition to the administration of 
 justice by official and professional judges, which did not take 
 place in Germany until centuries later by the adoption of 
 foreign law, was accomplished here as early as the twelfth 
 century. Considering the tenaciousness with which the 
 Saxon population clung to their customary law, this would 
 have been almost inconceivable, if it had not been necessitated 
 by the bad state of the county courts. But it also goes hand 
 in hand with an entire transformation in the old participation 
 of the lawmen in judging, which change, as early as Henry II., 
 already begins to assume the outlines of a civil jury, and 
 under Henry III. that of a criminal jury. 
 
 The great change which here occurs depends chiefly upon 
 royal ordinances, even upon quite informal instructions. Only 
 in the case of a few decisive innovations did Henry II. find 
 a conference with assemblies of notables by means of the so- 
 called *' Assizes " advisable. Most new arrangements pro- 
 ceeded from necessity, and were begged for by the litigants at 
 court as a boon, and were moreover of such a technical kind, 
 that the improved administration of justice could only evolve 
 itself slowly and irregularly out of the practice and better 
 
 forestel" etc. This passage is in part Ministris ejus sine definitis prxlocu- 
 
 a translation of the Leges Cnuti, II. tionibusinjirma sua.'" It accordingly 
 
 12-15, and it is doubtful how old the did not exclude the power of assigning 
 
 confusedly added clauses may be. At all these cases to the commissioners to 
 
 the close the author, however, adds : deal with before the county court, 
 
 " The meaning of this reservation is, which was very frequently done until 
 
 that the hearing of these more serious Magna Charta. The assertion in Glan- 
 
 criminal cases does not belong to the vill, i. 2, is more reliable, but it 
 
 general farming of jnrisdiction : ^ Hasc furnishes no proof of the exact time of 
 
 sunt Dominica placita Regis nee pertinent extension. 
 Vicecomitibus vel Apparitoribus vel 
 
182 Constitutional History of England. 
 
 spirit of the magisterial body. Though according to the 
 State records as yet published, much still remains defective, 
 the following may be taken as the situation at the close of 
 the period. 
 
 The judicature had been reformed by ordinances of the 
 King ; his administrative power had to a considerable extent 
 remodelled law, judicature, and procedure. The arrangement 
 of the court had been transferred in all important civil and 
 criminal matters to the person of the Sovereign; "m curia 
 domini regis ipse in propria persona jura decernit " (Dial., i. 
 cap. 4). 
 
 The judicial decision in these cases rests no longer with the 
 lawmen of the county, but with justiciarii appointed by the 
 King, for the most part officials educated in the law, to whom, 
 as immediate organs of the royal administration of justice, 
 the county courts, as inferior courts, are subordinate. 
 
 The ancient participation of the people in the administration 
 of justice is limited to what in this altered order of things the 
 members of the community still were, and to what they could 
 perform ; that is to say, to the determination of the queestio 
 facti by commission appointed for this purpose, in the form 
 of a civil and criminal jury. The customary manner of 
 inquisitio by means of sworn committees of the community, 
 which was in use at the time of the framing of Domesday 
 Book, for the purpose of deciding on the royal privileges, the 
 levying of taxes, determining the degrees of military service 
 according to the assize of arms, and for the actual settlement 
 of local affairs, is now made use of to substitute a more 
 rational mode of proof for the obsolete modes of taking 
 evidence by means of compurgators, ordeals, and duels. 
 
 
 _ *** The development of the jury in central government, like that of Charle- 
 
 civil actions has been fully discussed magne, or of the Norman kings, with 
 
 and determined in all its technical de- its defective official system, needs an 
 
 tails in the great treatises of Biener, exact local certification, it is by the 
 
 Brunner, Forsyth, and others, so that it nature of things referred to the testi- 
 
 suffices to notice tlie results. The mony of the villa, the hundredum, 
 
 connection of these technical institu- and the comitatus. This testimony 
 
 tions of procedure with the political can only be practicallv delivered by a 
 
 organization, is important for constitu- representation of those bodies, that is, 
 
 tional history. Where an energetic by a provost and four men for the 
 
The Development of the Norman Judicial Power. 183 
 
 At the close of this period we find the civil and criminal 
 procedure based upon a systematic co-operation of the Eoyal 
 Judges with committees of the community; and already in 
 Bracton's treatise the more modern fundamental principle of 
 the judicature is laid down in its universality " Veritas in 
 juratore, justitia et jiidicium in judice'^ (Bracton, fol. 186 b.)- 
 The legal decisions which are now pre-eminently the applica- 
 tion of general laws, pass from the community to the official 
 professional judges. But the former participation of the com- 
 munity, consisting in passing sentence, compurgating and 
 giving evidence, is reduced to the determination of the 
 *' question of fact" by committees selected out of the body of 
 the hundred. 
 
 It is evident that thus the judiciary powers of the King 
 have become something different from the formal and merely 
 supplementary judicial office of the Anglo-Saxon sovereign. 
 The King has become the " fountain of justice " in a new 
 acceptation of the term, a royal supreme judge in the most 
 extensive sense, and in sense until then unknown to the 
 Middle Ages. 
 
 villata by the duodecim legales its oflBce, helps to the furnishiug of 
 
 homines for tlie hmidred. and by the evidence, whilst in the ancient legis 
 
 twelve or more milites, etc., for the actiones the proof was pnrely the con- 
 
 comitatus. For the greater bodies, cern of the parties. So soon as the 
 
 those of the hundredum and the principle of an official determination 
 
 English " burghs " the number of of evidence (inquisitio) had for once 
 
 twelve was fixed already in the Anglo- and all become established, the modes 
 
 Saxon period as the proper representa- of taking such evidence depended upon 
 
 tion. This combination of an action the constitution of th& offices, and the 
 
 of the government with an action of official districts. In this sense a modi- 
 
 the local bodies was made so necessary fied introduction of the Frankish in- 
 
 by the circumstances of the case, that stitutions which had long been in vogue 
 
 the Church with its synodal courts, and in Normandy took place, and these 
 
 Charlemagne with his attempts of were now adapted to the English 
 
 secular presentments and recognitiones comitatus, hundreda, and villatx, and 
 
 were obliged to take the same course. technically developed by the jurists 
 
 The material part of the innovation of the curia regis. The action of the 
 
 consisted, as Brunner remarked with jury in criminal affairs is dealt with 
 
 perfect truth, in the fact that the on p. 189. 
 magisterial power of itself, by virtue of 
 
J 84 Constitutional History of England. 
 
 CHAPTEK XII. 
 
 III. Wit Bebclopment of tijt Norman police (2!l^ontroI. 
 
 As the Anglo-Saxon sovereign, in his capacity of supreme 
 guardian of the peace, proclaimed the '' King's peace " at his 
 accession, so did also the Norman kings. This proclamation 
 (at all events from the time of Henry II.) was regarded as 
 valid for the whole of the reign; occasions, however, often 
 presented themselves for general and special proclamations 
 of peace. In the oldest Treasury records we find fines of five 
 marks, eleven marks, and ^20, " jpro j^cice fracta," especially 
 recorded against Norman lords. The oldest regulations on 
 this point are only repetitions of existing arrangements ; but 
 in the hands of the Norman sovereigns they continually attain 
 greater dimensions.* 
 
 * That the Norman national police voked much controversy. (See the de- 
 regulations are a continuation of the tailed account in Waitz, " Deut. Verf. 
 Anglo-Saxon system of maintenance Gesch,," 2nd edit., 1865, p. 426-457.) 
 of the peace is shown by the detailed The author of that private collection 
 references of Palgrave, ii. 105 et seq. does not here quote the words of the 
 The difference between the " Pax data law, but only gives descriptions, in 
 manu regis," and the '^ pax a Vicecomite which he endeavours to elucidate to 
 data^^ is put forward in Henry 79, his contemporaries the ancient police 
 sees. 3, 4 ; the equal value of all imme- system of the country. The word 
 diate and mediate peace-proclamations *' Frithborg " (according to Lambard 
 in Edw. 12, sees. 1, 27; as to its re- " Freoborg ") which there occurs, pro- 
 action upon private feuds, see Bracton, bably belongs more to the popular lan- 
 1. 2. c. 85, sec. 5 ; Fleta, i. 3. c. 16, guage than to the laws. " Francple- 
 sec. 16 ; Britton, 68 ; and Allen, " Pre- gium" is the Norman translation in 
 rogative," 121. Its connection with the official vernacular of the times. 
 the Anglo-Saxon police security, in The changes during the Norman period 
 consequence of the confused statements probably consist merely in the altered 
 of the Leges Eduardi c. 20, has pro- method' in which the Exchequer, and 
 
The Development of the Norman Police Control. 185 
 
 I. The Anglo-Saxon principle of police sureties is repeated 
 in the ordinance of William I. c. 8 (Charters, 84): " omnis 
 homo qui voluerit se teneri pro libero sit in plegio, ut plegius 
 eum haheat ad justiciam, si quid offenderit. Et {si) quisquam 
 evaserit talium, videant plegii, ut solvant quod calumpniatum 
 est, et purgent se, quia in evaso nullam fraudem noverint, 
 Requiratur hundredus et comitatus, siciit antecessor es statuerunt.'' 
 In like' manner the responsibility of the Thane for his 
 dependants is fomid in the Leges Eduardi, c. 21 ; that the 
 vassals of the Crown should have their milites and ser- 
 vientes under their security, and these again their " armi- 
 geros vel alios servientesJ" To establish an effectual control, 
 the Norman administration now introduced an annual revi- 
 sion of the police unions, the " visus francplegii,'' view of 
 francpledge. This revision was combined with the circuit 
 of the Vicecomes at Michaelmas, and lasted for centuries, 
 and in name even down to the present day: "Bis in anno 
 conveniant in hundretum suum quicunque liheri, tarn hudefest 
 quani folgarii, ad dinoscendumf si decanise plense sint, vel qui, 
 quomodo, qua ratione, recesserint vel super accreverint'' (Hen. I. 
 c. 7). In these laws only general sm-ety, a responsible pledge, 
 or two pledges are primarily spoken of. But the Norman 
 financial administration has in this as in other cases intro- 
 duced a more rigorous mode of exaction. The Norman 
 official, who had nothing in common with the communities, 
 summarily demanded the fine from the people trihutim (in 
 gross), and left them to settle the matter among themselves. 
 The result was that in this manner the system of police sure- 
 ties developed into a mutual responsibility of the tithing, and 
 it can thus be explained how in the twelfth century the 
 private compiler of the Leges Eduardi considers the pohce 
 suretyship as a mutual one ; " ita quod si unus ex decern foris- 
 facit, ad rectitudinem novem haherent decimum'' (Edw. c. 20, 
 sec. 1), yet in such a way, that the guilty perpetrator, if dis- 
 covered, himself pays the indemnity (sec. 2). If he escapes, 
 
 the royal magistrates with increased from the " obstinate and ill-disposed " 
 military and police powers, exact the communities, 
 fines in the most summary fashion 
 
186 Constitutional History of England. 
 
 and has no property, the provost of the tithing must make 
 compensation '' cle suo etfrithhorgi'' (sec. 4). Following these 
 passages, scholars have erroneously invented a system of 
 *^ mutual- surety " which they allege to have existed in the 
 Anglo-Saxon period. The later law books also mention it 
 as being a duty incumbent on the community ; e.g. Bracton, 
 124: " De eo autem qui fiigam ceperit, diligenter inquirendum^ 
 sifuerit in francplegio et decenna, tunc erit decenna in miseri- 
 cordia coram justiciariis nostris, quia non hahent ipsuni male- 
 factorem ad rectum*' (see Fleta, i. 27, sec. 4). Certainly the 
 Anglo-Saxon law of settlement, the necessity of every vagrant 
 being received into a parochial union, could be most effectu- 
 ally enforced by this system of exacting penalty from the 
 community in gross ; and thus it remained for centuries 
 an instrument for harshly treating vagrants and suspected 
 persons. (1) 
 
 II. This rigorous treatment of the tithing was followed by 
 an extension of the responsibility of the larger union of the 
 hundred. The insecurity of the Normans in the midst of an 
 exasperated population was the cause of the issue of a decree 
 by William, that any hundred should at once pay forty-six 
 marks, within whose boundary a Norman should be found 
 murdered, unless the perpetrator were captured within five 
 days. (Will. I. 3; Charters, p. 34.) Here again the royal 
 right to issue ordinances is conspicuously seen. A Saxon 
 Witenagemote would most certainly have claimed the right of 
 
 (1) That from the first a transfer was an efficacious measure, but one 
 
 of Anglo-Saxon institutions was in- which was not exactly essential to the 
 
 tended, is also sliown by the Exche- system, and in many districts w^as not 
 
 quer accounts. In numberless cases, put into force at all. The later exer- 
 
 districts were fined for " harbouring cise of it is shown in Magna Charta ; 
 
 an unknown person without having in Fleta, ii. 52, 72; Britton, c. 29; 
 
 taken francplegium of him," and for Home's "Mirror," c. 1, sec. 16. The 
 
 " harbouring a man who was not in institution was not introduced in those 
 
 the /ra?ic;;Zegmm," for receiving a man provinces lying north of the Trent 
 " without Tething," and so on. (Madox, • (Palgrave, ii. 128), which fact -seems 
 
 i. 546 et seq. 555^) See in Gervase (i. to prove that it proceeded from the 
 
 565), where the hundred of Peckham Conqueror himself, at a time wlien 
 
 and others are fined, because they these northern provinces had not yet 
 
 wittingly allow a man to live amongst become included in the Norman gov- 
 
 them without ^' francplegium.^^ The ernment. 
 yearly recurring view of frankpledge 
 
The Demlopment of the Norman Police Control. 187 
 
 agreeing to such innovations. But now the threatened Nor- 
 man comiQunity eagerly accepted an effectual protective 
 measure which the other party was not in a position to 
 gainsay. But soon the administration extended the principle 
 still further, so that, according to the Exchequer accounts, 
 a fine is charged upon the hundreds "in gross," as a subsi- 
 diary responsibility, where the village does not possess the 
 means of paying the police fines it has incurred. (2) 
 
 III. A step further and a duty of presentment was developed 
 out of these beginnings. The necessity of not leaving the 
 prosecution of breaches of the peace purely to the pleasure 
 of the injured party, but of prosecuting them ex officio in the 
 interest of the injured commonwealth (the King), had even 
 in the Anglo-Saxon period led to a decree of ^thelred lit. 
 (3, sec. 3) ; which speaks of a presentment of breaches of the 
 peace ''by twelve Thanes of the hundred." This decree 
 apparently remained isolated and was soon forgotten. But 
 the Norman Vicecomes, wherever he was confronted by the 
 Anglo-Saxon population, was from the first ordered to settle 
 local matters by the help of neighbours sworn in for this 
 purpose. The exact time at which a procedure of this kind 
 became established for police purposes, and whether it was 
 connected or not with Anglo-Saxon institutions, cannot be 
 
 (2) The extension of the police re- newer regulation the sum was to be 
 
 sponsibility to the hundreds in the gathered from the hundred, to obviate 
 
 case of murdrum rests upon a the ruin of tlie small communities, 
 
 direct ordinance of the Conqueror. The Carta Wilhelmi itself speaks of 
 
 (W' ill. I. c. 2 ; Charters. 84.) The in- the lord of the manorial court being 
 
 novation consists in the principle of primarily answerable, the hundred 
 
 the responsibility of all the men of the making up the deficiency in the sum, 
 
 hundred, separately and collectively, " ubi vero substantia domino deficerit, 
 
 as well as in the enormously high totus hundredus in quo occisio facta 
 
 penalty of forty-six marks in silver. est communiter soluat quod remanet." 
 
 In practice this was rendered all the From these ordinances and the more 
 
 more severe by the legal presumption, ancient usages, there arose in practice 
 
 that every unknown corpse is to be a subsidiary liability of the hundred 
 
 considered as tliat of a Norman, until for other police penalties also. (See, 
 
 proof given that the murdered man is as to the frequent penalties inflicted 
 
 an Englishman. The author of the on the hundreds, Madox, i. 565, and 
 
 Leges Eduardi, in cap. 15, represents the whole section on the subject of 
 
 the case, as if according to Anglo- amerciaments.) The county of Shrop- 
 
 Saxon regulations the forty-six marks shire was exempted from this sys- 
 
 were to be primarily collected in the tem, as were also favoured cities like 
 
 guilty tilla, and according to the Worcester and Bristol. 
 
188 Constitutional History of England, 
 
 determined. But when the stormy times had passed by, and 
 the delegation of travelling commissioners from the cornet 
 {justiciarii) had become a standing institution under Henry 
 II., the chief organs of the State were ready and able in 
 conjunction with the Vicecomites to carry out and maintain 
 such a presentment. Traces of this institution are first found 
 in the Assize of Clarendon, a.d. 1166. The " capitula placi- 
 torum coronse'' of the years 1194 and 1198 (Statutes of the 
 Eealm, i. 33 et seq.) mention as an already established 
 practice that the travelling judges were furnished with forms 
 of questions, by which they had to examine the communities 
 as to punishable offences and the infringement of the royal 
 prerogative. On the Hundred Court days of the sheriff, 
 this was naturally united with the view of frankpledge and 
 the other criminal and police business of the Vicecomes. As 
 in the Assize of Clarendon, so again do we find the '' inquisi- 
 tiones coram Vicecomitihus'^ specially mentioned in the statute 
 of Marlebridge (1267), c. 25 ; in the stat. Westminster i. c. 
 11, 15 ; stat. Westminster ii. (1285) c. 13, according to which 
 the under-bailiffs of the exempted districts are to adopt the 
 same procedure. About the middle of the thirteenth century 
 the legal work of Bracton gives us a picture of a perfectly 
 developed system of presentment ; and still more in detail, 
 Fleta, i. c. 19, 20, ii. 52 ; Britton, c. 2-21, 29 ; the Mirror 
 and the Statutum Wallise (1284). The travelling judges find 
 the representatives of the hundreds all assembled. By a 
 preceding proclamation, they proceed to form a presenting 
 jury in such a way that, out of every hundred, four knights 
 are appointed, who, as elective officers, appoint tw-elve 
 milites or liheros et legates homines. At the commence- 
 ment of the proceedings the free townships and' districts 
 are bound, through the medium of their prcepositi, in. ac- 
 cordance with the instructions contained in certain forms 
 of inquisition, to present the offences that have occurred 
 in the interim. The twelve jurors then deliver their verdict 
 on this indictatio, and further as to whether anything has 
 been withheld. The formulae of inquiry — which included what 
 
The Development of the Norman Police Control. 189 
 
 the jurors thus appointed knew of crimes that had been 
 committed, and their probable perpetrators, of infringements 
 of royal rights, of official misconduct, and extortion on the 
 part of provincial magistrates and under-magistrates, and of 
 offences against the police laws affecting weights and mea- 
 sures, bread, beer, and wine — contained, with later additions, 
 as many as a hundred and thirty-eight questions. The twelve 
 jurors of the hundred are sworn in with the following for- 
 mula : ** quod veritatem dicam de hoc quod a me interrogahitis 
 ex parte domini regis." The answer given by the twelve jurors 
 is regarded as an official indictment or presentment, and 
 can at once come on for trial. Until the close of the 
 Middle Ages we find travelling judges, sheriffs, and local 
 courts, all exhibiting an inquisitorial activity which, through 
 the formulated instructions, develops itself uniformly. The 
 whole male population is accordingly assembled at short in- 
 tervals, not now in order to find a sentence as lawmen, 
 but in order to give account of the way in which peace and 
 order has been preserved, to take the oath of allegiance 
 when required, or to renew the same, or, finally, to present 
 themselves for a formal police inspection. This system of 
 official indictment led further to a change in the mode of 
 evidence ; since, as against the official indictment, compur- 
 gators and duels were out of the question, and seeing that 
 the ordeal, in consequence of the decrees of the ecclesiastical 
 councils, had fallen into disuse after the year 1219. A new 
 procedure is thus introduced into the practice of the courts ; 
 according to which the defendant is asked whether he is 
 willing (in the place of the ordeal or duel) to submit to the 
 decision of his community {jmtria). If he submits, the definite 
 question is laid before the jury, *' an culpahilis sit, vel non.'" 
 Originally this might be the same presenting jury which had 
 pronounced the indictatio, but the defendant was allowed 
 a right of challenging individual jurors, by which means a 
 new jury was formed. In the following period this becomes 
 the legal rule ; the defendant can always demand the em- 
 panelling of a new jury, which now, as a petty jury, 
 
190 
 
 Constitutional History of England. 
 
 definitely delivers its verdict of *' guilty," or "not guilty." 
 As the indictment jury proceeds from the decrees of Henry II., 
 so also from the practice of the courts under Henry III. was 
 the verdict by "jurata " developed. (3) 
 
 IV. The keystone of this police-system was the transfor- 
 mation of the turnus Vicecomitis into an office for examina- 
 tion and police-court, and the origin of the courts leet, 
 co-ordinated therewith. Owing to the circuits of the judges, 
 and the increasing centralization of the criminal trials, the 
 county courts became lower courts for criminal cases, with 
 which the newly formed system of presentments could be 
 
 (3) The development of the present- 
 ment duty of the hundreds and 
 pHrishes is, as a rule, referred to ^thlr. 
 III. 3, which treats of a presentment 
 pronounced bythe twelve Thanes in the 
 hundred, but which was not long re- 
 tained in this shape, and wliich perhaps 
 never was carried out at all. This can 
 be explained in the same way as on 
 the Continent, in the post-Carlovingian 
 period. As a constant and firm direc- 
 tion of tlie procedure by royal officers 
 was wanting, the new institution de- 
 cayed ; and continued (as on the Con- 
 tinent) only in a crumbling form, as a 
 presentment in smaller communities ; 
 and of this we find traces as in Cnut. 
 II. e. 30. "And if a man of the 
 hundred is so faithless, and is so often 
 accused, and three men together accuse 
 him, there remains nothing for him but 
 to go through the threefold ordeal " (see 
 Leges Will. c. 51). The Norman 
 system of presentment that was now 
 being received arose from the new ad- 
 ministrative system, which with its 
 Norman officials standing face to face 
 with a foreign and hostile population, 
 was obliged from the first to have local 
 statistics verified by persons appointed 
 and sworn in for the purpose. It is a 
 disputable point whether the inquisitio 
 of the Vicecomites or that of the jus- 
 ticiaries was the earlier. But this new 
 institution only became permanently 
 effective after there had been found in 
 the royal justiciaries in their capacity 
 of emissaries, the instruments for con- 
 ducting such a system of presentment. 
 The connection of the " petty jury " 
 
 with tliis system, after the abolition 
 of the ordeal, is shown in the volu- 
 minous literature on the origin of trial 
 by jury; before all by H. Brunner, 
 Biener, and Forsyth. The necessity 
 of putting the question to the indic- 
 tatus, whether he was willing to sub- 
 ject himself to the judgment of his 
 community (patria), is undoubtedly 
 due to the fact that the new procedure 
 could not be called a '■'■judicium parium 
 secundum legem terrx." According to 
 the one opinion which is repeatedly 
 expressed by Bracton, an obligation to 
 do so took the place of the former 
 obligation to submit to the ordeal. 
 Here, as there, a " tenetur" " compel- 
 litur" " cogendus est " was inferred, by 
 virtue of which the refusing party " in- 
 defensus et per hoc quasi convictus re- 
 manehit." Accordiu^^ly the full penalty 
 was imposed in contumaciam upon 
 the person refusing. But the matter 
 was still doubtful. The new procedure 
 was no judicium, as was assured 
 shortly after Magna Charta. Only 
 where the accused gave his express 
 sanction to the proceedings, did a de- 
 viation from the customary mode of 
 proof appear unobjectionable. But to 
 obtain this acquiescence coercive mea- 
 sures were considered right, a " prison 
 fort et dure,^' yet without bloodshed 
 and bodily injury, in order to adhere 
 strictly to the letter of Magna Charta. 
 In the year 1275 this was approved, and 
 the new procedure generally directly 
 sanctioned by the statute Westminster 
 i. c. 12. 
 
The Development of the Norman Police Control. 191 
 
 practically combined. From the thirteenth century onwards 
 the turnus Vicecomitis appears a very effectual mode of 
 bringing to the higher tribunals the official indictments of the 
 hundred for serious criminal offences. At the same time the 
 turnus remains a criminal court for petty offences, the 
 number of which increases with each generation, in conse- 
 quence of later ordinances, especially of those touching weights 
 and measures, bread, beer, and wine. The summons of the 
 hundreds for the discharge of such unpopular business, and 
 the extortion inseparable from the office of sheriff, render the 
 tourn a periodic public grievance. The sheriffs and their 
 bailiffs, who were often changed at short intervals, often failed 
 to bring with them the local knowledge necessary for such 
 work. Hence, among thickly populated districts, a tendency 
 became manifested to form for themselves a separate juris- 
 diction for these summonses of the whole male population 
 (which now were pre-eminently called popular courts, '' courts 
 leet "), and by taking this burdensome business upon them- 
 selves, to be at least quit of the extortionate magistrate. 
 Through royal concession the bishoprics and abbeys were 
 the first to succeed in doing this. In return for considerable 
 money payments it was from the time of King John granted 
 to numerous burghs. But it was also the interest of smaller 
 hamlets and manors to form their own court districts, in 
 which a manorial magistrate was now felt less oppressive and 
 was less hated than the extortionate Vicecomes and his under- 
 bailiffs. The lord of the manor had the same interest, and 
 was quite as much inclined to exchange the old hmited 
 criminal jurisdiction of the court baron, which had become 
 odious to him, owing to the continual interference of the 
 Vicecomes and the ever-recurring penalties for alleged trans- 
 gressions, for a royal concession, which granted him a police 
 jurisdiction to the extent of the sheriff's-turn. The power 
 thus granted was more extensive than the ancient manorial 
 jurisdiction ; it had definite limits, and could not be disputed. 
 In the com'se of time this change was made in such numerous 
 instances among the old manors that a court leet became 
 
192 Constitutional History of England. 
 
 almost a regular accompaniment of every court baron. Private 
 leets were now distinguished from the public leet of the sheriff. 
 Nevertheless the private leet is merely a manorial court by 
 grant, an emanation from the royal prerogative jurisdiction, 
 a court of record, which in the King's name summons all the 
 tenants to suit of court {secta regis, suit royal) ; whence also 
 the non-appearance of those bound to suit of court may not 
 be arbitrarily remitted by the manorial lord. The object of 
 the grant is the right to hold police-court sittings (tourn) 
 for a smaller district, to exact fines and taxes (amerciaments, 
 fines, ersoign-pence), and generally, too, a small court-fee 
 {certum letce, cert-money). The lord of the manor is only 
 entitled to the profits of the court ; but the court belongs, in 
 legal language, to the King; " the day is to the King." The 
 holder of the court, the steward, represents the person of the 
 King, and must have the judicial qualification of the sheriff in 
 the tourn, and hence the lord of the manor most probably 
 cannot himself hold the court. For non-user, improper sum- 
 moning, or negligent administration, the Crown can suspend 
 the leet, sequestrate it, or definitely recall the grant ; the 
 vacant jurisdiction then lapses to the sheriff's-turn. The 
 local police-court is a branch of the sheriff's-turn, and has 
 accordingly a similar jurisdiction over offences, which are 
 punished according to the common law and the customary 
 system of regulations, or which, according to the newer fines, 
 are referred to the leet, but not over placita coronm, 
 which may only be inquired into as in the sheriff's-turn, and 
 where the public accusation may only be laid by indictment. 
 It is, therefore, to use a modern expression, an " office for 
 examination " and a police-court combined. (4) 
 
 (4) With regard to the origin of the police-court for his manor, was obliged 
 
 local police-courts, courls leet, see, for to obtain the royal grant of a court 
 
 a more detailed account, Gneist, " Ge- leet, which in process of time became 
 
 schichte des Self-government," 90, 91, the rule. The manorial elements appear 
 
 100-103. The court baron had only a also here overshadowed by the higher 
 
 limitedright of execution, and no juris- judicial and police control residing in 
 
 diction over the police fines which the Sovereign. But the possession of a 
 
 the royal ordinances had introduced manor is nut a necessary condition, 
 
 (amerciaments). The lord of the manor Sometimes also a court leet is granted 
 
 also, who wished to have an efl'ectual for a village or a single house. Like 
 
The Development of the Norman Police Control. 193 
 
 V. Hand in hand with this newly constituted tribunal goes 
 the development of a summary procedure in criminal cases, 
 which first gave to the police regulations their full efficiency. 
 As early as the Anglo-Saxon times we hear of a penalty for an 
 offence against discipline, for disregarding the King's com- 
 mands (oferhyrnes), which is paid with 120 shillings. (Edw. II. 
 1, II. 2.) In the Leges Hen. I. a similar disciplinary punish- 
 ment as a penalty for neglecting the royal commands, over- 
 seunessa regis, is repeated and extended to further cases. The 
 
 the church advowsons in England, the 
 leets became often separated from the 
 estates, and were separately inherited. 
 The procedure before the leet is in the 
 present day a mine of wealth for judg- 
 ing of the procedure in the local courts 
 of the Middle Ages (cf. the chief 
 authority, Scriveu on Copyhold). The 
 ordinary court days are held twice a 
 year, in the first month after Easter 
 and Michaelmas. The committees who 
 assist at the finding of the verdict are 
 in later legal language called "juries," 
 but only in the sense of "juries of in- 
 quiry," just as in the sheriflf's-turu. 
 The duty of attending court is not 
 a consequence of a manorial right, but 
 a duty incumbent upon all subjects, 
 royal suit of court (suit real), and must 
 accordingly be paid in person (with 
 exception of the lords and clergy, as 
 provided in 52 Henry III. c. 10). From 
 the number present, tlie parish com- 
 mittees are next appoiuted. In the 
 sheriffs-turn in later times only suitors 
 of twenty shillings yearly arising from 
 fi'eehold or twenty-six and two-thirds 
 from copyhold were to be appointed 
 to form the committee (1 Eicli.III, c. -1) ; 
 but this provision only dates from the 
 end of the Middle Ages, and was not 
 (by analogy) applicable to the private 
 leets. The formation of the court leet 
 is completely detached from feudal 
 principles, seeing tl.at suit of court has 
 no connection whatever with real estate, 
 but is attached to tht^ fact of residence, 
 and according to the strict letterextends 
 to all persons betwi en the ages of twelve 
 and sixty, if they have been resident 
 within the jurisdiction of the court 
 for a year ami a day (Scriven, ii. 823, 
 824). Under the ' manor al steward 
 there exists a bailiflf, whose duty it is 
 
 VOL. I. 
 
 to summon to the court day those 
 bound to suit of court. This under- 
 oflScer has also, alone and without 
 the interference of the steward, to 
 select and summon the jury (Scriven, 
 ii. 837). The steward opens the court, 
 which, as in all royal courts of law, 
 is proclaimed by the bailiffs crying out 
 three times, " Oyes, Oyes, Oyes." Then 
 follows the constitution of the " leet 
 jury," of twelve to twenty-three per- 
 sons, which in many leets remains 
 a whole year in office, in others is 
 newly formed every court day. In 
 lighter criminal cases, the court leet 
 can pass sentence and inflict the 
 penalty, by fine, amerciament, and 
 lighter punishments provided by special 
 laws. Such cases are, as in the sheriff's- 
 turn, frays, offences against the beer- 
 house regulations, disorderly houses, 
 false weight, offences against the police 
 regulations for bakers, brewers, but- 
 chers, and other trades, neglect to mend 
 the roads, failure to do suit of court, 
 refusal to undertake parochial offices, 
 etc., the general object being the main- 
 tenance of the public peace and the 
 removal of public nuisances. After the 
 passing of the sentence {in misericordia 
 est), the adjustment of the police fine, 
 " affeerment of the amerct-ment," is 
 made by two or three valuers, who, 
 in later times, in accordance with 
 the fundamental rules of Magna 
 Charta, must be appointed from among 
 the imres, and very frequently from 
 among the jury themselves. The 
 measure of the money-fine cannot be 
 further called in question, for the writ 
 "cZe moderata mi><ericordia" is only 
 applicable to courts " not of record " 
 (Scriven, ii. 852, 853). 
 
194 Constitutional History of England. 
 
 Norman feudal system brought with it a penal system as 
 a portion of its military discipline, which the military com- 
 mander carried out by inflicting feudal fines (emenda) upon 
 movables. Under the name " misericordia,'' ^^merci,'" this is 
 also known to the Norman jurisprudence, but is apparently 
 of little importance. But since, in England, the whole body 
 of landed proprietors have become the king's hommes, this 
 fact enabled a criminal jurisdiction for breach of discipline to 
 be deduced to its fullest extent, which was sometimes applied 
 to the old case of the overhyrnes, and at others extended to 
 new cases. In the ordinary way this was brought about by 
 a double act : (a) by a Judgment of the Court, which declares 
 the guilty person with his movables forfeited to the King's 
 mercy : "in misericordia regis est de pecunia sua,"" that is, he 
 is guilty of an offence and liable to a fine; — (h) by an Act 
 of Execution, by which, according to the rank of the owner, 
 the forfeited property is taxed and charged with a fixed sum 
 of money, " admensiLratur," " ad/or atur,'' and when thus deter- 
 mined this sum is called an "amerciament." This last proceed- 
 ing was a consequence of the Norman financial principle which 
 in order to render a complete valuation practicable, reduces all 
 natural payments, including also forfeited movable property, 
 as far as possible to money payments. ** 
 
 ** The connection between the Nor- (6) A further system of the "over- 
 man system of amerciaments and the hyrnes" is extended as a disciplinary 
 Anglo-Saxon law can be seen in the punishment also to subjects, who neg- 
 following linlcs ; — lect definite court and police duties, 
 
 (a) The Anglo-Saxon official penalty especially neglecting the suit of court 
 
 inflicted on the royal gerefa for neglect- (Atiilst. II. 20); neglectingthe summons 
 
 ing his definite official duties, appears to apprehend the disobedient and to 
 
 in Athlst. I. sec. 5. This is especially pursue peace-breakers (Athlst. II. 20, 
 
 threatened, where an unjust judgment sec. 2, VI. 7 ; Edg. II. 7) ; for infringing 
 
 has been pronounced (Edg. III. 3) ; in the police regulations by engaging a 
 
 case of corruption (Athlst. V. 1. sec. 3) ; servant, before he has received a cer- 
 
 for failing to attend the court day (Edw. tificate of dismissal from his former 
 
 II. 7. 8) ; for neglecting to exact penal- master (Edw. II. 7; Athlst. II. 22, 
 
 ties (Edw. II. 2) ; for neglecting official V. 1 ; Edw. III. 3 ; Cnut, 28) ; and also 
 
 duties connectt d with the preservation for non-fulfilment of a judicial sentence, 
 
 of the peace (Atlilst. II. 26, pr. v. 1, for purchasing outside the privileged 
 
 sec. 2, VI. 8, sec. 4, etc.). Seeing that markets, and the like. The penalty is 
 
 any opposition to these disciplinary in all cases 120 shillings. The Leges 
 
 punishments would, as a rule, certainly Hen. I adopt this customary law under 
 
 have brought about a deposition from thenameof" ofersew^ies.'.a " (Hen. 1.34, 
 
 office, a summary proceeding could sec. 3; 35, sec. 1; 36,38, 41, sec. 1; 
 
 readily be employed in such cases. 48, sec. 1 ; 51, sec. 7 ; 52, sec. 1 ; 53, 
 
The Development of the Norman Police Control. 195 
 
 The practice of the Exchequer has here again blended 
 Saxon custom and Norman feudal law together in a manner 
 that seemed most advantageous to the finances. The disci- 
 plinary punishment no longer takes the form of a fixed sum, 
 but is graduated according to ranks; for the upper classes 
 more, for the poorer classes generally less, than 120 shillings ; 
 according to the probable worth of the movable property. 
 The official fine imposed upon a gerefa who is liable to be 
 deposed, which in clear cases of neglect of duty had been 
 already inflicted in Saxon times hrevi manii, had now come 
 to be extended to all vassals, and even to the lihere tenentes, 
 with respect to the performance of their court duty {secta 
 regis). An appeal to a judgment of court appeared, on the 
 other hand, a very dangerous experiment, since the royal 
 steward appoints the judging lawmen, and the fine was 
 proportionately raised where there had been a show of 
 defiance. 
 
 Thus the amerciament-system soon followed the arbitrary 
 system of the administration. The untrustworthy, disunited 
 composition of the courts of justice under the Norman prae- 
 fectural system is the real root of the encroaching police 
 control. The person accused generally forthwith declares 
 himself '' in misericordia regis,'' and the fine is now fixed in the 
 Exchequer by the lower officials ; higher fines by the superin- 
 tending officers. In the most important and complicated 
 
 sec. 1 ; 60, sec. 1 ; 80, sec. 9; 81, sec. (Madox, ii. 489): '^ quisqids in regiam 
 
 2; .3, 87, sees. 4,5). It is expressly majestatemdeliquusedei>relien(Utur,uno 
 
 mentioned that the old fine of 120 trium modorum juxta qualitatem delicti 
 
 shillings is aceordino: to the present qui regi condempnatur (1) aut enim in 
 
 value equivalent to 50 shillings. But universo mobili mo reus judicatur pro 
 
 as the Norman feudal law is every- minorihus cidpis, (2) aut in omnibus 
 
 where grafted upon Anglo-Saxon cus- immobilihus, fundis scilicet et reditihus, 
 
 torn, so now tlie feudal maxim, which ut eis exhseredetur, quod si (3) pro 
 
 gives the lord the right of levying fines majorihus culpis aut pro maximis qui- 
 
 on movable property, coincides with it. huscimqxe vel enorm'hus delictis, in 
 
 (c) The newer system of feudal fines vitam suam vel memhra" The " Dialo- 
 
 is put into force as a natural attribute gus " then refers to tlie first case : " cum 
 
 of the royal lord. There were, as it igitar aJiquis de mobiUhusinhene placito 
 
 appears, no express decrees issued with regis judicatur, lata in eum ajudicibus 
 
 respect to it ; the system was rather senteiitia per hsec verba : Iste est in 
 
 introduced in the practice of the Ex- misericordia regis de pecunia sua : idem 
 
 chequer in the manner described in est ac si de tota dixisstnt." 
 the " Dialdgus de Scaccario," ii. c. 16 
 
196 Constitutional History of England, 
 
 cases a special commissioner was sent into the country to 
 make the rating, and he rated the men of the county or 
 hundred by the poll. The blending of the emencla feudalis 
 with the Anglo-Saxon law accordingly brought about the fol- 
 lowing changes : — 
 
 1. The right to the amerciaments is now established in 
 favour of the under-feoffees also, as against their under-vassals, 
 and is graduated according to the feudal degrees, for the Eorl, 
 and for the baron or Thane (Hen. I. c. 35, 87). Hen. I. c. 41 
 contains the express assurance : " umisquisque dominus pleiiam 
 overseunessam siiam haheat secundum locum et modum culiods de 
 homine suo, et qui sunt ejus super terram suam.'" (1) 
 
 2. The new amerciaments are no longer raised in fixed 
 sums, but graduated according to the probable amount of the 
 movable property, that is, according to rank. It appeared 
 now as a royal favour (merci) when the guilty party escaped 
 with the payment of a sum of money, less in amount than 
 his entire catalla. In the strictness of law, the whole of the 
 movable property is 'forfeited, '^ est in misericordia regis de 
 2)ecunia sua idem est ac si de tota dixissent.'' The rating 
 '' adforare " in the Exchequer appears as an act of mitigation 
 by a court of equity. (2) 
 
 (1) This new law is partially identi- which for certain offences adopted the 
 cal with the older, according to which forfeiture of movable property. In like 
 the Ealdormen, Shir-gerefas, and lords manner, in the spirit of the ecclesias- 
 of manorial courts uphold tlieir official tical administration a rating is propor- 
 authority by the infliction of small tionate to the property of the offender, 
 disciplinary punishments (Hen. I. 34, as is laid down in Athlr. YI. 52, "and 
 sec. 4; 35, sec. 1 ; 41, sec. 1 ; 53, sec. 1 ; always, as one is of the mightier men 
 87, sec. 5), corresponding to the disci- here in the world or through dignity 
 plinary penalties which were formerly higher in rank, he shall be punished 
 paid to the Eorl and the himdred the more severely for his sins, and pay 
 (Cn. II. 15, sec. 1). This ^'miseri- higher for every wrong lie commits, and 
 cordia Vicecomitis" and of the private therefore one shall modify and care- 
 feudal lords, however, plays a very fully distinguish rich and poor, and 
 unimportant part in the Excheqtier every clast, in ecclesiastical as well as 
 accounts, because it was not, as a rule, in secular penalties." The tirst assur- 
 a subject for the rendering of accounts, ances of a mitigation of the arbitrary 
 and with the decay of the county and amerciaments in the Carta Hen. I. 1, 
 private courts, it is intelligible that the sec. 8, are accordingly easy to under- 
 importance of the amerciament of the stand: " st quis huronum vel hominum 
 Courtsoflowerinstance should sink also. meorum forisfecerit, non dahit vadium 
 (2) AYe find here also connecting- in inif^eri cordia totius pecuni/e suae, sicut 
 links with the Anglo-Saxon custom, faciehat temj^ore 2'o.tris mei ; sed secun- 
 
The Development of the Norman Police Control. 197 
 
 3. The number of cases for fine knew no limits now that, 
 going beyond the Anglo-Saxon custom, every act of disobe- 
 dience against royal decrees was brought under a fine, and 
 thus a mode of compulsory proceeding was initiated, for the 
 purpose of carrying out all possible decrees. Already the 
 Leges Hen. I. c. 13 give a varied list : '' qude placita mittunt 
 homines in misericordia regis,'' but in which criminal penalties 
 and police fines are mingled together. (3) 
 
 4. Submission to the misericordia, or the ordinary procedure 
 of the court, are matters of free choice. The previous decision 
 " in misericordia est " still, according to the ^' Dialogus de Scac- 
 cario," in case of dispute, admits of the demand of a judicial 
 sentence. Since even in the Saxon period the fixing of official 
 fines as regards the King's personal officials doubtless took 
 place brevi manu, the Norman feudal system brought all 
 vassals into a similar dependence upon the King, which made 
 an appeal to the courts of justice somewhat imjDracticable. (4) 
 
 Hence the Norman king became possessed of an arbitrary 
 penal jurisdiction, such as probably no other potentate of the 
 Middle Ages ever possessed. The difference between it and 
 the old sj^stem of penalties consists in this, that the existence 
 of the offence and the suitableness of the penalty inflicted is 
 no longer determined by the finding of the community, but 
 by the personal will of the lord or his deputy. It is no longer 
 a question of the jurisdiction of the tribunals limited by 
 custom, but of an arbitrary police and disciplinary control, 
 the influence of which upon the form of the English constitu- 
 tion has not been sufficiently estimated. The application 
 of the same for the purpose of carrying out and extending 
 
 dum moclum forisfacti ita emendahit (4) An appeal to the Anglo-Saxon 
 
 sicut emendasset retro — in tempore alio- laws, that is, to the ordinary forms of 
 
 rum antecessor um meorum.'" the court, became a very dangerous 
 
 (3) A list of fifteen heads of amercia- experiment, seeing that guarantees for 
 
 ments is given by Madox (i. 526) ; a a just sentence against the offended 
 
 shorter and incomplete one by Hardy lord were very few. The "Dialogus" 
 
 (Kotuli finium, p. xvii. et seq.). The indicates this clearly enough, i. c. 8 : 
 
 number may be conjectured by this fact, " Begi, ciii militatur, in pecuniam reus 
 
 that in later times fifty Eotuli were judicahitvr,nisi festinaverit postulando 
 
 once laid at one time before a Baron of misericordiam prsevenire judicium.'^ 
 the Exchequer for the purpose of rating 
 them (Madox, ii. 65, 66). 
 
198 Constitutional History of England. 
 
 the Anglo-Saxon police regulations has been already indi- 
 cated. The numberless remaining instances furnished by the 
 Exchequer accounts can be summarized under the three 
 following points of view. 
 
 I. The system of amerciaments serves in many ways to 
 supplement the criminal law. The cases mentioned in the 
 Exchequer accounts are — the lending of money and weapons 
 to the King's enemies, refusal to work upon royal castles 
 and bridges, the imprisonment of royal servants, insulting 
 royal officials with abusive language, the withholding of 
 goods belonging to another, etc. A special enumeration of 
 offences is out of the question, as the misericordia is very fre- 
 quently mentioned without the reason being given. A separate 
 province is occupied by the ^'misericordia deforesta.'" Whilst 
 the more serious forest-offences are threatened with penalty 
 of limb or life, the more trivial ones, such as neglecting to 
 mutilate dogs to prevent their hunting, are left to the King's 
 misericordia. The secular magnates, bishojDS, abbots, and 
 others have to pay amerciaments of five hundred marks, 
 a hundred pounds in silver, and similar sums, in cases where 
 men of lower degree would have forfeited limb or life. The 
 general heading " inf radio pads'' and '' contemptus brevium 
 regis'' was of such wide scope, that at last every royal order 
 could be enforced by amerciaments. In a still greater degree 
 was this the case with the ordinances which were later issued 
 with the advice of the estates of the realm. Offences against 
 these, as " breach of assize," in default of special penalties, 
 fell under this heading. Hence the innumerable amerciaments 
 on account of dispossession of estates {novell disseisin), which 
 w^e find enforced especially against abbots, and secular 
 grandees, their clerks and esquires, and which become the 
 basis of an effective system of real actions and a new theory 
 of possession. 
 
 II. The system of amerciaments serves also to maintain 
 the authority of the courts against disobedience in the widest 
 sense {defaidt, non-appearaiice), even against female wards, 
 who do not present themselves, in answer to a summons to 
 
The Development of the Norman Police Control. 199 
 
 marry ; neglect to prosecute a suit, quitting the court without 
 leave, unauthorized compromise {concordia cle pace regis sine 
 licentia regis), irregularities in evidence, refusal of the duel, 
 failing to aj)pear in the lists, or admitting one person to two 
 duels in one day or, "quia jjosuerunt hominem ad aquam sine 
 warranto, sine visu servientium regis,'^ etc. Where in later 
 times committees of the community are appointed to take 
 evidence, an amerciament is imposed where incompetent men 
 are brought "pro rusticis adductis ad faciendam juratam ; quia- 
 elegit rusticos ad assisam ; quia recepit hominem ad juratam qui 
 nonfuit de kundredo ; it is inflicted upon such as speak to the 
 jury; for false witness and false judgment ; for an improper 
 execution of the sentence, "pro latrone suspenso sine visu 
 servientium regis,'' etc., against sheriffs and provosts for 
 improper distraint and the like. Hence arose a method of 
 carrying out reforms in the procedure of the courts by means 
 of simple instructions from the Crown. 
 
 III. The system of amerciaments serves also to protect royal 
 privileges against the pretensions of private persons ; e.g. the 
 illegal raising of tolls, the unlicensed appropriation of the 
 royal prerogative (purprestura) , pretensions raised respecting 
 public roads and rivers ; and generally as an effectual measure 
 against the exceeding of powers of jurisdiction. Thus W. de 
 Friston is fined for passing judgment on a robbery in his 
 court; " milites Curiae Comitissse de Coupland, quia fee erunt 
 judicium de placito, quod non iiertinuit ad eosj" In addition to 
 this interminable system of fines there is still the right of 
 sequestration (the capere in manum regis), which is also de- 
 duced from the fundamental principle of the feudal grants, 
 often taking effect on very trivial grounds. To what extent 
 sequestration was made use of against magnates, for defaults 
 in the Exchequer, or for not putting into execution the royal 
 decrees, etc., is shown by numerous recorded cases. Thus, 
 the city of London was once taken into the hand of the King 
 for a " trespass of the assize," and its custodia was entrusted 
 to a commissioner. 
 
 The executive power of the Norman kings has been shovn 
 
200 Constitutional History of England. 
 
 in a former chapter ; this police control exhibits their legal 
 power to maintain peace and order in the country, and the 
 effectual means of authority residing in the sovereign as 
 against his officials and the greatest magnates in the land, 
 and even against the Church. Numberless entries on the 
 Exchequer rolls show how this controlling power extends over 
 persons, communities, and corporations, over spiritual and 
 temporal dignitaries, over the greatest magnate as over the 
 humblest peasant ; over the entire population of counties and 
 hundreds, legally unlimited in the number of the cases as in 
 the amount of the fines. The exemptions only refer to the 
 duty of contributing to the ordinary police-fines of the county 
 (common amerciaments), from which the royal demesnes, the 
 property of the Queen, of the higher officers of the Treasury, 
 and by special privilege also of certain magnates, were ex- 
 empted. The revenues derived from the royal amerciaments 
 are in very rare cases granted to private landowners, such as 
 the Bishop of Bath, and in such cases they are fixed by the 
 King, collected by the royal officials, and the amounts cashed 
 by the grantee at the Exchequer. (Madox, ii. Q>Q.) 
 
 The power of the amerciaments has now become the 
 proper instrument for enforcing police regulations and royal 
 orders in every other province. Under this system it first 
 became possible to put the royal ordinances in the place of 
 the older legislative resolutions of the Witenagemote, and 
 in this manner to restore the mechanism of an absolute 
 government by ordinances with administrative execution. 
 Originally this police system of fines was j)robably founded 
 upon practical necessity. The insolence of the " Francigense," 
 the martial inclination to violence, the wrangling of the Nor- 
 mans among themselves and with the Saxon Thanes, rendered 
 absolutely necessary that strict military discipline for which 
 historians laud the Conqueror. But after a few generations 
 (as in the modern police-organized State), the other side of 
 the picture becomes apparent, namely, the extremely arbi- 
 trary working of the system with regard to the lower ranks 
 and the defencelessness of the subjects against any abuse of 
 
The Development of the Norman Police Control. 201 
 
 it. It is evident how disagreeable to landowners and cor- 
 porations a jurisdiction under such a system must have 
 become, if they exceeded their authority, and even in its 
 mere exercise. The smallest error made in respect of the 
 forms and limits of their jurisdictions and franchises exposed 
 them to arbitrary punishment and sequestration of their 
 possessions, on the ground of trespasses, contempts, defaults, 
 and false claims of all kinds. It is a marvellous contrast to 
 the condition of things on the Continent, when in England 
 we continually find great estates and great cities under seques- 
 tration on account of the of&cial offences or oversights of their 
 bailiffs, for quitting the royal court without licence, and for 
 neglect of the royal commands, and so on. It is also manifest 
 to what arbitrary action of the government both person and 
 property were here subjected, and how later it came about 
 that the first aims of Magna Charta were to secure the funda- 
 mental rights of the subject by bringing the amerciaments 
 within the pale of the law : " Comites et barones non amer- 
 cientur nisi per pares suos, et nonnisi secundum modum delicti 
 liberi homines, nonnisi per sacramentum proborum et legaliuin 
 hominum de vicinetoy 
 
202 Constitutional History of England. 
 
 CHAPTEE XIII. 
 
 IV. ^50 Btbdopmcnt of fte Norman jfinance Control 
 
 Following on our account of the revenue of the Anglo-Saxon 
 kings, the financial system in operation at this time may 
 also be distinguished under the following heads. 
 
 1. Revenue immediately derived from the royal demesnes, 
 newly founded after the Conquest by an extensive reservation 
 of demesnes and forests, increased by the frequent lapsing of 
 fiefs. The older payments in kind reserved from demesnes 
 and Folkland were from the time of Henry I. turned into 
 money payments, after the fashion of the financial adminis- 
 tration of modern times. There still linger on some remains 
 of usufruct in Folkland, the minor Crown rights relating to 
 treasure-trove, wreckage, and derelict goods; as well as the 
 ancient duties payable on wool, sheepskins, and leather 
 {custumae). 
 
 2. Profits arising from the royal authority : 
 
 From the military power arose the right to the services of 
 the inhabitants in building bridges and castles, now effectually 
 enforced by summary amerciaments. But this old source of 
 profit was far exceeded by the new income arising from the 
 feudal law through reliefs, wardship, and marriage. 
 
 The fees and fines arising from the exercise of judicial power 
 now poured in abundantly owing to the centralization of the 
 more important actions at the court. Equally productive 
 was the extensive right of forfeiture for felony, and the cases 
 of confiscation of movable property. 
 
The Development of the Norman Finance Control. 203 
 
 Finally, the revenue arising from the police power, flowing 
 in abundantly owing to the unbounded number of police 
 amerciaments. 
 
 3. Beginnings of direct taxation, including: 
 
 The auxilia, or aids of the Crown vassals, but only in three 
 fixed and certain cases of honour and necessity. 
 
 The scutagia, shield moneys, since the time when, under 
 Henry II., the acquittance-moneys for the feudal military 
 service begin. 
 
 The tallagia from the inhabitants of the towns and the 
 country not liable to any feudal service ; taxes which, as the 
 inseparable concomitants of the feudal system, were intro- 
 duced into England also.* 
 
 The first glance shows us at once that the new income 
 far exceeds all the old sources of royal revenue. The 
 Norman administrative system is keen in developing in a 
 fiscal direction every department of State ; the undefined 
 arbitrary administration pervades all departments with its 
 endless system of police fines and dues, amerciaments and 
 fines, in a manner which defies every method of arrange- 
 ment. By becoming centralized in a royal treasury the 
 financial system assumes a new appearance, and following 
 the Exchequer documents, Madox, the great authority on the 
 history of the financial system, draws up the following seven 
 heads, under which all such details are to be included as 
 illustrate the spirit of the political administration. 
 
 I. Cfic Boual Bcmcsnes mxti JporcstS. These are originally 
 formed of the manors, lands, parks, and forests (ancient 
 demesne), more than a thousand in all, which Domesday 
 Book enumerates — constantly increased by lapses and con- 
 
 * For the financial system of this great importance. Other authorities 
 
 and the following period the authorities of value are the Treasury Rolls printed 
 
 are : Mados, " The History and An- in later times by the Eecord Commis- 
 
 tiquitiesofthe Exchequer of the Kings sion, Hunter, "Magnus Rotulus " 
 
 of England " (2 vols., London, 1769), (188.3) ; Hunter, " Great Eoll of the 
 
 from which I have here quoted. For Pipe," for 1155-1158, 1189-1190 (1844); 
 
 the Middle Ages, Sinclair, "Hist, of Rotulus Cancellarii de 3 Joh. (1833); 
 
 the Revenue" (3 vols., 1803, 1804); Hardy's Rotuli de Libertateregn. Joh. ; 
 
 and Cunningham, " Hist, of Customs Hardy's Rotuli Finium. 
 and Subsidies, etc." (1764), are not of 
 
204 Constitutional History of England. 
 
 fiscations, but also diminished by new grants, and sometimes 
 by lavish waste. Only a part of the demesnes, especially 
 in the neighbourhood of the King's residences, stood, as 
 a rule, under the direct management of the King, that is, 
 of his court officials and personal servants. Those scattered 
 about in the country were included in the corpus comitatus, 
 and therefore occur again under the farm rents in the 
 counties. (1) 
 
 II. jpicfs lapsing bg ti&e frequent cases of ISscJeat anti jfor= 
 feiture. When, at a later period, England and Normandy 
 became disconnected, the possessions of the Norman lords in 
 England, and of the English in Normandy, were to a great 
 extent confiscated. So long as such estates remain in 
 manu regis, they form a portion of the demesnes, with the 
 ground-rents, reliefs, wardships, and rights of marriages ap- 
 pertaining to them. The earlier sub-vassals have now become 
 vassals of the Crown — not of the King as such, " ut de 
 corona^'' but of the King as possessor of the lordship, " ut 
 de honored' The greater estates of this sort are given over 
 to special tenants (fermors), or stewards {custodes) ; towards 
 the end of the reign of Henry II. they form a special 
 demesne department or Escheatry. Only the smaller escheats 
 are in later times made over to the sheriff, to a separate 
 
 (1) The royal demesnes are given when the land has been acquired by 
 by Cowell and others, as 1422 manors, the King in his private capacity, or 
 30 chases, 781 parks, 67 forests. Con- inherited from an ancestor, who never 
 sidering the constitution of Domesday wore the crown (Comyn, Digest, Pre- 
 Book, however, discrepancies are easily rogative, D. 64 ; Allen, " Prerogative," 
 explainable. As to tlieir formation out 154, 155). In like manner the prin- 
 of the possessions of King Eadward and ciple of the inalienability of the mili- 
 thefamilv of God wine, and from remains tary fief reflects upon the Crown. As 
 of the Folkland, etc., see Ellis, Introd., the feudal tenant must leave his an- 
 i. 228 229. Instead of the usual term, cestral estate to his firstborn, and can 
 " terra regis" we find in Exon Domes- only dispose of newly acquired pro- 
 day Book, the more exact expression, perty, the later parliaments were in- 
 " dominicatus regis ad regnum jierti- clined to treat the alienation of the 
 nens." The obligation of all landed " ancient demesne" as an irregularity ; 
 estates to military service had also frivolous squanderings were, on de- 
 reacted upon the right of the royal mand of the assembly, recalled by 
 demesnes. According to a legal view "acts of resumption." As to the 
 proceeding therefrom, the real property change of the payments in kind, which 
 belongs to the King by virtue of the still occur, into money payments to 
 right of the Crown, and descends to the Ciown, see Madox, i. 272. 
 the heir to the throne as such, even 
 
The Development of the Norman Finance Control. 205 
 
 account. When a bishop's see or a monastery became 
 vacant, the Treasury also insisted on the vacant fees being 
 treated analogously, and appropriated the revenues until it 
 was again occupied. For this reason William Kufus left the 
 Archbishopric of Canterbury and other bishops' sees unfilled 
 as long as five years. These temporalities were at first 
 managed by special custodes, and later by the Escheatry. (2) 
 
 III. '^it jpeuUal perquisites: Beliefs, ^artisfiips, anti 
 jWiarriage. The relevia are at first arbitrary; from the time 
 of Henry II. they are fixed in the case of single knights' 
 fees at five pounds in silver, or 100 shillings ; for groups of 
 knights' fees, forming a lordship, after Magna Charta, 100 
 marks are paid; for the lordship of an Eorl £100. The 
 profitable wardships were often made over to the vassal of 
 the Crown who bid highest ; the dues paid in respect thereof, 
 in the case of great fees, often amounted to several hundred 
 or thousand marks in silver, in one case even to as much 
 as 10,000 marks. Still more various was the financial prac- 
 tice touching the marriage of male and female wards. Thus, 
 for instance, Geoffrey de Mandeville pays 20,000 marks for 
 his marriage with Isabella, Countess of Gloucester, and for 
 the possession of her lands (Hardy, Eot., xxx.). The varied 
 marriage dues are directed to such ends as these ; '^ ut rex 
 concederet ei ducere uxorem ; lit ducat uxorem ad telle suum ; 
 ne cajjiat virum nisi quern voluerit ; " Lucia Comitissa Cestrise 
 pays 500 marks, " ne capiat virum infra quinque annos'' 
 (Magn., Rot., 31 ; Hen. I.) ; Gundreda Comitissa 100 pounds 
 in silver, " ne maritetur invita ; '' Alicia Comitissa Warewic, 
 1000 pounds, and ten palfreys, " quod sit vidua, quamdiu sihi 
 placueiit, ita quod per regem non esforcietur ad se maritandum, 
 et pro hahenda custodia puerorum suorum'' (7 Joh.) ; R. de 
 Seinsperia, on the other hand, pays nine pounds in silver, 
 " quia renuit Jiliavi Hasculphi Musard.^^ (3) 
 
 (2) The lapsing of fiefs was manipu- cised with all the more severity their 
 
 lated for financial purposes all the right of sequestrating and confiscating 
 
 more, as the first Xorman kings seldom the Crown fees. 
 
 inflicted punishments of life and limb (3) Tlie reliefs of the individual 
 
 upon their Crown vassals. They exer- knights' fees were already at the time 
 
206 Constitutional History of England. 
 
 IV. '^fte lacnts of tie Ffcecomftcs anb jfermors m tfie 
 Counties. These comprise local revenues of all kinds, arising 
 from demesne, dues, fees and forfeitures, and small royalties ; 
 which, in the interest of the financial administration, are 
 massed together under the head of '' general farm." Where, 
 in the place of a farmer, a custos administers, he must render 
 a special account, and deliver up the surplus after deducting 
 the expenses of management. (4) 
 
 V. ^\^z jptnes antr ^mercfaments, the latter of which have 
 been already explained under the system of police adminis- 
 tration. The fines are royal dues in the widest sense of the 
 term, and are just as characteristic of the system of this ad- 
 ministration as the amerciaments with which they are often 
 confounded. The position of the King led to a number of 
 arbitrary powers, or circumstances, under which he could 
 either grant or deny. It appears here to be an unchangeable 
 maxim that nothing which can be refused is granted without 
 a money payment ; a maxim, the reminiscence of which enters 
 even into the administrative system of the present day. The 
 
 of the " Dialogiis de Scaccario" (ii. c, remind my readers that the relative 
 
 10) fixed at 100 shillinsfs (Madox, ii. value of money in the eleventh cen- 
 
 426). The reliefs of p^reater estates are tury is ,s:enerally fixed at ten times 
 
 in the " Dialogus," ii. 24, still ex bene that of ithe present day. The owner 
 
 placito, and only in later times fixed of a small English knight's fee pays 
 
 at 100 marks for a harony (Madox, accordingly at each change of posses- 
 
 i. 318) ; the line between the two has sion, 100 sliillings = 7\ marks = 100 
 
 been evidently drawn by tlie practice thalers, in silver value equal to about 
 
 of the Exchequer. The practice of the 1000 thalers of our money; the pos- 
 
 profitable feudal wardship will appear sessor of a greater lordship, 100 marks, 
 
 from a few examples : Will, de St. or about 1H,300 thalers of our money. 
 
 Marie Church pays 500 marks for the The maximum value of a wardship 
 
 wardship of E. Fitz-Harding, "to- might amount to 10,000 marks; the 
 
 gether with his whole inht ritance, value of a feudal marriage even to the 
 
 knights' fees, female marriage," etc.; double of that. 
 
 Simon de Montfort even pays 10,000 (4) The rent (firma) of the sheriff 
 
 marks for the " cm^todia terrarum et is only a collection of the middle and 
 
 heredis " of Gilbert de Anfranvilh^ until small revenues which were to be raised 
 
 the majority of the heir, '' with mar- within the bounds of the county, or 
 
 riage, church patronage, knights' fees, the special farm district. Even the 
 
 and other appurtenances and vacan- earliest Exchequer accounts of 31 
 
 cies." In frequent cases ihe wardship Henry I., contain rents of 400 and 500 
 
 appointments are again recalled, be- marks, which prove how extensive the 
 
 cause afterwards a person lias been jurisdiction of the. county court must 
 
 found who offers more (Hardy, Eot., have been at that time. As to the 
 
 xxxi.). Still more multifarious are the regulations affecting the individual 
 
 instances collected by Ma<^ox and accounts in the ^rma F«cecom^ies, see 
 
 Hardy as to marriage. I may here Thomas, "Exchequer " (51). 
 
The Development of the Norman Finance Control. 207 
 
 people of that time appear to have felt this system more 
 as a burden than as an injustice ; for the King had the formal 
 right to act as he did ; he proceeded in the same manner in 
 Normandy, and the Norman lords vied with the Exchequer 
 wherever they could. The endless list of fines can be grouped, 
 in some measure, under three or four chief heads : — 
 
 1. Fines for Liberties and Franchises. The right of the 
 landowners to hold feudal and manorial courts was often of 
 doubtful origin, and the extent of the jurisdiction also might 
 be called in question. The deficiency was then made good 
 by a fine. For instance, Lucia, Countess of Chester, paid 
 100 marks for the privilege of pronouncing judgment in her 
 Curia between her vassals (Madox, i. 397, 398). Certain 
 counties under Henry III. obtain in this manner their own 
 right of election, that is, the right of nominating their own 
 sheriffs. In like manner the men of Devonshire pay twenty- 
 three and a half pounds in silver, and the freemen of the 
 counties of Dorset and Somerset similar sums, for leave to 
 choose their own sheriffs (Madox, i. 417 et seq.). In this 
 manner the towns obtain the beginnings of self-government : 
 London pays a hundred marks for the privilege of choosing 
 its sheriffs (31 Hen. I.) ; Carlisle ten marks for electing its 
 coroners ; Cambridge three hundred marks in silver and one 
 mark in gold for leave to have its own Jirma and exemption 
 from the interference of the sheriff of the county; Lincoln 
 two hundred marks for Jinna hurgi and a single immunity 
 from tallagium. Sometimes exemptions, immunity from tal- 
 lagia, disforestings, and the like, were permanently granted 
 upon a high fine being paid ; but then fresh dues were 
 paid for the renewal and confirmation of such immunities, 
 especially under a new government. 
 
 2. Fines in Actions at Laic. From the time of Henry II. 
 these were unHmited. The King grants permission for suits 
 to be brought in the Eoyal Supreme Court instead of in the 
 defective county courts, and at the same time for an improved 
 procedure in taking evidence (recognitio, jury), but only on 
 payment of fees. Hence the innumerable fines, " iit haberet 
 
208 Constitutional History of England. 
 
 justitiam et rectum ; " that is, the permission to bring the 
 action at court instead of in the county. Each single writ 
 is sold, sometimes even with special sums in the event of 
 success. Every step in an action, entering one court instead 
 of the other, notably every inquest by jury, presupposes a 
 fee. Thus, K. de Luci pays fifteen marks and a palfrey to 
 obtain an inquisition, "on the oaths of twelve good men," 
 as to what dues and services were owed him by his tenants 
 in Coupland ; W. de Mahurdin, twenty shillings for an inquest, 
 whether he holds his land by serjeantry or as a knight's 
 fee. In one case four marks are paid, for substituting in the 
 assize six knights instead of six others alleged to have been 
 bribed. Numerous fines are further paid that the King may 
 ''help the plaintiff to his right;" for instance, on one 
 occasion, two hundred marks, that the King may assist to re- 
 cover a debt from the Jews. More numerous fines still arise 
 to obtain despatch in a matter. Frequently the parties offer 
 beforehand a quarter, a third, or a half of the sum they claim. 
 Sometimes this offer takes the form of a bilateral " sponsio,'" 
 so that either both parties offer a sum, to obtain the same 
 object (concurrent fine), or each of the two wagers upon the 
 opposite issue of the decision (counter-fine). Just as equivocal 
 are the great fines for the King's ''favour," protection, 
 mediation, " ut Bexjuvet eum versus A^. ; " " ut Rex manuteneret 
 emii.'' Under John, a stay or delay of the legal proceedings 
 was even granted in return for money: " Rohertus de 
 Amouesdal debet V. marcas pro hahendo hrevi de 2>rotectione, ne 
 ponatur in placitum de aliquo tenemento suo nisi coram Rege 
 vel per hreve Regis ; et ut sit quietus de sectis et hundredis, et de 
 omnibus placitis et querelis, excepto murdro'' (Eot. 2 Joh.). 
 " Decanus et Capitulum Londonise II. palefridos, pro protectione 
 ne vexentur contra libertates cartarum suarum'' (Rot. 2 Joh.). 
 In criminal matters, also, the rigour of the penalties and 
 amerciaments was frequently mitigated by the previous pay- 
 ment of a fine. The instances generally refer to Norman 
 magnates : " 0. de Lerec debet XX. marcas argenti, ut rex 
 perdonaret ei et Osberto clerico suo malivolentiam suam " (Magn. 
 
Tlte Development of the Norman Finaiice Control, 209 
 
 Eot., 31 Hen. I.). '' R. c de CLXX. Marcis argenti, ut rex 
 perdonet ei malivolentiam suam pro filia Geldeivini de DolJ" (lb., 
 31 Hen. I.). Further payments -were made "^jro hahenda 
 gratia et hetievolentia regis,'' etc. Counties, hundreds, and 
 sheriffs i^ay sums of a hundred marks for an "indulgent 
 procedure," *' for a peaceful hearing," and the like. To these 
 must be added fees for release from prison, or other favours. 
 The Dean of Ely pays one hundred marks for the release of 
 his concubine and her children ; the wife of Hugo de Neville 
 two hundred hens for leave to pass a night wdth her husband. 
 To this category belongs also a fine, " p)^'o licentia comedendi.'^ 
 Instead of suffering a sentence of capital punishment, which 
 has been pronounced, permission was sometimes given, on 
 payment of fees, to enter a monastery, ^' ut liceat transferre se 
 ad habitum religiotiis'' (Rot. 5 Joh.). 
 
 3. Fines for concessions of favour in respect of offices, guilds, 
 and dispensations, notably for persons who on payment of 
 fees receive their father's office, or an office for their relations, 
 or the grant of the office of sheriff, or a special farming at 
 the old farm rent. Even the offices of Chancellor and 
 Treasurer are often granted on payment of great sums as 
 purchase-mone3\ Conversely, fees are paid for release and 
 discharge from an office, or for relief from responsibility, 
 sometimes also " ut rex faciat recipi compotum sine ira et 
 indignationc.'' Further, fees for the granting of trade and 
 industrial privileges, especially for the renewal of the gild^, 
 for licence to export corn, and so on. After 19 Henry IH., 
 and probably even earlier, orders were periodically issued to 
 the sheriffs, " quod omnes illi, qui de nobis tenent in capite 
 feudum unius militis v el plus, et milites non sunt, arma capiant et 
 se milites fieri faciant.'' On payment of fees " disi3ensations " 
 are also granted; hence the numerous fines ^^ pro habendo 
 respectii de militia.'" 
 
 4. Fines for regranting of Fiefs and for Alienations. A 
 portion of the Exchequer documents on this subject are printed 
 under the title " Rotuli Finium," and contain important deal- 
 ings respecting the inheritance and alienation of Crown fiefs. 
 
 VOL. I. p 
 
210 Constitutional History of England. 
 
 This classification is sufficient to show what a continual 
 source of wealth the fines were to the royal Treasury. Crown 
 yassals made an additional payment in such cases as " aurum 
 reginsey (5) 
 
 VI. ^lUS, tallages, ^CUtagcS. (6) In principle the knight's 
 estate is certainly held free from all taxation of villeins, 
 '' quictum ah onuiihus fjildis ct omni opere,'' as solemnly con- 
 firmed by the charter of Henry I. But the feudal aiixiUa 
 reserved to the King extraordinary contributions on the occa- 
 sion of the knighting of his son, the marriage of his daughter, 
 and, in case of necessity, for his release from captivity, {a) 
 
 The common taxes, tallagia, were raised from time to time 
 as need required from royal towns and farmers on the royal 
 demesnes. Although the reorganization of the military system 
 had led to the exemption of the smaller freeholders from the 
 military service and from the burdens of the militia, yet the 
 feudal system deemed it necessary to retain a fair compensa- 
 tion by levying a subsidy in the form of occasional money 
 contributions (tallagia). An inseparable concomitant of the 
 feudal system, the tallagiitm ("taille") made its appearance 
 
 (5) The fines are arranged by have already mentioned above as 
 Madox, i. 395, 425, 456, under numer- ancient sources of revenue. The goods 
 ous headings, for which I have sub- liable to duty were wine, general 
 stituted a more simple arrangement. merchandise, and wool. The old duty 
 Hardy, " Rotuli Fiuium," makes three on wine was called " prisage," that is, 
 classes : (1) Fines for the concession the tenth cask from every ship at the 
 and confirmation of liberties and fran- jDrice of twenty shillings. The second 
 chises; (2) fines for proceedings in an customary duty (general merchandise) 
 action, with five sub-divisions; (3) was, as a rule, iii the form of one- 
 mixed fines with ten sub-headings. fifteenth or a similar proportion, and 
 As to the division into voluntary fines was paid as a fee for licence to trade, 
 or " oblations " and involuntary fines. The toll on wool remained imtil the 
 see Hardy, Introd., xviii. As to money reign of Edward I. in a very irregular 
 I^ayments for permission to choose their state. (Stubbs, ii. 523.) 
 own sheriff in the county, see Madox, i. (a) Tlie auxilia, aids, were, by 
 416,417, 420 ; Hardy, Introd., p. xxix. right, limited to the three enumerated 
 As to the additional payment of the cases. But as the subfeodaries were 
 uurum reginx, Ellis, i. 172. fond of extending these cases, and as, 
 
 (6) The beginnings of a direct taxa- in its analogous application to the royal 
 
 tion are classified by Madox as aids, boroughs and demesne villages, the 
 
 tallages, and scutages ; partly for sub- notion was still further extended, there 
 
 stantial reasons, and partly because resulted a general tendency to extend 
 
 the names in early times are confused. the aids to other cases of need, which, 
 
 Madox adds also to this group the after the times of IMagna Charta be- 
 
 ■cusiumee, the customary duties on came the beginning of the grant of 
 
 wool, sheepskins, and leather, which I subsidies by the estates of the realm. 
 
TJie De'celopment of the Norman Finance Control. 211 
 
 in England with the Conquest ; and the strong poHtical de- 
 velopment of the feudal system insisted that all classes should 
 be as far as possible proportionately burdened. As, in fact, 
 the old popular army, which existed side by side with the feudal 
 militia, had never been expressly abolished, and indeed from 
 the time of Henry II. had gradually been revived, the practice 
 of the Exchequer dealt with the possessions of farmers and of 
 towns in some degree according to the analogy of the feudal 
 estates proper, by confining the tallagia and auxilia to cases 
 of honour and necessity, though such cases received a more 
 comprehensive interpretation than where the feudal tenants 
 "were concerned. Hence aids and tallages are frequently taken 
 together, and are denoted as ''dona " or " auxilia,'' or by other 
 more courteous terms. The towns, in order to avert a too 
 rapid return of taxation, often payed voluntary dona, "pro 
 bono adrentit regis,'' "pro dono novi anni," '^to conciliate the 
 King," and so on, which all flow together with the system of 
 the fines, {h) 
 
 The shield-moneys, '' scutagia," afterwards became still 
 more important. The constitution of the feudal militia, 
 brought over from Normandy, appeared, in the long run, 
 not quite suited to the insular position of England. So soon 
 as the internal affairs were settled, it was no longer a question 
 
 (7>) The tallagia (Madox, i. G93, sees. certainty of the cases and of the fre- 
 
 732-751) are a specific creation of the quent recurrence of the taxation. In 
 
 feudal system. The greater landed England two special reasons concurred 
 
 proprietors, who as a standing army which gave the classes liable to the 
 
 had taken upon themselves the defence 'HailJe" a peculiar claim to more 
 
 of the realm, demanded that those land- equitable treatment. The first w^as 
 
 owners who were not bound to knights' the retention and later revival of the 
 
 service should pay their proportionate militia by the assize of Henry II. ; 
 
 share in money. The insolence of the '' taillables'' were here never an 
 
 the armed and war-skilled classes in unarmed class, but, on the contrary, in 
 
 France designated all the rest as every generation did good service 
 
 '' tnillahles,'' and from the landlords' alike against the rebellious barons 
 
 point of view as " corveahles.'' In Eng- and against the Scotch invaders. The 
 
 land also the "taille" was enforced so other reason lay in the " firma hurgi; " 
 
 much as a matter of course, that even in order to raise the fee' farm rents of 
 
 the great and powerful city of London, the towns in times of necessity, certain 
 
 in 7 Hen. III., paid 1000 marks; 26 towns were promised that their contri- 
 
 Hen. III., 1000 marks ; 37 Hen. III., butions should not be increased, wliich 
 
 1000 marks, in addition to twenty now furnished a reason for continual 
 
 marks in gold; 16 John, 2000 marks, claims, and also for disputes as to the 
 
 tallagia. The hardship lay in the un- amount of the taxation. 
 
212 Constitutional History of England. 
 
 of short campaigns at home, but of a number of permanent 
 garrisons, and long campaigns against Wales, Scotland, 
 Ireland, and France. For both needs the feudal militia with 
 its short-service system was insufficient. Hence the Norman 
 kings at all times kept a paid soldiery, and allowed some 
 of those liable to military service to buy themselves off for 
 certain campaigns. According to a trustworthy authority, 
 in the second year of Henry H. the prelates were for the 
 first time allowed to pay twenty shillings per fee instead of 
 furnishing a soldier for the campaign against Wales. The 
 first general imposition took place in 5 Henry II., for the 
 campaign against Toulouse, with two marks per fee from all 
 Crown vassals, under the name of '* donum.'' In 18 Henry II., 
 for the army in Ireland, partly actual service and partly 
 money payments, under the name of " scutagia,'' were accepted. 
 In like manner in 33 Henry II., for a campaign against 
 Wales, twenty shillings per fee were YSLised " a niilitihus qui 
 non abierunt cum rege.'' From this time the imposition of 
 scutage instead of personal service became more and more 
 regulated, payable by all tenentes in cajnte alike " cle corona'' 
 and " cle honored The paying Crown vassals are then allowed 
 to raise from their sub-vassals the same sum per fee ^' ut 
 haberent scutagia sua.'' Occasionally the King raises them 
 immediately by royal order from the sub-vassals in maiium 
 suam. The raising of the new fee-duty from that time con- 
 stitutes a new official duty of the sheriff, who, on being ap- 
 pealed to, lends the Crown vassals assistance in exacting the 
 scutagia from their under-vassals. (c) 
 
 VII. The final heading, ^CCitltntal ]Incom0, embraces 
 treasure-trove, goods cast away by the thief (waifs), wrecks, 
 
 (c) As to scutagia, Madox affords militihus stipendia vel donativa succe- 
 
 iis the complete history of its gradual dant. Mavult enim princepn stipendi- 
 
 origin. The " Dialogus de Scaccaria " arios quam domesticos hellicis exponere 
 
 recognizes the scutagia as a tinan- casibus. lixc itaque summa, quia no- 
 
 cial practice ; " Fit interdum, ut immi- mine scutorum solritur, scutagium no- 
 
 nente vel insurgente in regnum hostium minatur." As to the early combina- 
 
 machinatione, decerjiat rex de singidis tion of the expressions, '■^ auxilia,'' 
 
 feodis militum summam aliquam solvi, " scutagia,^' *' tallagia" " hijdagia,'*' 
 
 marcam scilicet, vel librani unam ; unde and " dona," see Madox, i. 580, 680. 
 
The Development of the Norman Finance Control. 213 
 
 the movable property of felons, of persons executed, of fugi- 
 tives, and of outlaws, deodands, and other smaller royalties, 
 which, where they have not been granted to private persons, 
 are for the most part raised and exacted by the sheriff. 
 Dating from the Anglo-Saxon period, the common obligation 
 of the inhabitants to make roads, bridges, and fortresses 
 {trinoda necessitas) still continues, as also the foraging of the 
 royal servants on journeys (imrvei/ance) which in later times 
 became a standing public grievance. Finally, the so-called 
 ^^Danegeld," w^hich in spite of its abolition under Eadward 
 the Confessor, w^as still raised from certain estates. (7) 
 
 Considering this accumulation of sources of income, it can 
 well be understood, how the myth arose that the Conqueror 
 raised a daily income of ^1060 305. Sd. from contributions 
 (Ordericus, Vit. iv. p. 523), one of the numerous exaggerations 
 of later historians, which perha^DS is based uj)on an arbi- 
 trary counting up of the highest amounts of revenue in 
 certain years, whilst under later reigns the most favourable 
 financial balance scarcely reached a sixth of that income. 
 
 (7) As an item of the Accidental Now it is perfectly correct that the 
 
 Income (Madox, i, 342) the Danegeld general ground-taxes (carucagia, liycla- 
 
 is also mentioned in the legal books gia, etc.), re-introduced in later times, 
 
 (Edw. Conf. 11 ; Hen. 10, sec. 1, 15 correspond to the scale of the old 
 
 Cart. civ. Lund. sec. 2; Madox, i. Danegeld taxation. But it is very 
 
 686-69-1. Thomas, " Exchequer," comprehensible that in the laws and 
 
 p. 41 ; Sinclair, " Revenue," i. 69, 70, ordinances the hated name " Dane- 
 
 72). This payment was expressly geld," with its humiliating memories, 
 
 abolished under Eadward the Con- was studiously avoided. Every revival 
 
 fessor, and is mentioned in Domes- of "Z)a?ze^eZd! itm" would have had the 
 
 day Book in one passage only (Stam- preposterous result, that the numerous 
 
 ford, 336 b). Nevertheless, it occurs exemptions from the tax would have 
 
 very frequently in the later revenue revived also, whilst in the course of 
 
 accounts, especially under Henry I. as business in the Exchequer no one 
 
 an impost upon certain estates. This scrupled to denote the old taxation of 
 
 difficulty, which is remarked both by the produce of an estate subject to 
 
 Freeman and Stubbs, can be explained the common burdens by the term 
 
 by the following consideration. The "Dane-money." 
 
 Danegeld as a lawful tax, was abolished. Though the most recent English his- 
 
 and remained so, but the old valuation torians describe the gradual formation 
 
 of the productive returns of ordinary of a new system of land taxation in 
 
 lands for the raising of the former this epoch as a disguised revival of 
 
 tribute was often retained on the occa- the Dane-money, this in nowise de- 
 
 sion of the later exaction of "■tallagia" scribes the position of affairs; but the 
 
 *' dona," " auxilia" to avoid making a course of events will probably be more 
 
 fresh valuation each time. The old correctly represented in the following 
 
 established rate on the productive re- account, 
 turns was therefore called Danegeld. 
 
214 Constitutional History of England. 
 
 Among the manifold som^ces of revenue to the Crown, 
 mideniably the most important for the future of the Ex- 
 chequer and the Constitution was the scutagium, which 
 arose under Hem-y II. from the conversion of the feudal ser- 
 vices into money ; because, according to the position of affairs, 
 in time a uniform land-tax was naturally developed from it, 
 and from that a uniform income-tax, which can be followed' 
 uj) from its first beginnings in this place to the close of the 
 period. 
 
 After the privileged landed proprietors, from the greatest 
 Crown vassals downwards, had been subjected to heavy money 
 contributions, which wxre equivalent to the actual burdens 
 of feudal service, that impediment had been overcome in 
 England which on the Continent caused the failure of land 
 and income tax. As soon as the governing class has been 
 made to contribute in proportion to its means, the develop- 
 ment of a just and rational system of taxation meets with no 
 more obstacles. At first a uniform hide-tax could be levied ; 
 for the unprivileged landowners could certainly not with- 
 draw themselves from a uniform taxation of the hides, when 
 the privileged classes were taxed in full, in proportion to the 
 amount of their possessions. The farmers of the demesne 
 and the cities had been already included, paying taxes just as 
 the knights' fee estates did under the names of " taUar/ia,'* 
 ^' dona,'' " auxilia;'' being, in fact, taxed quite as often as^ 
 and even oftener than, the knights' fees ; and this although 
 their landed property had been certainly valued quite as 
 highly. But all other tenants of the great feudal estates 
 found themselves in the same position; for the lord had at 
 last no other way of raising his auxilia, sciitafjia, and rclevia 
 except by taxes, protection-monej's, rents, and work done by 
 his dependants. Already under Wilham the Conqueror, 
 during the great and heavy distress of war (a.d. 1084), the 
 expedient had been adopted of levying a uniform hide-tax 
 throughout the wiiole country. This was done at a time 
 wdien no Domesday Book had been compiled, and the division 
 of the feudal burdens was beset with insurmountable difii- 
 
Tlie Development of the Norman Finance Control. 215 
 
 culties. In view of the threatened Danish invasion at that 
 time, a war-tax, of an amount till then unheard of, being 
 seventy-two pence for every hide, was levied, by which the 
 whole of the landed proprietors in the country were induced 
 to take the universal oath of allegiance, and to accept its 
 consequences (a.d. 1086). A similar situation arose a century 
 later, when the levying of a " Saladin tithe" for a Crusade 
 (a.d. 1188), and the ransom of Eichard I. from captivity 
 (a.d. 1193), required the immediate raising of unheard-of 
 sums. The feudal burdens meanwhile were fixed and dis- 
 tributed by the Exchequer, and the vassallage, true .to the 
 tendency of all tax-paying landowners, clung as long as pos- 
 sible to the scale of contributions according to the register. 
 Hence on these occasions land-taxes were levied cumulatively 
 upon all landed property ; but the auxilia of the knights' fees 
 were still rated according to the scale of the scutages, the 
 other estates according to hides, and therefore the last-named 
 tax was designated as " carucagium.'' As early as the jea^r 
 1198, under Eichard L, a general taxation of the landed 
 estates was resumed, in which a uniform impost of five 
 shillings was raised upon each carucagium or hundred 
 acres of land (Stubbs, i. 510) ; not an immoderate rate, but 
 one which nevertheless met with opposition among the great 
 proprietors, and especially among the clergy, and could not be 
 raised without difficulty. It was natural that the feudal pos- 
 sessors should not willingly acquiesce in such a sudden change 
 in the scale of levying; i.e. according to acreage instead of 
 the feudal register ; wherefore it came to pass that afterwards 
 the sciitagia were, for a time, raised separately from the carii' 
 cagiiim on such estates as did not owe knights' service. 
 
 As in this way a simultaneous taxation of the whole of 
 the landed property arose, there was naturally connected 
 with it a simultaneous taxation of movable property. The 
 tallagia of the demesne farmers, towns, and tenants, were 
 estimated not only according to the income of landed property, 
 but according to the total capability of performance on the part 
 of the subjects, and accordingly the personal i)roperty was 
 
216 Constitutional History of England, 
 
 similarly estimated, which in cities, owing to their industry 
 and trade, was of considerable importance. The very first en- 
 deavour maide to include this source of income proportionately, 
 led to a taxation according to percentage or fractions of the total 
 income, which, from the time of Kichard I. onwards, gradually 
 appear in addition to the land-taxes as tenths, elevenths, 
 thirteenths, seventeenths, and other fractions. The Saladin 
 tithe of the year 1188 is again the first precedent for a uni- 
 form taxation of personal property, which was levied cumu- 
 latively with the land-tax. For Kichard's ransom, there was 
 levied at one and the same time a scutagium from the knights' 
 fees, a carucagmm from real estate, and a proportion of their 
 income from the cities and from the rest of the population. 
 In this an improvement was distinctly visible on the valuation 
 system of the tallagia, against which only the clergy raised 
 objections on its being afterwards repeated. 
 
 The modes of taxation that had thus come into practice 
 were immediately abused by King John in his own fashion. 
 Even in the first year of his reign, John increased the 
 carucagium from two to three shillings, the scutagium from 
 £1 to two marks, and levied the latter from year to year. 
 In the year 1203 he levied one-seventh on the personalty of 
 the Crown vassals, in 1204 an auxilium from the knights, 
 and in 1207 one-thirteenth on the personal property of the 
 whole country. Against these innovations there naturally 
 arose an opposition on the part of the Crown vassals, and, 
 indirectly, of the whole nation. It was the crown vassals 
 who, in the first place, were thereby injured in their rights of 
 possession. The levying of scutage had been established 
 without opposition, so long as it w^as only levied in moderate 
 sums, as a favour accorded to those feudal vassals who did 
 not serve in the campaign. But now a payment of this kind 
 was to be extorted regardless of the question wiiether the 
 feudal vassal wished to serve in person or not, whether a 
 campaign was intended or not, or whether a case of honour 
 or necessity had arisen, which obliged the feudal vassal to pay 
 a pecuniary aid. Herein lay a fundamental alteration of the 
 
The Development of the Norman Finance Control. 217 
 
 original conditions under which the military fees were granted 
 and held ; the feudal estates were thus reduced to the level of 
 the common landed estates which were bound to a carucagium. 
 But the greatest wrong done to the Crown vassals was un- 
 doubtedly the rough-and-ready exaction of a seventh on their 
 personal property, which placed the tenentes in capite upon the 
 same footing as the talliahles. Such demands had certainly 
 not been made upon them since the days of William Eufus 
 and his treasurer, Flambard ; and against such a course of 
 action the charter of Henry I. had given the solemn promise 
 that the military fees should remain free from all demands 
 beyond their military duty (Charters, p. 101). The time had 
 arrived when an agreement with the Crown vassals, and their 
 consent to the imposition of auxilia and scutagia could no 
 longer be dispensed with ; and thus the taxation question had 
 reached the stage of Magna Charta (cap. 18). 
 
218 Constitutional History of England, 
 
 CHAPTER XIV. 
 
 '^j^c Norman ([Bxcftetiucr. 
 
 As the financial system is the centre of gravity of the sovereign 
 rights of the Norman Stat-e, so it is also the foundation and 
 basis of the permanent offices and official institutions of the 
 State. The hereditary monarchy has found a stronghold in 
 its new demesnes and in its feudal suzerainty, upon "which 
 rests the defensive strength of the regenerated State. But 
 this political system is also pervaded by a financial spirit, 
 which goes far beyond the mere necessities of existence, and 
 does not shrink from subordinating even the administration of 
 justice to the interests of revenue. As long as the spirit of the 
 Norman sovereignty is paramount in the history of England, 
 finance is the centre of all government ; where provinces, dis- 
 tricts, and towns were all subjects of general or special fee-farm 
 tenure, the most important administrative council could only 
 have the character of a financial department, similar to a 
 '*war and demesne chamber," or a ''general directorium" 
 in the later constitutions of the Continent. This is the 
 meaning of the Norman Exchequer (Eckiqider) ; and having 
 regard to its ^Daramount importance I shall proceed at once 
 to discuss the origin and external form, the procedure, and 
 the xtersonnel of the Exchequer in connection with the financial 
 control. 
 
 I. The Origin of the Exchequer. It is not in itself impro- 
 bable that the Conqueror organized his financial department 
 according to the custom in Normandy, where an " Echiquier '* 
 
The Norman Exchequer. 21^ 
 
 had a prominent position in the twelfth century as the highest 
 government department and com't of law. The English 
 Exchequer is, indeed, only a part of the Curia Regis, and is 
 accordingly st^ded in official language Curia ad Scaccariam, 
 But in contradistinction to the other functions of the central 
 government, which are merely temporary and periodical, the 
 Exchequer forms the one firmly organized governmental 
 department, '' Curiarum omnium ajnid Anglo-Xormannos anti- 
 quissima'' (Hickes, Diss. Epist., p. 48), in which the current 
 administration appears united. The name " scaccarium'' is 
 referred in the Dialogus, i. 1, to the diapered cloth which, for 
 the purpose of calculating accounts, was spread out like a 
 chess board over the table, round which the sittings were held. 
 '' Scaccarium tabula est quadrangula, quse longitudinis quasi 
 decern pedum, latitudinis quinque, ad modum mensas cir- 
 cumsedentihus apposiia, tindique habct limhum altitudinis quasi 
 quatuor digitorum, ne quid appositum cxcidat. Superponitur 
 autem Scaccario superiori pannus in Tcrmino Paschse emptus^ 
 non quilihet, sed niger, virgis distinctus, distantihus a se virgis 
 vel pedis vel palmse extentse spatio,'" Year after year we 
 find a number of great functionaries and royal officials, with 
 numerous clerks, assembled round this account table, employed 
 in receiving paj'ments from the sheriffs, the special farmers, 
 and custodes, in scrutinizing their accounts, and giving 
 receipts ; imposing and receiving periodical aids, tallages, and 
 scutages ; appointing the sheriffs and other fermors and 
 custodes, and calling them to account ; deciding legal disj)utes 
 within their administrative jurisdiction ; directing payments^ 
 to be made for the needs of the royal family, their trains and 
 servants, for war supplies and garrisons, for paying the King's 
 creditors from loans, and for administrative expenses of all 
 kinds — all this being done under the personal superintendence 
 of the King, or according to his actual or supposed personal 
 pleasure. Consonant with these functions, two divisions were 
 early formed : (1) the account department, or scaccariam 
 majus ; (2) the receipt department, or scaccarium de receptay 
 reccpta scaccarii, scaccarium infcrius. The one division after- 
 
220 
 
 Constitutional History of England. 
 
 wards had its office on the right, the other on the left side of 
 Westminster Hall. The rooms where the sittings were held 
 were often distinguished ; the state session-room with the 
 throne was scaccarium, in the narrow sense of the term ; and 
 the smaller council-room, thalamus haronum. These words, 
 which are always ambiguous, denote alike the place of the 
 official administration, and the functionaries themselves ; 
 the chamber, in which the specie is actually deposited, is 
 specially called thesaurus regis. (1) 
 
 (1) As to tlie origin and external form 
 of the Exchequer, the chief authority 
 is the "Dialogus de Scaccario," a 
 treatise upon the law of the Ex- 
 chequer, which Madox (part ii.) has 
 printed, and furnished with copious 
 notes. It gives evidence of the early- 
 matured development of the adminis- 
 trative machinery, and is a marvellous 
 testimony to the official views respect- 
 ing the State, such as is hardly to be 
 found elsewhere in the Middle Ages. 
 Gervasius Tilburgensis was formerly 
 regarded as the author; Madox (ii. 
 334-345) assigns it to Ricardus, Filius 
 Nigelli, a court cliaplain of Henry II., 
 afterwards Bishop of London, and 
 grandnephew of Roger of Salisbury, 
 the great minister of Henry I. Its date 
 may be fixed with tolerable certainty 
 for 1178. In later times the institu- 
 tions of the Exchequer have again been 
 the subject of an exhaustive mono- 
 graph, printed for private circulation 
 by F. S. Thomas, "History of the 
 Exchequer " (1846) ; and another pub- 
 lication of Thomas (also unpublished), 
 •" Notes of Materials for the History of 
 Public Departments" (1846). Certain 
 Treasury Records have been printed by 
 the Record Commission. The oldest 
 existing Rotulus, called 5 Stephen 
 (edit. Hunter, 1883), may be placed, 
 on convincing evidence, as early as the 
 31st year of Henry I. As to the institu- 
 tion of the Norman Echiquier, see 
 Madox, i. 162-165; Warnkonig, Fran- 
 26siche Reichs- und Rechts-Geschichte, 
 i. 346; Schatiher, Franzosische Staats- 
 und Rechts-Geschichte, ii. 408, 409. 
 Its introduction from Normandy is 
 proved by the " Dialogus de Scaccario," 
 " ah ipsa regni conquisitione per regem 
 
 Wilhehnum facta cxpisse dicitur, 
 sumpta tamen ipsius ratione a Scac- 
 cario transmarino" (Dial. i. 4), as 
 well as by the Latin terminology of 
 the Exchequer. In any case that 
 evidence proves the existence of the Ex- 
 chequer under William the Conqueror, 
 though an actual importation from 
 Normandy cannot be substantiated. My 
 former view (after Floquet, Histoire 
 du Parlement de Normandie, p. 8), 
 that a Norman Exchequer-roll was 
 existing as early as the year 1066, is 
 certainly based upon an error (Stubbs, 1. 
 377), but so is also the opinion of 
 Bishop Stubbs, that the Echiquier of 
 the island of Sicily was imported into 
 England by an English Exchequer 
 clerk, Thomas Brown (see the " Trans- 
 actions of the Academia Reale," of 
 Rome (28th April, 1878) ; all the exist- 
 ing legal records, and Treasury rolls 
 of Normandy are of so much later 
 origin, that it cannot be proved from 
 the later constitution of the Norman 
 Ecliiquier that the English was formed 
 after its model. (See also Libermann, 
 " Einleitung in den Dialogus de Scac- 
 cario," Gottingen, 1865.) The con- 
 troversy is after all merely nominal; 
 for the close connection of the judicial 
 and finance administration was in the 
 Middle Ages everywhere a matter of 
 course, and, even if the name of Echi- 
 quier arose earlier in Normandy, yet 
 the English institutions were so closely 
 connected with the county government, 
 and the machinery was so finely 
 developed by the officials under Henry 
 I. and Henry II., that the material 
 part of the institution certainly belongs 
 to the Anglo-Norman state. 
 
The Norman Exchequer, 221 
 
 II. The course of business in the Exchequer embraces in its 
 early arrangement — 
 
 1. Payments into the Treasury. These are made in the 
 counting-house (office of tellers) in gold or silver coin. The 
 pound ilivre) of the Norman period is an actual pound of silver 
 of twenty-four half-ounces, and is divided into twenty shillings, 
 and the shilling into twelve pence. The silver penny (denarius) 
 is the regularly minted current coin. The mark in silver is 
 accordingly thirteen shillings and fourpence ; the shilling 
 about the value of a Prussian Thaler. The gold mark is 
 equivalent to nine silver marks. These values are fairly per- 
 manent. It was not until Henry VI. that the coin had lost 
 about a third of its silver contents. But the irregularity of 
 'the coinage, as well as the depreciation caused by wear, and 
 by forgeries, led to special precautionary measures. In the 
 case of payments ad scalam, sixpence in the pound was 
 demanded *^to make good weight; " in payments, ad pensum, 
 more than sixpence. Where the purity was doubtful, a 
 smelting test was applied; but this also was remitted on pay- 
 ment of one shilling per pound (nominal combustion). The 
 payment is entered in an account book, and from this trans- 
 ferred to a strip of parchment, called the "bill," or "tellers' 
 bill." This strip of parchment falls through a pipe-like open- 
 ing into the "tally court," where a "tally" is made of it. 
 This tally is a piece of dry wood, on which the " cutter of 
 the tallies" has to cut notches corresponding to the sum 
 paid ; whilst the " writer of the tally " writes the sum down on 
 both sides of the w^ood in figures. According to the length of 
 the incision, one notch denotes £1000 ; another £100 ; £20 ; 
 20s. ; Is. ; and so on. The chamberlain splits the notched 
 stick down the middle in such a manner that each half con- 
 tains the WTitten sums and the incised notches. The two 
 matching parts thus split asunder are called "tally" and 
 " counter-tally," or " tally " and " foil " (folium). The one is 
 retained by the chamberlain; the other is kept by the 
 payer as a receij)t and proof to be produced to the account 
 department of the Exchequer. (It was not until 1783, by 23 
 
222 Constitutional History of England, 
 
 Geo. III. c. 82, that these notched sticks were done away 
 with in the Exchequer, and checks substituted for them.) 
 
 2. Payments out of the Exchequer are made on a royal 
 order (writ, or mandate), under the great or privy seal, 
 generally addressed to the treasurer and chamberlains. The 
 usual formula for this purpose is called a '' liberate.'' Orders 
 for payments which recur periodically, such as salaries, are 
 called ''liberate current,'' or "dormant," and are couched in 
 such terms as the following : "Rex Thesaurario . . . salutem ; 
 Liberate de thesauro nostro sinr/ulis annis quinque Carpellanis 
 nostris ministrantibus in Capellis S. Johannis ct S. Stephani 
 Westmonastrii, duodecim libras et decem denarios pro stipendiis 
 suis " (29 Hen. III.). In the course of time, for the purpose of 
 control, other mandates are inserted. Thus the royal writ 
 is deposited on the account side of .the Exchequer, and on 
 the strength of it a'* treasury warrant" is issued by the 
 treasurer or some member of the Exchequer staff. Acting 
 upon this warrant, the auditor sends an order to one of the 
 tellers, which is then countersigned by one of the Exchequer 
 officials, and in this form is finally honoured. 
 
 3. The booh-keeping of the Exchequer, divided into the 
 " rotulus annalis," the "memoranda," and other daybooks, was 
 early arranged in a technical form. The chief book is the 
 rotulus annalis, "the great roll of the Exchequer," the most 
 stately and important record, into which (according to Madox, 
 ii. 112) the accounts of the royal revenues flowed through 
 different channels, as rivers pour themselves into the ocean. 
 These magni rotuli pipw (so called on account of their being 
 rolled up in the shape of a tube), arranged according to 
 counties, have been preserved in their entirety since the first 
 year of the reign of Henry II. (with the exception of two 
 years). Partially printed by the Kecord Commission, they 
 form the most comprehensive source for studying the adminis- 
 trative law of the Norman period. 
 
 4. The rendering of accounts in the Exchequer. The most 
 important accounting parties were the sheriffs of the counties. 
 A great part of the demesne, feudal, and judicial dues passed 
 
The Norman Excliequei\ 223 
 
 through their hands, besides numerous disbursements for 
 munition of war, equipments, and salaries. Their duty was 
 not merely to receive and pay over moneys, but also to 
 deal with complicated accounts and receipts. And thus 
 months general^ passed away from the provisional payment 
 (profcr) until the definite sum was fixed (summa). Many 
 amounts, such as confiscated cafa/Za, and incomes from seques- 
 trated property, which appeared in the account in round 
 sums, had to be scrutinized in detail. Disbursements are 
 only passed on presentation of a " warrant of discount," and 
 must be regularly justified by the King's writ ; and in the 
 •case of regularly recurring disbursements, there must at 
 least be a rescript of the Exchequer. For the repayment of 
 loans contracted by the King, orders for payment are issued 
 upon the sheriff's yearly rent by writs of " allocate et compit- 
 tate.'" The accounting party must appear in person, and is 
 previously sworn ^^ dc Jidcli compoto reddendo;'' although 
 sometimes an account is accepted " per fidem " or ''per verum 
 dictum.'' Occasionally, by royal writ, and later by Treasury 
 rescript also, the presentation of accounts by a clerk, as 
 attorney, is allowed. The final acquittance was often so 
 liable to hitches, that the accounting parties pay sums of 
 several hundred marks to be quit of the responsibility for 
 themselves and their servientes. Similarly the accounts 
 tire presented by the fee-farmers and bailiff's of the towns, the 
 escheators, the ''customers," or special receivers of tolls, 
 and all those who have been entrusted by the King with a 
 special administration (bailwyck). Later, the travelling judges 
 have also to render accounts. (2) 
 
 (2) As to the proceedings in the 389. The chief authority is the Dia- 
 
 Exchequer, and especially as to the logiis, i. c. 6 (Madox, li. 373). In 
 
 order in wliich tlie functionaries sat at later times the numerous controls were 
 
 the council table, see Thomas, Ex- further increased ; in tlie time of the 
 
 chequer, p. 1 e^se^. The pay merits into Stuarts "a letter of discretion" was 
 
 the Exchequer are dealt with by drawn, in which the treasurer denoted 
 
 Thomas, Materials, p. 5. For com- the special fund from which the pay- 
 
 parisons of the coinage arrangements ment is to he made ; upon this the 
 
 of the Anglo-Saxon period, see Schmid, parliamentary allowance or disallow- 
 
 <jrlossarium s.v. Geldrechnuug. ance of the disbursements was based. 
 
 As to the disbursements out of the As to the hooh-heeping, see Madox, 
 
 Exchequer, see Madox, i. 348-350, 3G2- ii. 456 et seq. ; Hunter, Introduction, 
 
224 Constitutional History of England. 
 
 5. The Exchequer court days. For the settlement of dis- 
 puted and legal points -which arise at the presentation of 
 accounts, the higher fanctionaries of the Exchequer assemble 
 periodically and hold sittings, which are called " scaccaria,'' 
 and are described in the Dialogus de Scaccario, ii. c. 1, as 
 follows : — 
 
 *' Prsecedente namque hrevi summonitionis, quod Regies aucto- 
 ritatis signatur imagine, convocantur ad locum nominatum qui 
 necessarii sunt. Accedunt autem quidam ut sedeant et judicent, 
 quidam ut solvant et judicentur. Sedent et judicant ex officio 
 vel ex principis mandato Barojies, quorum supra meminimus, 
 Solvunt autem et judicantur Vicecomites et alii plures in regno, 
 quorum quidam voluntariis ohlationihus quidam necessariis solu- 
 tionihus ohnoxii sunt reiJ' 
 
 The individual accounting parties are summoned thither 
 with the warning, ^' Sicut te ipsum et omnia tua diligis,'' and 
 a notice of the separate amounts due, " amiotatis omnibus 
 dehitis seriatim cum causis,'' and with the concluding clause, 
 '* Et hsec omnia tecum habeas in denariis taleis et hrevihus et 
 quietantiis, vel capientur de firma tua.'' Those who failed 
 to appear were summoned realiter by the sheriff or the 
 '*huissier" (usher of the Exchequer), fined in an amercia- 
 ment for every day they neglected to come, and in case of 
 need arrested, and their whole property sequestrated by a 
 writ *' de nomine districtionis.'" On defalcations being detected, 
 immediate arrest took place. Landed proprietors and corpora- 
 tions also, claiming a franchise, were obliged to ajDpear : every 
 year in the Exchequer, when the sheriff presented accounts, 
 and to give account themselves as to the returns, out of which 
 they then were allowed so much as was due according to the 
 terms of their privileges. Failure to appear or refusal of 
 account incurred sequestration. When the King had, as an 
 
 pt. i. As to the so-called Eotulus, 5 scribed in detail by Thomas, Ex- 
 Stephen, see Madox, ii. 462, As to chequer, p. 49-58. Examples of the 
 the more correct date, 31 Hen. I., presentation of accounts by special 
 Keeve's History, i. 218, and the Intro- fermors and financial ofiicials are given 
 duction to the Rotulus Pipse, de anno in great numbers by Madox (for ex- 
 31 Hen. I. ample, the control of the coinage, 
 The presentation of accounts is de- Madox, ii. 132). 
 
The Norman Exchequer. 225 
 
 exceptional case, himself received an account in person, or in 
 camera sua, this was notified by writ to the Treasury. (2*) 
 
 The administrative principles of a demesne department 
 with such full powers, naturally produced for the Exchequer 
 important legal prerogatives, and were the source of the 
 present privilegia fisci in England. The decisions of the 
 Exchequer appear as the oldest form of an administrative 
 justice. According to its constitution, the Exchequer is 
 certainly no chief court of law, but is only intended " ad 
 discernenda jura et diihia determinenda, quse frequenter ex 
 incidentibiis qusestionihus oriuntur'' (Dial., i. 4). But the 
 Norman financial system is inseparably blended with all the 
 branches of public and private law. The fixing of fines 
 and amerciaments, the decision of appeals against the imposi- 
 tion of tallagia and other imposts, involved a jurisdiction 
 extending in all directions over the prerogatives of sovereignty. 
 All privileges of the lords of manorial courts and towns, all 
 liberties and franchises, in the sense in which they are used 
 to-day, i.e. all royal grants, the legal validity or extent of 
 which are called in question, are here decided. In every 
 dispute as to a Crown fee, just as in every grant and in- 
 heritance of a fee, the Exchequer is an interested party. The 
 dehita regis have first to be satisfied, in every administra- 
 tion of the estate of a deceased person. From the litigation 
 in ordinary private law also {'' communia placita,'' in contrast 
 to those in which the King has an immediate interest) the 
 
 (2'*) The Exchequer court-days in estate, if he has died intestate, without 
 their characteristic form, according the have of the Exchequer. In case 
 to the Dialogus de Scaccario (Thomas, the solvency of the estate is doubtful, 
 and Madox, ii.). have also a certain the King undertakes its sequestration, 
 influence upon the later forms of pro- calls in outstanding claims by way of 
 cedure in the central courts. The administration, and satisfies himself 
 privilegia fisci, which proceeded from first, with reservation, however, of the 
 the practice of the Exchequer, had burial expenses. Debtors to the Ex- 
 permanent results. "Where any one chequer are also, on demand, allowed 
 was at once a debtor of a King and a "writ of aid" against their debtors, 
 of a private individual, the '■' dehitum that by getting in their debts promptly 
 regis " must be paid before all else. A they may be enabh d to satisfy the 
 debtor of the King cannot dispose by otficial claims. Herewith are connected 
 will of his personalty to the prejudice at a later period a number of the 
 ot the King; and his heirs cannot ob- provisions of Magna Charta. 
 tarn the administration of his personal 
 
 VOL. I. Q 
 
226 Constitutional History of England. 
 
 fiscu8 derived an interest, from the fact that the Exchequer 
 assisted a debtor to ihejiscm against third parties, to put him 
 in a position to fulfil his obligations towards the King. Hence 
 it can be explained how the Exchequer in meting out ad- 
 ministrative justice drew also common civil actions before 
 its tribunal. According to the Leges Eduardi, civil suits were, 
 indeed, to be decided by a judicium pariiim ; but this pro- 
 vision was formally satisfied by the Exchequer choosing its 
 higher ofiicials from among the Crown vassals, '' harones 
 scaccarii,'' in whom even the greatest feudatory was com- 
 pelled to recognize a properly constituted court. 
 
 III. The staff of the Exchequer is divided into the higher 
 officials and the clerks. As all departments of the central 
 government meet together in finance, so all the great officials 
 of the State had a seat here, in person or by representatives. 
 The personal presidency was reserved for the King himself ; 
 and in this capacity he acted for centuries. Where a Chief 
 Justice, '' cajntalis justicia,'' had been appointed by the King, 
 the latter is represented by him. Under Henry II. this chief 
 judge had become a permanent official ; the Dialogus de 
 Scaccario accordingly mentions him as the president, and the 
 higher judges as "barmies scaccarii," as important officials, but 
 whose appointments were revocable : '' Illic enim residet Capi- 
 talis Domini Regis Justicia, primus post Begem in regno ratione 
 fori, et majores quiqtie de regno, qui familiarius Regiis secretis 
 assistunt ; ut quod fuerit sub tantorum prsesentia constitutum 
 vel terminatum, inviolahili jure suhsistat. Verum quidam ex 
 officio, quidam ex sola jussione p)rincipis resident. Ex officio 
 principaliter residet imo et prsesidet primus in regno, Capitalis 
 scilicet Justicia, Huic auteni assident ex sola jussione Principis, 
 momentanea scilicet et mohili auctoritate, quidam, qui majores 
 et discretiores videntur in regno, sive de clero sint sive de Curia. 
 Assident inquam ad discernenda jura et dubia determinanda, qum 
 frequenter ex incidentibus quaestionibus oriuntur " (Dial., i. 4). 
 
 In order to understand the position of the Barons of the 
 Exchequer we must remember that they form a supreme 
 court set over the great farming Vicecomites, amongst whom 
 
Tlie Norman Exchequer. 227 
 
 are often to be found the first men of the realm, bishops, 
 grand feudatories, etc. ; and that their judgment decided 
 questions of law even against prelates and Crown vassals. 
 It was natural, therefore, that the controlling officials in the 
 supreme court should be men of similar position, i.e. persons 
 with the necessary rank in the feudal or ecclesiastical hier- 
 archy. The Baron es were accordingly those among the 
 magnates of the realm who were the most skilled in business, 
 and who stood nearest to the King. The highest court digni- 
 taries have a place of honour among them ; as have also the 
 Chancellor and the Treasurer, who gradually became the 
 principal personages among the Barons of the Exchequer. 
 All these higher functionaries bear the name of " Sedendi ad 
 Scaccariam;" the latter name, " Besidentes ad Scaccarium,'' 
 includes also the under-officials. 
 
 The under-officials are difficult to classify, for in the 
 earliest records a large number of persons are comprised 
 under the denotation " Clericiis Scaccarii ; " Madox has, how- 
 ever, with great labour ascertained the individual classes, and 
 arranged them into two groups. The most important under- 
 officials in the account department are : the Remembrancer 
 as keeper of the register and despatcher of business, the 
 Ingrossator Magni Rotuli, the Constable and Marshal as repre- 
 sentatives of the State functionaries of the same name in the 
 Exchequer, the Usher (Huissier), and in later times the 
 Auditores Comjwtum as revisers of accounts. The chief 
 under-officials of the receipt department are : the Clerkus 
 Brevium, the Chamberlains as keepers of the chest, the Clerici 
 Thesaurii, the Tellers as cashiers, and the officials appointed 
 for weighing the coins and applying the smelting test. (3) 
 
 (3) For the official staff of the Ex- of aristocratic families. (3) The Usher, 
 
 chequer, see Madox, i. 197; for tlie ordoorkeeper, entrusted ^Yith the safety 
 
 under-officials, Madox, ii. 263 et seq. of the buildings, the money-chest, and 
 
 To the under-officials of the account the registry ; and at the same time 
 
 department belong (1) the Remem- doing duty as a Huissier, who receives 
 
 hvancer, Rememorator, registrar, keeper the customary fees for summoning the 
 
 of the register, despatcher of business. sheriffs to the Exchequer sittings, 
 
 (2) The Ingrosser, Ingrossator Magni From the time of Henry II. it was an 
 
 Botuli Pipx ; sometimes two function- hereditary office, even divisible and 
 
 aries of this sort, frequently persons descending to women. The one en- 
 
228 
 
 Constitutional History of England. 
 
 The spirit of centralization collected together in the Ex- 
 chequer the whole of the State finances. The other exchequer 
 offices which are found existing are of secondary importance, 
 and in the majority of cases were temporary institutions. For 
 the personal disbursements of the King there is a household 
 treasury with special clerici and a Thesaurarius cameras. 
 Sometimes secondary and local exchequers were formed for 
 temporary purposes, as, for instance, a " Scaccariiim redemp- 
 tionis " and a " Scaccariiim'' at Worcester. A more important 
 secondary department is the " scaccariiim JiidmorumJ' under 
 the " custocles " or "jiisticiarii JiidsBonim'' having jurisdiction 
 over all affairs relating to the Jews, and comprising numerous 
 clerks and under-officials. The special constitution of this 
 procedure and the attributive justice of this administrative 
 body is so characteristic, that the condition of the govern- 
 ment under King John cannot be described more appro- 
 priately than by saying that the whole central government 
 had adopted the character of the Exchequer of Jews. (4) 
 
 feoffed of the " Serjeanty " appointed 
 the acting Huissiers for this office — 
 a curious custom which continued into 
 the 19th century. (4) The Constable, 
 an under-fifficial appointed by the 
 Constable of England, so long as that 
 office existed (Dial., i. c. 5). (5) The 
 Marslial, an under-official provided by 
 the Marshal of England, having cer- 
 tain functions to perform connected 
 with the presentation of accounts 
 ( for III us marescalcix), and with the 
 light to take arrested persons into his 
 keeping (Dial., i. c. 5). (6) Auditores 
 Compotum (Madox, ii. 290, 291), re- 
 visors of accounts, mentioned first in 
 9 Edw. II. ; originally this business 
 was conducted by clerks appointed 
 pro liac vice, or by the barons them- 
 selves (Thomas, Exch., 122, 123). 
 (7) Clerks of estreats, who were also 
 of later origin, for the exaction of the 
 amerciaments, fines, etc. 
 
 The second group of under-officials 
 belonufs to the receipt department, 
 ^^Recepta Scaccari" the ^^ Seaccarium 
 inferius.''^ (1) The Clericus hrevium, 
 clerk of the writs; (2) The Chamber- 
 lains, a higher class of under-function- 
 
 aries, curators of the chest, are ap- 
 pointed by the Grand Chamberlain and 
 the Court Chamberlain of the King 
 as their representatives, and ought 
 properly to be knights ; the current 
 business is conducted by special 
 Clerici Camerariorum ; (3) Clerici 
 Thesaurarii, treasurer's clerks — among 
 them is prominent the Clerk of 
 the Pells, bookkeeper of the Magnus 
 Rotulus de Becepta, mentioned in 
 Henry III.; (4) The Tellers, the real" 
 cashiers or pay-officials, usually four or 
 more ; (5) The Pesours and Fusours, 
 under-officials employed in weighing 
 the coins, and applying the smelting 
 test, originally hereditary offices, 
 Serjeanties united with landed estates, 
 hereditary and divisible. Besides 
 these, goldsmiths for the testing the 
 metal, essayers, and other assistant- 
 officials were engaged at salaries as 
 they were wanted. 
 
 (4) The Exchequer of Jews is de- 
 scribed by Madox, i. 221 et seq. Its 
 existence is explained by the original 
 absence of legal rights in the Jews, 
 wliose position may be comi^ared with 
 that of the German " Kammer-Knecht 
 
The Norman Exchequer. 
 
 229 
 
 des Kaisers," and wlio were not merely- 
 subjected to unsparing tallagia, but 
 were bled in every way at pleasure, 
 sometimes under the name of " protec- 
 tion right," and sometimes of a " right 
 of occupation." This view of the fiscus 
 is unequivocally declared in the Leges 
 Edwardi Confessoris, sec. 25 : " Ipsi 
 Judsei et omnia sua regis sunt. Quod 
 si aliquis dttinuerit illos vel pecuniam 
 eorum, rex requirat tanquam suum pro- 
 prium, si vult et potest." Since they 
 have no persona standi in judicio, 
 no landed property, and no right of 
 inheritance, and their legal capacity- 
 depends upon the royal favour alone, 
 arbitrary conditions and payments are 
 attached to their legal intercourse. 
 First, their right to bring actions in 
 their contracts with Christians was 
 only recognized when the terms of the 
 bond were to be found in the chest of 
 the Jewish secretary (chirographer). 
 The inheritance of their property is 
 only allowed on payment of heavy 
 fines. For example, Henry III. de- 
 mands six thousand marks of a widow 
 for the personal estate of her deceased 
 husband. The causes and pretexts for 
 the imposition of amerciaments are of 
 course innumerable. One of the most 
 common was for marrying without the 
 royal consent. At times all Jews were 
 thrown into prison, and then released 
 on payment of heavy fines, on one 
 occasion of sixty-six thousand marks ; 
 on another occasion the Jews were 
 pledged to the Earl of Cornwall for a 
 loan of five thousand marks. Hence 
 the numerous " ransoms," " composi- 
 tions," "fines for protection," and 
 "licences" in the Jewish administra- 
 tion. In return for gi'eat sums, they 
 were allowed important privileges. 
 For instance, in the Charta 2 Joh. : 
 "m^ si Christianus hahuerit querelam 
 adversus Judxum. sit judicata per pares 
 Judsei. Et Judsei non intrabunt in 
 
 placitum nisi coram Nobis," etc. In 
 the fifth year of John's reign a formal 
 jury was formed of " legales Christiani 
 et Jndxi." For this department, under 
 Richard or earlier, a separate and 
 secondary exchequer of " custodes " or 
 '•^justiciarii judxorum" was told off, 
 consisting at first of Christians and 
 Jews together, at last composed for 
 the most part of Christians, appointed 
 under the great seal. They have juris- 
 diction in all matters touching Jews, 
 sucli as the scrutiny of the accounts 
 presented, the decision of actions aris- 
 ing out of Jewish contracts, and dis- 
 putes touching their landed property, 
 their personalty, taxation, fines, and 
 forfeitures. Under thejusticiarii stand 
 the chirografarii and coffrarii (who 
 preserve in chests the charters and 
 bonds between Christians and Jews), 
 as local officials, appointed in places 
 where a considerable number of Jews 
 dwell. From the practice of this 
 secondary exchequer a special Jewish 
 finance law becomes formed, "Law, 
 Assize, or Custom of Judaism ; " 
 under Eichard I. the judges on circuit 
 liave instructions given them as to 
 this custom (capitula de Judxis). In 
 the short period from 50 Hen. III. to 
 2 Edw. I. (1265-1273) the Crown 
 was credited with £420,000 " cZe ex- 
 it/bus Judaismi" (Coke, Inst. ii. 89). 
 The whole institution comes at la.-t to 
 a sudden end through the expulsion 
 of all Jews from England (19 Edw. L); 
 in consequem-e of which act they re- 
 mained for 364 years entirely banished 
 from the country. The number of the 
 expelled Jews was 15,060 (D' Blessier 
 Tovey, Anglica Judaica, Oxford, 1738 ; 
 J. M. Jost, Gesch. der Israeliten, Ber- 
 lin, 1820-28, vol. vii. pp. 102-171). As 
 to the other secondary exchequers, and 
 jDrovisional payments in other places, 
 see Madox, i. 262-271. 
 
230 Constitutional History of Englayid. 
 
 CHAPTER XV. 
 
 V. ^fie m%t anb Btcag of Hz j^orman Cfiurc^ ^upremaci). 
 
 This fifth and last division of the sovereign power took a 
 different course in the Norman period. In the same degree in 
 which the temporal government became consolidated under 
 an absolute monarchy, the Church advanced in the direction 
 of a Romanizing centralization, which confronted the power 
 of the Crown by the equally strong power of the Pope. In 
 the middle of the period this made a breach in the system of 
 absolutism. 
 
 William the Conqueror had not under-estimated the influence 
 of the Church. He had found her an influential power under 
 Eadward the Confessor, and in possession of about a third of 
 the revenues of the soil. With her support the new throne 
 was won, the sanction of the Pope was the sole indisputable 
 title to it, and the lower clergy were the class upon w^hich 
 the obedience or the oj^position of the masses in a great 
 measure depended. The feudal and ecclesiastical States were 
 obliged to form an alliance with one another to attain their 
 culminating point. The Conqueror recognized this relation 
 in a number of concessions. 
 
 England adopted the Roman Liturgy, and submitted to the 
 ritualistic precepts of the Papal Chair. The assurance of 
 liberal and punctually collected Peter's pence was very welcome 
 to the Curia. The celibacy enjoined upon the clergy still met 
 with a passive resistance, which was only gradually overcome 
 after the time of Henry I. 
 
Norman Church Supremacy, 231 
 
 The liberal endowment of the Church in its archbishoprics, 
 bishoprics, chapters, monasteries, and other fomidations, is 
 not only maintained, but extended by many new gifts and 
 ecclesiastical foundations. The monasteries especially increase 
 under Henry I., Stephen, and Henry H., in such a manner 
 that their number is computed in the " Notitia Monastica " 
 at three hundred. At the close of the period the Chm'ch is 
 said to have been in possession of about the half of the soil 
 of the country, but this probably means only the half of the 
 ground rent of the greater estates. 
 
 The ecclesiastical jurisdiction over clerical persons and 
 matters is recognized in all its ancient extent, and also is 
 from this time forth separated externally from the temporal 
 courts. The Anglo-Saxon union of bishop and ealdorman 
 for the purpose of holding common court days for clerics and 
 laymen was in the highest degree antagonistic to the spirit of 
 the Eoman ecclesiastical government. The Earl had now 
 retired from the position of president of the county court : the 
 co-operation of bishop and Shir-gerefa was all the less likely 
 to be acceptable to both jDarties. The internal contrast 
 between the spirit of the popular court and that of the eccle- 
 siastical district court had made itself more and more felt, 
 and the desired separation of Church and State was in this 
 point conceded. This stej), so characteristic of the legislative 
 power of the time, is taken towards the end of the Conqueror's 
 reign by means of a writ addressed to the Vicecomites (Char- 
 ters, p. 85), but with the assurance that it is taken " communi 
 concilio et concilio Archiejnscoporum et Episcoporuvi et Ahhatum, 
 et omnium principum regni.'" Sec. 2: " Proj^terea mando et 
 regia auctoritate pvdBcipio, ut nullus episcopus vel archidiaconus 
 de legihus ejnscopalibus amplius in hundret placitci teneant, nee 
 causam quse ad regimen animarum pertinet, ad judicium secu- 
 larium hominum adducant, sed quicunque secundum episcopates 
 leges de quacunque causa vel culpa interpellatus fuerit, ad locum 
 quern ad hoc episcopus elegerit vel nominaverit veniat, ibique de 
 causa vel culpa sua respondeat, et non secundum hundret, sed 
 secundum canones et episcopates leges r^ectum Deo et episcopo suo 
 
232 Constitutional History of England, 
 
 faciat. {Judicium vero in nullo loco poiietur^ nisi in ejnscopali 
 sede, ant in illo loco quern ad hoc episcopus constituent. Y' The 
 summoning of the parties before the now independent eccle- 
 siastical courts took place under threat of excommunication ; 
 " et si opusfuerit ad hoc vindicandum, fortitudo et justitia regis 
 vel vicecomitis adhiheatur.'" Futhermore, the Vicecomites and 
 royal bailiffs are forbidden to interfere with the course of 
 business in these courts. Upon this separation the " Curiw 
 Christianitatis " take with them the consideration of such 
 secular matters as had, chiefly for external reasons, been left 
 to the spiritual authorities, when both were formerly united. 
 
 The "Leges episcopales''' here form a contrast to the "Leges 
 Eduardi,'' embracing as they do all that was formerly decided 
 according to the rights and customs of the clergy. In the 
 now independent ecclesiastical courts, the applicability of the 
 jus canonicum, of the Decretals, and of the resolutions of 
 the Concilia, is, with very few exceptions, regarded as a matter 
 of course. Thus there arose a jurisdiction over matrimonial 
 matters, wills, and indirectly over questions of legitimacy and 
 the inheritance of personalty, over verbal contracts, tithes, 
 church dues, and church sees, which was independent of the 
 temporal power; a penal jurisdiction for the maintenance 
 of orthodox doctrine and Church discipline, and for the 
 punishment of bigamy, incest, fornication, and other offences 
 against morals ; and a more and more sharply defined 
 magisterial authority over the whole of the clergy. To this 
 was added an appeal from the ecclesiastical decision to Eome, 
 and to the practice of the papal legates, and thus was formed 
 an almost sovereign power within the political state.* 
 
 * The separation of the ecclesiastical separation of the spiritual jurisdiction 
 jurisdiction into separate courts took is quite clear. The word " huudret " 
 place at a time of extreme tension, in designates the secular place of justice, 
 which the imperial proclamation of the in which also the county courts were 
 Norman military feudal law still met held. The independence of the Curia 
 with resistance. Hence it is easy to Christianitatis, however, did not ex- 
 understand that the Conqueror resolved elude the obligation of the clergy to do 
 upon a concession, which satisfied the suit of court (secta regis) in their 
 most cogent demands of his superior cajmcity as Crown vassals. What the 
 clergy, and shortly afterwards rendered Leges Hen. I., sec. 2, contain on this 
 possible the act of homage at Salisbury. point was the established law of feudal 
 The contents of the decree as to the custom. 
 
Normaji Church Supremacy. 233 
 
 The Conqueror plainly recognized the possibility of this 
 consequence, and endeavoured to avert it by the following 
 checks drawn from both the old constitution and the new. 
 
 I. The ancient rights of the Anglo-Saxon State over the 
 Church were retained, especially the royal ratification of the 
 resolutions of the Councils. In the year 1108 we still find the 
 canones of the Ecclesiastical Council in London adopted *' in 
 the presence of the King, with the consent of his men." In 
 the year 1127 Henry gives his consent to all the resolutions 
 passed in an ecclesiastical Council, and ratifies the same 
 by his royal power and authority (Stubbs, i. 374). By 
 virtue of the King's right of making decrees, the clergy are 
 forbidden to leave the kingdom without royal licence, to 
 recognize a Pope without royal direction, to publish circular 
 letters from Kome before they have been seen and approved 
 by the King, or to pronounce sentence of excommunication 
 upon a royal vassal without the King's permission. In like 
 manner the right of appointing bishops or abbots was pre- 
 served according to old custom. These appointments are now 
 made on high court days, after hearing the spiritual and 
 temporal magnates. Very frequently a royal chaplain, in 
 any case a man in whom the King had personal confidence, 
 was appointed bishop. To these old conditions the Conqueror 
 added a new and comprehensive arrangement. 
 
 II. The great landed possessions of the clergy are con- 
 sidered, according to the system of the feudal suzerainty 
 over the whole land, as granted to be held under the same 
 laws of tenure as the baronies and knights' fees ; that is, 
 with the full burden of the feudal services, suit of court, 
 and feudal dues. This theory was applied to the estates of 
 about one hundred and fifty bishoprics, chapters, abbeys, and 
 greater parishes ; but not to the glebe-lands, tithes, offerings, 
 and fees of the ordinary parishes. Thus was solved an old 
 problem of the Anglo-Saxon military organization. The 
 bringing of the rich ecclesiastical estates, with their thousands 
 of interests, into the feudal register of the realm was a step of 
 great significance, and it was the more popular because the 
 
234 Constitutional History of England, 
 
 great bishoprics and monasteries were thus compelled to 
 adopt subinfeudation, by which means many old landed 
 interests of Saxon Thanes were ]Dreserved, and many new 
 ones created. The interest of the temporal lords urgently 
 demanded this equalization. The Church had not hitherto 
 been able to claim more than an equality with the highly 
 privileged landowners. The administration endeavoured here 
 to enforce the new order of things with certain indulgence. 
 A number of monasterial estates retained their customary 
 immunity as "tenures of frankalmoign." A portion of the 
 feudal services remained in arrears, and was excused. For 
 a long time in the Exchequer accounts the scutages of the 
 prelates were divided into two classes — into those " quse 
 recognoscunt,^' and " qic^ non recognoscunt,'" the last named 
 remaining in abeyance. In ordinary j)i'actice no personal 
 military service was required of the spiritual lords ; in their 
 case a remission of feudal service for money payment was 
 first allowed. An indulgent spirit towards the clergy is 
 also visible in the matter of aids, amerciaments, and se- 
 questrations.** 
 
 III. In the same way, all the other sovereign rights are also 
 enforced against the clergy. The military summons is 
 issued to all ecclesiastical vassals in the usual form ; generally, 
 therefore, through the Vicecomes, and with like effect. The 
 Exchequer accounts show that even bishops and abbots were 
 fined on this ground, and had their estates sequestrated. 
 
 ** According to the later investiga- under "William Riifus the notorious 
 
 tions of Freeman and Stubbs, this Flambard applied all the consequences 
 
 application of the Norman feudal sys- of the feudal law to the ecclesiastical 
 
 ttm to the landed estates of the Church estates also. The practice of tlie Ex- 
 
 certainly did not take place instantly : chequer, the Constitutions of Claren- 
 
 for the theory of the forfeiture of their don, and the fully developed theory 
 
 landed property, by "rebels," and of of the English feudal law, as it is laid 
 
 the " redemption " of possessions on down in the legal work of Glanvill, 
 
 the part of the rest of the landowners, show the application of the feudal 
 
 was inapplicable to the landed estates system as a completed fact (Stubbs, i. 
 
 of ecclesiastical corporations. But since 298, 299, iii. 357, and other passages), 
 
 the great act of homage at Salisbury, Connected therewith is the energetic 
 
 the universal obligation to fealty, to retention of the investiture of the 
 
 feudal services, and to feudal pay- greater estates of the clergy, which lay 
 
 ments was derived from the legal act as much in the interest of the Crown 
 
 of investiture and tlie feudal oath ; as in that of the temporal vassals, 
 numerous indications bear witness that 
 
Norman Church Supremacy. 235 
 
 Under Henry III. there occur even summonses to the clergy 
 to do personal service in the army. 
 
 To the judicial power both higher and lower clergy are so 
 far subjected, that they have to do suit of court {secta regis) 
 both in the county court and in those court commissions 
 which were immediately formed by the King. It w^as only 
 a more indulgent practice which, permitting them to be 
 represented in the county assembly, limited the compul- 
 sion to find the verdict in person to the curia regis; and 
 here also no participation in passing a death sentence was 
 demanded from the prelates. In their character of vassals 
 of the Crown, they remain passively subject to the royal 
 court; "I do not condemn a cleric and a servant of the 
 Lord, but my Earl wiiom I have placed over my realm," 
 said William I., w'hen he personally arrested his brother. 
 Bishop Odo. 
 
 The clergy with their tenants are subject to the police 
 control, as a consequence of the temporal judicial supremacy ; 
 the Exchequer accounts show us that all the new police laws 
 and the practice of amerciaments were enforced, even against 
 the highest clergy. 
 
 In like manner the Norman exchequer accounts show that 
 the financial supremacy of the King is also exercised against 
 the clergy. Money claims of the King upon a cleric us were 
 first exacted from the fief by distraint ; failing this, an order 
 was issued to the bishop to seize the heneficium of the 
 cleric, ''otherwise the King will come upon the bishop's 
 barony." All feudal incidental payments, *' relevia,'" " auxilia,'" 
 " scutagia,'' are extended to the Church. For the revenues 
 derived from w^ardship and marriage, which are here absent, 
 the King compensates himself by withholding the temporalities 
 of the bishop's see, which under "William Kufus sometimes 
 remained vacant for five years. As a matter of course, the 
 old common burden of the trinocla necessitaSy which since 
 Henry II. receives a new importance owing to the revival of 
 the militia system, is also incumbent upon the clergy. 
 
 According to the Conqueror's calculation, the maintenance 
 
236 Constitutional History of England, 
 
 of the royal authority thus appeared secured, even after the 
 concession of a separate ecclesiastical jurisdiction ; and the 
 first three kings of the Norman period remained upon this 
 basis virtually masters of the Church. The dispute about 
 investiture under Henry I. ended in a compromise, by which 
 the King renounced the enfeoffment with ring and sword, but 
 reserved to himself the full feudal suzerainty. 
 
 The usurpation of the throne by Stephen, however, caused 
 a severe shock to the royal authority. The exclusiveness of 
 the episcopal jurisdiction was declared in an oath extorted 
 from the King ; the interference of the papal legates and the 
 appeals to Kome increased to such a degree, that Stephen's 
 successor found before him the difficult task of establishing 
 afresh the old order of things. 
 
 A century after the Conquest, under Henry H., the Church 
 and State had arrived at a turning-point in their mutual re- 
 lations, and the position of the Church had now become much 
 more favourable and popular than it had been at the com- 
 mencement of the Norman period. What the Church had 
 lost, by its subjection to the feudal State, had been retrieved 
 upon the ground of moral influence ; for to its other callings 
 a new one had now been added. In the dissensions of 
 nationalities it had become the natural mediator, the nearest 
 protectress of the oppressed Saxon element, the sole power 
 whom the Norman kings at their court days were at times 
 obliged to meet on the footing of negotiation. Even though 
 the high prelates had become Norman, yet the great mass of 
 the clergy still belonged to the Saxon population. Saxon 
 "clerks " were the chief staff of the Norman administration, 
 necessary interpreters to the French-speaking lords, and not 
 uninfluential intercessors for the mass of the oppressed 
 classes. The corporate spirit of the clergy had advanced far 
 enough to uphold, amidst the discord of nationalities, the 
 unity of the Church, which on that very account could not be 
 subject to the haughty class of nobility. And under these 
 circumstances it was very significant that Henry II. himself 
 appointed a man like Thomas Becket to the archbishop's see ; 
 
Noiman Church Supremacy. 237 
 
 one who by birth belonged neither to the Norman nationality 
 nor to the privileged class.*** 
 
 Under such altered circumstances Henry II. saw himself 
 involved in a critical struggle with the ecclesiastical power, in 
 which he was in the end unable to recover full political power 
 over the Church. With her separate administration {juris- 
 dictio) she everyw^here opposed the temporal jurisdiction. The 
 maxim of separation of Church and State had led to this, 
 that the low^er clergy for three generations found their law 
 and discipline entirely in the canon law, their ideal in com- 
 plete severance from the laity ; and that a very influential 
 party among the clergy, especially in the monkish orders, 
 stood resolutely on the side of Eome. Tbe Church was free 
 from the fiscal odium of the secular administration ; she had 
 the popularity wdiich surrounds all forces that resist an 
 absolute government. Henry II. did not dare, under these 
 circumstances, to carry out the re-establishment of the royal 
 prerogatives without summoning to his aid the most powerful 
 and influential persons among the laity. He summons 
 accordingly (1164) in the formal manner of a " cour de 
 
 *** For a time the ecclesiastical spirit of the clergy (increased by the 
 
 influence was diminished owing to gradually enforced celibacy) appear in 
 
 the fact that the ranks of the clergy the Anglo-Norman Church with un- 
 
 had become internally disunited. Since mistakable plainness. But on the 
 
 the year 1070 the Conqueror had filled other side is visible in the first century 
 
 with Norman clerics the two Arch- of this period the strong personal 
 
 bishoprics of Canterbury and York, and influence of the King over liis prelates, 
 
 then by degrees the bishoprics and the who have been for the most part court 
 
 most important abbeys also. The chaplains and royal secretaries. " The 
 
 curious state of things arose that the cohesion of the Church was for ages 
 
 higiier clergy were not able to speak to the substitute for the cohesion which 
 
 their flocks so as to be understood. the divided nation was unable other- 
 
 Tlie dislike of the Saxon populatiun to wise to realize It was to an ex- 
 
 a foreign tongue and foreign customs traordinary degree a national church, 
 was now extended to the dignitaries of national in its comprehensiveness as 
 the Church. Among the numerous well as in its exclusiveness. . . . The 
 successful upstarts of the times were to use of the native tongue in prayers and 
 be found many adventurers belonging sermons is continuous ; the observance 
 to the clerical profession. The majority of native festivals also, and the rever- 
 of the important ecclesiastical dignities ence paid to native saints. The eccle- 
 were, however, so far as can be siastical and the national spirit thus 
 ascertained, filled by worthy persons. growing into one another supplied 
 Daily labour in the ecclesiastical something at least of that strong pas- 
 calling, the feeling of solidarity against sive power wiiich the Norman despotism 
 the arrogance and violence of the mill- was imable to break " (Stubbs, Const, 
 tary vassals, and the powerful corporate Hist., i. 245). 
 
238 Constitutional History of England. 
 
 baronie " the greater Crown vassals and prelates, collectively 
 and sejDarately, to attend the extraordinary assizes of Claren- 
 don and Northampton. At the opening of the first-named 
 assembly, in January, 1164, sixteen articles were presented 
 and carried, which concern the ancient powers of the eccle- 
 siastical supremacy. The chief article (No. XI.) is as 
 follows : — 
 
 ^' Archiepiscopi, episcopi, et universe personse regni, qui de 
 rege tenent in capite habeant possessiones siias de rege, sicut 
 haroniam ; et inde respondeant jiisticiariis et ministris regis et 
 sequantur et faciant omnes consuetudines regias, et sicut caeteri 
 harones dehent intej^esse judiciis curise domini regis, cum haroni- 
 hus, usque preveniatur in judicio ad diminutionem memhrorum 
 vel mortem.'" 
 
 By this (1) the subjection to the feudal jurisdiction and to 
 all feudal burdens was declared anew ; and with it also the 
 temporal penal jurisdiction over the persons of the clergy was 
 recognized in jDrinciple. Where clerical offenders are ex- 
 amined in an ecclesiastical court a secular judicial official is to 
 be present, and the convicted offender is not to be further 
 protected by the Church. Feudal vassals of the King shall be 
 outlawed only after previous trial, and with approval of the 
 royal court. 
 
 (2) The highest appellate jurisdiction of the King upon 
 English soil was retained, and the parties are forbidden 
 " ulterius procedere'' (that is, to appeal to the Papal Chair) 
 without special leave (Art. VIII.) : " De appellationihus, si 
 emerserint, ah archidiacono dehent procedere ad ejnscopum, et ah 
 episcopo ad archiepiscopum. Et si arcliiepiscopus defecerit in 
 justicia exhibenda, ad dominum regem perveniendum est postremOf 
 ut precepto ipsius in curia archiepiscopi controversia terminetur, 
 ita quod non dehet ulterius procedere absque assejisu domini 
 regis.'' 
 
 3. The royal rights of appointing to vacant bishoprics and 
 abbeys were especially and formally recognized. The 
 revenues of the vacant sees fall to the royal Treasury, until 
 the time for the new election has arrived. The formal 
 
T^orman Church Supremacy. 239 
 
 election takes place in the King's chapel, and with his consent, 
 and there, before being consecrated, the "elecfus'' must take the 
 oath of allegiance to the King as his feudal lord in respect of 
 his temporal fees, with reservation of his ecclesiastical rank. 
 
 These and other principles were comj^iled from precedents, 
 and were, as ''ancient customary law," so indisputable, that 
 the bishops, as well as the secular vassals of the Crown, 
 recognized them without hesitation. Thomas Becket knew 
 these principles, and had applied them for several years w^hen 
 he was chancellor; and accordingly, after some resistance, 
 found himself compelled to make an unwilling concession, 
 and to promise to keep these articles "legitime'' and "bona 
 fide.''' When, however, by means of the clause " salvo jure 
 ecclesise," and under the authority of the Pope, he continued 
 his resistance, the King formed a decisive precedent by ob- 
 taining from a well-attended court of spiritual and temporal 
 vassals of the Crown, on the 17th of October, 1164, the con- 
 demnation of the primate in misericordia regis, which was 
 then in the customary manner reduced by the King to an 
 amerciament of £500. But the hard-earned victory was lost 
 again owing to the passionate and intriguing conduct of the 
 King, the violent issue of the dispute, and the martyrdom of 
 Becket. At the final conclusion of peace, great points were 
 yielded to the Church, especially the appeals to the Pope. 
 By later articles the principal point was conceded to the Po23e's 
 legate, viz. that for the future no cleric should be summoned 
 to answer for a crime before a temporal judge, except on 
 account of a secular fee, or of an offence against the hunting 
 laws. The other points of unpleasantness to the clergy were 
 also for the most part omitted. In its further develojDment 
 the concession of a separate judicial jurisdiction led to the 
 privilege of milder punishment, under the term of " benefit 
 of clergy." 
 
 Under King John the Curia advanced still further, and in 
 the course of a dispute between the King and the Chapter of 
 Canterbury, succeeded even in procuring the appointment of 
 the primate under papal authority, and, in the further course 
 
240 Constitutional History of Englajid. 
 
 of the dispute, the free canonical election of the bishops, as 
 well as the feudal suzerainty over the English Crown. 
 
 Thus the relationship to the Church became the one weak 
 point in the system of Absolutism. Towards the close of this 
 period the old relations between the higher clergy and the 
 Crown become changed. Whereas formerly the King was 
 sure of seeing in the bishops' sees only prelates who were 
 known and personally subservient to him, from this time 
 onward the ecclesiastical corporate spirit designates the 
 dignitaries of the Church by canonical appointment. The 
 charter of 15th of January, 1214 (Stubbs' Charters, 288), 
 touching the freedom of ecclesiastical elections, has especial 
 influence on later centuries. It was this *' Charter of Liberty," 
 afterwards confirmed by 25 Edward I. stat. 6, sec. 2, which 
 considerably altered the character of the English episcopal 
 bench up to the close of the Middle Ages. Under Henry III. 
 the papal power had reached the zenith of its might in 
 England, and this, in consequence of the realm being overrun 
 by foreign clergy, led to a reaction on the part of the land- 
 owning gentry as patrons of the churches. The influence of 
 the King is now confined to withholding the temporalities 
 during the time a see is vacant, and to the moral influence of 
 the feudal oath of fealty ; through which, by the withholding 
 of the temporalities, a renunciation could be compelled " of 
 all the clauses of the Papal Bull, which were opposed to the 
 royal prerogative, and the law of the land." The breach in 
 the absolute royal power which was here made could not be 
 healed in the course of the Middle Ages. It was the first 
 opening, by means of which Magna Charta introduced the 
 beginnings of parliamentary privileges. 
 
 Note to Chapter XV. — The course jiirisdictiori, the Peter's pence, and 
 
 which the ecclesiastical disputes took the moderate inculcation of celibacy, 
 
 in the Norman period forms tlie stan- William had also no objections to the 
 
 dardforestimatingtheinherentstrength doctrine of transubstantiation. On 
 
 of the al)Solute monarchy, and must the other hand, he rejects with 
 
 for this purpose be set forth con- proud resoluteness the demand of 
 
 nectedly. Gregory VII. for a suzerainty, and the 
 
 Under William I. the concessions taking of the oath of allegiance, asserts 
 
 concern merely the immediate wishes of his supremacy over the Church in all 
 
 the Church : a separate ecclesiastical external matters, and assures himself of 
 
Norman Church Supremacy . 
 
 241 
 
 the due exercise of it by reserving to 
 himself the placet to the publication 
 of all circular letters from Eome, and 
 by reserving his consent to all Councils, 
 all canones, and to the excommunica- 
 tion of any royal vassal (Eadmer, Hist., 
 p. 6, Wilkins, Concilia, i. 199). 
 
 AVilliam II. misuses his fiscal rights 
 against the Church, as in other direc- 
 tions ; leaves, among other things, the 
 Archbishopric of Canterbury vacant 
 for nearly five years ; and is soon 
 involved in a quarrel with Archbishop 
 Anselm as to the taking of the oath of 
 fealty, in which temporal and spiritual 
 vassals take the King's part. A 
 Council of the year 1097 resolves that 
 "the archbishop has to leave the realm 
 within eleven days." 
 
 Henry I., who by a cunning usurpa- 
 tion of the throne had anticipated his 
 elder brother Robert, was dependent 
 upon the support of the clergy, and 
 accordingly recalls the archbishop, 
 Anselm, wlio again refuses the oath of 
 fealty. After a long dispute Henry I. 
 declares in a Council of the year 1107, 
 upon his absolute authority, that the 
 investiture with the ring and the staif, 
 the symbol of the conferring of the 
 spiritual office by the King, or a lay 
 patron, should for the future be 
 abolished. 
 
 Under Stephen, the usurpation of 
 the Crown brings confusion into this 
 question as into others. By extensive 
 promises Stephen brings the higher 
 clergy over to his side, who then 
 become faithless to all the vows 
 formerly made to the Empress Matilda ; 
 but later they also leave King Stephen 
 in the lurch. In 1138, things had come 
 to^ such a pass, that in tlie Council of 
 Westminster a papal legate promul- 
 gates sixteen canons, and'takes into his 
 own hand the conduct of the elective 
 act for appointing to the Archbishopric 
 of Canterbury. In the course of a few 
 years the Papal Chair becomes the 
 court of appeal for all contending 
 factions. 
 
 Henry II., in a difficult position, 
 thinks to secure his royal prerogatives 
 by choosing his favourite and chan- 
 cellor Thomas Becket, but finds at 
 once in him an ambitious, energetic, 
 and equal opponent. In 1164, the 
 principal dispute is fought out at the 
 Assizes at Clarendon and North- 
 
 YOL. I. 
 
 ampton, when again spiritual as well 
 as temporal prelates declare for the 
 King. The sixteen articles of Clarendon 
 comprise in a formulated shaj^e the 
 sovereign rights of the feudal State. 
 But in the course of the dispute 
 passionate irritation loses him most of 
 the advantages which had been gained. 
 A thoughtless word of the King causes 
 the murder of the Archbishop. Under 
 the moral impression caused by this 
 martyrdom, Henry 11. is compelled in 
 the year 1172, in the presence of the 
 papal legates and a great assemblage 
 of temporal and spiritual lords at 
 Avranches, to purchase peace with the 
 Church by taking an oath " to allow 
 the appeals to the Pope hona fide 
 from that time forward, and to remove 
 all evil customs against the Church 
 which had come into use during his 
 reign." 
 
 The first century of the Norman 
 period had almost brought into a con- 
 dition of equilihrium the two powers 
 which were struggling with each other. 
 But after Henry II. the power of the 
 down diminishes quite as continuously 
 as the power of the Papal See rises, 
 until the latter reaches its famous 
 climax under Innocent III., whose rule 
 is contemporary with the miserable 
 reign of John. The humiliating sub- 
 mission of John, and his restoration to 
 the throne as the vassal of the Pope, 
 bring about the situation of Magna 
 Charta (a.d. 1215). The material 
 points of dispute which arise in this 
 period are in a compressed sketch of 
 their course as follows : — 
 
 I. The celibacy of the secular clergy. 
 This, under William I., is at first only 
 partially recognized, for the married 
 clergy are still allowed to retain their 
 wives (a.d. 1076). Henceforward, how- 
 ever, the ecclesiastical decrees are 
 more strict. The canons touching 
 celibacy increase in number. Those of 
 the year 1107 contain a positive com- 
 mand directed to the married clergy to 
 separate from their wives, and the rule 
 that the sons of priests should never 
 " inherit " the Church of their father. 
 In the following year, however, Pcpo 
 Pascal 11. sends a letter of dispensation 
 from the command of divorce, " because 
 its execution in England would be 
 \ery much out of place, seeing that 
 there the best and greatest part of the 
 
 E 
 
242 
 
 Constitutional History of England. 
 
 clergy is of that sort." In 1126, at a 
 full ecclesiastical Council at West- 
 minster (at which, for the first time, 
 u papal legate presided), the legate, 
 John of Crenin, with great zeal pleaded 
 for '■'■ immaculata castitas," but was him- 
 self obliged to leave the country in 
 secrecy and haste, in consequence of 
 an immoral scandal (Huntingdon, 219; 
 Hoveden, 274; Knygliton, 2382). In 
 1192 it was thought possible to carry 
 out tlie prohibition of marriage by 
 leaving the enforcing of it to tlie King. 
 But Henry I. made use of this power 
 only by allowing every priest to keep 
 his wife on payment of a fine. It was 
 not until the twelfth century that the 
 increasing power of Eome at last 
 effectually enforced celibacy. 
 
 II. The dispute as to investiture 
 broke out under "William II. in con- 
 sequence of tlie refusal of Archbishop 
 Anselm, the King having up to tliat 
 time enfeofied his prelates with the 
 Ting and staif. At the council of 1095 
 even the bishops ranged themselves on 
 the side of tlie ancient custom. But 
 now, in consequence of this case, in the 
 year 1098, a solemnly promulgated and 
 severe canon was launched against 
 investiture by laymen, and Henry I., 
 by reason of his having usurped the 
 throne, was not in a position to reject 
 the mediation of the Pope on this 
 question. In spite of the ojiposition of 
 the secular vassals, the King ac- 
 quiesced when Anselm consented to 
 recall the sentence of excommunication 
 pass( d on the prelates who had ac- 
 cepted a royal investiture. When at 
 last the question was brought before a 
 Council at London, to be decided on 
 principle, the King ended the dispute 
 by declaring on his personal and 
 absolute authority " that in future no 
 one shall be enfeoffed by the King or 
 u lay patron of a bishop's see or an 
 abbey by the delivery to him of a 
 pastoral staff and a ring, but that, on 
 the other hand, consecration should 
 not be denied a chosen prelate by 
 reason of the liomagium which he 
 pays to the King." Thus there arose 
 a partition of the right of the in- 
 vestiture, which had been hitherto an 
 exclusively royal prerogative. The 
 compromise now places the election in 
 the hands of the chapter, the consecra- 
 tion in the hands of the archbishop 
 
 and bishops, the grant of the temporal 
 goods and authority in the hands of 
 the King. The election took place, 
 from this time, at the chapter-house of 
 the cathedral church, where the wishes 
 of the King were communicated, either 
 by letter or message (not, as formerly, 
 by direct order). When the prelate 
 elect had received the royal assent, the 
 choice was scrutinized and confirmed 
 by the metropolitan. Before or after 
 the consecration, the bishop received 
 from the King the temporalities, and 
 took an oath of allegiance to him, 
 corresponding to the homagiurii and 
 fealty of a temporal lord (Stubbs, iii. 
 295, 296). 
 
 III. The appointment of the bishops 
 by the King was such an undoubted, 
 firmly established custom, that, in the 
 first century of the period scarcely au 
 objection was raised to it. Only in the 
 election of the Primate of England the 
 more exclusive character of the spiritual 
 State made itself felt, an appeal being 
 probably made to precedents ; accord- 
 ing to which, at the appointment of 
 the head of the English Church, the 
 chapter and the voice of the bishops 
 had been heard. The elections of the 
 archbishops Lanfranc, Anselm, and 
 Badulfus (a.d. 1070-1121), proceeded 
 still from the kings, who only after- 
 wards consulted the prior and the 
 convent as to their opinion. The 
 violent dispute which began under 
 Henry I., between the "monks" 
 (canons), and the bishops, continued 
 for a whole century. After the murder 
 of Thomas Becket (a.d. 1170), a double 
 election took place, which the Pope 
 decided ; and, after this precedent, he 
 claimed the right of confirming all 
 elections of bishops. The question of 
 election was at last decided by Innocent 
 III. in favour of the Canons of Canter- 
 bury against the bishops. In the course 
 of the dispute the royal right more 
 and more dwindled to a mere right of 
 confirmation. At the close of the 
 twelfth century, the rights of each 
 party had become tolerably closely 
 defined. The royal consent was indis- 
 pensable; the right of the chapter tu 
 elect, and the confirmation of their 
 choice by the archbishop, was formally 
 recognized. The deciding authority of 
 the Pope in disputed cases was upheld 
 by strong precedents, but in the case of 
 
Xorman Church Supremacy, 
 
 24- 
 
 'disputed episcopal elections the Pope 
 liad only au appellate jurisdiction. 
 Only in tlie case of an archbishop au 
 immediate papal confirmation and 
 recognition was carried oat by the 
 Curial theory of the Pallium (Stubbs, 
 iii. 304). Before receiving the Pallium 
 ■the archbishop may not consecrate any 
 bishop : but on receivins; it he has to 
 «wear obedience to the Pope in a form 
 which, in process of time, becomes more 
 and more stringent (Stubbs, iii. 297, 
 304). After free canonical election 
 had been introduced by the charter of 
 John, the royal right of confirming the 
 election was also abolished. The royal 
 influence after this time confined itself 
 to the moral influence of the feudal 
 oath, and to the fact that the King, by 
 withholding the temporalities, could in 
 any case enforce a reiumciatiou of " all 
 the clauses of the papal Bull, w^hich 
 should be opposed to the royal preroga- 
 tive and the law of the land." It was 
 not until the next period that a strong 
 influence of the King upon the ap- 
 pointment of the bishops became in- 
 directly re-established. 
 
 IV. The exclusiveness of the spiritual 
 jurisdiction and its independence of 
 the royal judicial jurisdiction, forms 
 the most important point of the English 
 Church controversy. Even Henry I. 
 had on this point resolutely opposed 
 the ecclesiastical claims. The appeal 
 to Rome was only allowed under royal 
 licence, and then only in cases which 
 a royal court of law was incompetent 
 to decide. Under Stephen, however, 
 the exclusiveness of the episcopal juris- 
 diction over spiritual persons and 
 matters was declared ; and, after the 
 system of appeal to the Roman chair 
 had once begun under the legate, the 
 Bishop of Winchester, in a few years 
 it went so far that all the more impor- 
 tant matters were referred to Rome for 
 final decision. This state of things 
 Henry II, found existing, and, in con- 
 nection with it, a partially disordered 
 clerical body, who, under the protection 
 of their privileged judicial position, 
 had in the course of ten years more 
 than a hundred unpunished cases of 
 manslaughter to show. In the face of 
 these excesses, Henry II. was able to 
 count on the acquiescence, not only of 
 his Crown vassals, but also of the 
 majority of the bishops. 
 
 At the commencement of the dispute 
 with Thomas Becket, Henry had the 
 sixteen articles of Clarendon drawn up 
 by two of his justiciaries, Robert de 
 Luci and Joscelin de Baliol, which 
 articles, in fact, only contain the royal 
 prerogatives so well defined by pre- 
 cedents, that in the assize of 1164 
 even the bishops recognized the royal 
 rights. Thomas Becket sought in vain 
 for a legal titl6 for the new position of 
 the Church; he was unable to find one, 
 except in the authority of the Papal 
 Chair. It was under these circum- 
 stances a decisive victory, when the 
 King, at the Council of Xorthamptou 
 (17th Oct., 1164), brought about the 
 condemnation of the Primate, and with 
 it the recognition of the English cus- 
 tom. But, from tliat time forward 
 Henry II. ruined his case by persecu- 
 tion and personal chicanery, which 
 aroused the sympathies of the Saxon 
 population for the archbishop. Against 
 the murdered, and soon afterwards 
 sainted Martyr, according to the spirit 
 of the age, the King's case could no 
 longer be victorious. In spite of all 
 his slirewdness and perseverance, the 
 princiiml object of the dispute was lost 
 at the final conclusion of peace (a.d. 
 1174). The King allowed the appeals 
 to the Pope, and in his acknowledgment 
 made to the papal legate, Petroleone, 
 limited the royal jurisdiction to actions 
 brought on account of fiefs and hunting 
 oftVnces. In the struggle against his 
 rebellious sons and against the sym- 
 pathies of the Saxon population for 
 the ecclesiastical cause, the King had 
 grown old and weary. Under Richard 
 and John, under the influence of the 
 Crusades, and the manifold complica- 
 tions in the interior of the country, the 
 papal power continued to advance 
 until it reached the pinnacle of its 
 mio-ht under Innocent III, 
 
 V. The recognition of the papal 
 legates forms an important incident in 
 the dispute as to the jurisdictions, 
 Henry I. had for a Inug time set him- 
 self against their admission ; but the 
 complications which his resistance en- 
 gendered compelled him to give way. 
 Scarcely were the legates admitted, 
 tijau, as early as 1126, a legate, as 
 sucli, held a Church Council, and pub- 
 lished seventeen canons, under the sole 
 authority of the Pope. Under Stephen 
 
244 
 
 Constitutional History of England. 
 
 their insolence rose so high as to sum- 
 mon the King to answer before a legate 
 and Church Council. This might later 
 be disavowed as extravagance. But 
 the legate system had gained a footing; 
 and the circumstance that archbishops 
 of Canterbury had taken the position 
 of legates, proved unfavourable to the 
 independence of the English Church. 
 The union of the powers of the legate 
 with the office of archbishop, com- 
 pelled the King to recognize indirectly 
 the supreme jurisdiction of the Pope, 
 so soon as it was placed in the hands 
 of one of the archbishops. After 
 Honorius III. (a.d. 1221), tlie arch- 
 bishops appear to have received the 
 regular commission of legates, as being 
 " legati nati,'" from the moment of 
 their recognition at Eome, and this 
 was acceded to on the part of the Pope, 
 with reservation of the right to send 
 " legati a latere," who suspend the 
 power of the " legati residentes." The 
 legate system also reached its culminat- 
 ing point in the confusion under John. 
 
 VI. A further incident of import- 
 ance was the exemption of the monas- 
 teries from the episcopal power. It 
 began with the commencement of 
 Henry II. 's reign, after which time the 
 policy of the Papacy worked systemati- 
 cally towards weakening the episcopal 
 authority. On the strength of an evil 
 precedent, the richest abbeys, one after 
 the other, were wrested from the 
 bishops, and then actually subordinated 
 to the Pope and his legates. 
 
 Another incident is the contest be- 
 tween the Archbishops of Canterbury 
 and York for the primacy, which, in 
 the vicissitudes of this century, fell to 
 the Pope for final decision. 
 
 In these controversies the weapons 
 employed by the two powers are 
 characteristic of their respective posi- 
 tions. The King contends with the 
 means he derives from his feudal, 
 police, and financial supremacy, by 
 withholding the temporalities, the 
 sequestration of feudal possessions, the 
 coutiscation of ])ersonalty, the enforce- 
 ment of amerciaments, and the ap- 
 plication of the right of making decrees 
 in individual cases. When the dis- 
 pute was at its height, Henry II. 
 caused all the personal estate and 
 revenues of the archbishop, and of 
 those of the clergy who declared for 
 
 him, to be attached, and then further 
 proceeded to confiscate the real estate, 
 and to banish all the relations, house-^ 
 hold, and nearest friends of Thomas 
 Becket, to the number of four hundred. 
 In another case a royal decree imposes 
 the penalty of death, or in the case of 
 ecclesiastics castration, for the intro- 
 duction into the country of any papal 
 bull of excommunication. The power 
 of the Crown shows itself as a rule to 
 be so strong, that every order of banish- 
 ment is effectual in its operation, and 
 even the most powerful prelates with- 
 draw themselves from the desperate 
 conflict by flight. Under John all 
 these means had become massed to- 
 getlier and increased to an enormous 
 extent. But this power is often 
 checked by the feeling of the masses, 
 by the threatening position of the 
 French kingdom, which enters into the 
 dispute as lord-suzerain and at the 
 request of the Pope, by the danger 
 which menaces the possessions of the 
 English Sovereign upon the Continent^ 
 and by internal troubles, — under 
 Henry II., even by a rebellion of his 
 own sons. In the course of the ecclesi- 
 astical dispute matters went at last so 
 far that the King found himself for- 
 saken by his secular Crown vassals, 
 as in the case of King John, and thus 
 the Eoyal power reached its lowest 
 limit. The Church on its side does 
 battle by interdict and excommunica- 
 tion, with which at first the prelates 
 and laity wlio pay obedience to the 
 royal commands are threatened; then 
 by degrees it increases in boldness and 
 directs itself against the person of the 
 King. A frivolous exercise of the 
 spiritual instrimients of combat could, 
 however, be defied even by Stephen 
 and John, so long as the feeling and 
 the interest of the upper classes re- 
 mained on the side of the Crown. The 
 various phases of the dispute are com- 
 plicated by schisms of the papacy, and, 
 on the other side, by contentions as to- 
 the succession to the throne. The two 
 sides may have been fairly balanced, 
 but the decision depended finally on 
 the internal energy of each. 
 
 VII. The final break-down of the 
 royal ecclesiastical supremacy under 
 John rests upon a concurrence of many 
 circumstances, long since prepared in 
 the person of the King. The impulse 
 
Norman Church Supremacy. 
 
 245 
 
 was again given by the double election 
 of an Archbishop of Canterbury. On 
 the 21st December, 1206, Innocent III. 
 had dictatorially, and in a very un- 
 canonical fashion, imposed upon the 
 Canons who had visited Rome as a 
 special embassy, his friend and fellow- 
 student, Stephen Langton, as arch- 
 bishop. On the continued opposition 
 of the King to this so-called election, 
 there followed on the 24th March, 
 1208, the pronouncing of the interdict. 
 The inhabitants of the country re- 
 mained, however, passive ; the temporal 
 nobles were still on the side of the 
 King. Three years later (a.d. 1211), 
 the dispute had progressed so far that 
 the legate pronounced the sentence of 
 excommunication, released all subjects 
 from their oath, and degraded the 
 King from his royal dignity. iThe 
 temporal vassals still adhered to the 
 King. John, just at this time, had 
 waged two fortunate campaigns, the 
 only successful ones of his reign. It 
 was the grievous fault of the King him- 
 self, that brought about the final crisis. 
 Neither in England nor on the Con- 
 tinent had the affairs of the kingdom 
 ever been carried on by such ferocious 
 means as John made use of at this 
 time ; curiously combining the cruel- 
 ties of an Asiatic despot with the 
 practices of the Exchequer of Jews. 
 In the following year (1212), a formal 
 "decree of deposition was issued by the 
 Pope: '■''Papa sententialiter definivit, 
 lit rex Anglorum Johannes a solio regni 
 deponeretur, et alius, Papa procurante, 
 Miccederet qui dignior liaheretur. Ad 
 hujus quoque sententix executionem 
 scripsit Dominus Papa %ootentissimo 
 Begi Francorum Philippo, qiiatenus in 
 
 reiiiissionem omnium suoriim peccami- 
 num hunc lahorem assumeref (Mat- 
 tlies\- Paris, 162). King Philip and 
 the French nobility accepted the com- 
 mission with enthusiasm, and war 
 preparations commenced in France, 
 which gave a prospect of a repetition of 
 the events under William the Con- 
 queror. The feudal summons of John 
 on the other side, brought together in 
 England an army of 60,000 men (Mat- 
 thew Paris, 163), which had to be 
 partly disbanded on account of the 
 want of provisions. But, like an 
 electric spark, a common consciousness 
 of the unworthiuess of this King 
 flashed through the assembled masses. 
 John himself felt this. Fear of the 
 French military power, and of the 
 temper of his own vassals determined 
 him to unconditional submission. On 
 the 13th May, 1213, the formal treaty 
 with the papal legate, Pandulfus, was 
 brought to a conclusion, in accordance 
 with the papal instructions (Rymer, i. 
 2, p. 54). Two days later, on the 15th 
 May, 1213, John resigned his crown 
 and his kingdoms into the hands of the 
 Pope, surrendering " to the Church 
 and the Pope his kingdoms of England 
 and Ireland, to receive them again 
 from the Church as a feudal vassal " 
 (Rymer, i. 2, p. 57 ; Matthew Paris, 
 164). Stephen Langton, Archbishop 
 and Primate, makes his entry into 
 England, takes possession of the Arch- 
 bishop's see, and absolves the King 
 from the sentence of excommunication. 
 The negotiations as to the removal of 
 the interdict and the compensation to 
 the Church, are protracted for a con- 
 siderable time longer, until the crisis 
 ends in Macrna Charta. 
 
246 Constitutional History of England, 
 
 CHAPTEE XYI. 
 'ilTfic dTuna Heais— ^6c (Srcat O^a'cns of tfit Mtalm. 
 
 The Norman government of the kingdom rested ui^on a 
 combination of the relations of the military, judicial, police, 
 financial, and ecclesiastical authority ; consequently its 
 central point was found in the person of the King. The 
 Norman feudal phraseology, which after the Conquest pervaded 
 all departments, introduced for the above the aj)pellation 
 Curia Regis, which, corresj)onding to the social, military . 
 judicial, and administrative position of the Crown, ma}^ signify 
 according to the context : 
 
 The Curia considered as (1) the Norman Court Day ; 
 (2) the Eoyal Court of Justice ; or (3) the whole Government 
 of the realm. 
 
 I. ^Ijt QLinia consfl5erct» as tj)c Norman (Eoxnt Bans. The 
 Conqueror was exceedingly fond of pomp and splendour. 
 *' Thrice a year he wore his crown, so often he was in Eng- 
 land ; at Easter he wore it at Winchester, at Whitsuntide at 
 Westminster, and at Christmas at Gloucester ; and there were 
 gathered about him all the magnates throughout the whole 
 of England — Archbishops and Bishops, Abbots and Earls, 
 Thanes and Knights " (Chron. Sax. a.d. 1086). This account 
 of the Saxon Chronicler, often varied by contemporaries, is 
 the x>ith of all that we know about the curia in this sense. 
 When the festivities were j)assed over, this was likewise 
 chronicled : " hoc anno corona sua non indutus est " (Chron. 
 Sax., A.D. 1111) ; similarly if he held his court at Christmas 
 
The Curia Regis— The Great Oficers of the Realm. 247 
 
 only (a.d. 1114). Of course the pomp of the Norman court 
 had increased greatl}^ since the Conquest. We know that the 
 Dukes of Normandy held a court three times a year, at 
 Easter, Whitsuntide, and Christmas, and united with it ex- 
 chequer and judicial business. These courts were accordingly, 
 among the Normans, customary festivals, and were therefore 
 called in England also, '' cur'm de more.'' They were to the 
 subjects sometimes an occasion of i)ride and display, and at 
 others, of national antipathy and painful remembrance of 
 the past. The Conqueror evidently wished to accustom his 
 subjects to the personal government of their *' legitimate 
 ruler." The oppressed Saxons saw here at first some few of 
 their own race, and might have imagined the assembly to be 
 the time-honoured Witenagemote. Perhaps the summons to 
 it was issued by royal writ, generally to the possessors of the 
 same lordships and bishops' demesnes as in the Anglo-Saxon 
 period (Chron. Sax., a.d. 1023). Many a proud Norman, 
 with his princely retinue, would see in the assembly a 
 Norman " cour de haronie ;'' but the Conqueror had taken 
 care that it shoald be neither the one nor the other. The 
 curia was rather, according to all authentic information, 
 simply a court festival, the splendour of which was intended 
 to compensate the greater feudal tenants for the want of 
 political power and importance ; as in later times under the 
 French " ancieii regime." "The royal order," says William 
 of Malmesbury, "summoned all magnates to the 'curia de 
 more,' that the emissaries of foreign nations should marvel 
 at the splendour of this throng and the pomp of the festivals." 
 This phenomenon has, at first sight, something startling 
 in it. William the Conqueror had passed from a dukedom 
 with legislating diets, to a kingdom with a legislating Witen- 
 agemote. In both countries powerful estates limited the 
 royal power in important respects. But the Norman diets 
 were not based upon written and traditional constitutional 
 documents, but upon the usage of the law courts and upon 
 the custom of the country. What the Norman Crown vassals 
 found in England was not the customarv law of their own 
 
248 Constitutional History of England. 
 
 country ; and the throng around the Norman Sovereign was 
 to the Anglo-Saxon Thanes no longer their national assembly. 
 The Anglo-Saxons no longer found a place in the council 
 of the King, but only a tolerated existence in the position of 
 inider-vassals, which, under the system of the feudal social 
 degrees, excluded them even from being tenentes in cajiite. 
 For the Normans, in another direction, the precedents, upon 
 which the old law of the Witenagemote rested, were not "the 
 rights inherited and liberties guaranteed from the days of 
 their forefathers." To both nations had been promised the 
 continuance of their hereditary common law ; but from the 
 thrusting together of two nations and two constitutions, there 
 resulted a neutralizing of both, and the necessity of a reno- 
 vation for each. As the old constitution was merely a com- 
 bination of the relations in which the royal power stood to the 
 landed interests in the army, law court, preservation of the 
 peace, finance, and Church ; so the new one could only form 
 itself from the new relations; and these had in every de- 
 partment led inexorably to a method of government by royal 
 ordinances, and to unlimited sovereign rights of the King. 
 We will once again summarize these stages of development. 
 
 In the department of the military organization the personal 
 summons of the King had taken the place of the decrees of 
 the national assembly touching war and peace. Through the 
 feudal system the old relation of personal service had become 
 the only valid one ; the feudal vassals do their service intra 
 ct extra rcgnuni on the personal summons of the feudal lord. 
 
 In the department of the judicial S3'stem the Conqueror 
 begins with the promise to allow the "Leges Ediiardi" to 
 continue. This was the concession, which even the mighty 
 Emperor Charlemagne was obliged to make in fact and in 
 law to the peoples of his empire, viz. the retention of their 
 hereditary common law, which was to suffer no change 
 through mere ordinances. "William might indeed deliberate 
 with his Norman nobles upon the promise he had made ; but 
 the ''legitimate" successor of Eadward could not make the 
 confirmation of the rights of his Saxon subjects dependent 
 
The Curia Regis — The Great Officers of the Realm, 249 
 
 upon their "consent." The same situation repeats itself 
 whenever colhsions between the laws of both nations occur, 
 which for similar reasons must be decided by the King. From 
 generation to generation the precedents accumulated, arising 
 from this situation. 
 
 In the department of the preservation of the peace, the Con- 
 queror commences his legislation with a decree which protects 
 the lives of his Normans by a fine for murder of forty-six marks, 
 against which the Normans were certainly not desirous, nor 
 the Saxons able, to raise any objection. This situation re- 
 peated itself ; the police-control naturally devolves upon the 
 2)ossessor of the absolute military and judicial powers. 
 
 In the financial department the King needed the acquies- 
 cence of the Normans with regard to the old revenues of the 
 Anglo-Saxon kings as little as he required that of the Anglo- 
 Saxons to the new feudal income. But the main point was, 
 that the new revenue flowed in copiously, and that in the 
 auxilia, tallagia, and scutagia, a new current income was peri- 
 odically raised as need required, and one which sufficed for 
 .generations for all the King's necessities. 
 
 In the department of the Church, the Anglo-Saxon King 
 had the right of appointing the prelates, and the right to 
 give or withhold his consent to the resolutions of the Councils ; 
 the feudal constitution subjected the same persons to yet 
 more extensive rights ; the enforcement of military discipline, 
 sequestration, and forfeiture of all real estates. 
 
 As all these legal relations conduced to an absolute rule, 
 •so the same result was brought about by sundry social condi- 
 iiions, arising from the dissension existing between the nation- 
 ;alities. These dissensions, from the lower strata upward, 
 p)ervaded and loosened the bonds of society in the counties, 
 and consequently deprived the great vassals of the support 
 •of those below them. There were certainly about the same 
 number of great landlords as in the Anglo-Saxon times, out- 
 w^ardly more brilliant and pretentious ; but without the in- 
 ternal union among themselves which is the root of political 
 power and liberty. There was the most splendid court in 
 
250 Constitutional History of England. 
 
 Christendom, at which, in a long and brilliant cavalcade, the 
 rich Norman lords and prelates appeared from time to time, 
 followed by their under-vassals and retinues, with the colom^s 
 and distinctive badges of their lords. There were the same 
 elements of possession upon which in former days was based 
 the Witenagemote that had degraded Eadward's authority to 
 a shadowy rule. In spite of all this, the Norman kings rule 
 the land by means of writs and letters of privilege, they 
 apjDoint or depose year after year their bailiffs in the counties, 
 and assemble their tenants and prelates at parades and court 
 festivals without allowing them any influence but that derived 
 from revocable offices and commissions. The Norman grandees, 
 lacked the support which was the life of the dynasties on the 
 Continent ; because their estates were scattered and severed^ 
 and their men divided by national antipathies. Their Norman 
 under-vassals are at first persons hastily collected, their Saxon 
 under-vassals yield reluctant service to a lord who has been 
 forced upon them, and the Saxon population, as a whole,, 
 retains for generations its dislike to the whole body of the 
 intruders. The conjunction of these relations brought about 
 irresistibly the decomposition of the older political rights, 
 although these had a deep historical foundation. (1) 
 
 (1) The Norman Court-days have in a fortunate case, a petty Crown vassal 
 
 been the subject of a party controversy with a few hides of land, but who, in 
 
 from diifereut points of view. In the the spirit of heraldry, must have been 
 
 time of the Stuarts it became important a "lord, hereditary noble, and coun- 
 
 to oppose the highly exalted right of cillor of the Crown," in order to figure 
 
 the kingship '■^ jure divino" by an at as an ancestor of equal rank at the 
 
 least equally ancient genealogical tree top of the pedigree. Just as inter- 
 
 of parliament. The indefinite testi- ested are our political parties of to-day 
 
 mony given by historians, severed in setting up an old pedigree for par- 
 
 from its connection, was accordingly liament. A view, very widely propa- % 
 
 rearranged in such a way that the gated at the time of tlie Eeform Bill, , 
 
 words " curia" " concilium," and " con- represented the Norman crown as 
 
 silium" were made to mean " legisla- perfectly dependent on parliament, 
 
 tive and tax-granting national assem- Tliis Hue is taken by Allen's treatise, 
 
 blies." which was received with great appro- 
 
 These "armed parliaments," with bation {Edinlmrrjli Review, vol. S.*)) : 
 their gleaming helmets, shields, and " The name, and probably also the con- 
 martial parades, were also an object stitution of the Anglo-Saxon national 
 of interest to the students of heraldry. assembly, was changed at the coming 
 It is part of the special business of of the Normans ; but its functions re- 
 the herald's office to find for a newly mained.the same, and continue so in 
 created lord, some remote ancestor, our parliament of to-day." 
 who was perhaps an under-vassal, or, The idea put forward by antiquaries 
 
The Curia Regis — The Great Officers of the Realm. 251 
 
 The documentary history is in harmony with this. There 
 exist actually no laws of this period which have proceeded 
 from the initiative and the free deliberation of estates of the 
 realm. The formula found in one or two cases, " consilio ct 
 consensu haromun mcorum,'' will be referred to later, and ajpart 
 from this. The so-called laws of William I. are really pro- 
 clamations, charters, and official commands, as is seen at 
 once in the style, ''pr^ciino,'" "■ proliiheo'' — the King wills, 
 orders, decrees. Even if sometimes a plural occurs, a '' sta- 
 tuimus,'' " voluinius,'' ^^ prfecipbnus,'" we cannot infer from this 
 the action of a deliberative assembly. Under William II. 
 also, such decrees do not occur ; he does not even appear- 
 to have summoned an assembly to ratify his doubtful claim 
 to the crown. Henry I. certainly begins his reign with a. 
 charter in which he promises much, the pith of which lies in 
 these words : ''I give you again the laws of my father; that 
 is, the laws of Eadward, with the changes which my father 
 
 of a feudal Estate of the Crown vas- 
 sals, overlooks, in the first place, the 
 social disparity between half a thou- 
 sand petty Crown vassals and the 
 princely earls and great lords, whom 
 William had enfeoiled as tenentes in 
 capite. The great political fact is 
 further overlooked that the dependence 
 of the King upon the majority of his 
 Norman vassals would have brought 
 about the most rigorous decrees against 
 the rights of the Saxon population, 
 which still formed a great portion of 
 the feudal army, the numerical majo- 
 rity in the staif of the Church, and 
 the greater part of the whole population 
 of the nation. So long as dissensions 
 continued between the " Francigense " 
 and the " Angli," the carrying out of 
 the promises made to the Anglo-Saxon 
 portion of the community couhl not 
 possibly take place under a legislative 
 assembly of Normans. In conse- 
 quence of this arbitrative position, no 
 monarch since Charlemagne, was ever 
 so favourably situated as the Con- 
 queror for thoroughly organizing his 
 empire on a uniform system. Wil- 
 liam I., and both his sods, show a 
 practical understanding and an inex- 
 orable persistency in dealing with this 
 
 question, such as are rarely found in 
 history in conjunction with so many 
 favourable circumstances. Once set 
 on foot, this system of government 
 strengthened and developed its maxims 
 through the medium of its professional 
 officers. The old custom of Normandy 
 was indeed considered, but was never 
 the decisive element where royal powers 
 and financial interests were concerned. 
 The Norman Ecliiquier certainly com- 
 bined the court assemblies with busi- 
 ness. After the festivities were over, 
 it was the custom to proceed to the 
 account table and bring in order what 
 was owing to the lord. But in Eng- 
 land a regular connection is not per- 
 ceptible. The Exchequer is from the 
 first a fixed official body with its own 
 course of business procedure ; its two 
 principal Terms do not tally with the 
 period of the court days, and a sum- 
 mons of those from whom accounts 
 were due to the court festival was 
 never dreamt of. In the same manner 
 the four law Terms of the English 
 courts of law do not tally with the 
 periods of the curia de more, and this- 
 is external evidence that the later 
 course of judicial business did not pro- 
 ceed from the Norman court days. 
 
252 Constitutional History of England, 
 
 lias made with the consent of the vassals," wherein the 
 one-sided character of the x)roclamation is distinctly pro- 
 minent. Under Stephen a similar charter was issued, and 
 nothing more. Under Henry II. the Assizes of Clarendon 
 
 I and Northampton contain the first beginnings of a legislation 
 with assemblies of notables, but these tokens again disajDpear. 
 Under Eichard I. and John we find again only instructions to 
 officials as to their duty, and charters. The careful investiga- 
 tion made by the recent committee of the Upper House upon 
 the subject of the peerage, has led to the definite conclusion 
 
 [ that under William I. and William II. nothing can be dis- 
 
 ' covered to show the existence and constitution of a legislative 
 assembly; but that the charters of Henry I., Stephen, and 
 Henry II., showed that the promise of the continuance of the 
 laws of Eadward had been regarded as the *' right of the 
 country ; " and that it might be thence concluded that there 
 existed a sort of legal constitution, of which a legislative 
 assembly gathered together at least for certain purposes, 
 formed a portion; and that special one-sided arbitrary im- 
 posts were regarded as infringements of the rights of the sub- 
 ject (Peers' Keport, i. 36, 42). The chief question, how such 
 an assembly was composed and limited, as well as the question 
 touching the revoc ability or irrevocability of the royal charters 
 and letters of grace, is not here dealt with. But the really 
 important part of that view lies probably in this point, that 
 even the Conquest was neither desirous nor able to abolish 
 
 ' the highest principle of all Teutonic constitutions, viz. that 
 the lex terrm cannot be altered by despotic command, but 
 ■only with the consent of the representatives of the nation; 
 ^'lex ex consensu popiili Jit et consensu et constitutione regis^^ 
 (edit. Pistense, sec. 6), ^^iit neque principes iiec alii quilihet con- 
 stitutiones vel nova jurafacere piossint, 7iisi meliorum et majorum 
 tcrrse consensus yrimitus haheatur " (Keichstag at Worms, 1231). 
 In times of necessity and peril the Conqueror also was 
 obliged to pay regard to this national feeling, which can be 
 dearly traced throughout our thousand years of German 
 history. When he cut most deeply into the existing *'law of 
 
The Curia Regis — The Great Officers of the Realm. 253 
 
 the land " by the separation of the spiritual from the temporal 
 courts of law, and b}^ their subordination to the ^' canoncs et 
 leges episcojxiles,'' he added, out of respect for the nation and 
 the Church, that this was done " communi concilio episcoporum 
 et ahhatum ct omnium prineipum regni.'" This absolute sove- 
 reign will certainly did not exclude the idea that the optimatcs, 
 who were assembled at the court day, should be heard and 
 their opinion asked in important enactments. Naturally this 
 was done in the case of measures affecting the whole of the 
 common law, as for example the decree in 4 William I., 
 which confirms and modifies the laws of Eadward the Con- 
 fessor. In the charter which held out so many promises at the 
 commencement of his reign, Henry I. declares, in this spirit, 
 that those additions were made by his father ''consensu 
 haronum.'" But the purely deliberative character of the 
 estates of the realm is also seen in the formula. In the sole 
 existing political act, in which William the Conqueror speaks 
 of the "consensus episcoporum et ^9r//zc/jj«/??," he confines 
 himself to inserting this assurance into the decrees which 
 he issues to his magistrates. In like manner Henry I. in 
 his charta confines himself to the assurance that the 
 '' emendationcs legum EduarcW were made ''consensu haro- 
 num." For more than a century the many hundred signa- 
 tures of the prelates and magnates disappeared, by which in 
 the Anglo-Saxon times the resolutions of the realm were 
 confirmed and attested. No one has the right to inquire who 
 was summoned to such a consilium, no one has a right to 
 attest such resolutions. The declaration made by absolute 
 royal authority, that the " meliores tcrrse'' were j)resent, is 
 regarded as sufficient in form and fact. Promises that the 
 magnates should give their consent, and guarantees for these 
 promises, begin only after Magna Charta. On the appoint- 
 ment of high prelates the whole of the assembled notables are 
 also heard in council; when contemporary accounts allude 
 to the business of the curia de more, this is their ordinary 
 topic ; but yet this only signifies that the King appoints the 
 prelates after hearing the ''pro" and the "con." For in- 
 
254 Constitutional History of England, 
 
 stance, Stephen at Easter 1136, holds a generah consilium. 
 in the presence of eighteen bishops, and a like number of 
 secular lords, and issues a charter for the appointment of the 
 Bishop of Bath : '' audientibus ct coUaudantihus omnibus fidelihiis 
 Qneis his suhscriiHis.'' Upon a new accession to the throne, or 
 at the knighting of the eldest son, an especially brilliant 
 company probably assembled, which might be described as an 
 extraordinary court d£ij. Such a one was that of 1086, which 
 William I. summoned towards the close of his reign, for the 
 purpose of reviewing the feudal militia and receiving the 
 feudal oath from the vassals. Such deliberative estates 
 could certainly by a mere change in their degrees of power 
 again become legislating bodies. But even for this the 
 external form was wanting from the time when the Norman 
 kings, perhaps from fear of such a result, began to discontinue 
 the periodical court day. Already under Henry I., the curid 
 de more was no longer regularly held. During the grievous 
 confusion in Stephen's reign it completely ceased : " Jam 
 qui])pe curix solemnes et ornatus Ecr/ii sccmatis ah antiqua 
 serie descendens prorsus evanuerant " (Huntingdon and Chron. 
 Norm., A.D. 1139). They never revived in the old periodical 
 manner. For the deliberations of the king with his o2)fi- 
 mates a bod}^ had therefore to be formed in a new fashion, 
 and one which could attach itself to the administrative 
 system and the existing grand offices. The constitutional 
 rights of the English parliaments have in the course of 
 centuries been so legitimately and honourably acquired, that 
 they do not need any invented pedigree.* 
 
 * A combination of State business appointed from their numbers ; but of 
 
 ■with the g;reat festival gatherings cer- a constitutional right of assent to acts - 
 
 tainly resulted from the nature of the of legislation there is nowhere a trace. 
 
 State, and is also occasionally expressly On the occasion of the accession of a 
 
 mentioned. " Peractis igitur festivi- king, and at his coronation, a form of 
 
 oribus diebuSj diversorum nefjocioruyn election or acclamation was retained, 
 
 caii^x ill medium duct ex more coepe- and continued as a very ancient cere- 
 
 runt^' (Eadmer, pp. 37, 39, 102). But mony, but it had certainly no greater 
 
 we find all such mentions confined to significance at this period than in the 
 
 the fact, that the nobles, assembled at Anglo-Saxon (Eadmer, p. 31). The 
 
 the court, were asked their opinion, remaining instances of an association 
 
 w^ar or church matters were discussed of State business with the court days 
 
 with them, and judicial commissions are principally the following : a.d. 
 
The Curia Regis — The Great Officers of the Realm. 253 
 
 II. SIjc CTurfa lilcgis as a aTonstitutfonal Ctntral dTourt of 
 Hafco would naturally have combined with a Norman parlia- 
 ment, if such an institution had existed, after the fashion 
 of the Anglo-Saxon Witenagemote. The function of a court 
 ■of law was and remained the very kernel of every Germanic 
 form of constitution ; judicial proceedings formed the current 
 
 1070, when the subjection of ecclesi- 
 astical property to the feudal burdens 
 was decided upon (Matthew Paris, a.d. 
 1070, whose statement, however, is 
 for sood reasons called in question by 
 Stubbs) ; in the same year the hearing 
 of a lawsuit between the Archbishop 
 of York, and tlie Bishop of AVorcester 
 occurs; a.d. 1096, the hearing of a 
 duel accusation brouglit by Geoffrey 
 Bainard against "William Count of 
 Eu; A.D. 1106, proceedings relating to 
 the reunion of Normandy; a.d. 1107, 
 for the regulation of ecclesiastical dis- 
 putes ; A.D. 1123, for the appointment 
 of the primate; (a.d. 1124, a "witen- 
 agemote " at which forty-four thieves 
 were hanged, was certainly not a 
 «ourt assembly, biit an extraordinary 
 legal assize) ; a.d. 1136, under Stephen, 
 for the ratification of the election of 
 the Bishop of Bath : the charter drawn 
 up on this matter concludes with the 
 words : " audientlbus et collaudantihus 
 omnibus fidelihus meis his suhscriptis, 
 apud Westmonasterium in genend/'s 
 concilii celchratlone et Pasclialis festl 
 solennitate hoc actum est" etc. : there 
 were present thirteen English and 
 five Norman prelates, the chancellor, 
 three earls, two constables, four court 
 officers, and six barons; a.d. 1155, at 
 ihe proclamation of the two sous of 
 Henry II. as successors to the throne ; 
 A.D. 1164, the extraordinary Assizes 
 of Clarendon and Northampton are 
 special gatherings of notables, in con- 
 sequence of the peculiar state of the 
 ■ecclesiastical controversy. The older 
 polemic treatises, such as Petyt's 
 "Rights of the Commons Asserted," 
 > Brady's Tracts, etc., treat all such 
 \ -concilia as legislative Norman parlia- 
 'ments. In modern times the '-Edin- 
 burgh Review" has repeatedly recurred 
 to this view. Hallam, on the other 
 ' hand, is somewhat reserved, "Middle 
 Ages," Note X. In the " Peers' Report 
 
 on the dignity of a Peer," the question 
 is treated with critical caution and 
 legal perspicuity. An authentic digest 
 of all the notices of concilia, from 
 the Conquest to Magna Charta, is 
 given by Parry, " Tlie Parliament and 
 Councils of England," London, 1849, 
 pp. 1-23, in which the uncertainty and 
 informality of these assinnblies and 
 deliberations is made perfectly clear. 
 The most recent historian, Bishop 
 W. Stubbs, treats of the Assizes, i. 
 356-So^,-369, 376, repeatedly both in. 
 his " Constitutional History," and in 
 his " Select Charters." But whilst in 
 one passage he confesses to the purely^ 
 "nominal" character of this co-opera- 
 tion, in which only the theory and 
 form of a national assembly are re- 
 tained in memory of an old Germanic 
 political idea (Hist., i. 356, Char- 
 ters, 17), in other passages the tradi-^ 
 tional ideas as to the Norman parlia- 1 
 ments are repeated without material' 
 alteration (Hist., i. 276, Charters, ii. 
 23, and in other places). Against the 
 direct evidence that in the Norman 
 period the royal right of decreeing ex- 
 haustively controlled all departments 
 of the .^Government, a constitutional 
 lawyer, like the author. of the great 
 Upper House Reports on the Peerage, 
 might perhaps endea.vour to bring 
 counter evidence. But the mere repe- 
 tition of the traditional assertions can- 
 not be received as a counter proof. 
 Still less is the question suited to 
 elaborate discussions in essays and in 
 the daily press, even though they be 
 received with never so much " appro- 
 bation." An accurate history of the \ 
 Anglo-Norman period is impossible, \ 
 if all the rights wliich, laboriously 
 advancing step by step, have been ac- 
 quired for the popular repi'esentation, 
 are by a fiction i^resupposed as already 
 existing. 
 
256 Constitutional History of England. 
 
 business of every national assembly. An object for this judi- 
 cial activity existed beyond doubt, for the '' Leges Eduardi '* 
 comprehended the old jurisdiction of the " King in the Witen- 
 agemote " in cases of a defectus justicide, of denial of justice, 
 and of a claim for justice against overpowerful persons. This 
 department was now even extended by the reservation of royal 
 jurisdiction over Crown fiefs, and by further reservations in 
 civil and criminal causes. But the traditional mode of hold- 
 ing a King's court in the Witenagemote had become inappli- 
 cable. The Norman lords, whom the King now gathered 
 about him, might represent many things ; but they were 
 not the " Witan of the country," the highest bearers and 
 depositaries of the Anglo-Saxon common law. For all the 
 highest decisions according to the "Leges Eduardi," they 
 were altogether incompetent. The King could not declare 
 any body of Norman lords a permanent central court of law 
 without proclaiming a jus iniquum as a principle for the 
 country. Equally inapplicable was the kind of court custom- 
 ary on French soil. Had it been possible to constitute a great 
 princely feudal court, like those which sprang up in France 
 around the great ducal families, this would certainly have 
 been to the interest of the Crown vassals; for out of such a 
 *' cour cle haronie " a political bod}^ of great importance would 
 have immediately arisen, of whose enactments the history of 
 this period would have had much to narrate. But the Crown 
 vassals, more than five hundred in number, were entirely un- 
 suited for such a purpose. The Norman Eorls and great 
 vassals, in their almost princely position, would never have 
 thought of regarding a few hundreds of Norman horsemen 
 and upstarts as their equals simply because, by holding a 
 single estate, these men had become tencntes in cajiitc, or 
 immediate soldiers of the King. Even in the thirteenth 
 century the creation of such a ^' peerage " utterly failed. 
 Such an informal body would have lacked also the necessary 
 legal qualities ; for the judicial decisions involved not simply 
 feudal customs, but also most difficult questions of the old 
 common law, as well as still more difficult and conflicting 
 
The Curia Regis — TJie Great Oficers of the Realm. 257 
 
 questions arising between the *' Leges Eduardi " and the 
 existing feudal law. 
 
 For obtaining proper legal decisions, there was accordingly 
 nothing left but a small selection of lawmen. Among the 
 numerous spiritual and temporal vassals a number of suit- 
 able and experienced men might be found, to deal with each 
 individual case. Among more than five hundred vassals, 
 who were, according to the right inherent in the grants of 
 land, certainly in form pares among themselves, the selec- 
 tion of lawmen took of itself the shape of a commission for 
 individual causes. The royal appointment moreover clothed 
 even minor vassals with the requisite authority. The great 
 vassal was obliged to recognize each man so appointed as 
 a judge, even though socially he would never have recognized 
 him as his equal. In truth, the position of the great 
 feudatories among several hundred petty ones was not by 
 any means pleasant, and hence it can be explained why the 
 great lords preferred submitting themselves to the judgment 
 of the King rather than to that of a miscellaneous commission, 
 which never inspires confidence in its administration of 
 justice. Of so little practical value was this "judicium 
 parium " acting by commission, that in later times Magna 
 Charta in its 39th article mentions the " judicium parium'' of 
 the " liheri liomines,'" but no especial "judicium parium " of 
 the Crown vassals. To this was added the fact, that the great 
 Norman lords found small pleasure in occupying themselves 
 with legal questions, when such questions did not concern 
 their native law and their feudal customs, but only the local, 
 and legal business of a foreign place. Hence most of them 
 probably preferred the military pomp of the court days to 
 magisterial duties ; to many of the lords the new order of 
 things was so distasteful that they gave up their fair posses- 
 sions on English soil and returned to the Continent. Still 
 less had the kings an interest in constituting formal judicial 
 assemblies from the vassals at court. For two whole centuries 
 they systematically strove against the creation of great feudal 
 curi^ in the counties, until they attained their object in the 
 
 VOL. I. s 
 
258 Constitutional History of England. 
 
 statute of Marlebridge by forbidding every appeal to the 
 greater feudal curide. For political reasons, they could still 
 less tolerate the creation of a central '^ cour de haronie.'' 
 They much preferred to leave to a pliable administrative 
 justice all decisions, which, in one form or other, could be 
 properly referred to it. Where the immediate royal right to 
 property, or a dehitum regis, was concerned, the Exchequer 
 decided with more certainty for the interest of the King ; and 
 since the " sedentes ad scaccariam'' were also Crown vassals, 
 and also tried cases in judicial form, and were likewise justices 
 as well versed in the law as the members of a specially con- 
 stituted judicial commission, the position of the Exchequer, 
 as a "judicium parium,'' could not formally be called in 
 question. The official title, '^harones scaccarii'' was perhaps 
 originally chosen to express this qualification of its mem- 
 bers to pass judgment upon the Crown vassals. Where 
 the financial system was not concerned, it was in other 
 respects much more convenient to assign the Crown cases 
 reserved to the county courts ; besides, in the earlier genera- 
 tions it was not possible to dispense with the co-operation 
 of the county courts, where local affairs and Saxon customary 
 laws were concerned. The Vicecomes presides over the trial 
 by a royal writ with his lawmen in the ordinary manner, but 
 only in virtue of a special commission : " hsec dominica placita 
 regis non pertinent Vicecomitibus sine diffinitis prmlocutionibus in 
 firma sua'' (Hen. I. 10, c. 3). It was not until the time of 
 Henry H. that, together with the system of itinerant judges, 
 the general centralization of royal justice in the staff of the 
 judges took its rise. (2) 
 
 (2) A supreme feudal court was established in consequence of the 
 also necessary in Engknd, since the scattering of the great feudal posses- 
 Crown vassal can claim to be judged sions throughout several counties, so 
 only by his 'pares. The under vassal that every Crown vassal found his 
 can never sit in judgment upon his pares in *his own county, and also 
 own feudal lord (Hen. I. c. 32). But a royal Vicecomes or commissioner 
 if on the Continent a standing, or at among the vassals of the Crown as the 
 least a periodical feudal court arose repre>entative of the King. According 
 out of this right, this was only in con- to this arrangement, the county court 
 sequence of the different territorial was the regular forum of the Crown 
 institutions which existed there. In vassals, and so the personal suit of 
 England the judicium parium became court owed by all temporal and spiritual 
 
The Curia Regis — The Great Officers of the Realm. 259 
 
 With these views the historical evidence also tallies. We 
 find the royal judicial control only exercised in the form of 
 commissions, and then only in those comparatively few cases 
 where actions were brought by the most powerful and favoured 
 vassals of the Crown. In all cases of which we have record 
 these commissions are of such a temporary character in 
 respect of their personal composition, form, and principles, 
 that the idea of a permanent court of justice of Norman peers 
 would never have arisen from historical testimony, if it had 
 not been thought necessary to interpolate the missing pieces 
 of evidence from institutions of the Continent and of later 
 centuries. Under William I. a dispute between the Bishop of 
 Eochester and a sheriff was referred to the county court for 
 decision, the Bishop of Bayeux presiding on the occasion. 
 The decision of a suit of the Archbishop of Canterbury on a 
 matter of deprivation of lands, was delegated to a court com- 
 posed, under the presidency of the Bishop of Coutances, of 
 several bishops. Crown vassals, the sheriff, the " whole 
 county " of Kent, and notable persons of other counties. 
 Under Henry I. the Bishop of London receives a royal com- 
 mand, to allow the Abbot of Westminster his right, "other- 
 wise the Exchequer will pass judgment." W^illiam I. arrests, 
 
 vassals of the Crown was strictly in- supreme central jurisdiction wielded 
 
 sisted upon (Hen. I. c. 7, sec. 2). The by commissions and the Exchequer 
 
 great majority of their law-suits con- exhiV)its a bad judicial system, which 
 
 tinued for a long time to be in reality together with the dismembered form of 
 
 settled in the county court. The the coimty courts affords an evil 
 
 records of the proceedings at law re- picture of the whole. But this picture 
 
 corded by Pal grave, vol. ii., show us truly represents the state of atiiiirs, 
 
 that, in addition to these, special which only becomes less gloomy after 
 
 judicial commissions were compara- Magna Charta. The judicial adminis- 
 
 tively rare; the admission of them, tration was, and continued to be, the 
 
 side by side with an established weakest part of the Norman govern- 
 
 feudal court, would be perfectly inex- ment, in which the formal retention of 
 
 plicable. Just as incompatible with a the "Leges Eduardi" was incapable of 
 
 fixed and stationary "cow r (ie 6aro/H'e " remedying internal injuries, the un- 
 
 would be the judicial jurisdiction of reliability of the constitution of the 
 
 the Excliequer, the structure of tlie courts, and the mercenary spirit of the 
 
 whole administrative law, the police whole system. The Norraan, at all 
 
 system of arbitrary amerciaments, and events, found in the greedy Exchequer, 
 
 all the later incidents, from which a and in the fee-exacting district 
 
 court of peers hardly succeeds in governor, his countryman, his comrade, 
 
 emerging with endless difficulty and and his compeer. But how stood it 
 
 fluctuations in the course of centuries. with the less fortunate Saxon Thane 
 
 It is true that this condition of a and Ceorl ? 
 
260 Constitutional History of England. 
 
 at a court day, even his own half-brother without a judicial 
 proceeding. In like manner, in 1137, Stephen arrests his 
 nephew Roger, the chancellor, and two bishops, " et commisit 
 eos custodiis, donee dederent castella.'^ Reserving a final 
 sentence pronounced by judicial peers, the King thus decides 
 extraordinary cases either in j)erson, or by writ, or by a judi- 
 cial commission delegated for the purpose. Under Henry I. 
 high prelates travel across the seas, to lay litigated cases 
 before the King, and decisions which the King pronounces 
 in Normandy by writs de tdtra mare, are still quite usual 
 under Henry 11. and Richard I. For the course of business 
 of the royal judicial commissions the documents reprinted in 
 Palgrave, vol. ii., are so far of importance that they testify to 
 very informal proceedings taken by the commission, which 
 would be inconceivable if at the King's court a feudal tribunal 
 with permanent officials had existed as an established, or at 
 least a periodical court of law, which like every feudal curia 
 would have formed for itself a fixed and formal procedure.** 
 
 ** As evidence how on the other vill and Bracton, treat of the curia 
 
 hand " Constitutional History " re- regis in the form of a permanent 
 
 gards the formation of the aida regis body. These official judges are erro- 
 
 or curia regis, I content myself with neously represented as the immediate 
 
 referring to the following authorities : successors of the great barons in Nor- 
 
 Bowyer, " Constitutional Law," p. 243, man feudal curia. As a proof that such 
 
 and Millar, " English Constitution," a permanent tribunal of peers had after 
 
 vol. ii. cap. 3. " The administration of the Conquest really become formed, 
 
 justice in the final instance, belonged fragments of the feudal constitutions 
 
 originally to the great council. It obtaining on the Continent are quoted, 
 
 was the King's baronial court and his But what became of this powerful per- 
 
 tenentes in cnpz'fe who were the /w.«f?ce.s manent body afterwards? The so-called 
 
 and judges " (Allen, in the Edinburgh, history of English law offers no ex- 
 
 Eevieiv, xxvi. p. 364). " The com- planation (Parry, " Parliaments," p. 
 
 mittee of the Upper House confines xii), (Foss, " Judges," i. 20). Whether 
 
 itself to accepting an ordinariiim it was from the feeling of their incapa- 
 
 concilium of the King, which con- city in the face of the science of juris- 
 
 sisted of the great officials and a prudence that was now beginning to 
 
 smaller number of prelates, barons, arise, or whether it was from increase 
 
 and justiciarii learned in the law. of business in the court, we are told 
 
 This select council was at the same that at all events "the great barons 
 
 time the supreme court, called Curia gradually withdrew." Whilst the later 
 
 Regis, which generally met three barons of the fourteenth and fifteenth 
 
 times a year — at Easter, Whitsuntide, centuries seek to gain their political 
 
 and Christmas " (Peers' Keport, p. 20). influence by personally taking into 
 
 This confusion is due to the fact that their hands, and that with the most 
 
 later, under Henry II., a body of official unexampled zeal, the conduct of poli- 
 
 jusiiciarii was formed, and that conse- tical and judicial business, by which 
 
 quently the later legal works of Glan- they finally acquire the privileges of 
 
The Curia Regis — The Great Officers of the Realm. 261 
 
 The negative result accordingly is this, that under the 
 name *' curia regis " there existed a wide judicial authority, 
 residing in the King, of personally appointing and consti- 
 tuting the court in numerous important cases ; but that 
 this curia regis did not consist of the collective body of all 
 vassals of the Crown, who in their present form constituted 
 no exclusive body ; nor of a definite number of great vassals, 
 for at that time there was no precedent for a legal separation 
 of the greater from the lesser vassals ; nor of a definite 
 number of great officers of the realm, for the great offices 
 were at that time not so constituted that it was possible to 
 form on their basis a permanent court of peers. 
 
 In this connection it becomes clear how in England the 
 judicial supremacy of the King could extend and become 
 centralized so far beyond all the limits of the Germanic con- 
 stitutions of the Middle Ages ; how, contrary to all principles 
 of the Germanic ordo jmliciorum, the King so often sits in 
 person in court, and personally takes part in giving judg- 
 ment ; how the forms of a rescript procedure by writ arise, 
 and even direct justice by means of rescripts ; how for cen- 
 turies afterwards the highly personal character of the court- 
 tribunal is retained in the Constitution, as that of a tribunal, 
 " uhicunque fiierimus in Anglia.'' Hence can be explained 
 how Bracton, Fleta, and the later law books do not regard 
 the royal office in the strict formal sense of holding the court, 
 but as a duty of administering justice itself: ^'.nec potest 
 cdiquis judicare in temporalihus , nisi solus rex vel suhdelegatus 
 (Fleta, i. c. 17, sec. 1). From this justice which is concen- 
 trated in the person of the King, there arises at a later period 
 under Henry H. a court of justice composed of official judges, 
 which, as the records inform us, arose in quite a different 
 way, and not as a continuation of a permanent court of 
 peers.*** 
 
 a court of peers, the barous of the *** The only correct element in 
 
 twelfth and thirteenth centuries are that fanciful image of an aula regis 
 
 declared to have begun their political is limited to this : that the hearing 
 
 career, by withdrawing from the tri- by commission of the Crown cases 
 
 bunals 1 reserved the method of procedure by 
 
262 Constitutional History of England. 
 
 III. .fl Curia 13<m% consftoeti as a Supreme C^obernment 
 Council, in which the central conduct of all the State business 
 is comprised, would have developed itself, as in France, from 
 a permanent feudal Court of Law, had such an institution 
 really existed in England. But since the court days of the 
 King are assemblages of pomp, since the royal judicial power 
 is exercised by commissions, the very elements of a formal 
 royal council of the realm were wanting. Granted, that the 
 person and the dignity of the monarch, even in the court 
 festivals, can never be entirely separated from the cares and 
 business of Government ; — still a continuous deliberation of 
 the king was also indisj)ensable, apart from the court days, 
 owing to the intricate legal business of a kingdom constituted 
 like England. Hence there existed beyond all doubt from 
 the first, a Consilium Regis, only not in the sense of a fixed 
 body, determined by property or of&ce ; but simply in the 
 sense that the king had at his side a small number of chosen 
 spiritual and temporal vassals to deliberate with him ; a 
 consilium, whose constitution and method of proceeding was 
 still somewhat indefinite, and varied exceedingly according to 
 the character of the King. There existed at every given point 
 of time a sort of conseil du roi, which the feudal language 
 designated as the Curia Regis, but which varied every day 
 according to the will of the king, as according to the letter of 
 the law is also the case with the Privy Council of our own 
 day. (3) 
 
 writs, and the ordinary administration Henry III. that rendered it necessary 
 of the sheriff's office by temporal vas- to create a formal consilium regis 
 sals of theCrown gave rise to a narrower as a council-regency, consisting of 
 circle of prelates and barons, learned in prelates, vassals, and persons learned 
 the law, who were generally employed in the law. The Permanent Council 
 in judicial business. A body of persons that was afterwards formed on this 
 like this was the natural forerunner of precedent, give rise to an erroneous 
 the justiciar ii of Isiter times, and of the idea of a permanent council as a con- 
 " bench " of justiciaries, afterwards stitutional department during this 
 formed. Madox (i. 6) is, as usual, period. Here, too, it is difficult to 
 nearest to the truth ; he always quotes meet such deeply rooted political con- 
 soberly fiom the Exchequer records. victions, otherwise than by giving the 
 (3) The curia regis, in the sense of following survey of the great offices 
 the supreme council, can be just as which actually existed, and wliich were 
 little traced back to a corporate body, composed of a haphazard collection of 
 as can the supreme feudal tribunal. temporary representatives, and court 
 It was first of all the minority of and feuiial offices. 
 
The Curia Regis — The Great Officers of the Realm. 263 
 
 That this view is correct is convincingly shown also by an 
 examination into the nature of the great offices, which in their 
 Norman form could as little constitute a permanent council as 
 a jDcrmanent court of law. Seven great offices are mentioned ; 
 but they partly lack a permanent character, and are partly 
 limited to very definite and particular business. 
 
 1. ^ 2i^^^^^^^^^^'^^^ t^tiVi% ^ngliae occurs at an early period, 
 but only as the King's representative, appointed by com- 
 mission for a time, and frequently together with others. For 
 a long time, too, there is no fixed appellation for such a general 
 governor, for whom, according to the taste and style of the 
 writer, sometimes one and sometimes another Latin expres- 
 sion is used. The frequent absence of the kings in Normandy 
 made a representative often necessary. But it was not until 
 Henry the Second's reign that E. de Beaumont, and then 
 E. de Luci, and in 1180 E. de Glanville, were definitely 
 described as " Siimmus Justiciarius totiiis Anglise.'' Eichard I. 
 at his accession appoints a bishop and an earl, and associates 
 with them {associat eis in regimine) five barons. Subsequently, 
 on his departure into Normandy, he appoints two other 
 bishops and four barons; from Palestine he adds to these the 
 Archbishop of Eouen. Later, Ai-chbisho^D Hubert becomes 
 Summus Justiciarius. The patent still exists (15 John) which 
 appointed the Bishop of Winchester '' Justiciarius noster 
 Anglise, quamclm nobis placuerit, ad custodiendam loco nostra 
 terram Anglise.'' It was not until the time of Henry II. that 
 the office appears to have been regarded as a Government 
 office ; after Henry III. it ceased to exist, (a) 
 
 (fl) The Capitalis Justiciarius is so facta are denoted as " Vicarii Regis" 
 treated by Spelman (pp. 405-418) that or '' Frxcipui AngUx Justiciarii." 
 a certain continuity in the ofBce Under William II., Flambard, a chap- 
 appears to be proved by what he says. lain of the King, is mentioned as 
 But under the earliest reigns, only a " Flacitator et Exactor totius Anglise," 
 temporary representation of the King or " Regiarum opuiu Procurator et 
 is spoken of. In the year 1067 Justiciarius." Under Henry I. Bishop 
 William I. appoints Bishop Odo and Eoger is called " Justiciarius totius 
 ^Y . FitzOshern, custodes Anglix (Hove- Anglix et Secundus a Rege." Under 
 den, i. 450). The Saxon Chronicle the same king R. Basset and others 
 says of Odo " Cum rex in Normannia, are also mentioned in a like capacity. 
 fuit ille primus in hac terra." In In 1153 Stephen appoints his successor 
 1073 W. de Warenne and R. de Bene- by agreement, " Justiciarius Anglise" 
 
264 Constitutional History of England. 
 
 2. m^t ^tntscjallus totius ^ngliec, Horb |^ig6 Srtctoartr, 
 
 major-domus, appears to have been from the first an hereditary 
 office. The Norman kings were the richest lords in Christen- 
 dom, and their social position in itself demanded that they 
 should be smTounded with court offices ; some of which, ac- 
 cording to the ideas of that period, were required to be quite 
 as hereditary as the Crown which they served. A seneschal, 
 a marshal, a chamberlain, a butler, were all the more 
 necessary to the royal Crown and dignity, as the great vassals 
 were themselves surrounded by similar officers. Beyond 
 doubt an hereditary major-domus had previously existed in 
 Normandy. But the office was of such little political im- 
 portance, that the seneschal of William I. cannot be identified. 
 Under William II. it is said of Eudo ^'major-domus regiw, 
 quern nos vulgariter Senescallum vel Dapiferum vocamus ; " and 
 an old record quoted in Coke testifies : " Senescalcia Anglide 
 pertinet ad comitivam de Leicester et pertinuit ah antiquo.'" On 
 the condemnation of Simon de Montfort at the close of this 
 period this hereditary office became extinct, (h) 
 
 3. '^fie %oxti Q^xtat Ci)amt)£rlatn. The royal household had 
 from the earliest times a separate administration {Camera) 
 for certain estates, dues, payments in kind, and personal 
 expenses of the King. The managers {camerarii) are personal 
 officers of the King, but the place of the first among them 
 
 — at least Hoveden asserts this, i. 169). The order from that time 
 
 although the agreement that had been onwards is given by Foss, i. p. 170, 
 
 concluded contains nothing about it seq., ii. p. 23, seq. 
 
 (Foss, i. 145). A good survey of these (h) With regard to the seneschallus 
 
 early general governorships is to be totius Anglice, cf. the references in 
 
 found in Foss, i. pp. 11-20 et seq. Madox. Grentismeuill is mentioned 
 
 The important circumstance is also as seneschal of William I., but in 
 
 brought into prominence, that those different places other persons. After 
 
 persons whom the historians mention the extinction of the office in the 
 
 a,a summi justiciarii, sign the charters j^erson of Simon de Montfort, it came 
 
 as witnesses, without adding this title later by re-grants to the house of 
 
 (Foss, i. 85) ; and also, that the title Lancaster, became extinct with the 
 
 Justiciarius actually never occurs in accession of that house to the throne, 
 
 the charters of William I., and very and was subsequently only granted on 
 
 rarely in those of William II. (Foss, the occasion of great ceremonies, 
 
 i. 90). But under Henry II., together pro hac vice, notably at coronation 
 
 with the radical changes introduced festivals. A detailed description of 
 
 into the central government, the sum- the royal household under Henry II. 
 
 mus justiciarius appears unmistakably is to be found in the Liber Niger 
 
 as a formal governmental office (Foss, Scaccarii (edit. Hearne). 
 
The Curia Regis— The Great Officers of the Realm. 265 
 
 {magister camerarius) becomes in accordance with the tendency 
 of all court offices, an hereditary office. Thus Henry I. grants 
 to Alfred de Vere " Magistram Camerariam totius Anglic in 
 feodo hereditario tenendam ; " and so it remained down to the 
 time of Henry de Vere, eighteenth earl of Oxford. But since 
 the hereditary office becomes, as usual, a mere honorary 
 place, there arises for the real administration of the camera, 
 a new personal office of camerarius regis, King's chamberlain, 
 who has also a place of honour in the Exchequer, in which his 
 and the Lord Great Chamberlain's under chamberlains, or 
 chamberlains of the Exchequer, are employed as keepers of 
 the chest. Under the Plantagenets this King's chamberlain 
 becomes an active Lord Chamberlain, (c) 
 
 4. W^z (Sironstabulan'us totius ^ngliae, Hotti l^igfi Nonstable, 
 Connetable of England, cannot be shown to have been an 
 hereditary office in the earlier Norman reigns. In Normandy 
 it appears to have existed ; in England the creation of such 
 an office was against all the principles of the Government. 
 Constahularii are, it is true, mentioned often enough ; for every 
 command forms a " constahidaria,'' the command of a troop, 
 a castle, a garrison, or even of a ship {constabidaria navigii 
 regis). It was not until the time of the concessions in 
 Stephen's time, that a constabidaria appears as a family 
 office, and under Henry II., one or two constahularii are be- 
 yond all doubt bound up with the possession of a group of 
 knights' fees. But the privileges attached to the office appear 
 to have been only two : 
 
 (a) A post of honour as Great Constable of the feudal 
 militia on its peace footing, with no right to command, but 
 some military jurisdiction, and with the duty of keeping the 
 rolls of attendance and similar administrative functions, 
 which were performed by representatives. Eeal commands 
 are always based upon royal commission. 
 
 (c) As to the Great Chamberlain and hereditary office became divided owing 
 
 the Camerarii, cf. the references in to female succession ; it exists to the 
 
 Madox. After the death of Henry de present day with certain fees and 
 
 Vere, eighteenth earl of Oxford, the functions at the royal coronation. 
 
266 Constitutional History of England. 
 
 (/3) A j)lace of honour in the Exchequer with formal duties 
 exercised by representatives. Thus the constabularia arises in 
 the Exchequer, and in the Court of Common Pleas also, after 
 their separation. But the constable is only an active member 
 of the Exchequer by virtue of special ai)pointment. 
 
 In this sense the Bohuns held the hereditary office until 
 1371 ; then it passed through female succession into the 
 royal family; and thence to the Stafford family, in which 
 it became extinct in 1521. (d) 
 
 5. '^1)0 i^arescallus ^nciltfC. An hereditary military 
 marshal no more existed originally in England, than an 
 hereditary constable. The conquering army, it is true, had 
 its marshal (E. de Montgomery). But the idea of a family 
 office is not met with until Stephen's time, when (together 
 with Milo of Gloucester as high constable) Gilbert de Clare is 
 mentioned as marshal, and the office is continued from that 
 time to his descendants. On the other hand it appears that 
 from the first an hereditary royal marshal's office had existed; 
 an office, which, considering the importance of the royal 
 stables, could hardly be omitted in a court household, accord- 
 ing to the social notions of those times. The title is certainly 
 very indefinite. Every office for the management or pro- 
 visioning of a number of horses is called a " marescalcia,'' and 
 we even meet with a marescalcia avium and a marescalcia 
 mensurse regis. Beyond doubt, however, a first court marshal 
 existed, whose office consisted in protecting the person of the 
 sovereign, assigning apartments in the palace, and in main- 
 taining the peace of the royal household. This first marshal 
 was called Magister Marescallus, or simply marshal, and since 
 he bore the name of Marshal as a family name, probably 
 
 (d) As to the Constahularius Anglix, militifn damns regix" (Foss, i. 123), 
 Spelman, " Glossaiium," pp. 183-186, which description, again, is capable of 
 gives us a mass of miscellaneous in- various interpretations. A family right 
 formation. Thus much is proved, that to a military command has, as a fact, 
 it was not until Stephen's time that an never existed in England. The report 
 hereditary constabularia can be said to of the committee of the Upper House 
 have existed, in the person of Milo of conceives the constabularia as corn- 
 Gloucester. His father, Walter, was prising a sum total of services which 
 described in the history of an old the King could at pleasure accept or 
 abbey, as " constabularius jprinceos reject (Peers' Keport, iv. 269-270). 
 
The Curia Regis— The Great Officers of the Realm, 267 
 
 possessed the office as an hereditary one. But since, after 
 that time, the family of the Marshals (court marshals), and 
 the Clares, Earls of Pembroke (military marshals) became 
 united by female succession, thenceforward, either intention- 
 ally or by accident, both offices became blended together in 
 one Earl Marshal. The duties are then threefold : 
 
 i. A post of honour in the feudal militia, coming immediately 
 after the constable, with the duties of keeping the rolls of 
 attendance, etc., which were exercised by proxy. 
 
 ii. A post of honour in the Exchequer with formal duties, 
 also undertaken by representatives. Thus arose the Ex- 
 chequer Marshal, who had the right of taking into custody 
 those from whom accounts were owing. After the later 
 division of the governmental departments, the marshals of the 
 English law courts of to-day proceeded from this office. 
 
 iii. A supreme post at court, which together with the right 
 to fees and the appointment to certain offices, constitutes to 
 this day an hereditary office, {e) 
 
 6. W^Z ©Jancellor, aranccllarius ScgiS is the pre-eminent 
 spiritual personage of the court of the Middle Ages; as is 
 also his office in the court of the Queen, in that of the dig- 
 nitaries of the realm, and great vassals, in contradistinction 
 to whom he is called the "Regis Ccuicellarius.'' His original 
 position is that of a first chaplain. Chef cle la Ghapelle clu 
 Roi. But as all writing was originally in the hands of the 
 clergy, the chancellor, in his capacity of private secretary, 
 conducts the correspondence of the King with the Exchequer, 
 the under-officials, and private persons. He is accordingly a 
 court chaplain, in later times generally a bishop or an abbot, 
 
 (e) On the subject of the MarescaUus patent. Here again the existence of 
 
 Anqlix, ISIadox gives us a number of several marshal's offices is perplexing, 
 
 reliable data, which form the basis of Under Henry I., Wigan, the marshal, 
 
 later statements. Later on the anomaly was enfeoffed of certain estates for his 
 
 arose, that the earl's title of the Pern- marshal's office. A second, apparently 
 
 broke family (at a time when this a lower marshal's office, we meet with 
 
 was a very lofty and rare title in the in the family of Venuz, which according 
 
 land), bound up with their hereditary to a later statement laid claim to the 
 
 office of court marshal, became united " magistra marescalcia," but is said to 
 
 under the title of eaii-marshal, which have had its claim rejected (Charta 
 
 is met with as early as Henry III., I. Joh.). 
 and is used in later times in letters 
 
268 
 
 Constitutional History of England. 
 
 and has a seat in the Exchequer ; from the time of Henry II. 
 he becomes a principal personage in the formation of the 
 administrative departments. His office is and remains a 
 revocable office of trust, and is sometimes granted in return 
 for a fine, in the amount of which the increasing importance 
 of the office is apparent. As early as Stephen's time, a 
 chancellor pays 3000 marks for his office. In 7 John, Walter 
 de Grey pays 5000 marks for the office of chancellor for his 
 life — a method of grant, however, which was soon discon- 
 tinued. Occasionally a vice-chancellor is also mentioned ; 
 and further, a Clericiis Magister Scriptorii, who acts also as 
 Clerk of the Exchequer ; a Scriptor Botuli de Cancellaria, 
 and others. (/) 
 
 7. '^6^ treasurer, generally a cleric, appears under Henry 
 
 ■which the chancellor, as cabinet-coun- 
 cillor, generally managed all that 
 related to the papal throne, and trans- 
 acted such cabinet business as re- 
 quired a knowledge of law. By the 
 middle of the period, the position had 
 become so much enhanced in dignity, 
 that the most eminent bishops, and 
 even archbishops, fill the office of 
 chancellor. Nevertheless, the chan- 
 cellor remains a member of the Ex- 
 chequer, and under Henry III., also 
 exercises the functions of an itinerant 
 judge. Under Henry III., a chancellor 
 was once ai3pointed to whom the King 
 either could not or would not entrust 
 longer the conduct of the business 
 appertaining to the office ; and so the 
 expedient was resorted to of appoint- 
 ing a " custos sigilli," who discharged 
 the principal business, without receiv- 
 ing the title of chancellor (Foss, ii. 
 137, seq.). From this period there 
 dates also a distinction, which can 
 never be clearly established, between 
 a chancellor, and a " Keeper of the 
 Great Seal." A vice-chancellor is 
 also met with once incidentally under 
 Henry II. (Foss, i. 160). From this, 
 under Richard I., a formal official posi- 
 tion is created (Foss, ii. 21); but one 
 which again ceases. The clericus can- 
 cellarii, as representative of the chan- 
 cellor in the Exchequer, is mentioned 
 in the " Dialogus de Scaccario," i. 6, 
 as being even then an important officer. 
 
 (/) The Chancellor, Cancellarius 
 Jtegis, is treated of in detail by Spel- 
 man (p. 127-135), who gives a list of 
 the chancellors down to James I. 
 Here also the pedigree of the office 
 has been traced too far back into the 
 past, for the capellani regis of the 
 Anglo-Saxon period are represented 
 as chancellors of the realm. It was 
 not until the last generation of the 
 Anglo-Saxon period, that the Capel- 
 lanus, Sigillarius, Notarius Regis, is 
 so frequently mentioned that the ex- 
 istence of an established secretarial 
 department in the government can be 
 assumed (Kemble, Anglo-Sax. ii. 97). 
 The Great Seal which is delivered to 
 the chancellor, and has later its own 
 history, dates from Eadward the Con- 
 fessor. Hardy (1843) was the first to 
 publish an exact table of the Lord 
 Chancellors and Keepers of the Great 
 Seal, and Lord Campbell to write 
 their lives (London, 1845-1847). A 
 list of the earliest chancellors lias been 
 carefully compiled by Foss (" Judges," 
 vols. i. and ii.). Under the early Nor- 
 man reigns, the chancellor stiU ap- 
 pears as an official of the second degree, 
 whose signature occurs after those of 
 the bishops and earls, and having a 
 seat among the barons of the Exche- 
 quer. The chancellors of this early 
 period were advanced in later times 
 to bishops' sees. It was, however, 
 already an important office ; one in 
 
TJie Curia Regis — TJie Great Officers of the Realm. 269 
 
 II., and even earlier, as one of the barons of the Exchequer, 
 among whom he is especially singled out. Bishop Nigel 
 obtained the office for his son, the author of the " Dialogus," 
 in return for a fine of £400. In its later form it increased 
 in importance together with the finances, so that at last it 
 culminated in the office of Prime Minister of the country, {g) 
 
 A survey of these great offices shows us that they were 
 neither contemporaneous nor homogeneous. They rather 
 point decidedly to a concentration of authority in the head 
 of the Government. When deliberating upon important 
 military affairs, the King would certainly not pass over the 
 high constable ; when dealing with foreign affairs, especially 
 the relations to the papal see, he would not easily dis- 
 regard his chancellor, or the primate ; in financial questions, 
 he would not overlook his treasurer. But all the historians 
 mention only single individuals as influential counsellors, and 
 these, too, are described as being constantly changed. The 
 important offices have, on the whole, so much the character 
 of a revocable commission, and the few hereditary offices 
 have relatively such unimportant actual duties attached to 
 them, that a permanent constitutional body could not be 
 created out of them. The assumption of the existence of a 
 permanent royal council, under the name of a '' Concilium 
 
 {g) The Thesaurarius Regis is de- and others, and which are invariably- 
 scribed in the complete accounts given combined with the tenure of knights' 
 by Madox, to which we shall again fees. 
 
 refer in the following period. Defi- ii. Lower Serjeanties, corresponding 
 
 cient as the information respecting to the lower ministers in their various 
 
 these great officials is as a whole, yet degrees, and combined, not merely with 
 
 this much is clear, that the persons knights' fees, but also with other pos- 
 
 who really admiaister the business of sessions which were free of service and 
 
 the Government, and exercise an im- scutage. 
 
 portant influence upon it, are revo- The system of management of the 
 cably appointed servants of the King, Norman kings, however, did not allow 
 or oflScials appointt-d by commission. serjeanties to be created in too great 
 The hereditary offices have only a numbers, and conceded to them neither 
 subordinate position in the financial, considerable possessions nor an in- 
 military, and judicial system, and are fluence upon the government of the 
 not so numerous as in other countries ; State. From political reasons it is 
 they are divi< led into two classes: — probable that in the course of the 
 
 i. Grand Serjeanties, corresponding Middle Ages, more serjeanties were 
 
 with the higher household ministers of turned into fees owing military service, 
 
 the Continent, high steward, great than new ones created, 
 chamberlain, constable, marshal, butler 
 
270 Constitutional History of England. 
 
 Ordinarium,'' or ''select council," is rather an anticipation of 
 the result of circumstances which only developed in later 
 times, in the order which I will proceed to state. 
 
 Under William the Conqueror everything indicates a 
 " gouvernement personnel,'" rendered necessary by the complete 
 change of the whole political system, in which the King feels 
 himself strong enough to leave behind him in the times of his 
 absence some great vassal as governor in his stead. 
 
 Under William II. this was avoided, and a royal chaplain 
 was impowered to conduct the business of the State, in which 
 the oppressive fiscal system and the firmly established 
 bureaucratic institutions of the Exchequer become developed. 
 
 Under Henry I., and the long rule of his grand-justiciary. 
 Bishop Eoger of Salisbury, the Exchequer became established 
 as a permanent general directorium ; which may be compared 
 with the German central military and demesne chambers, and 
 which was at that time the only permanent central department 
 of State (curiarum omnium antiqiiissima), the other business of 
 the central government being conducted by the King, with 
 counsellors whom he frequently changed. 
 
 Under Henry II., the Exchequer is further developed into a 
 department, organized in corporate fashion, with periodic 
 sittings for the financial administration and similar business, 
 and into a corporate royal court, while the other business of 
 the central government is still carried on by the King with 
 counsellors whom he frequently changes. 
 
 Under Henry HI. a government council was first formed as 
 an administrative body for the discharge of the whole business 
 of the State, which formed a basis for the administrative 
 nature of the permanent councils of later times.*** 
 
 *** Tliough in direct contratlic- immediately assumed. So soon as he 
 
 tion to the character of the offices, it appoints a jiidicial commission, this is 
 
 is almost impossible to eradicate the a,2:ain at once taken to be a " Conc<7m7/i 
 
 view which insists upon a permanent Ordinarium" either identical with the 
 
 royal council in this period. So soon former or independent of it. If the 
 
 as the King discharges the current King only once in deliberation with a 
 
 business of Government with a small meeting of counsellors, composed of 
 
 number of State officials, the existence prelates and barons, settles important 
 
 of a properly constituted " Concilium measures, this is regarded as a " Mag- 
 
 Ordinarium " or " Select Council," is num Concilium" almost identical with 
 
The Curia Regis — Tlie Great Officers of the Realm. 271 
 
 the Upper House of later times. Where 
 historians speak of any great gather- 
 ing, on the occasion of a festival or of 
 a critical state of the realm, a " Com- 
 mune Concilium" is made out of it; 
 which is either supposed to compre- 
 hend the collective body of the Crown 
 Is, or something more or less. 
 
 Even Parry, who in other places is so 
 clear-headed, is unable to keep clear of 
 this traditional method of regarding 
 things. " The first was the King's 
 Ordinary Council, consisting of pre- 
 lates, earls, and barons, selected by 
 himself, and assisted by the chancellor, 
 chief justiciary, the judges, and other 
 officers of State. It was not only a 
 Council of State, but the Supreme 
 Court of Justice, and met tliree times 
 every year at the great festivals of 
 Easter, Whitsuntide, and Christmas ; 
 sometimes at Michaelmas, and at other 
 times also by adjournment. 
 
 " The Magnum Concilium was a 
 larger assembly of persons of rank and 
 property, convened on extraordinary 
 occasions. 
 
 " Tlie Commune Concilium was a still 
 more numerous body, collected together 
 
 for more general purposes" (Pari. p. 10). 
 It is difficult altogether to form any 
 definite ideas from this. Similarly, 
 Hallam (Middle Ages, ii. c. 8, note 13) 
 distinguishes between a Commune Con- 
 cilium, consisting of all the Crown- 
 vassals ; a Select Council for judicial 
 and administrative purposes ; and a 
 Court of King's Bench, which is said to 
 have separated itself from the Select 
 Council in Henry II.'s reign (cf. also 
 Stubbs : Index, s. v. " Council "). The 
 error lies in the pedantic interpretation;! 
 which would create constitutional,; 
 bodies out of a government with, 
 changing counsellors. The shapeless 
 form of the Norman central govern- 
 ment has brought later historians also 
 into the difficulty how they are to 
 denote the relation of that permanent 
 official body, the Exchequer, to the 
 so-called Curia Regis. Madox (i. 154) 
 expresses his views with great caution, 
 calling the Exchequer a portion, or a 
 limb, of the Curia, a sort of Subaltern 
 Court; which is correct, if under the 
 term Curia we understand the whole 
 central government in its shapeless 
 state. 
 
272 Constitutional History of England. 
 
 CHAPTEK XVII. 
 
 transitional ^criotr— Itinerant gjtisticcs— 2}ustiC£S in 23anco 
 — (Origin of (JBstates of tibe lacalm. 
 
 However strong the Norman State, by its institutions, might 
 seem to its contemporaries, yet the weakness of a purely 
 |)ersonal Government, which was ever losing its support at 
 the death of the ruler, soon began to be apj)arent. A 
 recognized and duly entitled monarch, and a powerful person- 
 ality, are the necessary conditions of such a government. 
 Both these elements were wanting in Stephen, whose usurpa- 
 tion of the throne brings about a conflict which, with few 
 pauses, fills up the whole of his reign. It is in England the 
 period of sword law and similar to the interregnum in 
 Germany. The poor rural population were compelled to do 
 villein services, not for royal castles, but for the strongholds 
 of the petty lords. " Erant in Anglia fere tot tyranni, quot 
 domini castellorum.'* A principal condition of the tardily 
 concluded peace was the razing of the new fortresses, the 
 number of which amounted to 126, and according to other 
 accounts to 375, or even to as many as 1115. We can 
 understand the satisfaction with which, after such a state of 
 things, the people hailed the undisputed succession of 
 Henry II. to the throne, and the concord which subsisted 
 between him and his realm. 
 
 Henry II. seems from the first to have found the best 
 security for the new throne in reforms affecting the administra- 
 tion of the realm, which, especially after the commencement 
 
Origin of Estates of the Realm, 273 
 
 of his conflict with the Church, are of a sweeping kind. 
 About a hundred years after the Conquest three changes are 
 almost simultaneously introduced, which, although they have 
 been already separately treated of in considering the develop- 
 ment of the prerogative rights, must be here more narrowly 
 examined in connection with one another ; (1) the centraliza- 
 tion of the administration by means of itinerant justices ; 
 (2) the institution of an official bench of justices, as a royal 
 court ; (3) the first beginnings of an estate of the realm 
 formed by the greater barons. 
 
 I. '^j^c institution of itinerant justices was based in an almost 
 equal degree upon the needs of the political government, and 
 upon a concession made to the most pressing interests of the 
 nation. The administration of the counties by the Vice- 
 comitcs had from the first suffered from grave abuses. For 
 this reason even under Henry I. the V'lcccomites had begun to 
 be relieved of certain judicial business by commissioners sent 
 from the royal court. Eeliable information on this point is 
 given us by the oldest extant Exchequer roll, the date of which 
 (according to Hardy's researches) ma}^ be safely assumed to 
 be 31 Henry I. (1131). This rotulus declares what sums those 
 living within the jurisdiction of the court owed as a result 
 of the iilacita which the commissioners have held; e.g. 
 '' Rohertus films ToU, debet XXX marcas argenti cle placitis 
 G. cle Clinton." The total number of the commissioners who 
 were appointed was nine, among whom are three court lords, 
 whose names also occur in the administration of the Ex- 
 chequer, and as King's counsellors : Ealph Basset, Eichard 
 Basset, and Geoffrey de Clinton. The remaining six are 
 greater vassals of the Crown, residing in the neighbourhood of 
 the counties for which they were associated as commissioners 
 with one of the three first-named. The sums, which were to 
 be paid in to the Exchequer are always only credited to the 
 name of one of them ; and it is never proved that several 
 commissioners were engaged at one and the same time. We 
 can accordingly deduce from these entries, that towards the 
 end of the reign of Henry I. an innovation was introduced, in 
 
 VOL. I. T 
 
274 Constitutional History of England. 
 
 no longer assigning the Crown cases reserved {placita regis) 
 by commission to the sheriffs, but in appointing a special 
 commission to deal with them, which was in the prescribed 
 manner so distributed among the counties, that a royal com- 
 missioner instead of the Vicecomcs held court with the men 
 of the county. Under Stephen, this institution, like the whole 
 central administration, had indeed come to a standstill. But 
 all the more pressing was the necessity which Henry II. 
 found for appointing more vigorous commissions, since, under 
 Stephen's reign, the sheriffs had been appointed by the two 
 claimants to the throne from among their partisans, and the 
 presentation of accounts and inspection of the Exchequer, 
 had both fallen into abeyance. Now begins a much more 
 comprehensive system of itinerant harones or justiciarii; 
 existing both for administrative and judicial purposes, so far 
 as these could be separated from one another under the 
 Norman form of government. (1) 
 
 A system of delegation was very necessary for government, 
 and especially for financial purposes, for in the confusion of 
 the times, the xoyol rights and dues had suffered from 
 numerous usurpations. A uniform rating of the tenants for 
 the tallages and similar impositions was difficult to compass 
 by means of partial and corruj)t sheriffs, the appeals against 
 whom had become more and more frequent and pressing. At 
 
 (1) The system of itinerant justices results are the following?. Under 
 
 has no other origin but the practice of Henry I. the Magnus BoUilus, 31 
 
 the central administration, and the de- Henry I. only gives a limited appli- 
 
 creeing right of the Sovereign, and cation of 'placita regis. During the 
 
 hardly any documentary basis but the first eleven years of the reign of 
 
 notices contained in the Exchequer Henry II. (as under Stephen), a regular 
 
 accounts. Upon this is grounded the institution of the kind cannot be proved 
 
 nummary which Madox has compiled to have existed (Foss, i. 171), It was 
 
 with great care. The later law books the ecclesiastical dispute with Thomas 
 
 speak of the justiciarii errantes, as Becket which first appears to have set 
 
 a customary institution, e.g. Bracton, the great and popular reforms in 
 
 iii. c. 11-13. A review of all the motion. From 1166 down to the close 
 
 various notices is contained in the of this reign, the itinerant commis- 
 
 treatise of Edward Foss, " The Judges sioners form a regular chain, with 
 
 of England " (London, 1848 seg.), the scarcely a break (Foss, i. 174). Tlie 
 
 first two volumes of which deal with objects of the judicial administration 
 
 this period. The author has collected come prominently forward from 12 
 
 from this era personal notices of no Henry II. 
 fewer than 580 justiciaries. The main 
 
Origin of Estates of the Realm, 275 
 
 the same time these commissions served for a periodical 
 scrutiny of the manner in which the Vicccomites discharged 
 their office. To a still greater extent, as early as 15 Henry 
 II., we find commissions of prelates and barons deputed with 
 definite articuU for the purpose of inquiring into abuses of 
 office committed by the sheriffs, their under-bailiffs, the 
 manorial stewards, the foresters, and others. As delegates 
 of the Exchequer, these commissioners are called "harones 
 rrrantcs.'" With these financial schemes military objects 
 could also be combined, which partly afi'ected the castles and 
 their garrisons, and partly other temporary measures. After 
 the year 1181 the more permanent business of organizing the 
 national militia was added to their duties ; and now that the 
 old system of the Saxon national defence was again revived, 
 its uniform enforcement could be secured by means of itinerant 
 commissioners. These commissioners had to gather together 
 and review the men liable to military service {assisa dc arm in 
 JiaheucUs), and to inflict fines on those who neglected to 
 appear. 
 
 Still more general was the need for commissioners for 
 judicial purposes, and especially for the administration of 
 criminal justice. While the land still suffered from the effects 
 of sword law, the right reserved to the sovereign of calling up 
 important criminal cases before him at his court, took an- 
 other form. The King's peace had to be repeatedly pro- 
 claimed ; and where the sheriffs lacked the power or the will 
 to act, it had to be enforced by commissioners, who often 
 proceeded in a summary way. From this point of view, all 
 crimes of violence on life and limb, with rebellion, man- 
 slaughter, arson, robbery, abduction, forgery, '' ef si quse sunt 
 ..similia'' were actually brought ^^ before the royal court" 
 (Glanvill, i. c. 2) ; that is, the reservation of the royal right 
 of intervention had produced a periodical commission of 
 criminal justices delegated from the royal court. At the 
 same time, the Hundred's duty of presentment was re- 
 organized, and the itinerant commissioners were entrusted 
 with the guidance of the parochial committees formed for 
 
276 Constitutional History of England. 
 
 this purpose, according to uniform instructions, capituhr 
 coronse. 
 
 Itinerant commissioners were also employed for the pur- 
 poses of civil actions. The reason for this lay in the 
 nature of the law which was to be ai3plied. The judgments 
 of county and manorial courts touching the inheritance of 
 fiefs, form of dower, and the rights of the feudal lord with 
 regard to his under- vassals, which were still considerably 
 divergent, required to be reduced to a definite uniform 
 system ; and public policy likewise demanded the settlement 
 of questions affecting the status of the knighthood and the 
 freeholders {quwstioncs status). From these and other reasons, 
 an increased number of civil actions are now transferred ta 
 the court (Glanvill, i. c. 3) with the general reservation 
 '' quodlihct placitum de libcro tenemento rcl fcodo potest rcr 
 trahere in curiam suam, quando vult'' (c. 5). After the way 
 had once been opened, a flood of such actions streamed to- 
 wards the court, which was then oj)ened to them only on 
 payment of a fine. A very usual sum was five marks ; we 
 meet once with one mark for an action brought in respect of 
 a hide of land; and then, again, a hundred marks for a suit 
 brought for a manor ; £100 for an action between the abbot 
 and the citizens of Whitby, etc. Sometimes the King grants 
 to persons of rank or to monasteries the privilege that they 
 should be prosecuted at no other place but before him or his 
 chief justice. Hand in hand with this goes the alteration 
 made in the procedure and rules of evidence in the civil action,, 
 which has been touched upon above, according to which, in 
 actions relating to property, and hereditary and possessory 
 suits, the parties were allowed to choose whether the case 
 should be determined by a committee of the lawmen 
 (recognitio), instead of by the duel. As being a deviation 
 from the ordinary- law of testimon}-, this needed a special writ, 
 which was issued on payment of a fine, but at first only to- 
 "well-affected " knights and freeholders. 
 
 This system of itinerant commissioners, emj^loyed for such 
 diverse purposes, remained for a long time in a state of flue- 
 
Origin of Estates of the Realm. 277 
 
 tuation. ]\Iaclox has collected the names of the commis- 
 sioners of 12-13, 15-17, 20-26 Henry II., which occur in the 
 rotuU, But it is difficult to obtain a clear view, as for long 
 their appointment depended upon momentary needs. But 
 the aims of the administration of justice become more and 
 more definite, and financial and military ends and objects 
 are associated with it in a more and more temporary manner. 
 Sometimes we find commissioners who restore order in a 
 certain place (justices of oyrr and terminer) ; sometimes 
 general criminal commissions (justices of gaol delivery) ; 
 sometimes special justices of dower, justices of assize ; and 
 then again justiciarii ad omnia placita, ovjustieiarii itinerantes 
 for general purposes (Bracton, iii. c. 11-13). At the Assize 
 of Northampton, 22 Hen. II. (1176), the institution has 
 attained a more definite form, by the division of the country 
 into six circuits, which even then comprised the same 
 counties as to-day. Criminal as well as civil actions were 
 assigned to the commissioners ; as also were the superintend- 
 ence of the procedure by presentment, the guarding of the 
 royal rights on demesnes, escheats, feudal dues, feudal ward- 
 ships, etc. This arrangement, although it had been settled 
 with the advice of a great assembly of notables, was again 
 altered in 25 Henry II., and a new division into districts 
 attempted. In the year 1194 new commissions were again 
 appointed with an extended employment of juries in civil and 
 criminal cases, and with authority to collect the tallages and 
 •crown dues. Finally, the division into six circuits has lasted 
 down to our day ; though for a long time general and special 
 commissions, regular commissions, and those appointed 
 -ex tempore, continued to exist side by side, {a) 
 
 (a) A new epoch is introduced by ing for all possible expansion of tlie 
 
 the extraordinary Assize of North- royal sovereign rights, still the insti- 
 
 .amptou, 117G; at which the counties tution of itinerant commissioners con - 
 
 Avere distributed into six circuits, and tained a dangerous innovation upon 
 
 three justiciarii appointed for each the Leges Eduardi, and the principle 
 
 •circuit. Here evidently a new organi- of obtaining judgment by a judicium 
 
 zation was intended, for which it" was parium. Palgrave (i. 295) assumes 
 
 <«onsidered once more advisable to obtain (and, for the beginnings of the insti- 
 
 the assent of the 7Hch*ores^en'cX'. Allow- tution, probably rightly enough) tliat 
 
278 
 
 Constitutional History of England. 
 
 The immediate management by the com-t of such an enor- 
 mous amount of business was sure to exercise an important 
 influence ujDon the form of the central government. Hitherto 
 the Exchequer had been the only permanent magisterial de- 
 partment with organized oftices ; all other national business 
 was deliberated upon by informal " conseils,'' and partly dealt 
 with by judicial commissions in the usual forms appointed 
 
 the itinerant justices were only com- 
 missioned to examine into the facts, 
 whilst the judoment was reserved to 
 the King at court. The peculiar form 
 of Norman court justice had, however, 
 brought about in England a submission 
 of the parties, which found no parallel 
 upon the Continent. A royal special 
 commissioner now brought with him 
 the authority of the King himself; 
 whence an appeal to the Cnria Beqis, 
 that is, to the supreme appointing 
 power, was considered useless. Hence 
 can be explained how commissioners 
 in such early times not only acted as 
 expounders of the law, but themselves 
 gave judgment, and that (at all events, 
 to judge by its results) their sentence 
 was considered final. Even in some- 
 what early times the commissions of 
 justices appointed to pronounce final 
 judgment on crimes in the name of 
 Curia Hegis ran, " ad audiemlmn et 
 terminandum." If a number of county 
 justices were associated with these 
 commissions, this Avas but a reminis- 
 cence of the old position of the witan, 
 and soon became a formality. The 
 same fate befel it that appeared, in 
 later times, in the decay of the institu- 
 tion of Schoften in Germany. But if 
 this condition of things, which had arisen 
 from the necessity of justice, was to 
 become a permanent political institu- 
 tion, it can easily be conceived how 
 even an absolute government deemed 
 the assent of the Crown vassals advis- 
 able, especially in those days of church 
 quarrels. We can perceive, neverthe- 
 less, how little tlie resolutions of sucli 
 assemblies of notables possessed the 
 binding force of positive rules of law. 
 Within three years, at an assembly 
 held at W^indsor (25 Henry II.), those 
 resolutions were considerably altered, 
 although at this assembly only a 
 number of prelates and Crown vassals 
 
 are mentioned after the ordinary fashion 
 of royal councils (Parry, Parliaments, 
 16). The country is now divided into 
 four circuits, and the constitution of 
 the commissions altered (Foss, i. 171). 
 In later times, we find, as a rule, at 
 the head of the list of the itinerant 
 justices, such ordinary justiciarii as 
 are at the same time members of the 
 bench of the King's court which had 
 been established in the meantime. 
 Then follow those who were mere justi- 
 c'liv errantes, frequently under-officials, 
 who in later times were promoted to 
 be regular justiciarii. Landowners 
 and clergy of the county were often 
 added to their number, especially where 
 it was a question of collecting tallages 
 and other impositions (Foss, i. 334, 
 335). Under John the circuits were 
 interrupted for several years, especially 
 when the king held circuit in person, 
 in which case he was accompanied by 
 a few justiciarii (Foss, ii. 27). Under 
 Henry III., a bishop or an abbot, and 
 one or two ordinary justiciarii of the 
 " hancum " are generally at the head of 
 the commission ; the others are greater 
 or lesser vassals of the Crown, or clergv 
 of the county (Foss, ii. 191 , 192). In the 
 middle of the thirteenth century, the 
 law-book of Bracton gives us the for- 
 mula of a special writ issued for the 
 appointment of an itinerant justice : 
 " Constituimus vosjustitiarium nostrum, 
 una cum dilectis et fidelihus nostris, 
 A. B. C ad itinerandum iier comitatum 
 W. de omnibus assists et i:>lacitis, tarn 
 coronx nostrx quam aliis, secundum 
 quod in Brevi oiostro de generali sum- 
 monitiime inde robis direeto plenius 
 continetur.^' The manner in which the 
 new institution of recognitiones and 
 the courts of presentment were com- 
 bined with the itinerant justices, has 
 been described above. 
 
Origin of Estates of the Realm. 279 
 
 for the purpose. In this informal manner a permanent 
 creation arises. 
 
 II. This ^yas the origin of a ([Tourt of i^ing^S 9i3tnc]& under 
 the general name of Curia llcfjU — a second permanent official 
 body existing side by side with, and to a great extent blended 
 with, the Exchequer. The judicial cases reserved for the King, 
 which had been in earlier times assigned to the Exchequer 
 or a county court, were now as a rule dealt with by itinerant 
 commissioners ; who might be members of the Exchequer, 
 and also might be other prelates and barons, learned in the 
 business of the courts, and assisted by under-oflficials of the 
 Exchequer or other clerks. These commissioners found 
 themselves on the one hand continually obliged to refer to 
 the Exchequer, with which they remained connected on 
 account of the fees, fines, escheats, forfeitures, tallages, and 
 other financial and military business ; and on the other hand, 
 the itinerant justices had numerous cases to determine for 
 which they had to frame new maxims as well as principles to 
 determine both the procedure and the law which was to be 
 applied. Under Henry 11. there was instituted for these 
 weighty juridical questions a sort of bench or hancum, consist- 
 ing, it appears, at first of itinerant justices, and to a certain 
 extent identical with the functionaries of the Exchequer. 
 The summiis justiciarius is the head of the Exchequer and 
 of the hancum, and there existed for a long time a similar 
 arrangement to that which still exists in England: viz. various 
 magisterial departments composed of the same persons as 
 functionaries. The same person can be in his capacity of 
 itinerant justice, a justice in Eyre ; as a member of the 
 Exchequer staff, he is a baron of the Exchequer ; as a member 
 of the King's court he may be a justice iii banco. Hence it is 
 difficult to determine the exact year with which the formation 
 of a bench of justices began. In any case, the authority we 
 possess is a decree of 24 Henry II., according to which five 
 commissioners were appointed, "who shall not journey 
 through the land, but shall hear pleas at court." The busi- 
 ness was so distributed that the great mass of it was dis- 
 
280 Constitutional History of England. 
 
 charged by the itinerant justices; but the more imi^ortant 
 cases were dealt with by the judicial bench, that is, either in 
 the Exchequer or in the King's court in banco. (2) 
 
 During the second half of the reign of Henry II. we arrive 
 at the following definite results : — 
 
 1. A considerable number of persons form a permanent 
 body of justices, under the title oijusticiarii, who are so styled 
 officially in the royal rescripts. Soon after Henry II., royal 
 patents addressed to the '' Chief Justice and his other justices 
 of England " are met with, which formally express the official 
 character of the ordinary justiciaries. The chancellor, too, 
 acts as justiciary, as do occasionally also all the great officers 
 of State, whom we find among the itinerant justices acting as 
 heads of the commission. That the clergy, being learned in 
 the law and in the discharge of business, are much and con- 
 stantly employed, is shown by a list (Foss, i. 161), in which 
 occur amongst the chancellors and justiciaries of the period 
 the names of five archbishops, eight bishops, three abbots, 
 
 (2) The origin of a Court of King's mrixr There certainly existed a closer 
 
 Bench is in like manner a creation of circle of prelates and barons about the 
 
 the administrative practice. It first person of the King, who as being men 
 
 appears in tlie administrative records, learned in the law were habitually 
 
 is then recognized in the law books as employed in the Exchequer and on 
 
 an existing institution, and is finally commissions ; but they formed no 
 
 traced back to common law. The time *' bench," and had no permanent offices, 
 
 of its origin must be accordingly deter- The assizes of Clarendon, that is, the 
 
 mined by a kind of circumstantial year 1164 or 1165, appear here, too, to 
 
 evidence, to which the word /wsfzcmr««s be the turning point. With this date 
 
 gives us a clue. Formerly every royal begin the regular lists of the itinerant 
 
 commissioner was so called, e.g. those justices. The necessity of issuing 
 
 who were entrusted with the drawing imiform instructions to these commis- 
 
 np of Domesday Book, the royal sioners, and the necessity for a mutual 
 
 commissioners in the army, and even communication of, and accounting for 
 
 ship captains (jnsticiarii navUjn re(jls). the legal principles to be applied, soon 
 
 It was not until the time of Henry II. led to the formation of a bench, in 
 
 that the term received the more special which could be found the necessary 
 
 meaning of a permanent comm/'ssarhix uniformity in practice. A further clue 
 
 for judicial business. Sucli commis- to the date is given by the , fees which 
 
 sioner-justices were formerly no more are paid by suitors for license to bring 
 
 frequently found than were permanent their plea before the Curia Begis ; the 
 
 judicial commissions. The siunmus oldest instances of such fines are found 
 
 )usticiarius, too, does not become an in the Exchequer rolls, 15 Henry II. 
 
 'ordinary officer of the realm until the (Madox, i. 96, 429). Everything points 
 
 time of Henry II. As late as 1165 and to the period 1165-1179 as that in 
 
 1177, Hoveden terms the justices ap- which the Court of King's Bench 
 
 pointed by the King, quite indefinitely originated. 
 '^fideles," ^^familiarcs," and '"^hamnr^i 
 
Origin of Estates of the Realm. 281 
 
 eight archdeacons, and two royai chaplains. From the time 
 of the first formation of the Bench onwards, its members 
 appear as a higher class of ordinary jiisticiarii, taking pre- 
 cedence of those who are mevelj justices itinerant; but the 
 latter were afterwards frequently promoted to be ordinary 
 members of the Bench, (ei) 
 
 2. That at the close of Henry II.'s reign there was a perfect 
 system of procedure before justices in banco at the King's 
 court, is shown by GlauviU's work. This procedure had 
 attained to such a settled and scientific perfection, that an 
 established practice of the judicial body must have for some 
 time existed. With this King's court, the momentous reforms 
 in the procedure of the civil action (recognitio) have been 
 associated by Glanvill; and indeed they were connected by 
 him with the same disputes touching possession, ownership, 
 and inheritance, that were simultaneously decided in Nor- 
 mandy by committees of the ricinetum, committees which had 
 already long existed there as customary enquetes. (b) 
 
 (o) The personal accounts have been action in the curia assumes almost 
 
 oarefully collected iu Foss, vols. i. and the form of a Eoman procedure by 
 
 ii., but a comparatively mixed employ- rescript. The plaintiff must sue out a 
 
 ment of the judges is still continually writ for this purpose, for which he has 
 
 manifest. Thus, for instance, once to apply to the secretary of the King, 
 
 under Henry II., the chancellor and the chancellor. In the regularly recur- 
 
 the constable together hold the assizes ring cases, the writ soon became a 
 
 of Kent ; under Richard I. the chief matter of course, and was to be ob- 
 
 justice, Archbishop Hubert, presides tained from the clerks of the Ex- 
 
 at the county assize, and his col- chequer on payment of a fee. The 
 
 leagues on the commission deal with initiative writs now became fonnulx 
 
 the placita coronx, disseizins, inheri- actionum, obtained tiirough the iuter- 
 
 tauce cases, etc. The royal decree of position of the chancellor as officina 
 
 24 Henry II., according to which live judirin\ Through the association of 
 
 commissioners are appointed •' qui a the itinerant justices witli the county 
 
 curia non recederent,'' hut whose duty courts, a new ordo judicior am niose; 
 
 it is to hear pleas at court (Bened. viz. commencement of the action by 
 
 Petr. 266, a.d. 1178), contains the writ, summons by the sheriff as under- 
 
 origin, or at least is an evidence of the officer of the supreme court, litis con- 
 
 prior existence of a Bench of Judges. tesfatio, and replies according to the 
 
 (h) For the procedure cf. Glanvill, Xorman rules of pleading, in certain 
 
 vii. 9. sec. 7; xiii. 15, sec. 6; ii. 0, sec. cases empanelling of a jury (recor/niVto), 
 
 4 ; V. 4 ; Spence, Equitable Jurisdiction, which in course of practice became 
 
 i. 101, 112, 12S. tSince the acceptance extended to a general employment of 
 
 of ordinary civil suits at court, aud the a civil jury. These oldest pleadings 
 
 allowance of a recognitio, are royal are printed in the " Placitorum Abbre- 
 
 favours, and since hi all cases reserved viatio," (^ISll, folio) more in detail in 
 
 the ruling of the court presupposes a Palgrave, "Rotuli Curirc Regis," vol. i. 
 
 IJersonal act of the sovereign, the civil from G Rich. I., vol. ii. I Job. ; Loud., 
 
/ 
 
 282 Constitutional Ilistori/ of England. 
 
 3. According to an opinion formerly prevalent, a civil 
 division for the comiminia iilacita separated itself from the 
 royal court in Imnco in Richard the First's reign, so that 
 at that early time a double judicial body is said to have 
 existed for the hearing of cases, a hannnn regis or royal 
 court proper, and a hancum enmmvnr. The chief authority for 
 this assumption ^\'as Coke's preface to his Eighth Report, 
 which in making this statement contradicts Lord Bacon. 
 The careful researches of Foss (ii. 161-179) are, however,, 
 sufficient to rebut this view, (r) 
 
 In the whole formation of the King's court i)i hanco, we 
 must not overlook an original and long enduring connection 
 with the Exchequer ; which can be explained by the fact, that 
 the Exchequer had long existed as a magisterial department, 
 in which the procedure of the central administration had 
 become x)re- eminently perfected ; as well as by the fact that 
 the central government still employed the same persons, in 
 varied capacities, sometimes for financial, and sometimes for 
 judicial purposes. This continuous connection is shown in 
 the following points. 
 
 (i.) The sumnuifijusticiarius was the common president of 
 the King's court and of the Exchequer ; and the Exchequer 
 as the elder magisterial department remained so closely 
 associated with the other, that it was not until centuries later 
 that an appeal from the Exchequer was allowed ; whilst the 
 hancum regis became, immediately after its origin, the court 
 of higher instance for the hancum of the communia j^hicita. 
 
 1835-38. The treatise of Gunder- of fact, down to Magna Cbarta, only 
 
 mann, " BesitzimdEigenthmn in Eng- one court in hanco. The proceedings 
 
 land" (Tiibingen, 1864), gives a nseful before it were described by Glanvill 
 
 sketch of this formulary system. See as *■' coram justiciariis in hanco resid en- 
 
 alsoBrunner, "Entstchung der Schwu- tihns.''' Expressions, snch as ''diem 
 
 rgerichte." hahd in hanco," were from Eichard I.'s- 
 
 (c.) It is conclusive evidence, that time tolerably frequent ; royal decrees 
 
 the three passages in Glanvill, which were also issued to the '■^jnstitix in 
 
 speak of the justiciarii in hanco hanco" or to the '■'justiciR' de hanco'* 
 
 residentes do not say a word about a (Foss, ii. 171). The expression hancum 
 
 double hancum, that other testimony (bench), to denote the judicial body 
 
 upon this point is wanting, and also itself, did not, however, become current 
 
 that a chain of circumstances speak until the following period, 
 against it. There existed, as a matter 
 
Origin of Estates of the Realm. 283 
 
 (ii.) All great officers, who were ex officio members of the 
 Exchequer, and had their representatives there, were accorded 
 the same right in the newer King's court. The constable and 
 marshal had accordingly representatives of the same name in 
 the King's court, and in those courts which arose out of it 
 when it became later subdivided. The same right was also 
 conceded to those members, when the Exchequer of Jews 
 became separated from the chief Exchequer. In like manner 
 the office of the hereditary usher became subdivided. 
 
 (iii.) The personal privileges of the officials of the Ex- 
 chequer were transferred to the justiciarius of the newer 
 King's court ; notably an immunity from the common 
 amerciaments of the county and from scutages, and a 
 privileged position in using the court tribunal for the settle- 
 ment of their actions at law. These exemptions were expressly 
 referred to the old privileges of the Exchequer, *' j)t';- lihcrtatem 
 sedendi ad scaccariam.^'' 
 
 (iv.) The offices remained to a certain extent common to 
 both, as was also the court house. The Great Seal was as a 
 rule kept in the treasury of the Exchequer (Foss, ii. 9). The 
 King's court properly followed the person of the sovereign, 
 but its usual seat, notwithstanding, was with the Exchequer 
 in Westminster (Foss, ii. 168). 
 
 (v.) In consequence of the original connection subsisting 
 between both departments of justice, the routine of business 
 was discharged by clerks from the Exchequer ; that is, ac- 
 cording to its older pattern. Hence the unmistakable coin- 
 cidence of the rotuli and records of the Curia Befiis, with the 
 business formularies of the Exchequer. Even after the court 
 had in later times become separated, the fines, amerciaments, 
 tallages, aids, and scutages, were in the old fashion still 
 accounted for to the Exchequer, by the itinerant justices. 
 The old principle '' recordationcm ciiriw regis mdli negare licet " 
 (Hen. I. 31, 49, sec. 4), was an original principle of every 
 royal central administration, and did not first originate in 
 the manner of constitution of the King's court ; both before 
 and after it was a rule for the Exchequer also, for which 
 
284 Constitutional History of England, 
 
 it is incidentally recorded under Edward I. (Madox, ii. 
 25).** 
 
 Both departments are still always regarded as an emana- 
 tion of the personal government. ^' In curia domini regis 
 ipse in propria persona jura dccernit^' (Dial, de Scacc, i. c. 4). 
 The king, when it pleases him, appears himself as an itinerant 
 judge, and presides in person in banco ; instances of this kind, 
 until Edward II., have been collected by Palgrave; and not 
 unfrequently a judgment is postponed on account of the 
 King's absence. The whole primitive form of a king's court, 
 as we can thus perceive, is as unstable as all new creations 
 of administrative practice. With the rise of a judicial body 
 the grand period of the professional bureaucracy in England 
 had arrived. From Henry the First's day an official nobilit}^ 
 begins to be formed, by means of which certain lesser vassals 
 and clerics attain the rank of greater barons. The clergy 
 are still in possession of the Latin official language, but 
 side by side with it, the Norman idiom and other technical 
 qualifications assert themselves, inwdiich the laity successfully 
 compete ; among the latter a class of law jurists raises itself 
 
 ** The Excliequer as a financial army, addressed to the sheriff. The 
 
 body appears under Eichard I. as administrating body consists now of 
 
 severed from the judicial body of the the chief justice and the barons ; but 
 
 Curia Regis. It continues to decide among these the treasurer becomes 
 
 the legal questions within the financial more and more prominent, until, after 
 
 administration, and the King still the disappearance of the chief justice, 
 
 makes use of his right of allowing lie becomes the proper presiding judge, 
 
 ordinary civil actions to be decided at Under Henry III. the office of Chan- 
 
 his will, by the harones scaccarii. In cellor of the Exchequer appears to 
 
 its principal 1 activity, however, the have arisen (IMaunsell, 18 Henry III., 
 
 Exchequer is and remains the centre cf. Thomas, "Materials," 9, 10); in 
 
 of the receipts and disbursements, the any case, from this time he is more 
 
 -court of account for the sheriffs and frequently mentioned. From Edward 
 
 other accounting parties. In the Ex- I.'s time a treasurer's lieutenant is 
 
 chequer the otfice of sheriff" continues also found. The sittings in the Ex- 
 
 to be farmed out. Slieriffs, escheators, chequer are still held occasionally 
 
 and certain under-olficials, take their under the personal presidency of the 
 
 oath of office in it. In like manner King, who at other times gives hits 
 
 from the Exchequer proceeds the orders by writing imder his private 
 
 deposition of individual sheriffs, and seal, or verbally, and quite informally 
 
 under Henry III., even a general by messenger. We shall refer again 
 
 deposition of them all. The taking of (chaps. 22, 23) in the following period, 
 
 oaths of fealty, grants of feoffments, to the position of the chancellor, the 
 
 compromises ad scaccariam, now chancery of the realm, and to the 
 
 frequently occur. From the Exchequer system of the rotuU. 
 issues also the summons of the land 
 
Origin of E-'states of the Realm. 285 
 
 to great importance. In spite of much jealousy an esprit 
 de corps now appears to pervade the great body of eccle- 
 siastical and lay officials, who find their common bond of 
 union in the Chancery and Exchequer. It was the dignity 
 of the profession, and the cultivating influence of their daily 
 occupation of administering justice, which enabled, even 
 under an absolute government, an honourable judicial class 
 to be formed ; just as in ancient days, the Eoman empire 
 developed an honoured juristic bod}^ from the professional 
 administration of justice. After the establishment of a Bench 
 of Judges in the Curia Rer/is, the one-sided fiscal spirit of 
 the Exchequer found a counterpoise under more enlightened 
 reigns. In the law book of Glanvill, which was written 
 as early as the close of Henry the Second's reign, an un- 
 mistakable progress is manifested, not only in the subtle 
 technicalities but also in a worthier conception of the royal 
 vocation of administering justice. Still more clearly is this 
 judicial spirit shown half a century later in Bracton's work, 
 with its very liberal views of the royal duties and of the 
 power of the laws as being superior to the arbitrary' will of 
 the King. 
 
 The old shapeless Curia Ilegis becomes now embodied, for 
 the discharge of two chief groups of national business, in 
 two regularly constituted official bodies, the King's Court and 
 the Exchequer. The transactions in writing between the 
 King and these two are conducted by his cabinet council, 
 the chancellor and his clerks. As a member of each de- 
 partment, the King forms between them a department of his 
 own; one which, as offtcina justicise, regulates the subjects 
 of procedure and the actions dependent upon royal writ, both 
 of which are assigned by writ to their respective tribunals. 
 From the close of Pdchard the First's reign the chancellor 
 keeps his own registers {rotuli cancellaride) which, divided 
 into the heads of Charter, Patent, Fine, and Close Eolls, 
 have been printed in recent years. 
 
 Side by side with these momentous changes in the adminis- 
 tration, are seen the first indications of certain alterations. 
 
286 Constitutional Histori/ of England, 
 
 in the constitution, the importance of wliicli cannot be over- 
 estimated. 
 
 III. (Origin of Wyt Estate of €ireatcr 23arons. In spite 
 of the fully developed sovereign political rights, Henry II. 
 found his position less favourable than that of the first three 
 Norman kings. The prevailing ideas of every age are deter- 
 mined by the immediate past, and tJiis had severely shaken 
 the belief in the omnipotence of the kingly power. Stephen, 
 as well as his female opponent, had granted a number of 
 <joncessions and submitted to a number of humiliations ; the 
 title and the privileges of the royal dynasty had been for 
 twenty years discussed in every cottage. After such events 
 Henry II. did not find it an easy task to restore the old 
 form of government. With the far-seeing shrewdness of 
 his race, he contrived to find first an able bureaucracy that 
 was subservient to him personally, in order to restore the 
 surviving administrative organization. The mass of the 
 'Saxon population was won over by exercising sharp sur- 
 veillance over the sheriffs, by protection afforded to tenants 
 .against the arbitrary imposition of tallages by the landowners, 
 by concessions made to the towns, by a universal extension 
 of legal protection, and by certain restrictions on duelling. 
 The somewhat milder enforcement of the forest laws and the 
 feudal dues, as well as the strict regularity of the whole 
 administration, were acceptable to all classes. 
 
 But the relation between Church and State had become the 
 most strained of all. During the time of sword law, the 
 privileged jurisdiction of the clergy had been expanded in 
 ii manner which was in direct opposition to the uniform 
 system of the Anglo-Norman political government. Henry 
 II. was no less determined to assert his sovereign supremacy, 
 ihan was his ambitious primate, Thomas Becket, to enforce 
 the new principles of the century on behalf of the supremacy 
 of the Church. The ecclesiastical disorders now form the 
 turning-point, at w^iich the King found it advisable to pro- 
 ceed only with the express sanction of the Crown vassals. 
 He did this, as has been explained above (Chapter XY.), 
 
Origin of Estates of the Realm. 287 
 
 simply by summoning to extraordinary court days the more 
 Jistinguished prelates and barons to discuss with them im- 
 portant measures touching spiritual jurisdiction. The first 
 step in this direction was, that in Januar}^ 1164, the King 
 laid before them the sixteen Articles of Clarendon, touching 
 the submission of the ecclesiastical body to the royal feudal 
 and judicial control, and that he had these articles recognized, 
 confirmed, and finally attested, by the greater barons and 
 the bishops. Thus the innate national idea of the highest 
 legislative power, " consensu, melioriun terrse,'' awoke to a new 
 life. As the opposition of the Archbishop still continued, 
 the King soon after summoned not an ordinary judicial com- 
 mission, but for the first time the collective body of the 
 great prelates and barons, in order, by formal judicial 
 sentence, to declare the primate of the realm guilty, and in 
 '^ miscricordia rer/is.'' The idea of an administration of 
 justice by the '' King in the national assembly," is thus re- 
 vived, t 
 
 The unfortunate course of the ecclesiastical controversy 
 caused extraordinary court days to be summoned more than 
 once, at which, in addition to ecclesiastical questions, im- 
 portant reforms of the temporal jurisdiction were put forward 
 for discussion, deliberation, and approval. In these the 
 question was one of fundamental departures from the 
 Judiciuni pariinn, and from the Norman judicial custom of 
 the duel ; a question of principles already enforced in practice, 
 but for which the assent of the vassals of the Crown seemed 
 
 t The state of ecclesiastical affairs the Kin^s; of England was not the sole 
 in the half century from 1164-1214, head. To put an end to this state of 
 undoubtedly prepared the beginnings atiairs, Henry II. decided to summon 
 of a new constitution of estates of the the extraordinary assizes at Clarendon 
 realm. Though tlie encroachments of and Northampton in 1164, to consist 
 the spiritual councils under Stephen of the collective body of great barons 
 formed no recognized precedents, yet of the realm, all the bishops, and the 
 it became involuntarily recognized tliat most distinguished abbots, all of 
 ecclesiastical affairs could not be finally whom emerged from the great mass of 
 ordered by the sole authority of tlie fe»en^es, as an united body. The- name 
 King ; that the Church represented a " assize," which is henceforward used 
 political system standing on its own by historians as well as by legal writers, 
 rights; and that the English Church indicates the beginning of a new con- 
 formed an inseparable branch of a ception, whicli is the first step towards 
 universal Catholic Cliurcli of which legislative parliaments. 
 
288 Constitutional History of England. 
 
 to be advisable, in order to convert decided departures from 
 the legal usage of both nations into permanent national 
 institutions. Seeing that it was vitally important for the 
 King to obtain the vassals' sanction in the ecclesiastical con- 
 troversy, Henry was obliged to make those measures which 
 were essentially necessary for the times more acceptable, 
 by requesting the assent of his Crown vassals, a step which 
 is always popular at the first beginning of a political con- 
 stitution. The King also does not disdain, as in the Anglo- 
 Saxon period, to proclaim once again, with the advice of his 
 Witan, the " King's peace ; " this was published in the Assize 
 of Clarendon with the addition, " qiuim dominns rex Hcnricus 
 consilio arcliiepiscoporum ct episcoporum ct ahhatuiii cwtcrumque 
 haronum suorum constitnit" (Palgrave, i. 257). In this 
 direction two innovations are conspicuous, in which the 
 national fundamental idea of the legislative power is revived. 
 
 1. In place of the informal councils, the collective body 
 of the great prelates, the earls, and great barons were sum- 
 moned ; in the resolutions of the council itself, this '^con- 
 silium arcliiepiscopornin, episcoporum, ahhatum, comituni ct 
 haronum {optimatum proccrum) " is expressly mentioned ; and 
 at Becket's condemnation, this assembly acts as a peers' 
 court in the form of a great feudal curia, and no longer as 
 a judicial commission appointed by royal supreme power. 
 
 2. To take part in the most momentous resolutions on 
 one of these two occasions, there were also invited a number 
 of smaller Crown vassals. To the Assize of Northampton 
 (1176), the militcs ct Jiomines regis, were summoned in 
 addition to the harones ; or, according to other accounts, 
 also the Vicecomites and harones secundw dir/nitatis.'f'f 
 
 tt The necessity of attaching the the public peace (Palgrave, " Common- 
 temporal vassals to the King's cause wealtli," i. 257, ii. 178 ; " Select 
 by concessions, caused Henry in those Charters," p. 143), recognized im- 
 twelve critical years, to take counsel portant institutions which had sprung 
 with his assemblies of notables touch- up from the practice of the courts of 
 ing other points of the temporal juris- law and of police. According to the 
 diction, which produced a material King's idea, these were only deliber- 
 alteration in tlie customary legal system ative estates, and were certainly not 
 (lex terric). The Assize of Clarendon intended to be prejudicial to his 
 (1166) on the subject of maintaining sovereign rights. It was believed that 
 
Origin of Estates of the Realm. 289 
 
 In connection with these events, a distinction between 
 barones majores and minores is first conspicuous in a solemn 
 political act ; and this distinction has until the present time 
 continued to form the subject of lively controversy. The 
 word "baro" originally denoted a man {baron and feme, 
 barones civitatis London, court baron, baron to the Cifique Ports) . 
 After the Conquest it gradually usurped the place of the 
 Anglo-Saxon title of Thane, apparently in order, like the 
 Latin Jiomo, to express the feudal dependence of the "men" 
 upon the King. In comparatively early times, by barones 
 were pre-eminently meant the barones regis ; that is, the 
 tenentes in cajnte, who from the first were divided according 
 to the amount of their property, into greater feudatories and 
 lesser Crown vassals. Thus property qualification becomes 
 again connected with political institutions. Barones majores 
 and minores had for a long period been distinguished in 
 the feudal militia. All such as led divisions of their own, 
 were regarded as bannerets or officers in the feudal army. 
 On the Continent, fifty milites, or at least twenty-five, were 
 reckoned to one banneret ; in England, in proportion to the 
 smaller scale of enfeoffments, a smaller number aj)pears to 
 have formed the unit of the constabidaria. In the active 
 army, the King certainly appointed the commanders, but it 
 was inevitable that the greater vassals, who by virtue of 
 their feudal possessions had to furnish whole constabidaria, 
 should regard themselves as entitled by birth to be officers 
 {seigneurs) of the feudal militia. 
 
 if the magnates of the land had once It may be that it was necessary to con- 
 declared their assent to an institution nect the regulation of the prices of 
 called for by the times, the matter was provisions (as being a measure of vital 
 set at rest by the new institution interest to the national lite) with due 
 having obtained a recognition of its formality with the Assisa de pace ser- 
 legality. This conception the political vanda under Henry II. It is not ap- 
 government adhered to for a whole parent that any general assembly was 
 century. After 1176, we hear no more convoked at this time (25th April, 
 of assizes imder Henry II., nor of any 1204) (vide Selden, " Titles of Honour," 
 under Richard Coeur-de-Lion. It is 735) ; it appears rather that only an 
 not until 5 John that a royal decree ordinary council was held, whose 
 is mentioned (Patent Rolls, 5 Job.) assent it was found advisable to 
 which regulated the " assize of bread," mention at the promulgation of the 
 " communi concilio baronum nostrorum." measure. 
 
 VOL. I. U 
 
290 Constitutional History of England. 
 
 From the first, the distinction between harones majores and 
 minores was known in the Exchequer. Beliefs, wardships, 
 and marriages of the great feudatories formed the principal 
 items in the financial administration. Whilst those of the 
 single knight's fee were fixed at a hundred shillings, those 
 of the greater lordships were not until later times fixed at 
 a hundred marks ; and in this respect we often find a dis- 
 pute, as to whether the relevium of a fief is to be calculated 
 on the fief as a barony, or separately on the single fiefs. 
 In computing the amerciaments again, the greatest feuda- 
 tories are more highly taxed ; on which account certain 
 Crown vassals appeal against their rating as "barons," on 
 the ground that they only possess single fiefs. A notable 
 example of this is the case of the Abbot of Croyland (19 
 Edw. IL). 
 
 From the earliest times harones majores and minores were 
 distinguished at court. Of course it was only magnates who 
 were able to attend the gorgeous assemblies with a retinue. 
 To them by custom an express invitation was issued, and 
 by custom they were treated with much greater distinction 
 than the knight without attendants. 
 
 For the same reason there had long existed in the popular 
 mind and in the language of common life, harones majores, 
 and harones minores. 
 
 We can easily understand from this condition of things, 
 that contemporary writers make use of the expressions 
 '* harones majores et minores,'" in such a manner that a later 
 age was led to conceive of the difference thus drawn as a 
 distinction in rank, which, however, viewed by the light of 
 the law, does not in reality exist. A difference in rank would 
 presuppose that the great estates were held by a special tenure 
 in a different manner from the simple knights' fees, but in the 
 great register of the fiefs made in the time of Henry III. and 
 Edward I., and which was printed in 1807, under the name 
 of Testa de Neville, the terms honors, haronae, and feiicla 
 are used in such confusion that a definite and legal distinc- 
 tion manifestly does not exist. The expert who wrote under 
 
Origin of Estates of the Realm. 291 
 
 Henry VI. his treatise upon feudal tenures (Littleton on 
 Tenures), upon which the later works of Coke and Blackstone 
 are based, knows no distinction between tenure by barony 
 and tenure by knight's service ; and this legal authority is 
 sufficient to determine the question.* Just as little were the 
 greater and lesser Crown vassals distinguished by their family 
 designations. The greatest feudatories are sometimes only 
 denoted by a Christian name, and sometimes by a family 
 name, with or without the prefix " de"; the same is the case 
 with the lesser vassals of the Crown, and also with the 
 under-vassals. In a few families (Baro Stafford, Baro de 
 Greystock) the word "baro'' becomes customary for well- 
 known reasons, yet this is not peculiar to the greater vassals. 
 These circumstances induced the Committee of the Upper 
 House when examining into the question of the peers' dignity, 
 to allow that an "estate of the realm" did not exist before the 
 time of Magna Charta. The actual and social difference was 
 still no legal one, not legal from the point of view of public 
 law, because no cour de haronie existed ; not legal from the 
 point of view of private law, because greater as well as lesser 
 tenentes in capite have equal rights of tenure. 
 
 Notwithstanding that the state of the kingdom had repeat- 
 edly compelled Henry II. to accord to the most consiDicuous 
 spiritual and temporal vassals a voice in legislating, yet it is 
 
 * In the relations of private law no that even in the practice of the Ex- 
 difference could anywhere be found chequer as it was in those days, there 
 between a knight's fee and a barony. existed as yet no fixed terminology. 
 All the incidental distinctions only rest The law book of Bracton (ii. p. 39, sec. 
 upon the administrative practice ; and 6) is the first to testify that in those 
 even in the Treasury records it took a days the tribunals began in certain 
 long time before the various amounts particulars to distinguish between " ha- 
 of the relevia led to a fixed distinction; ronia " and " vasoria " ; " quod dicetur 
 as in the Rot. 9, Henr. III., " Per in- de haronia non est ohservandum in va- 
 quisitionem, quam Rex prxcepit fieri, soria, vel aliis minorihus feodis quam 
 idem Walterus tenuit de Rege in capite haronia, quia caput non hahent sicut 
 perfoedummilitis,etnonperharoniam" haronia." But this conception only 
 (Madox, i. pp. 318, 681, where we also dates from the middle of the thirteenth 
 find other instances of the use of" haro- century. It was not until Henry III.'s 
 nia " and " Iwnor " for those possessions reign, after Magna Charta and a multi- 
 which pay the great relevium of a tude of other precedents, that the 
 hundred marks in a round sum). The popular tongue began to speak of the 
 manner in which the "■ Dialogus de "baronage" as the sum total of all 
 Scaceario" (ii. cap. 10) speaks of the greater Crown vassals (Parry, 
 ^^baronice majores et minores" proves "Parliaments," xi.). 
 
292 Constitutional History of England. 
 
 clear that the King in convoking the notables had just as 
 much freedom of action as he had in originating all the 
 consilia optimatum. The summons was issued on the ground 
 of personal confidence, and especially to such as were already 
 honoured with important confidential offices, it was issued in 
 accordance with the custom of the court, which had always 
 honoured certain great vassals with a personal invitation 
 (writ), and it was issued on the basis of the size of their 
 estates, which was known in the Exchequer, and with regard 
 to the distance at which their places of residence lay, of course 
 paying due regard to their personal standing and the opinion 
 of their compeers. And accordingly these conventions were 
 not " feudal parliaments," but only great councils of notables, 
 and for that reason they cease, and disappear for more than 
 a generation. 
 
 As to the form and effect of such a summons, nothing 
 was definitely settled in this period. But there were prece- 
 dents extant, cases in which the King had taken the opinion 
 of his vassals ^' super arcluis negotiis regni,'^ and had obtained 
 their assent. If this assent was proper in the eyes of the 
 King, it appeared still more proper in the eyes of the vassals. 
 For resolutions of this kind the denotation ** assisa,'' bor- 
 rowed from the feudal curiw of the Continent, is used ; and 
 even the law book of Glanvill, in dealing with material altera- 
 tions made in the legal and judicial constitution, lays stress 
 upon the question whether they had been brought about by 
 an assisa generalis or not. The monarchy in these convoca- 
 tions had pursued merely temporary aims ; but for the first 
 time for many long years the great barons had again assembled 
 in the political councils. The historians speak again of the 
 King as ''cum principibus suis de statu regni et de pace confir- 
 manda tractans.'^ The rights of the estates of the realm had 
 once more attained a definite form, and on this account the court 
 days of Henry II. were important precedents and of consider- 
 able moment in the events which led to Magna Charta, and 
 also as one of the bases of the later parliamentary law.ftt 
 
 ttt The impediment to progress in the nature of the Crown vassal 
 this direction lay at this time still in itself, which, consisting as it did of 
 
Origin of Estates of the Realm. 
 
 293 
 
 huudreds of small feudal possessors, 
 did not contain the element of a poli- 
 tical peerage. This ditficulty increased 
 just in the times of the Crusades by 
 reason of the numerous alienations of 
 single knights'-fees and smaller parcels 
 of land; so much so tliat we now meet 
 ■with tenentes in capite in possession 
 of one-twentieth, one-hundredth, or 
 one three-hundredth of a knight's fee. 
 As it was impossible to draw a sharp 
 line between the greater and lesser 
 vassals, only the form of the royal 
 summons remained wherewith to form 
 an assembly of notables capable of 
 legislating. If this summons was 
 wanting, there was an end of the gi'eat 
 court days. And thus it came to pass ; 
 the Assizes of Clarendon and North- 
 ampton were not repeated for a whole 
 generation. — In modern times the 
 critical theme of harones majores and 
 minores has been again treated of in 
 
 detail by Hallam ("Middle Ages"), 
 and with much caution in the Peers' 
 Eeport (iii. 87, 97, seq., 109, seq. 
 254). If in the latter we are forced to 
 acknowledge that the summons to a 
 consilium regis at this period was ex- 
 clusively dependent upon an act of the 
 sovereign, this negatives the idea of 
 an " estate of the realm " consisting of 
 Crown vassals, since the choice among 
 hundreds was entirely dependent upon 
 royal writ. The English nobility itself 
 would be brought into difficulties by 
 the confused idea that every vassal of 
 the Crown in the Norman Curia Begis 
 was entitled to a seat; for the claims 
 to a seat in the present House of Peers 
 would have been innumerable if every 
 descendant of a possessor of three or 
 four hides, who at one time or other 
 had belonged to the tenentes in capite, 
 could lay claim to baronage by tenure. 
 
294 Constitutional History of Erigland. 
 
 CHAPTEK XVIII. 
 
 i^apa OTDarta. 
 
 After the rule of Henry II., which was energetic, though in 
 its latter years full of vicissitudes, comes Eichard Coeur-de- 
 Lion, adventurous and aimless, but a faithful reflex of the 
 times in which he lived, and accordingly popular. The 
 regency, appointed for the time of his crusade, soon came 
 into conflict with the great barons and with the King's 
 brother John. During the absence of the King, England 
 again saw one party of the barons in feud with another 
 discontented faction. With his return from captivity the 
 personal rule of the King is restored, and he now holds a 
 court day {colloquium) after the old fashion, sits in judgment 
 upon his brother John and upon a bishop, imi)oses a hide- 
 tax of two shillings upon every hide of land ; but, engaged 
 in unceasing feuds upon the Continent, loses his life at a 
 siege. The absence of this knight-errant from English soil, 
 which was, with the exception of a few months, continuous, 
 proved extremely beneficial, in so far as it rendered the con- 
 tinuance of an organized internal government possible. 
 
 The reign of John which followed appears again to unite in 
 itself the worst qualities of the Norman system. This King, 
 who had already proved a faithless son and treacherous 
 brother, forfeited by the murder of his nephew Arthur his 
 French fiefs, and thus brought about the separation of Nor- 
 mandy from England. He involved himself in a struggU 
 
Magna Charta, 295 
 
 with the papacy, and concluded it by a humiliating submission. 
 In his government of the realm he was still more aimless 
 than Eichard, harsher and more avaricious than any of his 
 predecessors ; he estranged all classes of the people succes- 
 sively by cowardice and cruelty, by greed and arbitrariness. 
 At length he brought about a crisis in which all elements of 
 opposition against absolutism leagued themselves together 
 and took action in common. 
 
 First and foremost among these opposing forces stood the 
 Church, which even under Henry II. had asserted itself as a 
 power equal with the monarchy. The time had arrived when 
 Innocent III., in the zenith of his might, at the Lateran 
 Council (1215) proclaimed the Church as the universal 
 monarchy. In his rupture with this power John brought 
 matters to such a pass, that the Bull of excommunication 
 was proclaimed to his face, and his deposition from royal 
 dignity, and the absolution of his subjects from their oath of 
 allegiance were published upon English soil. 
 
 But among the temporal vassals also much had been 
 changed since the Conquest. Since the Crusades the con- 
 sciousness of the dignity of the military profession had 
 mightily increased. The strength of the heavy-armed war- 
 riors had for generations decided every conflict ; all the 
 power of princes now primarily depended upon the number 
 of such warriors. The equal balance of conditions through- 
 out the whole of Christendom, and the sanction of the 
 Church, had created an esprit de corps, which under the walls 
 of Jerusalem had formed for itself an universal code of 
 honour, which even princes could not refuse to acknowledge, 
 and which found in tournaments and social customs further 
 sui^port and expression. Whilst therefore the barony and 
 knighthood began to feel themselves a unity, they were 
 bitterly aggrieved by the arbitrary imposition of scutages 
 and income taxes ; and now, too, when in the Exchequer and 
 in the government of the country bailiffs the prosaic system 
 of amerciaments and fines had reached its climax, John, as 
 the guardian of orphans, dealt with his feudal wards with 
 
296 Co7istitutional History of England. 
 
 unheard-of injustice, and regarded the wives and daughters 
 of his greater vassals as objects for his Hcentious desires. 
 
 In the towns of England also, as well as amongst the 
 freeholders, much had in the course of time been altered. 
 The extension of the feudal law, with its rigid rules of inalien- 
 ability and primogeniture, to the whole landed property, had 
 in its very excess become an unnatural system, in opposition 
 to which the natural laws of political economy and family 
 life tacitly asserted their rights. By the circuitous path of 
 royal licence on payment of a fine the alienation and partition 
 of feudal estates had to a considerable extent been resumed. 
 Marriage and decease, inheritance by daughters in equal 
 shares, escheat and regrant in smaller divisions, subinfeuda- 
 tion, and even direct selling in parcels (which was done by 
 the vassals on embarking for crusades, and was favoured by 
 the Crown) had brought about new estates of freehold in 
 land. Mercantile and commercial business, promoted by the 
 crusades, which had exercised a most beneficial influence 
 upon the cities and boroughs, had, after the time of Eichard 
 I., raised a considerable number of English towns to a high 
 degree of independence. This class also, in spite of its innate 
 loyalty, was in a humour to make common cause with the 
 spiritual and temporal Crown vassals against despotism.* 
 
 * The events of the origin of Magna be considered a patriot. But imme- 
 
 Charta have been portrayed by liisto- diately after success had been gained, 
 
 rians with justifiable ' predilection. the imperious behaviour of the Curia 
 
 (Of. Lappenberg-Pauli, iii. 293-487.) towards the barons reminded the nation 
 
 For the purpose of this description only too sensil)ly that a spiritual abso- 
 
 it is important to consider the rela- lutism existed side by side with the 
 
 tionship between the powers who temporal. Amono: the Crown vassals 
 
 league together in the act of June 15th, of this period the majority had only 
 
 1215, against the monarchy; and the risen to importance under Henry II., 
 
 shifting of which in the following half- and owed their influential position to 
 
 century brought about such a marvel- the newer system of political adminis- 
 
 lous change in their positions. The tration. At the head of the armed 
 
 counterforce of the Church was at tliis opposition stood pre-eminently the 
 
 time the most imposing as well as the northern barons. In the framing of 
 
 most stable. Archbishop Stephen Magna Charta, the school of the official 
 
 Langton himself, in spite of his pro- nobility formed under Henry II. is 
 
 motion by the Pope, strongly impressed recognizable. All parties of the then 
 
 by the popular feeling, not only under- existing nobility apparently took very 
 
 took for a time the conduct of the slight interest in the possession of 
 
 movement, but remained staunch to Normandy ; for the re-conquest of 
 
 the right cause, and may with justice which no efforts ever appear to have 
 
Magna Charta, 297 
 
 But it was, above all, the blending of the Franco-Norman 
 and the Anglo-Saxon nationalities, by this time complete, 
 which had imperceptibly undermined the foundations of abso- 
 lutism. For five generations they had now lived together 
 under one Church, one kingdom, one administrative system, 
 enjoying peace in common, and suffering equal oppression. 
 The period of sword law under Stephen, and still more the 
 ecclesiastical controversy with Thomas Becket, had at times 
 elevated other antagonism above the national dissension. 
 Parochial and family life had made intermarriage between 
 the Angli and Francigenge a daily occurrence. Under the 
 strong political and ecclesiastical power a new insular national 
 culture became matured, which through the separation of 
 Normandy from England developed its own characteristics. 
 In this new creation the Saxon element predominated, not 
 merely in numbers, but in those peculiar attributes of character 
 which the Anglo-Saxons retained unchanged in their family 
 life, their manners, and their language. The sober, moral 
 earnestness of this family life, in contact with the brilliant 
 and volatile nature of the Franks, proved the stronger of the 
 two elements ; and finally in Church and State, in the com- 
 munity, and in the family, assimilated to itself the Frankish 
 character until, in spite of a continuing difference in language 
 and in class ideas, it became once more predominant in the 
 nation. The greater portion of the powerful classes in the 
 country were indeed still by name and descent Francigenae ; 
 but with each successive generation, the population of the 
 British Isles became more and more consolidated into the form 
 of a nation Germanic in character.** 
 
 been made. The powers of resistance rendered a lasting resistance imprac- 
 
 displayed by the Crown vassals cer- ticable. Hence can be explained why 
 
 tainly seem to have been strengthened the barons, after a few months' struggle, 
 
 by the spirit of knighthood, and by were no match for the financial power 
 
 the sympathies of the under-vassals of the King, with his paid soldiery 
 
 and freeholders. But custom knew no and garrison troops. Tlie increasing 
 
 otljer than a royal authority in tlie importance of the freeholders and 
 
 feudal militia, and that body easily cities has been already adequately 
 
 became disorganized under a marshal estimated by Spelman " on Parlia- 
 
 of their own choosing. The scattered ments " (c/. Peers' Report, i. pp. 32, 35, 
 
 position of the military fiefs, and and below, cap. xix.). 
 above all the want of financial means, ** The most significant new basis 
 
298 
 
 Constitutional History of England. 
 
 It is these elements that are comprehended in the world- 
 renowned events of the 15th June, 1215, which, under the 
 name of "Magna Charta," are rightly regarded as completing 
 the foundation of the English constitution. From the moment 
 when John in his ecclesiastical dispute had collected together 
 the whole military array of his realm to oppose the King of 
 France, the consciousness of their relation to this monarchy 
 
 is doubtless the reconciliation of the 
 national antipathies, to which the often 
 quoted testimony of the " Dialogus de 
 Scaccario" refers: '"'■ Jam cohabitantihus 
 Anglicis et Normannis et alterutrum 
 uxores diicentibus vel nuhentihus, sic 
 permixtas sunt nationes, ut vix cliscerni 
 possit liodie, quis Anglus quis Nor- 
 mannus sit genere." Although in 
 former times the national contrast of the 
 Franco-Norman and English nation- 
 alities was perhaps overrated, yet the 
 recent researches of Freeman (vol. v. 
 Appendix W)- perhaps, on the other 
 hand, go too far in weakening and 
 underrating the national contrast. 
 " What Englishmen suffered from was 
 mainly that irregular often rmdesigned 
 oppression, which must take place 
 when the laws of a conquered people 
 are administered by their conquerors " 
 (Freeman, iv. p. 14). " The success 
 of William's invasion was a distinct 
 triumph of one language, one mode 
 of warfare, of one social and ijolitical 
 system over another" (Freeman, iv. p. 
 17). The point of view insisted upon 
 by Stubbs is correct, that the Norman 
 monarchy, with laudable consistency, 
 upheld the legal equality of the two 
 nations, and that the pressure of the 
 Norman nationality was principally 
 owing to the Normans having taken 
 possession of the high offices in the 
 State and the great landed properties. 
 The national contrast is crossed by 
 this social one, but the national anti- 
 pathies in consequence were rather 
 embittered than mollified. A deeply 
 rooted national dissension is proved 
 not only by credible historical evidence, 
 but above all by the uniform bearing 
 of the Anglo-Saxon population at every 
 attempt at insurrection by Norman 
 great vassals ; it is evidenced also by 
 the decomposition of the constitution 
 of the counties, which was every- 
 
 where visible, owing to internal dis- 
 sensions, that could only be rooted in 
 the national element. Absolutism was 
 founded on these dissensions alone, 
 and that it had taken root there is 
 shown by the stability of the tendency 
 to freedom from the moment of tlie 
 blending of nationalities. In spite of 
 all changes which the positions of 
 power and party underwent in the 
 following generations, this progress 
 remained irrevocable ; it consolidated 
 itself in each successive generation, 
 and triumphantly led the emancipa- 
 tion of the estates to further victories, 
 up to the close of the Middle Ages. 
 But in this blending the Germanic 
 element had become the preponderating 
 one, just as Magna Charta did not 
 arise from the Franco-Norman, but 
 from this national spirit. It was 
 Unally the toughness of the Saxon 
 nationality winch saved England's 
 freedom. W'hilst on the Continent 
 Iiomans and Romanized Celts crowded 
 to the courts of the magnates, the Saxon 
 Thanes and peasants remained apart 
 during these hard times, and shut 
 themselves within their fortified farm- 
 houses. Whilst the adaptive Scandi- 
 navian Normans in their settlements 
 in Normandy had, after a few genera- 
 tions, como to use the language of their 
 wives, and had become Frankish in 
 manners and customs, in England the 
 Norman element which had become 
 French had not, in spite of the position 
 of the ruling class which it had held 
 for centuries, been able to introduce 
 one-tenth of its foreign words into the 
 English tongue as it is spoken to-day, 
 or more than three words into the 
 English Lord's Prayer (Hickes, The- 
 saur., Pref., p. vi.). Finally, it was 
 the qualities in character which 
 decided the issue in the question of 
 nationality. 
 
Magna Charta. 299 
 
 awoke in the breasts of the peo|)le. The papal legate had 
 laid before the King proofs of the understanding subsisting 
 between the barons and King Philip, and had thus in the 
 first instance procured the humiliating submission of John 
 to the papal throne, which threw the country into greater 
 agitation than the interdict. At the meeting of the mag- 
 nates in St. Paul's on the 25th August, 1213, a confederacy 
 was formed, which, supported by a great proportion of the 
 prelates, advanced slowly in its claims against the Crown. 
 It was not until towards Easter, 1215, that an army collected 
 at Stamford, consisting of two thousand knights, with a 
 numerous following on horse and on foot, amongst w^hom 
 were some great feudatories, but especially younger sons of 
 the first families in the land. They chose Eobert Fitzwalter 
 as Marshal of the " army of God and of the Holy Chm^ch," 
 obtained release from their oath of fealty from the canons of 
 Durham on the 5th of May, but only succeeded in gaining a 
 firm footing against the King and his garrison troops when, 
 in league with the citizens of London, they had won that 
 great fortified place. In this crisis negotiations for jpeace 
 are made upon the meadows of Eunnymede (15th to 19th 
 June, 1215), in which the King, with his small retinue upon 
 the one side, and the rebellious barons in full martial array 
 upon the other, treat together, the Earl of Pembroke acting 
 as mediator. The barons (perhaps Archbishop Langton 
 himself) had originally drawn up in formal articles the griev- 
 ances of the country, articles which, revised and . completed, 
 were recognized by the King by the affixing of his great seal, 
 and being then formally issued, were raised to a royal 
 charter.*** 
 
 *** The autlientic versions of and touch upon it incidentally; its prac- 
 
 legal treatises upon Magna Charta tical judicial effect demanded a pre- 
 
 have not been prepared with quite vious specialization through the long 
 
 that care which would have been ex- series of Acts of Parliament which 
 
 pected from the importance of the sub- have proceeded from its fundamental 
 
 ject. Jurisprudence, which is always principles. It was not until after the 
 
 slow in dealing with political questions, days of the Stuarts that the science 
 
 paid for a long time but little attention of jurisprudence did justice to Magna 
 
 to the charter. The law books of Charta, more especially in the restora- 
 
 Bracton, Britton, and Fleta scarcely tion of the authentic text. The ori- 
 
300 
 
 Constitutional History of England. 
 
 Magna Charta leads us back to the details of the Norman 
 administrative law, so that the sketch I have hitherto given 
 will also serve as a commentary to it. To begin with, 
 however, the relations subsisting with the Church must be 
 especially remarked. Only in close alliance with the English 
 prelates were the barons able to wage war against the 
 monarchy. The charter granted in former days touching 
 the freedom of ecclesiastical elections (p. 240) was ac- 
 cordingly confirmed, and was to be faithfully adhered to. 
 The ^^ separation " of Church and State was still popular, 
 as being opposed to absolutism ; and neither the baronial 
 class nor the English population thought of interfering with 
 the position the Church had now attained. The articles 
 of Magna Charta accordingly only lay down legal limitations 
 of the secular authority as to which the order in which 
 we have hitherto considered them appears applicable and 
 convenient. 
 
 ginal document has been described by 
 Blackstone (" The Great Charter," pp. 
 XV., xvi). It is preserved in the 
 British Museum (cf. Lappenberg- 
 Pauli, iii. 424). Of the copies which 
 were circulated by the barons only 
 two have been found by the Record 
 Commission, at Lincoln and at iSalis- 
 bury ; the first is taken for the text in 
 Rymer, i. 131, and in the " Statutes of 
 the Realm," i. 7(Lappenberg-Pauli,iii. 
 436). Of the treatises three may per- 
 haps be particularly mentioned : — 
 
 (i.) Blackstone, "Tlie Great Char- 
 ter" (Oxford, 1759 fol.), in which the 
 course of the editions and the confirma- 
 tions until the end of Edward I.'s reign 
 are described with critical care. Then 
 follows the reprint of the thirty-nine 
 articles, upon which Magna Charta 
 was based (pp. 1-9) ; then the correct 
 text of the charter drawn up in sixty- 
 three articles, 15th June, 1215 (pp. 
 10-24). To these tire added the more 
 important later versions, especially 
 Magna Charta, a.d. 1217, 9 Henry HI. 
 
 (ii.) A legal commentary is given 
 by Coke (Inst., ii. pp. 1-78) on the 
 articles of the charter as contained in 
 the version of 9 Henry III. Some 
 serviceable additions are contained 
 
 in Barrington's " Observations on the 
 more Ancient Statutes, from Magna 
 Charta to 21 James I." (5th edition, 
 1796). 
 
 (iii.) An excellent reprint, now 
 readily accessible, is given by Stubbs 
 in his " Select Charters," consisting 
 of the draft made by the barons (p. 
 289), the first version (p. 296), and 
 the later alterations in the text under 
 Henry III. (pp. 339, 344, 353, 365, 
 377). 
 
 In the ordinary editions of the 
 " English Parliamentary Statutes," 
 Magna Charta is only given in its 
 later form (9 Henry III.). The ofii- 
 cial edition of the "Statutes of the 
 Realm," which was issued by the Record 
 Commission, gives the original docu- 
 ments; the most important of them with 
 the addition of a facsimile. The ar- 
 rangement which is appended follows 
 the development of the Sovereign 
 rights, but in detail the sequence of 
 the articles. An arrangement of the 
 articles according to ranks and classes 
 for which they were framed is given 
 by David Rowland (" Manual of the 
 English Constitution," London, 1859, 
 pp. 50-60). 
 
Magna Charta, 301 
 
 I. The first group of articles deals with the legal limitations 
 of tj^e fculJal military potoer, principally viewed from the 
 financial side ; touching wardship, marriage, and the amount 
 of reliefs and aids. Herein the ancient right of the Crown 
 was recognized, but an unfair interpretation of it for fiscal 
 purposes, and excessive claims, were prevented by a reduction 
 to fixed payments. The relevium of the estate of a comes was 
 fixed at i!100 in silver, that of a Crown vassal at 100 marks 
 in silver, and that of the single knight's fee at 100 shillings 
 (Art. 2). The feudal guardian of minors is to have his proper 
 income and services; he is not to lay waste the lands, but 
 rather to keep them in condition (5, 6). Feudal heirs are 
 to be married suitably to their rank (7). The widow is to 
 have her dower, and must not be compelled to marry again 
 (8, 9). Arts. 12 and 14 (dealt with below, Y.) relate to the 
 imposition of scutagia and auxilia. No mesne lord is to be 
 allowed the right of taking other auxiliahom. his under -vassals 
 than a proper aid in the three ancient customary cases (15). 
 No one shall be constrained by distraint to do more services 
 for a knight's fee or another free fee than he was bound to 
 do formerly (16). No governor of a castle shall compel a 
 knight to pay money for the castle guard, if he performs it in 
 his own person, etc. (29). Moreover, all these regulations 
 are to be recognized by the feudal lords as binding on them 
 with regard to their men (Art. 60); " nines autem istas 
 coiisuetudines pi'edictas et libertateSj quas nos concessimus in 
 regno nostro tenendas, quantum ad nos pertiiiet ei^ga nostros, 
 omnes de regno nostro tarn clerici quani laid ohservent quantum 
 ad se pertinet erga stios.'' A great portion of these feudal 
 articles is in accordance with the old promises of the charter 
 of Henry I., but differs from the latter in its much more 
 determinate framing, and providing for the sub-vassals, and 
 for proper execution. (1) 
 
 (1) Legal limitations of the feudal per commune consilium regni nostri, 
 
 military poicer are especially contained nisi ad corpus nostrum redimendum 
 
 in the articles 2-8, 12, 14, 15, 16, 26, et primoaenitum filium nostrum militem 
 
 29, 43, 60 ; " Nullum scutagium vel faciendum et ad'filiam nostrum primo- 
 
 auxilium ponatur in regno nostro^nisi genitam semel maritandam, et ad hoc 
 
302 Constitutional History of England. 
 
 II. Hegal limitations of t^c futiicial potocr. (i.) Concerning 
 civil justice: the hearing of ordinary civil actions shall no 
 longer follow the royal court, but shall be held in some 
 certain place (Art. 17). The civil assizes shall be held once 
 a year in every county by itinerant justices (18, 19). None 
 are to be appointed jws^icmni,. county and local justices, who 
 are not versed in the law of the country, and willing to duly 
 observe the same (45). The arbitrary and disproportionate 
 fees exacted for judicial proceedings are to cease: " nulli 
 vendemus, nulli negahimus aiit differ emus rectum vel justitiam " 
 (40) ; and as a fact, from that time the great fines derived 
 from actions, and the sums paid for stay of judgment dis- 
 appear from the Exchequer accounts. (ii.) Concerning 
 criminal justice: no Vicecomes, no constable of a castle, or 
 local bailiff of the King, shall from this time forward exercise 
 in his own right criminal jurisdiction and decide placita corona 
 (24) ; it is manifest again from this how popular the cen- 
 tralization of justice at the expense of the county and town 
 bailiffs had become. 
 
 But the most essential clause, which also relates to legal 
 procedure, is the fundamental article 39 : '' Nullus lib er homo 
 capiatur, vel imprisonetur aut dissaisiatur aut utlagetur aut 
 exidetur aut aliquo modo destruatur, nee super cum ihimus, 
 nee super eum mittemus, nisi per legale judiciiim pariuin suorum, 
 vel per legem terrse.'" This is the assurance of the continuance 
 of the Leges Eduardi, of the traditional judicial constitution 
 with its legal protection accorded to person and property. 
 By "judicium parium " is meant, not such a jury as in the 
 year 1215 existed only in civil procedure, in the elements of 
 a jurata, but judgment by peers. The addition of " vel per 
 legem terrse'' runs in one copy " ei per legem terrm {" veV in 
 the language of this time often occurring for " ef) ; accord- 
 ingly, this clause deals with the frequently repeated assurance 
 of the traditional law of the land and judicial procedure ; but 
 
 non fiat nisi rationahile auxilium" lihertates were also to be observed by 
 (12) ; summons of all Crown vassals the feudal lords towards their sub- 
 to the commune consilium in such vassals (60). 
 cases (14, below, note 5). All these 
 
Magna Charta, 303 
 
 the assurance is more strictly framed, and demanded in its 
 present shape by the Norman magnates themselves, and 
 accordingly guaranteed again by them to the liheri homines 
 of the realm. (2) 
 
 III. Hcgal limitations of t^e polict pototr. The main point 
 lay in the system of amerciaments ; for by the imposition of 
 police fines every judicial protection of person and property 
 could be rendered illusory. Magna Charta (20), directs the 
 following provisions against such abuses : (i.) The police fines 
 shall correspond in amount to the magnitude of the offence : 
 ^^ Liber homo non amercietur pro parvo delicto nisi secundum 
 modum delicti, et pro magno delicto amercietur secundum 
 magnitudinem delicti.'' (ii.) The execution in respect of police 
 fines is to take place with the heneficium competently, in such 
 a manner that every liher homo should save his necessary 
 subsistence (contenementum), the merchant his merchandise 
 (marcandisa) , and the villein his implements of husbandry 
 (ivaignagium). (iii.) For the condemnation of any to an 
 amerciament, a co-operation of the " good men " of the neigh- 
 bom'hood shall be necessary ; that is to say, a summary 
 judicial proceeding : '' et nidla predictarum misericordiarum 
 ponatur, nisi per sacramentum p)rohorum hominum de visneto.'' 
 This comparatively immaterial and often disregarded pro- 
 vision cuts at the root of an arbitrary police power, and of 
 such regulations as are contrary to the constitution ; and in 
 
 (2) Legal limitations of the judicial agreed on as to the proper course of 
 
 poicer are comprised in the clauses 17- justice : " Sed et concessum est, quod epis- 
 
 19, 24, 34, 38-40, 45, 54, as follows : — ■ copi, et abhates, comites etharones, vassa.^- 
 
 " Communia placita non sequantur cu- sores et lihere tenentes non ad vohinta- 
 
 riam nostram sed teneantur in aliquo tern justiciariorum vel ministrorum 
 
 certo loco^* (17); "?n(Z/zfs Vice-comes^ Domini Begis, de terris et catallis suis 
 
 constahidarius, coronatores vel alii bal- dissaisientur, sed judicio curix Domini 
 
 livi nostri teneant placita corona nos- Begis secundum legitimas consuetudines 
 
 trie " (24) ; " nihil detur vel capiatur de et assisas tractabuntur vel per manda- 
 
 csetero pro hrevi inquisitionis de vita vel tum Domini Begis." " Ntdli vendemusy 
 
 membris, sed gratis concedatur et non nulli negabimus aid differemus rectum 
 
 negetur" (36). '' Nidlus liber homo aut justitiam (-iO). Article 42 provides 
 
 capiatur vel imprisonetur," etc. (39 v. that the county court shall be held 
 
 above). This essential clause had, every month, the sheriff's tourn twice 
 
 moreover, a precedent ; for already a year ; the yearly sittings of the itine- 
 
 during the conflict between the regency rant justices are to be reduced from 
 
 appointed by Richard I. and the barons, four to one. 
 a similar assurance had been mutually 
 
304 Constitutional History of England. 
 
 the course of the period in which the estates of the realm 
 were formed, was thoroughly carried out by the co-operation 
 of parliament. A writ, '' de moderata misericordia,'' carried 
 out in principle the appeal to legal process against police 
 fines and administrative executions even in the local courts. 
 A fundamental rule of liberty to move from place to place, 
 to which the clergy also could appeal in their intercourse with 
 Eome, is contained in article 42 : '' Liceat imicuique de csetero 
 exire de regno nostra et redire salvo et secure per terrain et per 
 aquam, salvafide nostra, nisi tempore guerrm per aliquod breve 
 tempiis propter communem utilitatem regni, exceptis imprisonatis 
 et utlagatis secundum legem regni, et genti de terra contra nos 
 guerrina et niercatoribus, de quibus fiat sicut predictum est.'' (3) 
 
 IV. Hegal limitations of tbe financial polocr are already com- 
 prised in the provisions touching the feudal power. Whilst 
 those, however, are only in favour of the upper classes, a 
 number of the hardships inflicted by the fiscal Government 
 upon the freeholders and cities are next dealt with. As to 
 the auxilia (properly tallagia) of the city of London, the 
 same rule is to be applied as in the case of the aids of the 
 feudal vassals (12). London, and all other cities, burghs, 
 villse etportus, are to have their " Ubertates et liberas consuetu- 
 dines " (13); merchants their trade and traffic secure, and free 
 from all arbitrary impositions and tolls (41). There shall be 
 one weight and measure for the whole country (35). No city 
 and no freeholder shall be compelled to build dykes and 
 
 (3) Legal limitafions of the police " omnia amerciamenta facta injuste et 
 
 poicer are contained in articles 20-22, contra legem terrse omnino condonentur, 
 
 24, 32, 39,42, 54, 56, primarily concern- vel fiat hide per judicium XXV haro- 
 
 ing the system of police fines : " liher num" etc (55, 56). The carrying out 
 
 homo non amercietur pro parvo delicto of these principles was primarily the 
 
 nisi secundum modum delicti" etc. duty of the Exchequer and the King's 
 
 (Art. 20, vide above). In the ca?e of court, as the courts of higher instance 
 
 Crown vassals the following was added : of the sheriff's tourn and the rest of 
 
 ^'Comitesetbaronesnonamercienturnid the royal courts of record. For the 
 
 per pares suos, et non nisi secundum manorial courts and other courts " not 
 
 modum delicti " (Art. 21). For the of record," in which the old customs 
 
 clergy cf. Art. 22, ''Nos non tenebimus still prevailed, in later times a special 
 
 terras illorum, qui convicti fuerint de writ " de moderata misericordia " was 
 
 felonia, nisi per unum annum et unum framed, which enforced the uniform 
 
 diem, et tunc reddantur terras doninis application of the principle. (Cf. 
 
 feodorum" {Alt 32). The rendering Scriven on Copyhold, ii. 852, 853.) 
 of illegal police fines null and void : 
 
Magna Charta. 305 
 
 bridges, except where such is a matter of ancient custom (23). 
 Purveyance and compulsory carriage are only to be enforced 
 against the freeholder in return for immediate payment, or 
 only with the free consent of the owner (28, 30). Neither 
 the King nor any royal officer or other person shall take the 
 wood of any one for the royal castles or for other uses, except 
 with the permission of the owner (31). Those living outside 
 the forests shall not be summoned before the forest courts 
 (44). The newly made forests shall be disforested (47). All 
 abuses concerning forests, warrens, foresters, sheriffs, and 
 their officials, shall be inquired into in every county upon 
 oath by twelve knights of the shire, chosen by the *'good 
 men " of the same county (48). Common to both feudal 
 vassals and liheri homines is also the assurance relative to the 
 regulation of inheritances of personalty, and payment of 
 debts, especially with regard to the privilegia Jisci (26, 27). 
 The articles concerning the treatment of the dehita judseorum 
 (10, 11) are derived from the province of administration 
 of the Exchequer of Jews. On this side is apparent the 
 considerate regard paid to the lower classes of the people, 
 which may probably be attributed to the spiritual advisers. 
 The liberties granted to the Crown vassals are extended, 
 as a matter of course, to the relations of the private 
 feudal lords erga suos. The limitations imposed upon taxa- 
 tions are extended at all events to the city of London. 
 Conversely, the redress of the common grievances of the 
 country, which principally proceed from fiscal oppression, in 
 the first instance benefits the middle classes, but reaches 
 upwards to the higher classes also. Military vassals and 
 liberi tenentes stand side by side in such articles. Many 
 clauses refer to all the liheri homines, without regard to the 
 kind of property, and are so far beneficial to the villein 
 tenants as well. A few clauses are directly framed in favour 
 of the villein. (4) 
 
 (4) Legal limitations of the financial prosecution of fiscal claims (9), debts of 
 
 poicer are comprised in articles 9-11, Jews (10, 11), the restriction of the 
 
 16, 25-33, 35, 37, 41, 43, 44, 48, 60, awa^z'Zia to the three old cases : " Simili 
 
 especially as to the more forbearing modo fiat de auziliis de civitate 
 
 VOL. I. X 
 
306 Constitutional History of England, 
 
 V. 'S^l&t legal sanction of all these liberties and assurances is 
 connected with a number of temporary provisions. But at 
 the same time this sanction unites with other articles in 
 forming the first foundation of a constitution by estates of 
 the realm. The form which had been hitherto observed in 
 the charters could not satisfy the barons, as the question of 
 their irrevocability had not been settled in judicial practice. 
 Hence they adopted the course of giving the charter, by 
 means of a solemn oath, the character of a treaty of peace 
 according to feudal custom : " Juratum est autem tain et parte 
 nostra, quam ex parte haronum, quod lisee omnia supradicta 
 bond fide et sine malo ingenio servahunturJ'^ 
 
 The charter thus received the character of a joint compact. 
 But seeing that any oath taken by John was worthless, and 
 could be remitted by the Pope, and that all the limitations of 
 the Government which had been assured, were, as against the 
 sovereign curia and the Exchequer, comparatively useless, the 
 appointment of a national committee with recognized rights 
 of resistance was added thereto, which, combined with certain 
 previous articles, formed the parliamentary clauses of Magna 
 Charta.(5) 
 
 London" (l^"); "ef eivitas London ^^tenentesperfeodifirmam,persocagium, 
 
 habeat omnes antiquas libertates et per hurgagium, per parvam serjante- 
 
 liberas consuetudines suas, tamper terras riam " (37) ; " omnes mercatores Jiaheant 
 
 quam per aquas. Praeterea omnes alise salvum et securum exire ah Anglia et 
 
 civitates et hurgi et villse et partus venire in Anglia^ morari et ire per 
 
 haheant omnes libertates et liberas con- Angliam tarn per terram, quam per 
 
 suetudines suas" (13). Here can be aquam, ad emendum et vendendum 
 
 clearly seen the influence of the city sine omnibus malis toltis per antiquas 
 
 of London, which was allied with the et rectas consuetudines,'" etc. (41) ; a 
 
 barons, and which carried the subse- milder administration of the royal 
 
 quent clauses relating to trade, weights forest laws (44, 47, 48). The latter 
 
 and measures, as well as a special articles form the main contents of the 
 
 clause against the weirs made in the later separate cliarta deforesta. 
 Thames. " Nullus distingatur ad (5) The temporary provisions of 
 
 faciendum majus serviiium de feodo Magna Charta begin with Art. 49-52, 
 
 militis nee de alio libero tenemento, and then 55-59 61, 62. They deal . 
 
 quam inde debetur " (16). " Omnes with the restoration of the obsides, the 
 
 comitatus et hundredi, thretliingii et removal of persons named from the royal 
 
 wapeutachii sint ad antiquas firmas prisons, the discharge of the foreign 
 
 absque nullo incremento, exceptis domi- mercenaries, the restitution of lands 
 
 nicis maneriis nostris " (25). " Una seized sine legali judicio parium, the 
 
 mensura vini sit per totum regnum remission of illegal fines and amercia- 
 
 nostrum et una mensura cerevisise, et ments, the restoration of the lands in 
 
 una mensura bladi" etc. (35) ; touching Wales, which had been torn from their 
 
 the regulation of guardianships of the possessors, the relations of England to 
 
Magna Charta, 307 
 
 (i.) The committee of resistance was appointed in article 61 
 with the following provisions. Twenty-five barons (among 
 them the mayor of London) who should fill all vacancies in 
 their number as they occurred by co-optation, are to be elected 
 as conservators of the charter, and are to pass resolutions 
 according to majorities ; and if the King breaks any article, 
 four out of their number shall, on each such occasion, move 
 before the King or chief justice that redress be made ; and 
 in case of refusal they may summon the communa (probably 
 the whole of the vassals), and take from them the oath of 
 obedience, *' et illi viginti quinque harones cum communa totius 
 terrse distringent et gravahunt nos inodis omnibus quibus poterunt, 
 scilicet per captionem castrorum terrarum possessionum et aliis 
 modis quihus poterunt donee fuerit emendatum secundum arbitrium 
 eorum, salva persona nostra et reginse nostrse et liberorum 
 nostrorum, et cum fuerit emendatum intendent nobis sicut prius 
 fecerunt,^^ 
 
 This clause is so far in harmony with the spirit of the feudal 
 state of the Middle Ages, as it was based upon a mutual rela- 
 tion of feudal protection and fealty, that is, upon compact. 
 The vassals thus give expression to the fundamental notion of 
 their relation as it existed in Normandy and France, yet with 
 certain important alterations. Whilst on the Continent the 
 individual vassal regarded himself as judge of the question 
 as to whether or no the lord had broken his obligation to 
 protect him, and frequently for a trifling cause sent in his 
 letter of challenge, here in England the nobility act as a 
 corporate body. Only in their collective capacity, represented 
 by definite organs, are the barons declared entitled to resist, 
 but the feud of the individual against the monarch is in no 
 wise sanctioned. As a fact, there is contained in this harsh 
 article nothing more than a recognition of the feudal^right of 
 distress, which belongs to the King by virtue of the con- 
 stitution, and which is conceded in return to the collective 
 
 King Alexander of Scotland, and a occassione ejusdem discurdice a Pascha 
 
 general amnesty : " omnes malas volim- a regni nostri xvi. usque ad pacem 
 
 tides, indignationes et rancores re- reformat am." 
 misimus, omnes transgressiones factas 
 
308 Constitutional History of England. 
 
 body of Crown vassals as against the King. The concession 
 by agreement of the rights of distress was altogether so 
 entirely consonant with the legal conceptions of the Middle 
 Ages, that in this way the committee of resistance loses a 
 portion of its apparently revolutionary character, (a) 
 
 (ii.) The second clause respecting the estates of the realm 
 was intended to ensure a regular summons and right of assent 
 of all the Crown vassals in two particular cases. Thus when- 
 ever an aid {auxilium) was demanded in addition to the three 
 traditional cases of " honour and necessity," this is only to be 
 done ''per commune consilium regni nostri " (12) ; and this 
 is to apply also to the auxilia of the city of London. In 
 all cases, however, a commune consilium was to be convoked, 
 whenever scutages were demanded instead of the feudal 
 military services. To that commune consilium the barons were 
 to be summoned in the following manner (Art. 14) : — 
 
 " Et ad habendum commune consilium regni de auxilio assi- 
 dendOf aliter quam in trihus casihus predictis, vel de scutagio 
 assidendo, summoneri faciemus archiepiscopos , episcopos, abhates, 
 comites, et majores harones sigillatim per litteras nostras. Et 
 prseterea faciemus summoneri in generali per vicecomites et 
 ballivos nostros omnes illos, qui de nobis tenent in capite, ad certum 
 diem, scilicet ad terminum quadriginta dierum ad minus, et 
 ad certum locum, et in omnibus Uteris illius summonitionis 
 
 (a) The clause relating to the com- quinque haronum, et quod gravabit nos 
 
 mittee of resistance runs in the Ian- pro posse suo cum ipsis ; et nos puhlice 
 
 guage of Art. 61 as follows: — ^^etsinos et libere damns licentiam jurandi 
 
 excessum non emendaverimus, intra cuilihet, qui jiirare voluerit, et nulli un- 
 
 tempus quadraginta dierum, predicti quam jurare proliihehimus. Omnes 
 
 quattuor harones referant causam illam autem iUos de terra qui per se et sponte 
 
 ad residuos de illis viginti quinque sua noluerint jurare viginti quinque 
 
 haronibus, et illi viginti quinque harones haronihus de distringendo et gravando 
 
 cum communa totius terrx distringent nos cum eis, faciemus jurare eosdem de 
 
 et gravabunt nos modis omnibus, quibus mandato nostra, sicut predictum est." 
 
 poterunt, scilicet per captionem castro- English jurists and historians are 
 
 rum, terrarum, possessionum et aliis accustomed to make very inappropriate 
 
 modis, quibus poterunt, donee fuerit comparisons between this article, and 
 
 emendatum secundum arbitrium eorum, the insolent resistance-clauses of the 
 
 salva persona nostra et reginse nostrse feudal lords of the Continent, the Con- 
 
 et liberorum nostrorum, et cum fuerit stitution of Arragon, and the like, 
 
 emendatum, intendent nobis sicut prius whereas article 61 of Magna Charta is 
 
 fecerunt. Et quicunque voluerit de terra, both in form and spirit very different 
 
 juret, quod ad predicta omnia exequenda in character to the indecent violence 
 
 parebit mandatis predictorem viginti of the continental vassals. 
 
Magna Charta . 309 
 
 causam summonitionis exprimemus : et sic facta summonitione 
 negotium ad diem assignatwm procedat secundum consilium 
 illorum, qui prsesentes fuerint, quamvis non omnes summoniti 
 venerint.'' 
 
 The English barons in arms, allied with the Church and 
 the city of London, and with the consent of the country never 
 laid claim to more than this, even when at the height of their 
 success. They claimed no right of assent to the issuing of 
 royal ordinances, no right of summoning a cour de haronie, no 
 conventions assembled to deal with the grievances of the 
 nation or generally with the voting of taxes ; but only a right"! 
 of assenting to two positive alterations in the legal conditions 
 of feudal tenure. (6) 
 
 The possible germ of a special peers' jurisdiction was con- 
 tained finally in — 
 
 (iii.) The clause dealing with amerciaments (21) : " comites 
 et harones non amercientm\ nisi per pares suos et nonnisi 
 secundum modum delicti,'' the phraseology of which reminds 
 us of the peers' court which arose in later times. Since a 
 legal distinction between the greater and lesser vassals had not 
 as yet been drawn, there was actually contained in this clause 
 nothing more than a general promise of the traditional 
 administration of justice, nothing more than the ''judicium 
 
 (b) The clause concerning the sura- ditions of feudal tenure is a right 
 
 moxx\ngoiih.G magnum consilium iove^- of assenting claimed. Not a word is 
 
 traordinaryawxi7c a, and for the purpose said of assenting to the promulgation 
 
 of fixing the scutages, has, like other of royal ordinances or laws; not a 
 
 passages, been much distorted by word about a right to summon a cour 
 
 political parties. This article is only de haronie for the exercise of a juris- 
 
 directed against the arbitrary taxation diction over the Crown vassals ; not a 
 
 of John, against the raising of the hide- word about an ancient national as- 
 
 tax from two to three shillings at the sembly for dealing with the national 
 
 commencement of his reign, against the grievances, or for the voting of taxes, 
 
 raising of the scutage from £1 to two As every investigation in detail 
 
 marks, and against the continued ex- destroys the favourite tradition of 
 
 action of it without any occasion for a a " feudal parliament in arms," of a 
 
 campaign, and above all against the permanent feudal curia, and of an es- 
 
 raising of an impost upon the personal tate of the realm formed by " the proud 
 
 property of the Crown vassal (1203), barons of the twelfth century," so are 
 
 in direct opposition to the feudal com- these circumstances connected with 
 
 pacts and the most solemn assurances Magna Charta fatal to the general 
 
 of his predecessors on the throne. conception of the Curia Regis which 
 
 Only in those cases which contain a antiquaries have imagined. 
 
 positive alteration in the legal con- 
 
310 Constitutional History of England. 
 
 parium" which in Art. 39 had been assured to all free men of 
 the realm, (c) 
 
 Magna Charta accordingly contains much less of formal 
 constitutional law than has been looked for in it. But it 
 contains the leading traits of the English character and 
 constitutional system The Norman magnates had now been 
 compelled to make their choice between the island and the 
 Continent. In England they could not shelter themselves 
 against the monarchy behind the walls of their castles, but 
 were obliged, as individual resistance was impossible, to break 
 through arbitrary power in a collective body, ijiaking common 
 cause with the clergy, and backed up by the sympathies of 
 the people, and to win for themselves and the people common 
 rights and guarantees against such despotism, and thus base 
 the constitution primarily upon personal liberty, and upon a 
 uniform legal protection accorded to person and property. 
 This nobility, which had for generations been the first to 
 bear the oppression of the absolute monarchy, and the 
 burdens of the state, had learned to sympathize with the 
 people's wrongs, and thus began to realize its vocation of 
 placing itself at the head of the nation in the new consti- 
 tution that was being formed ; in this sense Magna Charta 
 was also a pledge of the reconciliation of the classes. Its 
 origin and its confirmations kept alive for centuries the 
 feeling of the community of certain fundamental rights for 
 all classes, and the consciousness that a nobility cannot 
 possibly assert rights and liberties without also guaranteeing 
 to the weaker classes their personal liberty. Since the right 
 of property, and the family rights of the liheri homines had 
 been for once and all uniformly framed, since a separate right 
 for nobles, citizens, and peasants, was no longer possible, 
 from this time onwards, all struggles are undertaken only 
 with the object of securely restraining the personal govern- 
 ment; and as long as the quarrel takes this direction, so 
 long do we find people and clergy on the side of the nobles. 
 Upon the foundation thus won further efforts could not tend 
 
 (c.) In this sense this clause was also understood ia practice (below, p. 315). 
 
Magna Charta, 311 
 
 towards asserting exclusive privileges, but only towards regu- 
 lating the political sovereign rights according to law, and thus 
 gaining a constitutional co-operation. By Magna Charta 
 English history irrevocably took the direction of securing 
 constitutional liberty by administrative law. In this sense 
 Hallam's words are true : *' The Magna Charta is still the 
 keystone of English liberty. All that has since been obtained 
 is little more than a confirmation or commentary ; and if 
 every subsequent law were to be swept away, there would 
 remain the bold features that distinguish a free from a 
 despotic monarchy." 
 
 But because the charter forms the beginning of living con- 
 stitutional rights, that is of enforceable rights, protected by 
 permanent institutions, England has ever again recurred to 
 it, under the best as under the worst monarchs. The place of 
 the former ''confirmation of the laws of Eadward," is now 
 taken by the ever-repeated demand of the people for a '' con- 
 firmation of Magna Charta." Its practical sense laid such 
 great weight upon written documents, that before the close 
 of the Middle Ages this confirmation had been thirty-eight 
 times demanded and granted.! 
 
 t There is probably no country and Henry I., is remarkable. The most 
 no petty state in Europe which has important difference between this 
 not, at some time of pecuniary or Magna Charta and those of the Con- 
 national distress, received its Magna tinent lies in its aiming to secure real 
 Charta ; but these long catalogues of legal protection for all classes of the 
 grievances and promises were as a rule pesple^jsithout attacking or diminish- 
 speedily forgotten. Nothing but its ing the political sovereign rights, which 
 practical aim of regulating the sove- had been already developed. It proves 
 reign rights, and class and private law, to us in this direction, how personal 
 could have availed to make the English and political liberty can only arise and 
 Magna Charta the living foundation become permanent through moderation 
 of the constitution, and could have and public spirit, and not through 
 given it the energy requisite for crea- narrow-minded separation of the upper 
 ting hundreds of later parliamentary classes from the lower. In this sense 
 statutes. The practical knowledge o'f Pitt once spoke those words so often 
 political government,— a knowledge quoted in the Upper House: "To 
 confined in those days to the temporal your forefathers, my lords, the English 
 and spiritual magnates of that time, barons, we owe our laws," etc. (c/. 
 and which manifested itself in the Mackintosh, History, vol. ii., sub anno 
 formation of the oflficial nobility after 1215). 
 
312 Constitutional History of England. 
 
 CHAPTEE XIX. 
 ^6e iptrst attempt at a CBfobernrntnt bg Estates of t^e laealm. 
 
 In scarcely any other European country did the parlia- 
 mentary constitution have such a slow and difficult birth as 
 in England. The principal cause of this difficulty, national 
 disunion, had ceased, it is true, in the thirteenth century. 
 But in the meantime the political government had taken an 
 exclusive form, which did not easily admit of the insertion of 
 a corporate estate. In an early matured development the 
 monarchy had brought its financial, military, judicial, and 
 police organization into a bureaucratic system which could 
 only be controlled by a single will; and which, in case of 
 disunion in this will, fell immediately into confusion. The 
 prelates and the temporal lords themselves had felt this fact. 
 Hence Magna Charta did not claim any immediate partici- 
 pation of the estates in the executive, but merely insisted on 
 legal Hmitations to the exercise of royal sovereign rights, and 
 in an extreme case, demanded the suspension of the personal 
 government until the grievance was redressed. 
 
 The result confirmed only too strongly the necessity of this 
 modest beginning. The representative committee of twenty- 
 five barons was chosen ; their names have been preserved to 
 us, as also the writs for administering the oath to the " com- 
 munitas.'' King John had, however, only accepted Magna 
 Charta because he never intended to keep it. The charter 
 was nowhere registered, and would have been suppressed, 
 had the barons not circulated copies of it over the country 
 
First Attempt at a Government by Estates of the Realm. 313 
 
 for preservation in churches and monasteries. The Vo^q, 
 intent only on the interests of the power of the Church, on 
 demand immediately released the King from his oath. A 
 Bull disapproved and condemned the whole proceeding, de- 
 scribed the agreement as an illegal, unauthorized, and dis- 
 graceful compact, and declared the barons to be worse than 
 the Saracens. The monarchy had been but taken by surprise, 
 and still had the upper hand, even in the person of an un- 
 worthy monarch. Accordingly, John withdraws, and being 
 lord of the financial power and the castles, collects by means 
 of the preponderating power of the royal treasury a mer- 
 cenary army, for which the nobility of the country is no 
 match, even in a righteous cause. Despairing of the issue, 
 the insurgents call a French prince and a foreign army to 
 their aid; a desperate struggle begins, in the course of which 
 John suddenly dies, on the 17th October, 1216.* 
 
 His legitimate successor was a child of nine years of age. 
 For the first time since the Conquest the personal govern- 
 ment was in the hands of a minor. In that stormy time the 
 great Earl of Pembroke undertook the government, as Pro- 
 tector. It was the first instance in English history of a 
 statesman at the head of a victorious party being summoned 
 to apply conditions such as those proclaimed in Magna Charta, 
 which he himself, although he had not drawn them up, had 
 
 * Immediately after the granting of though not probable, death by poison, 
 
 Magna Charta, John despatched an have been in modern times again in- 
 
 embassy to the Pope, to get quit of vestigated by R. Thomson, " On Magna 
 
 his oaths and promises. Already on Charta" (1829, pp. 535-554). With 
 
 the 24th August, 1215, the condemna- John's death the situation became so 
 
 tory Bull was published. The Poije, much changed, that a number of the 
 
 as supreme head of the Church, and barons immediately forsook the cause 
 
 feudal suzerain, repudiates the actions of the French prince ; at the council 
 
 of the barons, and declares all that held at Bristol on the 11th of Novem- 
 
 has been done not binding (Rymer, ber, 1216, the papal legate releases the 
 
 i. 2, p. 67 seq.\ and shortly afterwards barons from their oaths to the prince, 
 
 proceeds to excommunicate the barons. and then occurs the first confirmation 
 
 The dispute now took a very uufor- of the charter (1 Henry III.), with 
 
 tunate course, as the barons lacked the omissions which Blackstone has 
 
 both money and unity. It was not enumerated, pp. xxix.-xxxi. (see also 
 
 until the landing of Prince Louis on " Select Charters," p. 399). For the 
 
 the 21st May, 1216, that the struggle French prince matters now take such 
 
 took another turn, before the final a turn, that he withdraws with the 
 
 issue of which John died. The cir- tolerably favourable articles of peace 
 
 cumstances, which point to a possible, of the 11th September, 1217. 
 
314 Constitutional History of England. 
 
 approved and accepted in his capacity of mediator between 
 the conflicting parties. As a matter of fact, at the Council 
 of Bristol, with general approbation and even with that of 
 the papal legate, Magna Charta was confirmed, though with 
 the omission of certain articles. It runs ^' Quia qusedam 
 capitida in priore charta continehantur, quse gravia et dubitahilia 
 videbantur, scilicet de scutagiis . . . placuit supradictis prelatis 
 et magnatihiis ea esse in respectu quousque plenius concilium 
 hahuerimus.^' 
 
 Besides the fine bold features of a national spirit that was 
 awaking to liberty, the charter displays the first picture of 
 an immediate contrast between State and society in an in- 
 complete constitution, and the difficulty of reconciling this 
 contrast. To this difficulty just those three articles were 
 sacrificed, which contained the first basis of a constitution of 
 estates of the realm. 
 
 (i.) Article 61 dealt with the formation of a national com- 
 mittee to uphold the provisions of the charter. The com- 
 mittee of resistance had been called into being, but its 
 appointment had resulted in a civil war, in which the barons 
 had paid allegiance to a foreign prince. The first act of 
 their resistance was thus marred by a blot, which in the 
 changed condition of things after John's death at once led to 
 dissensions among the barons themselves. The article accord- 
 ingly was tacitly allowed to drop as rendered nugatory by the 
 disappearance of the cause. In the following decades the 
 party of the nobles involuntarily returned to the practice of 
 the committee of resistance ; it was reserved for the following 
 period to frame a constitution, which was able to maintain 
 itself without the rude help of violence. 
 
 (ii.) The clauses dealing with the voting of scutages and 
 extraordinary aids by a commune concilium regni (Arts. 12 and 
 14) were omitted, and also their extension to the auxilia of the 
 city of London. The barons, under the Protector, now stood 
 in the room of the King, and could not well resign the many 
 fertile sources of income for the carrying on of the Govern- 
 ment, arising from demesnes, forests, and the protection of 
 
First Attempt at a Government hy Estates of the Realm. 315 
 
 Jews. But the convocation of a tax-imposing assembly (in 
 the meaning of article 14) seems to have appeared impractic- 
 able to the Protector and his friends, and for very simple 
 reasons. The ever-recurring phenomenon, that the first con- 
 stitutional ideas, which immediately proceed from a resist- 
 ance to the political power, are incapable of realization, is 
 thus confirmed. As the convocation of a national council 
 was only to take place on account of the scutagia and auxilia 
 of the King, only vassals who paid to the Crown could have 
 been thereby intended3 that is, the tenentes in capite, but of 
 them every one. But were then greater and lesser Crown 
 vassals to be summoned without distinction, whilst the 
 great lords were still loth to concede to the hundreds of 
 squireless knights and petty possessors of plots of land, a 
 real equality with themselves ? The great vassals could not 
 exclude their jjares in feudal possessions from that right of 
 assenting ; and yet in the customs of the past no ground was 
 discoverable for allowing them a curtailed right of voting. A 
 return was accordingly made to that old custom of €Ourt- 
 etiquette, according to which, the distinguished lords had been 
 hitherto summoned to court by letter, '^ sigillatim per litteras 
 nostras.'" If all the rest were only summoned collectively 
 by the Vicecomes, it might perhaps be presumed that the 
 majority of them would not appear. But still a parliament 
 after the Polish fashion would have arisen, with hundreds of 
 representatives consisting of petty possessors of single small 
 estates. Still less inclined would the great prelates feel to 
 deliberate on an equal footing with the lesser abbots and 
 barons, or with an excessive number of lesser knights. Hence 
 can be explained, why the assembly thus projected was never 
 brought together, and why that clause was never comprised 
 in any later promulgation. 
 
 (iii.) The clause concerning the amerciaments of the barons 
 per pares siios (Art. 21) was indeed retained in word ; but was 
 immediately interpreted by practice to mean, that those 
 amerciaments should be recognized in the Exchequer or in 
 the King's Court, per barones de scaccario, vel coram ipso rege 
 
316 Constitutional History of England. 
 
 (Br acton), or coram consilio regis, as it runs in a writ of 
 3 Hen. III. The regency of the barons itself thus acknow- 
 ledges that the law has been satisfied if the matter has been 
 referred to a commission consisting of vassals of the Crown — 
 just as the judicium parium has in general been hitherto 
 treated. The result w^as the concession of a legal hearing 
 before the supreme tribunal. 
 
 In like manner the further course of the constitutional 
 struggle proves the truth of the remark, that the most 
 righteous resistance to despotism, and the noblest aspirations 
 of a national spirit, are not sufficiently powerful to imme- 
 diately found political liberty, but that continuous labour and 
 a positive reformation of the political system are needed ; and 
 to these Magna Charta was only able to give the impulse. 
 After some degree of tranquillity had been restored, a second 
 confirmation of the Great Charter took place in the autumn 
 of 1217, with the omission of the clauses referring to the 
 estates, but with the grant of a new charta de foresta, intro- 
 ducing a vigorous administration of the forest laws. In 9 
 Henry III. Magna Charta was again confirmed, and this is 
 the form in which it afterwards took its place among the 
 statutes of the realm.** 
 
 ** As to the conjarmations of Magna from an Inspeximus under Edward I. 
 Charta, a second confirmation takes In the February of 1226 Henry III. 
 place (2 Hen. III.)j again with some undertakes nominally the government 
 alterations, which are classified by in person, without confirming Magna 
 Blackstone,xxxvi.-xxxviii. (c/.Charters, Charta afresh (cf. below, note 1 ). Black- 
 344). Among the additions is a clause stone, however, does not speak of this 
 relating to the removal of the adul- as a revocation, but only says : " The 
 ferine castles of the barons and another King is said to ha«ve revoked all the 
 against alienations to mortmain. The charters of the forest" (Matth. Paris), 
 new confirmation takes place in 9 At the confirmation of 49 Henry III., 
 Henry HI., on the 11th February, 1224, 1264, when Henry was the captive of 
 again with certain changes (Charters, the barons, the clause touching the com- 
 853). The admission of the last- mittee of resistance (Art. 61) was again 
 named version among the English col- adopted into it, with the omission even 
 lections of statutes is so far correct, of the security reserved to the royal 
 as from this time onward no fui'ther person and family ; without, however, 
 changes were made in the text. All after the King's liberation, any notice 
 later confirmations refer to the text whatever being taken of it. From 28 
 as thus established. Some mistakes Edward I. until the latest confirmation 
 arose purely from the fact that it was (4 Hen. V.) twenty-nine resolutions 
 not the original document of 9 Henry were passed by Parliament confirming 
 III.^ (Blackstone, 60-67) that was the charter, of which not less than four- 
 copied, but that the text was taken teen were in the reign of Edward HI. 
 
First Attempt at a Government hy Estates of the Realm. 317 
 
 Two years later, Henry III. personally assumes the reins 
 of government at the Parliament of Oxford (1227), and begins 
 his rule without confirming the two charters. At first the 
 tutorial government still continues, which had meanwhile, 
 even after the death of the great Earl of Pembroke (1219), 
 remained in a fairly orderly condition. The first epoch of 
 sixteen years of this reign must therefore be regarded purely as 
 a government by the nobility under the name of Henry III. 
 The regency had succeeded in removing the dominant influence 
 of the Eoman Curia by the recall of the papal legate, Pandulf, 
 to Eome (1221), and in getting rid of the dangerous foreign 
 mercenary soldiery (1224). To raise an extraordinary revenue 
 by means of aids and scutages, conventions of prelates and 
 barons were at this time repeatedly summoned ; not indeed 
 according to the letter of Article 14 of the charter, but in 
 such a manner, that according to the discriminating judgment 
 of the regency in conjunction with the prelates, the most 
 illustrious members of the barony were summoned in com- 
 paratively large numbers, who then, after some discussion, 
 granted the subsidies demanded. (1) 
 
 (1) The general history of tliis rity cancels the two charters, as made 
 period Vias been impartially written by and signed when he was not his own 
 Lappenberg-Pauli, iii. p. 489-875. master, and on the ground he was not 
 Compared with the older descriptions, bound to keep what he was forced to 
 the Peers' Eeport on the dignity of a promise" (Parry 27 quoting Matthew 
 Peer contains the most sober criticism. Paris, Hody, 304). The correctness of 
 An authentic digest of the information this assertion, which has not been 
 respecting 135 concilia, and similar otherwise confirmed, is however rightly 
 assemblies under Henry III., has been doubted, as the government by the 
 given by Parry (" Parliaments and nobles, w^hich still continued, had 
 Councils^" pp. 24-49). For the first certainly no interest in setting aside 
 epoch of sixteen years the following Magna Charta. In 15 Henry III. 
 events must be regarded : In 2 Henry {colloquium at Westminster) : an auxi- 
 III. (Council of 'St. Paul's) : second Hum cle quolihet scuto was demanded, 
 confirmation of Magna Charta, for The secular magnates consented; the 
 which the prelates, earls, barons, prelates asserted that ecclesiastical 
 knights, " et libere tenentes omnes de persons were not bound to submit in 
 regno,'' vote a fifteenth. In 9 Henry this matter to the resolutions of lay- 
 Ill, (curm of Westminster, 25th Decem- men. The aid was, however, granted 
 ber, 1224): solemn confirmation of the after a prorogation a few months later, 
 two charters, combined with the voting In 16 Henry III. (7th March, 1232, 
 of a fifteenth. In 11 Henry III., co?Zogi«'«m of Westminster) : an auxi- 
 January, 1227 (council of Oxford) : liitm generale was demanded. The 
 the King personally assumes the temporal Crown vassals declared that 
 Government. " The King declares they were not bound to any aid, as 
 himself of age, and by his own autho- they had done personal military ser- 
 
318 Constitutional History of England, 
 
 With the disgraceful dismissal of the chief justiciary, 
 Hubert de Burgh, there begins a second epoch of a personal 
 rule of Henry HI. (1232-1252), which for twenty continuous 
 years, presents the picture of a confused and undecided struggle 
 between the King and his foreign favourites and personal 
 adherents on the one side, and the great barons, and with them 
 soon the prelates, on the other. Untaught by the evil expe- 
 riences of favouritism shown to foreigners under Stephen and 
 John, the weak and frivolous King put himself at once entirely 
 in the power of foreign favourites. The conduct of the 
 business of the State by Bishop Peter des Eoches (of Poitou), 
 called forth a storm of indignation among the temporal mag- 
 nates. At the colloquium at Oxford (17 Henry III.), the earls 
 and barons refuse to appear in person, and declare "that 
 they will never obey the summons of the King, but will 
 choose a new King, unless he dismisses the Bishop of Win- 
 chester and the lords from Poitou." When on the third 
 summons the barons appeared armed, the King declared 
 sentence of banishment and confiscation of their estates. At 
 the next colloquium at Westminster, the Primate threatens the 
 King with excommunication unless he changes his mode of 
 government. The King on this occasion gave way ; he dis- 
 missed the Bishop of Winchester and the objectionable 
 counsellors, and declared an amnesty with the refractory 
 barons ; and then began for a few years tolerably friendly 
 relations with the magnates, who still continued to grant the 
 necessary supplies. (2) 
 
 vice out of the kingdom. The prelates January, 1236), curia of Merton, at 
 gave the evasive answer, tliat many which the provisionei^, assisx, or statuta 
 of their invited members were not of Merton are resolved by the spiritual 
 present. On the 14th September and temporal barons present, " which 
 (colloquium of Lambeth), however, the have been from time immemorial con- 
 grant of a subsidy was made, in the sidered as the oldest act of statute 
 name of the clergy, and the earls, law " (" Pari. History," i. 32 ; Coke, 
 barons, knights, and liberi homines "Inst.," ii. 96). The Peers' Report 
 et villani (Foedera, 16 Hen. HI.). (i. 460) acknowledges that the autho- 
 (2) The authoritative precedents of rity of a small number of barons so 
 this period are : In 19 Henry III. a summoned, must be still considered as 
 council of the prelates, barons, and sufficient for legislative acts. The 
 "all other Crown vassals," who vote enactment itself calls itself a ^'- jpro- 
 a considerable auxilium (Close Rolls, visio;" the name often used at an 
 19 Hen. III.). In 20 Henry III. (20th early epoch " Statuta," is often ex- 
 
First Attempt at a Government hy Estates of the Realm, 319 
 
 But the incapacity and the incorrigible frivolity of Henry 
 III. very soon aggravate his position. The King's uncle and 
 his relations again form a court government, his French kins- 
 men seize upon the great offices and fiefs ; and in order to 
 obviate the probable opposition of the magnates to the 
 ministers of the Crown, the great offices of State begin to be 
 left unoccupied, the central administration being conducted 
 by office clerks. In this critical time one special incident 
 again occurs, a confirmation of Magna Charta. In 21 Henry 
 III. the King finds himself, in consequence of pressing money 
 embarrassments, again compelled to make a solemn confirma- 
 tion of the charter, in which once more the clauses relating 
 to the estates are omitted. Shortly afterwards, as had hap- 
 pened just one hundred years previously in France, the 
 name '' imrUamentum'' occurs for the first time (Chron. 
 Dunst., 1244 ; Matth. Paris, 1246), and curiously enough, 
 Henry III. himself, in a writ addressed to the Sheriff of 
 Northampton, designates with this term the assembly which 
 originated the Magna Charta : ^' FarUamentiim Runemede, 
 quod fuit inter Dom, Joh., Begem patrem nostrum et harones 
 suos Anglise'' (Eot. Claus., 28 Hen. III.). The name *' par- 
 liament," now occurs more frequently, but does not supplant 
 the more indefinite terms concilium, colloquium, etc. In the 
 meanwhile the relations with the Continent became compli- 
 cated, in consequence of the family connections of the mother 
 and wife of the King, and the greed of the papal envoys. 
 The foolish compHance of the King with all demands, and 
 the waste of the pecuniary resources of the coantry in the 
 vain endeavom- to maintain the English influence u^Don the 
 
 plained by saying, that for the first se et snis villanis, grant a thirteenth 
 
 time the publication of a formal decree of personalty. In 22 Henry III. (council 
 
 of the realm had taken place ; but the of London), the magnates appear 
 
 form and framing of the Rotulus had armed, and after long discussion the 
 
 nothing unusual in it. It is rather King promises on oath to carry on 
 
 simply the language of Normandy, his government by means of a definite 
 
 according to which men gradually number of distiuguisht d men. In 2i 
 
 began to call the more important Henry III. (council of London) the 
 
 enactments, " etabUssements" or sta- bishops produce thirty articles agaiust 
 
 tuta. In 21 Henry III. (council of the King, relative to violations of 
 
 Westminster), the prelates, earls. Magna Charta, Hody, o20. 
 barons, milites et liberi homines pro 
 
320 
 
 Constitutional History of England. 
 
 Continent, tended more and more to impel the spiritual 
 magnates to head the opposition against the King and against 
 the Pope. From the year 1244 onwards, neither a chief 
 justice nor a chancellor, nor even a treasurer, is appointed, 
 but the administration of the country is conducted at the 
 Court by the clerks of the offices. The conventions of mag- 
 nates met these proceedings by violent public complaints, 
 refusal of subsidies, repeated demands that their counsellors 
 should be appointed to the offices of State, and finally by an 
 accusation of treason preferred against the justiciary, Henry 
 de Bath. (2^) 
 
 With the year 1252 begins a third epoch of this reign of 
 fifty-six years (1252-1266), in which the King comes under 
 
 (2"^) The important precedents in this 
 period are : In 26 Henry III. (1242) 
 a council was held at London, at which 
 were present " omnes Anglise. magnates." 
 The royal writ for this assembly is im- 
 portant, as it contains the express sum- 
 mons to deal with State business ; " ad 
 tractandum nobiscum una cum ceteris 
 Magnatibus oiostris quos similiter feci- 
 mus convocari, de arduis negotiis, statum 
 nostrum et totius regni nostri specialiter 
 tangentibus." After long discussion an 
 aid for the war against France was 
 refused, and a written protest sent in 
 (Peers' Keport, iii. Appendix I.). In 
 28 Henry III. (Council of Westminster 
 Hall), prelates and barons deliberate 
 separately. By common consent of 
 both, a commission was appointed to 
 draw up definite articles to be sanc- 
 tioned by the whole assembly ; which 
 articles were to regulate tlie conduct 
 of the King, the appointment to the 
 great offices, etc. This joint declara- 
 tion of the estates, however, was re- 
 jected by the King, and the assembly 
 was prorogued. In the assembly when 
 again convoked, the King promises to 
 observe the liberties which he swore at 
 his coronation (1220) to maintain. A 
 scutugium of twenty shillings is voted 
 for the marriage of his eldest daughter 
 (Hody, 322). In 29 Henry III. the 
 magnates refuse an aid for the campaign 
 against Wales. In 30 Henry III. ( 1 246), 
 a great assembly was held at London, 
 which is first called a Parliamentum in 
 
 Matth. Paris, a.d. 1246 (cf. Eot. CI., 
 28 Henr. III.). The next instance of 
 the use of the term in an official docu- 
 ment is 42 Henry III. (Peers' Report, 
 i. 91, 99, 461). In 32 Henry III., a 
 council at Loudon refuses an aid, and 
 presents a list of national grievances, 
 which the King promises to redress. 
 In 33 Henry III. (council of London) 
 the magnates demand that they shall 
 have a voice in the appointment of the 
 chancellor, chief justice, and treasurer. 
 At this time Henry III. endeavours 
 by popular administrative measures to 
 gain influence against the dissatisfied 
 barons. He personally assembles the 
 sheriifs in the Exchequer, commends 
 to their protection the Church, and 
 the widows and orphans; a villein is 
 not to be distrained on for the debts 
 of his lord, except in case of exigency ; 
 the conduct of the lords towards their 
 tenants is to be watched over, and the 
 latter are to be protected against ex- 
 cesses; the sheriffs are not to let the 
 under districts in the hundreds and 
 other bailiwicks at rack rent, etc. In 
 35 Henry III. an assembly was held 
 in London at which the justiciary, 
 Henry de Bath, was indicted on a charge 
 of high treason. In 36 Henry III. at the 
 parliament of Westminster the papal 
 demand of a tithe from the manors of 
 the prelates for the Crusade was op- 
 posed, on the ground that their griev- 
 ances must first of all be redressed. 
 
First Attempt at a Government by Estates of the Realm. 321 
 
 the dominant influence of the barons. Till then the dis- 
 contented magnates had lacked a proper leader. They now 
 obtained leaders in the powerful Earl of Gloucester, and the 
 politic Earl Simon de Montfort, brother-in-law of the King. 
 To the internal and external complications there now is 
 added the foolish endeavour to gain the Crown of Sicily for 
 the King's son. After long discussions the treaty for this 
 purpose was concluded, in which Henry involved himself in 
 serious obligations to the Pope. The incapable internal 
 government had fallen into a chronic state of pecuniary em- 
 barrassment, whilst the estates of the realm refused to raise 
 demands of hitherto unheard-of amount. The vacillation and 
 faithlessness of the King, his incapacity to conduct the ex- 
 ternal and internal affairs of his realm, his refusal to choose 
 any suitable counsellor, led the discontented magnates to 
 revert to the idea of a protectorate or regency, such as had 
 been carried on with tolerable success during the first sixteen 
 years of the reign. They no longer hesitate to obtrude the 
 leading officers upon the King. (3) Without calling in question 
 
 (3) The precedents in tlie third claim strict adherence to the charters, 
 period are : In 37 Henry III., the and the appointment of the chief jus- 
 clergy vote a tithe for the Crusade, tice, the chancellor, and treasurer, wbo 
 the knights a scutagium for the cam- are not to be removed, ^' nisi de cam- 
 paign in Gascony, Both charters of mimiregniconvocaticoncilio etdelibera- 
 liberties were again confirmed. In 38 tione." The assembly was prorogued. 
 Henry III. (27th January, 1254), a On its re-assembling, the magnates, on 
 council takes place in London, with an aid being demanded for the war in 
 a formal summons to State business Sicily, declared tliat the King had em- 
 (ad ardua negotia nostra). The tern- barked on that atfair, " sine conciUo 
 poral prelates refuse a grant of money; suo et consensu haronagii ;" that they 
 the bishops and abbots promise an aid had not all been summoned according 
 for the case of necessity, but only for to the provisions of Magna Charta, 
 themselves, and not for the rest of the and that they would not therefore give 
 clergy (Peers' Report, i. 93, 94). On any answer, and grant any aid without 
 the 26th April, 1254 (council of West- the co-operation of the rest. In 40 
 minster), under the regency, in the Henry III. (parliament at Westmins- 
 absence of the King, the magnates ter), the magnates and clergy re- 
 having bound themselves to follow the peatedly refuse an aid for the war 
 King to Gascony, cum equis et armis, in Sicily. In 41 Henry III. (parlia- 
 the sheriffs are instructed, in like man- ment at London), the King, on his 
 ner, to summon to service all the rest promising faithful observance of the 
 of the Crown vassals who possess twenty charters, receives an extraordinary aid 
 librutas terrx in capite, and to send in from the clergy ; three weeks later, at 
 addition each two legates et discretos Westminster, however, both estates 
 milites to the council. In 39 Henry again refuse the aid for the war in 
 III. (parliament at London), the King Sicily. In 42 Henry III. (10th April, 
 demands an auxilium. The estates 1258) (parliament at London), the 
 
 VOL. I. Y 
 
322 Constitutional History of England. 
 
 the royal ruling power, all the struggles at this time directly 
 refer to the subject of apiDointments to the chief offices in the 
 King's council. In the year 1248, the barons had raised 
 afresh their complaint against the '^ favourites," particularly 
 on the point that neither a chief justice, nor a chancellor, 
 nor a treasurer, had been appointed " in parliament." In 
 order to appease them another confirmation (1253) of the 
 charter took place at a convocation of the prelates in the 
 great hall at Westminster, accompanied by the greatest eccle- 
 siastical ceremony, with anathemas and threats of excom- 
 munication against every transgressor. Henry swears to 
 maintain the charter '^ so surely as he is a man, a christian, 
 a knight, an anointed and crowned King." Amidst much con- 
 fusion and rumour of war, these struggles reach their climax 
 at the council of Oxford (1258), afterwards called the " Mad 
 Parliament," at which the discontented magnates resolve to 
 appoint a sort of protectorate government. The difficulty 
 lay principally in the factions among the magnates them- 
 selves; and in the participation which the lesser Crown 
 vassals (the hachellaria Anglise) now claimed in these mea- 
 sures. Therefore a kind of electoral system had to be 
 invented in order to concede a share to these parties as well 
 as to the lesser tenentes in capite. Thus an artificial and 
 complicated system of electoral proceedings was arrived at, 
 which was apparently borrowed from that in use for com- 
 pacts, arbitrations, and ecclesiastical meetings, where there 
 were two definite and opponent parties (Stubbs, ii. 77). 
 Twelve of the royal council and twelve barons were to meet 
 together and appoint a permanent council of fifteen, which 
 actually for some time took upon itself all the powers of the 
 royal government. The constitutional ideas of this period 
 are the expression of the views of the barons as a class on 
 the subject of their participation in the political government ; 
 a parliament three times a year ; annual appointment of the 
 
 barons hold out the prospect of a coyn- that this shall be done by twelve fideles 
 
 mune auxilium, if the King will con- of his council, and twelve other Jideles, 
 
 sent to reform the administration of the who shall be chosen by the proceres 
 
 realm. The King promises on oath themselves. 
 
First Attempt at a Governmenthy Estates of the Realm, 323 
 
 chief justice, chancellor, and treasurer in parliament ; the 
 barons to undertake to guard the royal castles ; the sheriffs in 
 future to be chosen by the counties. On the other hand, the 
 barons shall be no longer bound to appear as suitors before 
 the sheriff. (3^) 
 
 The regency based upon these ideas procures obedience to 
 be sworn to itself, then expels the King's nearest relations, 
 and prolongs the tenure of offices in its own interest. On 
 this point fresh dissensions arise among the nobility. An 
 attempt at mediation by King Louis of France results in an 
 advantage to the King, who for a short time once more gains 
 the upper hand. But the confederation of the nobles under 
 Simon de Montfort now has recourse to arms, and the King 
 is taken captive in the battle of Lewes (12th May, 1264) ; 
 Magna Charta is again confirmed, a new regency appointed 
 in the name of the King, and an assembly of twenty-three 
 barons of the party of nobles convoked as a " parliamentum.'" 
 
 (3*) On the 11th June, 1258, the 
 prelates, earls, and "nearly a hundred 
 barons " appeared at this meeting at 
 Oxford, which in a royal " letter of safe 
 conduct " of the 2nd June is called a 
 Parlicanentum. Each party choose for 
 themselves twelve for a committee of 
 twenty-four, these twenty-four then 
 choose four from their number, and 
 the four thus elected form the royal 
 council of fifteen persons. The com- 
 mittee thus elected of twenty-four, 
 demands first of all the faithful observ- 
 ance of the charters which have been 
 so often sworn to. The appointment 
 of the chief justice, chancellor, trea- 
 surer, and other officers to be elected 
 annually shall for ever reside in the 
 committee. Three times a year a par- 
 liament is to be held: on the 6th of 
 October, 3rd of February, and 1st of 
 June. In these judicial assemblies, 
 the chosen counsellors of the king 
 shall appear (whether they be sum- 
 moned or no), to deal with the common 
 business of tlie realm, in so far as the 
 King commands it. For this purpose 
 twelve persons were appointed (two 
 bishops, one earl, nine barons), to re- 
 present the communitas in such further 
 
 deliberations, and especially in under- 
 taking the burdens of the communitas. 
 The " twelve probes liommes, with the 
 King's council in the three parliaments, 
 shall deal with all tliC public affairs of 
 the nation ; and the communitas shall 
 accept as settled what the twelve do." 
 Other ordinances also were resolved 
 upon. The assembly chose a spe- 
 cial committee of twenty-four (three 
 bishops, eight earls, thirteen barons), to 
 deliberate upon an auxilium, on which 
 matter, however, no final dt cision was 
 arrived at. A decree further ordained 
 that in each cou\ dj ^^ quatuor discreti 
 et legates milites " are to be chosen to 
 delii3erate on tlie national grievances 
 and report thereon at the next parlia- 
 ment. These are the main character- 
 istic resolutions of the Mad Parliament 
 at Oxford, which the Peers' Report, 1. 
 101-127, treats of in detail. In conse- 
 quence of the application of the elective 
 principle, the central government now 
 fell into the hands of an elected national 
 ministry, consisting of fifteen per.-ons, 
 the majority of whom were hostile to 
 the King, and thus begins a systematic 
 party government. 
 
3 24 
 
 Constitutional History of England. 
 
 But the victorious party meets from the first 'with but doubtful 
 obedience. The county officers appointed by it manifest an 
 arrogant and arbitrary behaviour. During the reaction, and 
 the disunion of the leaders which soon again ensued, Prince 
 Edward succeeded (28th May, 1265) in escaping from the 
 captivity in which he had been kept by the barons, and with 
 a hastily collected army of followers surprised the insurgents. 
 After the battle of Evesham, in which Simon de Montfort 
 himself was slain, the party of the barons appear in the 
 course of a few months to have been entirely scattered. {^^) 
 
 (3*') The resolutions of Oxford proved 
 in the event that it was impossible to 
 apply a principle of election to the in- 
 formal and inharmonious vassals of 
 the Crown in England. "Almost a 
 hundred barons " had appeared at 
 Oxford ; but even this comparatively 
 small number of lesser Crown vassals 
 was sufficient to pass extra va.2"ant reso- 
 lutions. Those members elected by 
 the lesser vassals appeared only as 
 representatives of the claims of the 
 feudal nobility. In the elections the 
 Church was most f^rudgingly dealt 
 with. But most of the lesser knights 
 also were yet ill satisfied with the 
 committee of estates of twelve, which 
 was to represent them once and for 
 all. Even in the next parliament 
 (6th October, 1258), the " Communitas 
 hachellarix Angh'x " sends in a sort of 
 loyal address and a complaint directed 
 to Prince Edward. The disunion among 
 the barons increased. In 45 Henry III. 
 (parliament at Winchester, 1261), the 
 King lays before them a papal bull, 
 by which he has been released from 
 his oath to observe the provisions of 
 Oxford, and which in like manner 
 absolves the prelates and laity from 
 their oaths in respect of all decrees 
 prejudicial to the King. The Bishop 
 of Worcester and Simon de Montfort, 
 on the other hand, summon for the 
 21st September, 1261, an assembly at 
 St. Albans, to which three knights are 
 summoned from each county. The 
 King summons for the same day a 
 council at Windsor, and commands tlie 
 sheritFs to send the said knights to the 
 King, and to no one else, " su2:)ra pro- 
 missis colloquium habituri." The sub- 
 
 sequent parliaments in vain negotiate 
 with the view to a compromise. In 48 
 Henry III. (parliament 13th December, 
 1263), the dispute between the King 
 and the barons is referred to the judg- 
 ment of the King of France, as arbi- 
 trator. This judgment is published, 
 and declares the provisions of Oxford 
 null and void. In 48 Henry III. (par- 
 liament at Oxford, 30th March, 1264), 
 the barons adhere to the assertion that 
 the provisions so solemnly sworn to, 
 were based upon Magna Charta, and 
 declare to abide by them until the 
 end of their lives (Hody, 359). Im- 
 mediately afterwards the barons' war 
 breaks out ; the King is vanquished 
 and taken prisoner in the battle of 
 Lewes, on the 12th May, 1264. On 
 the 25th of May peace is proclaimed ; 
 in twent3^-nine counties conservators of 
 the peace were appointed, and writs 
 (dated 4th June, 1264) are issued sum- 
 moning a parliament, to which also 
 " quatuor de legalioribus et discretio- 
 ribiis Militibus Comitatus, nobiscum 
 tractaturi de negotiis predictis" were 
 summoned. At this parliament, held 
 at London, decrees were issued by the 
 prelates, barons, and the communitas 
 terrx there present, pro yace regni. 
 But now a rupture takes place between 
 Montfort and the Earl of Gloucester. 
 In 49 Henry III. (20th January, 1265), 
 a parliament is held in London, to 
 which were summoned the Archbishop 
 of York, twelve bishops, sixty-five 
 abbots, thirty-six priors, and the Master 
 of the order of the Templars, and also 
 five earls, and seventeen barons, the 
 last named probably all belonging to 
 the party of Simon de Montfort (Peers' 
 
First Attempt at a Government hy Estates of the Realm. 325 
 
 The fourth and concluding epoch of this reign takes ex- 
 ternally a quiet course with the conclusion of peace, an amnesty, 
 and the arbitrators' awards (dictum of Kenilworth). The 
 King once more takes back the power of appointing to offices. 
 Such of the rules laid down in the provisions of Oxford as 
 are not at variance with the royal prerogative, are confirmed 
 by the King with the consent of parliament ; and after severe 
 trials we find Henry again in the parliament at Marlebridge, 
 regulating the affairs of the nation as law giver, though he has 
 given up his foreign favourites, and has repeatedly confirmed 
 Magna Charta. (4) 
 
 The parliamentary progress in this chain of events touches 
 two points : 
 
 Reports, i. 141-145). But there is 
 besides, a clause to the effect that the 
 VicecomUes are to send two knights 
 from every county, the cities and 
 burghs two citizens, and the cinque 
 ports each four men to the assembly 
 (see note at end of the chapter). 
 
 (4) The important precedents in the 
 fourth period are: In 49 Henry III. 
 (parliament at Winchester, 8th Sep- 
 tember, 1265), the bishops were sum- 
 moned with the exception of the four 
 bishops belonging to ^Fontfort's party. 
 Also a number of secular Crown vas- 
 sals, including the widows of the earls, 
 barons, and knights, who had been 
 slain or taken prisoners in battle. 
 The landed estates of the rebels were 
 confiscated and distributed amongst 
 the "friends of the King." The frivo- 
 lous and faithless conduct of the King, 
 however, caused the Earl of Oxford 
 again to appeal to arms, and to play 
 the part enacted in later times by Duke 
 Maurice of Saxony. In 50 Henry III. 
 (24th August, 1266, parliament at 
 Kenilworth), a commission of three 
 bishops and three barons was appointed 
 by the King et a haronihus consiliarihus 
 Anglix, to provide for the welfare of 
 the country, and for those who had 
 been disinherited. Those six are, in 
 like manner, to choose six others. The 
 papal legate and Prince Henry are to 
 decide as umpires. The so-called 
 dictum (award), of Kenilworth was 
 agreed on. At the parliament held 
 
 at Northampton on the 26th of October, 
 the verdict of the twelve was pub- 
 lished and confirmed. The partisans 
 of Montfort were restored to their 
 possessions on payment of five years' 
 income, or less, from their estates, ac- 
 cording to the gravity of their offence. 
 On the 18th of November, 1367, a par- 
 liament or commune concilium regni 
 was held at Marlborough, " ad meliora- 
 tionem regni et exyeditionem justitice." 
 There were present, besides the mag- 
 nates et discreti, also the chief justice, 
 the chancellor, the judges, and others 
 of the King's council. The resolutions, 
 under the name of the " Statuta of 
 
 Marleberj 
 
 mst always be considered 
 
 as a portion of the national legislation 
 (Peers' Reports, i. 159). In 53 Henry 
 III. (parliament at Westminster), the 
 ]jotentiores of the cities and burghs, 
 as well as the magnates, were invited 
 to the solemn translation of the bones 
 of Eadward the Confessor to West- 
 minster Abbey. After tiie clo^e of 
 the ceremony the nohiles form a par- 
 liament and grant a twentieth with 
 the consent of the regni majores 
 (Peers' Report, i. 161). In 55 Henry 
 III., on the 13th of January, 1271, at 
 a parliament of the magnates held in 
 London, the lords and others who had 
 been disinherited were completely re- 
 stored to their possessions per commu- 
 nem assensnm. In the fallowing year 
 Henrv HI. died. 
 
326 Constitutional History of England. 
 
 (i.) The right of the Crown vassals to assent to the impo- 
 sition of scutagia and extraordinary aids, is established by 
 more than twenty precedents, and indeed as much by grant 
 as by refusal. 
 
 (ii.) In connection with the tax- voting assemblies, the par- 
 ticipation of the magnates in the promulgation of royal ordi- 
 nances also revives. A number of the legislative resolutions 
 of this period were, in the later judicial practice, put on the 
 same footing with the subsequent parliamentary statutes, and 
 were enrolled among the collections of laws ; notably, the 
 Provisiones de Merton (Eotuli, cl. 20 Henry III.), and the so- 
 called statutum de MarUherge (Eotuli, cl. 44 Henry HI.)? etc. 
 This last is at the outset described as ^^provisiones, ordina- 
 tiones et statuta subscripta,'' and is similar in form and con- 
 tents to the statutes published under Edward I.*** 
 
 Among the varying fortunes of these struggles, the advance 
 of the Crown vassals towards a constitutional position is un- 
 mistakably evident. After numerous confirmations so much 
 had been achieved, that even at the climax of each successive 
 reaction there is no longer any question of a repeal or curtail- 
 ment of Magna Charta. The omission of articles 12 and 14, 
 which dealt with the grant of scutagia and aiixilia, was com- 
 |pensated for by an effectual practice of grant and refusal. 
 All circumstances appear to concur favourably to originate a 
 constitution of the estates of the realm. A weak and faith- 
 less monarch endeavours to get rid of the disagreeable gua- 
 rantees of Magna Charta ; he is forced on five different occa- 
 sions solemnly to recognize their validity. He endeavours in 
 the old way, with the help of favourites and official clerks, to 
 restore personal rule ; the power of the prelates and barons 
 
 *** It is from tlie precedents given laws, most completely into the "Sta- 
 in notes 1-4 that the above results, viz. tutes of the Realm " (1810), edited by 
 the right of the barons to assent to the the Record Commission. The moat 
 extraordinary aids, and their partici- notable are the Provisiones de Merton 
 pation in the most important decrees (statutes, p. 1), the Statutum Eihernias 
 of the King, are deduced. From the (p. 17), the provisions touching leap 
 so-called Statute of Merton onwards, year (p. 7), the Dictum de Kenihvorih 
 a number of these ordinances were (p. 12), the Statutum de Marleberge 
 adopted into the later collections of (p. 19). 
 
First Attempt at a Gomrnmenthy Estates of the Realm, 327 
 
 drives him to dismiss these counsellors, to banish them, and 
 to accept the great officers who are directly forced upon him. 
 His chronic state of pecuniary embarrassment compels him 
 constantly to assemble parliaments ; but almost every demand 
 is met by statements of national grievances, which the Govern- 
 ment sees itself compelled to redress. Prelates and barons 
 vie with each other in an opposition, which is based upon 
 the memories of the Great Charter, upon common interests, 
 upon an increasing respect for class interests and associa- 
 tions, and upon the weakness and perverseness of the King. 
 The discontented barons at length find a leader in Simon de 
 Montfort, the brother-in-law of the King, a magnate renowned 
 alike as a statesman and a general. Under such leadership 
 the nobles succeed for the first time in vanquishing the 
 monarchy in open battle, and in taking captive the King and 
 the heir to the throne. 
 
 And yet the great successes of the barons are neutralized 
 with marvellous rapidity ; no parliamentary constitution 
 results from their victory, in the sense of the feudal constitu- 
 tions of the Continent ; because as a fact the material con- 
 ditions of a parliamentary constitution were still wanting, 
 alike in the form of the governmental power, and in the 
 formation of the estates. 
 
 In the first place, the royal rule had still the character of 
 absolutism. All sovereign rights still appeared as emanations 
 from a personal will. The possessions and rights of the 
 dominant class, the position of the vassals of the towns, every 
 form, normal or exceptional, of the liberties and franchises, 
 was still based upon the personal decrees of the king. The 
 limits of this power had indeed been indicated in general 
 outlines by Magna Charta ; but the executive laws were still 
 wanting which were to introduce these principles into the 
 practice of the Exchequer, and of the royal county and local 
 magistracies. Against the decided personal will of the king, 
 neither the committee of the King's com't, nor the bureau- 
 cratical Exchequer afforded a reliable protection. How should 
 the discontented magnates in such a constitution establish a 
 
328 Constitutional History of England. 
 
 check upon the squandering of the national resources, the 
 abuse of the discretionary military, financial and judicial 
 powers, unless they themselves exercised these powers ? All 
 political administration was so framed as to receive its 
 impulse directly from the King and his personal advisers. 
 This bureaucratic form turned all the influence exercised by 
 the magnates in the direction of appointments to the great 
 ofiSces and the shrievalty. They were thus in the most direct 
 way placed in possession of the power ; but the influence and 
 the sagacity even of the most clear-headed leader could not 
 hinder the immediate abuse of this power ; an abuse which 
 was at once itself felt by the opposite party, as well as by the 
 lower classes, and incited them to resistance. Every exercise 
 of the rights of sovereignty was regarded by jealous partisans 
 as despotic ; and every refusal of a favour was interpreted by 
 adherents as an insult and a reason for revolting. Without 
 any fault, so far as is proved, of the great leader, the un- 
 limited power was converted into a party instrument in the 
 hands of the victorious, but politically speaking inexperienced 
 party. The dissatisfaction and reaction that ensued, restored 
 the so-called *' King's friends," i.e. foreign adventurers, 
 covetous dependents, and officious clerks to their former posi- 
 tions. As the monarchy is in no direction equal to the 
 situation, there arises that wavering and apparently aimless 
 struggle which we have seen. 
 
 But regarded from below also, the Crown vassallage still 
 lacked the form for an adequate representation as a collective 
 whole. Their feudal position excluded the sub- vassals, as it 
 did all the other freeholders, from equality with the Crown 
 vassals. In this period the Crown vassals still comported 
 themselves as the communitas terrse, as a matter of course 
 and in good faith, knowing that they had the nation at their 
 back. In another direction, however, the esprit de corps, and 
 the self-esteem of military honour confirmed the lesser King's 
 vassals in the idea of their being j^ares ; whilst the i^rincely 
 lords, who were related to the royal house, and also the pre- 
 lates, refused to recognize such an equality, which in point of 
 
First Attempt at a Government hy Estates of the Realm. 329 
 
 numbers would have placed tliem in a modest minority. An 
 election of representatives of the inferior nobility to attend a 
 concilium regis could no more be successful in those times 
 than at the present. If real political performances were to be 
 represented, the thousands of sub- vassals, the freeholders and 
 the towns were of greater importance than the lesser barons. 
 The attempt to allow only a hundred " barons " at the 
 Parliament of Oxford to participate at the election of a 
 national committee, resulted in an immoderate assertion of 
 feudal claims. The personal rule is followed by a personal 
 opposition rule with confiscations, banishments, and bloody 
 struggles, in which on both sides the followers are sacrificed, 
 whilst the great lords introduce among one another private 
 warfare, letters of challenge and all the ceremonial of 
 chivalry; a state of things which, under an impotent and 
 perverse Government, appears worse than the previous national 
 grievances. 
 
 There was still something incomplete in these constitutional 
 conditions which neither the spiritual nor temporal barons 
 were able of their own energy to surmount. It consisted in 
 the onesidedness of each social class interest, so that each 
 party of the barons after gaining the victory, knew of no 
 other use for the absolute political power, than to advance 
 and enrich themselves and their party. In like manner from 
 those party struggles no form was discoverable for giving 
 the lesser barons a constitutional position by the side of the 
 greater, and for securing to the freeholders of the land the 
 portion belonging to them, side by side with both. Only 
 the negative experience had as yet been made that it was 
 unadvisable to form the inferior nobility into a body of 
 electors. The politic leader of the party of the nobles had, it 
 is true, found a form for the representation of the larger 
 communitas, but it was once more lost in the party conflict. 
 It was reserved to the able successor of Henry III. to 
 develop the third element which was still wanting in the 
 representation of the State. 
 
 That third factor is the collective tody of the sub-vassals and 
 
330 Constitutional History of England. 
 
 the freemen of England. The communitas of the counties and 
 cities had been hitherto excluded by the feudal system from 
 immediate participation in national affairs. This defect had 
 been involuntarily acknowledged on all sides. From the 
 commencement of the reign of Henry III. the attentions 
 paid to them are increased. They are requested to bring 
 forward, by deputies, their complaints against the sheriffs ; 
 they are employed in reforming and raising the taxes ; they 
 are offered the election of their own sheriffs ; and in 1258 
 they are invited to choose two knights " vice omnium et singu- 
 lorum,'' in order that these shall appear to deliberate upon 
 the auxilia, " coram consilio regis.'" In 1261 Simon de 
 Montfort summoned three knights from each county to a 
 deliberation upon the *' State business," whilst the King in- 
 vited the same deputies to his council at Windsor. But after 
 Henry had been taken prisoner, Simon de Montfort sum- 
 moned, in the King's name, two knights from each county, 
 and two citizens from a number of townships to a national 
 council on the 28th of January, 1265 ; and so in a certain 
 sense this epoch may be said to close with the birth of the 
 Lower House. 
 
 Note to Chapter XIX. — The germs III. (1226) writs were addressed to the 
 
 of a representation of the shires and sheriffs of Gloucester and of seven other 
 
 cities by chosen members appear at counties, with the command to have 
 
 the close of this period as first at- quatuor milites de legalioribus et dis- 
 
 tempts. In the older political con- cretioribus chosen by the milites and 
 
 troversial writings erroneous stress probi homines of the shire. But the 
 
 was laid upon events which contain quatuor milites are only to appear as 
 
 nothing about the particii^ation of shires indictors of the Fzc(^co7n«Yes concerning 
 
 and cities in the voting of taxes and a violation of Magna Charta. In 58 
 
 in legislation. The oldest precedent Henry III. (council at Westminster) 
 
 is said to have occurred in 15 John, the sheriifs were ordered each to send 
 
 in a military summons, containing the two legales et discretos milites to the 
 
 following clause :" that gttafworcZ/screh' council, ^^vice omnium et singulorum 
 
 milites from each shire shall be chosen eorundem ad providendum, quale auxi- 
 
 in the first county court ad loquendiim Hum nobis in tanta necessitate impendere 
 
 nobiscum de negotiis regni nosiri." voluerunt.'' In like manner, writs are 
 
 Here only confidential men are meant, addressed to the bishops with directions 
 
 with whom the King wishes to de- to assemble tlie " arcMdiaconos, vivos 
 
 liberate at the time when the invasion religiosos, et clerum " in their dioceses 
 
 from France was threatening ; the to deliberate upon a subsidy. The 
 
 question is here neither one of laws nor lower clergy are then to send their 
 
 of the granting of aids, nor does it proxies and report their resolutions, 
 
 appear whether the assembly M'as The Peers' Report (i. 56) acknowledges 
 
 actually held or not. In 10 Henry this to be the first documentary evi- 
 
First Attempt at a G over nmenthy Estates of the Realm. 331 
 
 dence of an attempt to send represent- 
 atives of corporations to a council. But 
 the question is here only one of a 
 participation of the lesser vassals of 
 the Crown in a deliberation touching 
 extraordinary aids. Now for the first 
 time the attempt was made to grant 
 them a definite share in the proceedings 
 side by side with the greater barons, 
 in the person of two representatives 
 chosen from their midst, instead of the 
 general collective summons by the 
 sheriif, projected by the charter. In 
 like manner the two knights mentioned 
 in the writ, were not summoned direct 
 to parliament, but only to appear 
 ^^ coram concilio nostra " (Parry, Par- 
 liaments, xiii.). This event is of im- 
 portance as being the first form of a 
 representation, though only of the 
 Crown vassals, and only for money 
 grants. In 42 Henry III., at the Mad 
 Parliament at Oxford, this elective 
 principle adopts a new form, about a 
 hundred barons being convened to the 
 parliament itself, that is, for the most 
 part lesser barons, and a committee of 
 twelve chosen from those there as- 
 sembled; an application of the principles 
 of suflrage, which at last leads to a 
 civil war. But here also it is only the 
 Crown vassals that are meant. In the 
 summer of 1261 (45 Henry III.), the 
 Bishop of Worcester and Earl Simon 
 convoked an assemblv at St. Alban's 
 for the 21st September, 1261, with 
 the order that three knights of each 
 county should appear, to deliberate 
 in common upon national aifairs. The 
 King, on the other hand, fixed the same 
 day for a council at Windsor, and 
 commanded the sheriffs to send the 
 said knights to the King " siqjra 
 promissis colloquium hahituri." This 
 was certainly an attempt to convene 
 representatives of the shires for a 
 legislative assembly (Peers' Eeport, i. 
 133) ; but it was made in a tumultuous 
 and discordant manner, and its result 
 was so unsuccessful, that it could not 
 lank as a precedent. In 48 Henry III., 
 at the Parliament held in Londcm on 
 the 24th of June, 1264, whilst the 
 King was the prisoner of the barons, 
 by orders issued to the conservators of 
 the peace four knights were summoned 
 from each of twenty-nine .^hires in the 
 following formula: " Vobis mandamus 
 quatuor de legalioribus et discretioribus 
 
 militibus dicti comitatus, per assensum 
 ejusdem comitatus ad hoc electos, ad nos 
 pro toto comitatu illo mittatis. Ita quod 
 sint ad nos Londini, in octavis, etc., 
 nobiscum tractaturi de negotiis (nostris 
 et regni nostri) prxdictis." But the 
 question here touches only the restor- 
 ation of the national peace, and a 
 deliberation concerning it, with four 
 trusted men. As the '•'■ fideles nostri'* 
 are mentioned, it is evident that only 
 Crown vassals can be intended. It is 
 likewise proved that the grant of a 
 twentieth in this year was only made 
 by the prxlati et magnates. (Parry, 
 Parliaments, xiii.). It was not until 
 49 Henry III,, at a Parliament held 
 in London, on the 20th of January, 
 1265, that the first precedent of the 
 summons of deputies of the shires and 
 cities occurs. The King, wdio was still 
 a prisoner of the barons, issued personal 
 writs to one hundred and twenty-two 
 clergy and twenty-three temporal 
 barons, " ad tractandum nobiscum et 
 cum concilio nostro, necnon et aliis 
 arduis regni nostri negotiis." And 
 then further, ^'■Item mandatum est 
 singidis Vicecomitibus per Angliam., 
 quod venire faciant duos milites de 
 legalioribus et discretioribus militibus 
 singulorum comitatuum, ad Begem 
 Londini, in octabis prxdictis in forma 
 siipradicta. Item in forma prsedicta 
 scribitur civibus Lincoln, et cseteris 
 Burgis Angliie, quod mittant in forma 
 pnedicta duos ex discretioribus tarn 
 civibus quam burgensibus suis. Item 
 mandatum est baronibus de probis hom- 
 inibus quinque portuum, quod mittant 
 quatuor de legalioribus et discretiori- 
 bus,'' etc. The text of the writs 
 addressed to the sheriffs and towns 
 has indeed not been preserved to us, 
 but probably nearly agrees with those 
 addressed to the Cinque ports. "7^a 
 cpiod sint ibi in octavis prxdictis no- 
 biscum et cum prselatis et magnatibus 
 regni tractaturi et super prsemissis 
 auxilium impensuri" etc. With this 
 act a form of summoning the communi- 
 tates regni originates with the follow- 
 ing innovations : — 
 
 (i.) Nut only were representatives of 
 the lesser Crown vassals convened, but 
 the shires and a number of towns as 
 such, were represented by two members 
 of the body of the community of the 
 shire and the citizens. 
 
332 
 
 Constitutional History of England, 
 
 (ii.) These representatives were 
 directly convened to deal with the 
 business of the nation ; no longer as 
 formerly, merely for the military levies, 
 or for peace negotiations, or for particu- 
 lar judicial and administrative purposes. 
 
 This is therefore the act which origi- 
 nated the later Lower House. The 
 majority of the older historians of the 
 Constitution have rightly recognized 
 this ; as, for instance, Spelman, in his 
 "Glossarium," under the word ^'Par- 
 Uamentum," and again in his special 
 treatise on Parliaments. The same 
 result is deducible from the rej)rint of 
 the Parliamentary writs by Pryune 
 (1659-1664), and from Dugdale's "Sum- 
 mons," but principally from the Peers' 
 Eeports on the dignity of a Peer, vols. 
 i. and v. Among more recent treatises, 
 this has also been acknowledged as a 
 safe deduction by Hallam ("Middle 
 Ages"), and Parry ("Parliaments," 
 xii.). The summons of 1265, however, 
 does not as yet show how far the con- 
 vocation of the shires and cities was 
 constitutionally necessary for the pub- 
 lication of decrees and the deliberation 
 upon subsidies. The circumstances 
 
 attending the convention were of 
 such an extraordinary kind, that the 
 necessity of a repetition did not as yet 
 result from them. It was with such 
 councils almost as with Henry the 
 Second's assembly of notables ; they 
 cease again, simply owing to the fact 
 that the King no longer summons such 
 extraordinary assemblies. After the 
 overthrow of Simon de Montfort and 
 his party, all that we hear of is the 
 restoration of the ancient constitution 
 and national rights. The further 
 concilia held by Henry III. are sum- 
 moned in the ordinary way by per- 
 sonal writs addressed to a number of 
 prelates and magnates ; only from 
 these councils the later money-grants 
 proceed ; only from them the statutes 
 of Marlebridge. The event of 1265 
 was of moment in the same way as 
 the Assizes of Clarendon and North- 
 ampton a hundred years before ; the 
 lesser vassals and the freeholders had 
 for the first time been combined into 
 a body, and had the consciousness 
 that to them belonged under certain 
 circumstances a share in the King's 
 council. 
 
( 333 ) 
 
 CHAPTER XX. 
 
 Wbt (JTIass-relations of tfie .^nglo=iaorman ^erioU, 
 
 At the close of this period we must summarize from all the 
 conditions, which we have hitherto traced in detail, the 
 influence of the feudal system upon the formation of the 
 Anglo-Norman estates. After the close of the first century 
 from the Norman Conquest, the law work of Glanvill dis^Dlays 
 to us the English feudal law complete in its technical develop- 
 ment. The "Liber Niger" (edit. Hearne) gives a sketch of 
 the greater feudal estates in the same period, while the col- 
 lection of Testa de Nevill (edit. 1807) furnishes one for the 
 close of the period. 
 
 At the beginning of the period the Norman Crown vassals 
 evidently regarded themselves as a ruling class ; the sub- 
 vassals were looked upon almost as a middle class, the rest 
 of the population as vulgar roturiers, as nearly as possible like 
 the class liable to the '' taille " in France. The feudal system, 
 by blending office and property, and by turning all relations 
 of dependence into those of service, had everywhere the 
 tendency to create an hereditary ruling-class and an hereditary 
 serving-class. In England it was the power of the monarchy 
 which checked this process of development. The royal power 
 was here strong enough to keep the spiritual and the temporal 
 power, the military and civil departments, and the personal 
 right of honour, as well as the hereditary right of property, 
 within their fixed and proper limits, to make every higher 
 right in the State, dependent upon higher performances for 
 
334 Constitutional History of England. 
 
 the State, and not to allow the nobility and knighthood to 
 become an aristocracy of birth, but to keep them upon the 
 level of a " class-right." The imperfect development of 
 estate privileges is decidedly the strong side of these institu- 
 tions ; and one which rendered the formation of a vigorous 
 parliamentary constitution possible in the next period. 
 Through the power of the monarchy, in England, the com- 
 bination of property with State duties and with political rights 
 was guided into grooves different from those on the Continent, 
 and formed the following degrees : — 
 
 I. '^ftc ODlass of t]^e CSrrcater Fassals, which is subject to 
 the greatest change, embraced in its original distribution 
 after the Conquest those men, who had already on the Con- 
 tinent enjoyed the rank of count, or who had brought whole 
 divisions to the army. The estates of the twenty greatest 
 feodaries in Domesday Book contain, according to the ordi- 
 nary computation ; 793, 489, 442, 298, 280, 222, 171, 164, 
 132, 130, 123, 119, 118, 107, 81, 47, 46, and 33 knights' fees 
 with various appurtenances. In an analogous position with 
 regard to property were the bishops and many abbots. If the 
 comparative smallness of the knights' fees be borne in mind, 
 and the constant diminution of the lordships by subin- 
 feudation, it will be seen that they were originally much 
 smaller than the duchies and earldoms of the Continent. Of 
 still greater importance was their want of compactness, which 
 dated from the Anglo-Saxon period, the possessions of the 
 four greatest feudatories being scattered throughout from six 
 to twenty-one counties. Between these lay the royal demesnes 
 and tiie estates of lesser vassals in all the counties. The 
 landowners accordingly could not consolidate themselves, for 
 the strict law of escheat on failure of an heir to the fee, or 
 confiscations, would often bring back the same estate to the 
 Crown several times in a single century. The great feuda- 
 tories of the time of the Conquest are all found during the 
 first century among the rebellious vassals. The three greatest 
 grants were recalled by the Conqueror himself. As a rule, 
 however, the older lordships remained intact, and were 
 
The Class-relations of the Anglo-Norman Period. 335 
 
 referred to in the Exchequer as extraordinary fees under the 
 name of "capital honours." Their sub-vassals who were 
 scattered throughout the counties were summoned by the royal 
 Vicecomes. The formation of a compact militar}^ power was 
 thus actually and legally hindered by the prohibition of private 
 fortresses, and by the oath of allegiance paid by the sub- 
 vassals to the King. The same impediments checked the 
 power of forming great feudal courts, which became in later 
 times more and more confined, owing to the system of itinerant 
 justices and the permanent central tribunals, and was further 
 diminished at each successive re-grant. The Norman Period 
 was certainly not deficient in external splendour. Many a 
 manorial household formed a small court with the ancient 
 court offices, which were sometimes even hereditary. Many 
 lords are described as being owners of parks; certain of them, 
 with royal permission, possessed a fortified castle. In the 
 charters addressed to their men and tenants, they made use 
 of the style of the royal charters : " Dapifero meo et omnibus 
 hominibus meis, tarn Francis qiiam Anglis.'" But with all this 
 splendour there was no solid foundation, and most especially 
 the support found in faithful vassals was lacking. After all, 
 the eminent position of these lords was more an actual than 
 a legal one. The barones major es, indeed, appeared in the 
 military array as bannerets; their reliefs, wardships, and 
 marriages form the principal items in the Exchequer (Dialogus 
 de Scacc, ii. c. 10), and in the rating of the relevia and 
 amerciaments, they had the undesired honour of a higher 
 scale. As a matter of course at the royal assizes, the barones 
 majores, being summoned to court by name, were put before 
 the squireless knights. But if in spite of these things, no 
 hereditary dynastic families arise in England, and the position 
 of the great vassals remains based merely upon class-rights 
 and privileges, as in the Anglo-Saxon period, when the great 
 Thane, as such, has no greater Weregelt than the county 
 Thane, it is due to the conjunction of the following circum- 
 stances : — 
 
 (i.) Firstly, to the difference in origin, because in England 
 
336 Constitutional History of England. 
 
 the lord's position was not founded upon Seigneur alty (that 
 is, the transference of mihtary service from the small to the 
 great landed estates), but upon the police protection of the 
 Hldford. Besides this the monarchy did not allow any 
 extension of the manorial, judicial, and police powers to arise, 
 and no privileged right to a court of peers, and no exception 
 to military service ; but by the assize of arms it rather 
 raised to a living military institution that popular array 
 which in the northern counties had always remained able 
 to take the field. The haughty bearing of the martial classes 
 against free civilians found therein an effectual barrier. 
 
 (ii.) It was also due to a difference in its development. 
 After the reign of Henry I. the great bishop, Koger of Salis- 
 bury, whose family for a hundred years occupies so eminent 
 a position in the administration of the realm, is to be regarded 
 in some measure as the founder of a new official nobility, 
 the distinguished members of which not only find their way 
 into the bishops' sees, but also, by grant of manors and 
 by marriage, into the great nobility, such as the Bassets, 
 Clintons, Trussebuts, etc. At the close of every two genera- 
 tions of this period the larger portion of the greater baronies 
 appear to have passed into the possession of other families. 
 As early as the commencement of the twelfth century the 
 great nobles of the conquering army were, in consequence of 
 their unsuccessful rebellion against the monarchy, dispossessed 
 of their original estates. Under Henry II. the newer official 
 nobility already forms the majority of the body of great barons, 
 whose descendants take the lead among the barons of Magna 
 Charta. Other families again appear in the foreground of 
 the barons' war. The English prelates also are not local 
 rulers, after the manner of the French and German electors 
 and bishops, but an official nobility, which conducts the great 
 business of the nation in common with the secular official 
 nobility, and on that account with all the more uniformity. 
 
 (iii.) The striving after an hereditary position for the ruling 
 class accordingly, in England, takes a direction not towards 
 the foundation of independent local lordships, but towards a 
 
The Class-relations of the Anglo-No 
 
 rnian 
 
 Period. 337 
 
 participation in the supreme council of the Cro^'n. This 
 personal vocation must, according to the nature of the case, 
 be confined to the firstborn alone. In the same manner the 
 heavy burdening with military service and taxation leads to a 
 limitation of the privilege to the firstborn, and thus lays the 
 foundation of the hereditary peerage, which arises in the 
 following epochs. (1) 
 
 II. VL\)Z Second ©lass was formed by the lesser Crown 
 vassals, gradually blending with the sub-vassals. (2) 
 
 (1) On the formation of the class of 
 the higher nobility, and subsequently 
 of the knighthood, I may be permitted 
 to refer my readers to ray treatise, 
 " Adel und Ritterschaft in England " 
 (Berlin, 1853, 8vo.), upon which, how- 
 ever, the authorities of Hallam and 
 Allen, and the older ones of Selden 
 and Dugdale, have here and there had 
 too great an influence. As to the first 
 distribution of landed property by the 
 Conqueror, cf. above, pp. 124-128 
 (Ellis, " Introduction," i. 226 seq.). 
 The manner in which the estates of the 
 magnates were mingled together, is 
 shown by the following survey of the 
 number of hides (hidx) in Sussex, in 
 which county the manorial possessions 
 are especially numerously represented : 
 Earl Roger, 818 manors ; William of 
 Warenne, 620; Earl Moreton, 520; 
 "William of Braiose, 452 ; the Arch- 
 bishop of Canterbury, 214; Earl Oro, 
 196; the Bishop of Chichester, 184; 
 Bishop Osbern, 149; the Abbot of 
 Fecamp, 135 ; Battle Church, 60 ; the 
 King, 59; the Abbot of St. Peter, 39; 
 the Abbot of St. Edward, 21 ; Odo and 
 Eldred, 10 ; the Abbot of Westminster, 
 7. As to the supposed estates of earls, 
 harones majores, and minores of this 
 period, cf. above, p. 288. 
 
 (2) The formation of the English 
 knighthood is in its final result de- 
 scribed in the Testa cle Neville sive 
 Liber Feodorurn in curia Scaccarii 
 tempore Henry III. and Edimrd I. (1 
 vol., folio, 1807), (Record Commission). 
 The enumeration of all the small 
 Crown-fiefs, the tenures by frankal- 
 moign, and the amount of the scutagia 
 and auxdia paid by each Crown vassal 
 prove to us, that upon the foundation 
 of possessions like these, no separate 
 
 VOL. I. 
 
 class could be built up; indeed, the 
 lesser Crown vassals were sure to lose 
 themselves in tlie mass of the sub- 
 vassals, who frequently possessed two, 
 three, four, and more knights' fees, and 
 in whom the old Saxon Thanehood was 
 also represented. How doubtful in 
 many points the line of demarcation 
 was, is shown by the county of York, 
 where, of one hundred and live Crown 
 vassals, only twenty-nine are large 
 land-owners ; the rest were as a rule 
 described as Thanes of the King, 
 whilst they are only in possession of 
 desolated lands, which at the time of 
 Domesday Book could not possibly 
 perform a knights' service. The word 
 '■'miles" sometimes designates a simple 
 horseman, and sometimes an important 
 possessor of gre-rit knights' fees. Even 
 this use of the term expresses that the 
 tenures of property and the perform- 
 ances in the commonwealth are each 
 considered separately, and tiiat accord- 
 ingly no separat'i class-r'lations are in 
 existence, arising from the blending of 
 personal rights and duties with posses- 
 sion. The homagium, too, do s not ex- 
 press such rights. It is an established 
 fact, that an oath of allegiance can be 
 taken to a private individual for a fief 
 and the grant of an estate in return for 
 service; without them, certainly only 
 to the King (Bracton, ii. c. 35, sec. 6), 
 It is, moreover, useless to try to import 
 from the Continent into England, a 
 technical distinction between homagium 
 ligium and simplum. Thi liginm means 
 the feudal oath gtnerally (Glanvill, 
 ix. c. 1 ; Bracton, ii. c. 35, 37 ; Fleta, 
 iii. c. 16, sec. 16; Britton, c. 68). 
 The honour of serving ti e King be- 
 longs in the first place to the greater 
 land-owners, and is therefore considered 
 
Constitutional History of England. 
 
 The lesser Crown vassals differ in no way from the greater 
 in respect of their tenure. They are directly enfeoffed of the 
 King, and are competent to sit in judgment upon every Crown 
 vassal, as ixires of the Curia Regis, so soon as they are sum- 
 moned to it. Many of them find, in influential offices, a posi- 
 tion which is outwardly also equal to that enjoyed by the great 
 vassals. Of the original number of about four hundred 
 harones minorcs, the majority were probably from the first 
 owners of knights' fees in Normandy, or younger brothers and 
 sons of such possessors; and the rest the holders of small 
 court-offices, as the under-chamberlain Herbert, the four 
 cooks, the carpenter, the bow^-stringer, the forester, the 
 falconer, the steward, the porter. Only in a few cases do the 
 names, like Oswald, E aired, Grimbald, Eadgar, Eadmund, 
 and iEllured, indicate Saxons. 
 
 Of the great number of the suh-tenentes (7871) in Domes- 
 day Book apparently less than half are really subinfeudated 
 sub-vassals ; they are for the most part Saxon Thanes, and 
 free followers doing service, among whom formal subin- 
 feudation made only slow progress (above, p. 126). So far 
 as such investiture took place, the possessions of the ecclesi- 
 astical mesne tenures seem to be on the average somewhat 
 greater than those of the secular tenants. The sub- vassals, 
 who had themselves received more than a knight's fee, might 
 also themselves have suh-tenentes under them. The majority 
 of the Norman sub-vassals were probably at the Conquest the 
 dependents of the greater feodaries, younger brothers or sons, 
 servants, soldiers, or other peo^ile who had been till then 
 landless. About half of them, as far as can be judged from 
 the names, were Saxon Thanes who kept their old possessions 
 — and who had become, very much against their will, subject 
 to Norman lords. 
 
 In respect of the amount of their landed property, the two 
 classes appear from the first equal. Their feudal possessions 
 were comprised in the soil with its customary rights. UiDon 
 
 all the greaterhonour for the lesser land- Majesty" is still regarded by the Eng- 
 owners. To be a " liege subject of His lishman of the present day as an honour 
 
TJie Class-relations of the Anglo-Norman Period. 339 
 
 the estate, endowed with manorial [rights, the landowner 
 raises through his bailiffs {prsepositif reeves, stewards) the cus- 
 tomary dues ; and being generally represented by them, holds 
 his court in the forms of the court baron and customary court, 
 and by virtue of later grant a royal local magisterial court or 
 <30urt-leet. But the possession of a manor is independent of a 
 military enfeoffment, and we even meet with manors in the 
 possession of socmanni. In like manner the position of a law- 
 man {Uher et Icgalis homo) is independent of a knight's fee. 
 
 The uniform pressure which the royal power exercised upon 
 the greatest as upon the least of the vassals, was sure in this 
 state of things to make all the lesser vassals appear more and 
 more as one homogeneous body. Since subinfeudation was 
 the only form of independent disposition of fiefs, in numerous 
 •cases Crown vassals became, in respect of newly acquired 
 property, under-vassals ; even the great feudatories and pre- 
 lates did not disdain to hold a fief by under-tenure of other 
 lords and of the Church. The methods of holding property 
 became thus so complicated, especially after the Crusades, 
 that all idea of a lower rank as attaching to subinfeudation 
 disappeared. 
 
 The development of the chivalrous fraternities had made 
 the dignity of knighthood a common bond of union for all 
 vassals. Education, profession, martial honour, and partici- 
 pation in the county assemblies, are the same for the whole 
 host of the lesser vassals. Every honorary precedence of the 
 lesser Crown vassals over the sub-vassals became more and 
 more problematical when in re-grants of manors the Crown 
 changed the mesne vassals into immediate vassals, and with 
 the sanction of the King new holders entered upon the small 
 •Crown fees. 
 
 And when at last the statute of Quia Emptores (18 Edw. I.) 
 entirely x^rohibited new subinfeudations, in order to put an 
 end to the interminable complications in the tenure, when 
 every new possessor became from thenceforth the immediate 
 vassal of the lord paramount, it would have been absurd to 
 <3oncede to the lesser Crown vassals, as such, the right of 
 
340 Constitutional Histonj of England. 
 
 taking precedence of the old sub-vassals, ^ylio had been estab- 
 lished for generations upon their old landed estates. From 
 the time of Henry II., moreover, the decisive innovation had 
 arisen of a money payment being more and more regu- 
 larly substituted for personal military service ; there was alsO' 
 no further difference in this resj)ect between the two tenures 
 than that the lesser baron paid his scutage to the sheriff, 
 and the sub-vassal sometimes to his lord's officer, and some- 
 times to the sheriff. 
 
 A comparison with the state of things on tJie Continent 
 proves to us that the main point of distinction in England 
 was the alien ahilitij and divisibility of the knights' fees, the 
 inalienability of which was the chief basis of the lesser con- 
 tinental nobility. In England it was impossible to maintain 
 the inalienability of the fees, for the very reason that the 
 feudal bond had become extended to the whole of the landed 
 possessions in the country; alienability was even promoted 
 by the fiscal maxims of the Exchequer, to which every solvent 
 holder was equally agreeable, as well as by the ease with 
 which the royal consent could be obtained for all sorts of 
 matters on payment of fees. The period of the Crusades, for 
 instance, was productive of numerous and extensive aliena- 
 tions, mortgages, and partitions. After the acquittance of 
 feudal service by scutages, feoffments and subinfeudations 
 appeared altogether only as an onerous method of alienation, 
 through which the new holder took over with the land, the 
 pecuniary burdens of relevia, the payment of the periodical 
 auxilia, and the restraints attached to feudal wardship, mar- 
 riages, etc. The alienation carried with it also the creation 
 of new incidental ground rents, which urgently required that 
 the legislature should bring about a simplification of the law 
 of tenure. Hand in hand with this went the splitting up of 
 their land into parcels by the feudal possessors ; which was 
 intimately connected with the frequent change of possession,, 
 and with the circumstance that the judicial i^ower failed to 
 firmly consohdate itself with the landed interest. Presently 
 the Crown resolved on a re-grant in parcels in cases of escheats 
 
Tlie Class-relations of the Anglo-Norman Period. 341 
 
 and forfeitures ; then again aUo^Yed a partition among several 
 co-heirs ; and finally alienations even of portions of a fief 
 on payment of heavy fees, so that even hundredth parts of 
 a knight's fee are met with. Hence as early as the middle 
 of this period the number of the possessors of the smaller 
 fiefs visibly increased. Many of them are younger scions of 
 the families of the Crown vassals and sub-vassals ; others 
 again freeholders who had been enfeoffed for their military 
 services, or through an act of favour; others were wealthy 
 persons, especially those in the towns, who at the time of 
 Eichard I. acquired by enfeoffment such lands as were gene- 
 rally sold to the highest bidder. 
 
 The combination of these circumstances in England in 
 the Middle Ages, did not permit of the knighthood becoming 
 an exclusive hereditary dignity. Not real estate as such, but 
 the mastership acquired in doing warrior's service gave a 
 claim to the honorary title of dominus, or ''sir," which remains 
 a personal dignity that the Crown vassals were bound to take 
 up. This honorary title is also conferred in the Middle Ages 
 upon the higher clergy and graduates of the universities. The 
 word "knight" is used to denote more specially the military 
 rank with it, but since no especial social rights are connected 
 with it, and the rights of possession and influence in the shire, 
 etc., did not depend upon it, the taking up of the dignity of 
 knighthood was in comparatively early times felt rather as a 
 burden, in consequence of the high fees chargeable, and was 
 from time to time enjoined by royal command. Already in 
 these times the Exchequer rolls contained innumerable entries 
 of fees which were paid for a delay {pro respectn militia). 
 Those possessors of knights' fees who had not acquired the 
 formal dignity of knight now call themselves esquires {scutarii). 
 In their shire, the esquire and knight were sufficiently known 
 by their position in the county court. On the other hand, since 
 the Crusades, the adoption of family arms had become more 
 and more an established custom, which in the military array 
 had been rendered necessary by the wearing of armour. 
 
 The main issue, the sum total of services to be rendered 
 
.'>42 Constitutional History of England. 
 
 to the State, became finally the same for all ; the knighthood 
 at the close of this i^eriod forms an entirety — a freed and 
 definite station, in which no contrast between noble and 
 bm-gess landowners ever arose, and without prejudice to the 
 social claims to superior honour advanced by old possessors 
 and families. 
 
 III. The mass of the rest of the fucftoltftrsantJ tenants appeared 
 from the standpoint of the Norman knighthood as " taiUahles,'' 
 a kind of " appurtenance of the soil." The royal assurances 
 after the Conquest contained indeed in general a guarantee 
 for the protection of all existing rights of property. But 
 the mass of the ceorls {villam) were still further pressed down 
 by Norman arrogance, as well as by the form of the local 
 police regulations during this period, so that they were with 
 regard to the landowner, in a precarious position, and without 
 a right of possession protected by law. As against the lowest 
 stratum of the people the monarchy allowed the x)ropertied 
 class full sway, just as it had upon the Continent created 
 a "bondmen" peasantry. Moreover, in the Exchequer there 
 was that '' j^ensee immuahlc,'' which knew full well that the 
 enormous money payments which fiefs had to render to the 
 Crown, must after all be raised through the peasants, and 
 ultimately fell upon them. 
 
 Better possessory rights on the other hand were given 
 in Domesday Book, under the headings of Uhcri ItomineSy 
 socmanni, hurgenscs. Many among these w^re old allodial pos- 
 sessors, who became more uniformly subjected to the burdens 
 of the feudal system, the more the princix)le was carried out 
 that this kind of j)ossession also could be maintained by 
 "redemption," that the inferior possessor must bear the 
 burdens of the vassals, and the Saxon those of the Norman. 
 The extension of feudal principles to it, is evidently the result 
 of an increasing practice, which originating from the Ex- 
 chequer and the Curia Regis, was at last embodied in the 
 universal maxim that " all landed property in the country " 
 is held of the King, either immediately, or mediately through 
 a mesne lord. The legal details of these relations with 
 
The Class-relations of the Anglo-Norman Period. 343 
 
 regard to private rights will probabl}' never be completely 
 explained. (3) 
 
 But with regard to public law the following circumstances 
 intervene and lead to a gradual amelioration of their position. 
 
 1. The revival of the county militia after Henry II. 's assisa 
 dc armis. Even in the feudal militia the military service 
 of such persons had certainly been customary and indis- 
 pensable as a reserve. Those thus equipped (scrvientcs) how- 
 ever appear there only as servants of their lords ; whilst the 
 assisa de armis summons them as a national levy of their own 
 duty, i.e. of their own right. 
 
 2. The constitution of the civil courts had allowed all lihere 
 tcnentes to continue to act as lawmen in the hundred court, 
 which was now certainly in a state of decay. With the 
 beginnings of the jury system their participation became ex- 
 tended. In commissions appointed to take evidence, whose 
 province became more and more only to establish facts, a par- 
 ticipation of credible inhabitants of the neighbourhood was 
 requisite. In addition to the knights, other lihere tcnentes 
 were accordingly regularly appointed, but they vrere not to be 
 mere villani or riisticl. 
 
 (3) The common law relations sub- held the villeins : ^^ decretiim est, ut quod 
 sisting between freeholders, tenants, a dominis exigentibus meritis interveni- 
 and villeins, can only be perceived in ente loactione legitima poterant ohiinere, 
 some degree from the law books, and illis invioldbili jure concederetur ; cxte- 
 considerable gaps are left in the history rum autem nomine successionis a tern- 
 of their development after the later 'poribus siihactie gentis nihil vindicaranf, 
 Anglo-Saxon era. For the period im- de civtero studere tenentur devotis ohse- 
 mediately following the Conquest, the quiis Dominorum suorum gratiamemer- 
 list given above (p. 128), taken from cari,'' etc. (Dial, de Scacc, i. c. 10). 
 Domesday Book, serves as a source of In the law works of Glanvill and 
 information. The liheri homines (ad Bracton the increasing pressure upon 
 nullam Jirmam pertinentes) who now the villani appears to have reached 
 and then occur, are probably old allodial such a pitch that former villeins and 
 peasants against whom at first no claim those who had been free possessors 
 could be made, and who were only from their birth, are comprised under 
 gradually bent down under the judicial the common expression villenagium 
 and financial practice of the feudal (Ellis, i. 81). From that time they 
 system. Liheri homines appear in con- form the " villeins regardant" in con- 
 siderable numbers only in the coun- trast to the landless "villeins in gross" 
 ties of Leicester, Lincoln, Norfolk, and (the remnant of old serfdom). Here 
 Sutfolk ; liheri homines commendati also oppression and denial of justice 
 occur principally upon ecclesiastical was undoubtedly the source of peasant- 
 estates. The "Dialogus" shows the subjection. 
 light in which bureaucratical opinion 
 
344 Constitutional History of England, 
 
 3. The criminal jurisdiction and police control of the tiirnus 
 Vicecomitis drew to it the whole of the adult population, to 
 give account of the preservation of the peace and to pass an 
 annual magisterial review, i.e. *' view of franc-pledge." In 
 spite of much that was burdensome in it, it gave rise to 
 a useful habit of common service for the whole people. In 
 the local police tribunals, which had become so numerously 
 subdivided, and which regulated their proceedings according 
 to the pattern of the turnus Vicecomitis, the dearth of free- 
 holders caused the villani to be constantly employed in actual 
 service as lawmen. 
 
 4. In a still greater degree, and systematicallj^ did this 
 become the custom in the courts leet of the towns, in which a 
 considerable burden of taxation was evenly distributed and 
 thus produced the idea of a civic equality. The various 
 ranks and descriptions of property here become inseparably 
 blended together. The sum total of all those who bore scot 
 and lot, are now described as ''liheri homines " or "freemen," 
 as men fully bound by duty, and fully entitled to their rights. 
 The towns become the nucleus of a new class-formation, 
 framed on the old relations subsisting between lihcri homines, 
 socmanni, and villani. 
 
 In the whole picture of these class relations there are found 
 in spite of all the pressure exercised by a fiscal and police 
 regime, important germs for future times. However modest 
 the measure of political privileges which these shire and 
 city unions were primarily to gain, the most important founda- 
 tion of a parliamentary constitution had been already laid ; 
 which was, the habitual and personal meeting together for 
 public business, the local and periodical co-operation of the 
 State -bureaucracy with the individual communities. 
 
( 345 ) 
 
 THIRD PERIOD, 
 
 THE PERIOD OF THE GROWTH OF 
 THE ESTATES OF THE REALM. 
 
 CHAPTER XXI. 
 
 ®|)E Cnnuvn of ovaanning ^tnlutcs — 'STIjc Winion of tjc 
 Crtntral (So&tvnmtnt tui'tf) tDt CTonstitution of t|)c Counties.* 
 
 Edwakd I., 1272-1307 Henry Y., 1413-1422 
 
 Edward II., 1307-1327 Henry VI., 1422-1461 
 
 Edward III., 1327-1377 Edward IV., 1461-1483 
 
 Eichard II., 1377-1399 Edward V., 1483 
 
 Henry IV., 1399-1413 Eichard III., 1483-1485 
 
 Almost three generations had passed away since the last 
 year of Henry II. 's reign, and the land had not j^et found 
 
 * Among the sources aud works of " Proceedings and Ordinances of the 
 
 reference for this period we must place Privy Council of England from 
 
 before all others the State records, and 10 Eichard II. to 33 Henry VIII." 
 
 joarticularly the Statute Eolls which (7 vols. 8vo, 1834-1837) ; see 'also the 
 
 exist as the official publication of the Monograph of Sir F. Palgrave, " An 
 
 Parliamentary legislation of permanent Essay upon the Authority of the 
 
 validity from 6 "Ed ward I. to 8 Ed- King's Council" (1 vol. 8vo, 1834). 
 
 ward iV., and ^Yhich are the basis of As to the Exchequer, Madox gives in- 
 
 the official collection of Statutes of the formation for this period. As to the 
 
 Eealm (1810, etc.). As the next source judicial system, see Foss, " The Judges 
 
 ■are to be considered the Parliamentary of England " (1848-64, vols, iii., iv.). 
 
 Eolls, that it^, registrations made by The general collection of the State 
 
 the officials of the Chancery of the records, Eymer, "' Fcedera, Conven- 
 
 more important proceedings in Parlia- tiones," etc. extends to 1391. 
 
 ment, now printed as '' Eotuli Par- Of the law books, Britton and Fleta 
 
 liamentorum ut et Petitiones et Placita belong to the commencement of this 
 
 ill Parliamento " (vol. i.-vi. 1832, fob). period, as does also Home's "Myrrour 
 
 The proceedings of the Continual aux Justices," (cf. Biener, "Engl. 
 
 Council are printed in Sir H. Nicolas, Geschw. Ger.," ii. 387, seg.). The 
 
346 Constitutional History of England. 
 
 rest. John's reign had left behind it the indehble impression 
 that even the Great Charter did not as yet afford sufficient 
 protection to person and property against a despotic form 
 of government. Furthermore, it had become evident that 
 nobles and prelates alone were not equal to the new task ; 
 Magna Charta had at first only engendered party struggles. 
 Accordingly, during the vicissitudes of Henry III.'s reign both 
 l^arties involuntarily resorted to the same measure, to give 
 stability and equilibrium to the nascent constitution, by 
 admitting the middle classes in groups distributed according' 
 to communities. 
 
 By the side of the great feudatories, whose participation 
 in the government of the realm had since the days of Henry 
 III. been immutably established, a middle class had si^rung 
 into prominence in the knighthood, owing to the improved 
 IDOsition of the sub-vassals and the wealthy freeholders. Their 
 position in the county court, their homes, and their family 
 connections had given the knighthood a solid influence in 
 the towns also, in which likewise a new middle class, but 
 one still inferior to the knighthood, had sprung up from 
 other sources. The monarchy had to make up its mind to 
 give these middle classes a share in the government of the 
 realm, if it did not mean, in its struggles with the magnates, 
 to part with its influence to the committees of the barons, as. 
 had been the case under the inglorious reign of Henry IH. 
 The experience of the Provisions of Oxford and of the Barons 
 War were of paramount influence upon these times. With 
 Magna Charta and the manifold limitations it imposed upon 
 the administration of the realm, with the great concessions 
 made to the Church, and the growing power of the knight- 
 hood and the boroughs, a government such as the kings of 
 
 best authority upon the practice of the stitutional History of England, Hallam,. 
 
 courts are the so-called Year Books, "Middle Ages," cap. viii. and the 
 
 that is, the collection of cases forminu' supplements to it ; Lappenberg-Pauli, 
 
 precedent determined in the central " Geschichte Englands," vols, iv., v. ; 
 
 courts, from Edward II. Of legal hut above all, Stubbs, " Constitutional 
 
 history, Eeeves, "Hist, of the English History" (1874, etc. vols. ii. and iii.),. 
 
 Law," vols. ii. and iii., deals with the whoso chief merit and main success 
 
 period. Of the treatises upon the Con- lies in this period. 
 
TJte Century of Statutes. 347 
 
 England had formerl}^ carried on by an Exchequer and a 
 number of confidential counsellors, was no longer possible. 
 
 The firm establishment of these conditions became the 
 task of the times throughout a series of statutes, beginning 
 with Edward I. the greatest monarch England had seen since 
 iElfred the Great, and the one whose rule constitutes the most 
 glorious ei30ch of the Plantagenets. The bitter experiences 
 of his father had taught him that a participation of the 
 estates in the Government could not be refused. Firm and 
 shrewd of character, he resolved to give new strength and 
 stability to the throne by means of those very institutions 
 which had proved ruinous to his predecessor. With the 
 statute of Marlebridge a legislation was begun which now- 
 made such progress, that at no other time throughout the 
 Middle Ages was so much law positively established as in the 
 century of the three Edwards. For this legislation no object 
 appeared too great, and none too small. Lord Chief Justice 
 Hale states emphatically that in the first thirteen years of 
 Edward's reign, English law made more progress than in all 
 the centuries from that time until his own day.** 
 
 The greatness and the peculiarity of this legislation lies 
 
 ** Of the fertility of the legislation de finibns levatis, de libertatibus, per- 
 
 during this period,"^ the following ab- qnirendis, Stat, de Falsa Moneta ; 28" 
 
 breviated list of the reign of Edward Edw. L, Stat, dealing with wardshi]) 
 
 I. may give ns a survey : 3 Edw. I.. and reliefs, Stat, dealing with accused 
 
 Stat. Westminster 1; 4^Edw. I., Stat. persons, Stat. Articuli super Chartas ; 
 
 de extenta Manerii ; Stat, de officio 29 Edw. I , Stat, amoveas manum ; 33- 
 
 Coronatoris ; 6 Edw. L, Stat, of Gloii- Edw. I., Stat, de Protectionibus, Or- 
 
 cester; 7 Edw. I., Stat, dealing with dinatio forestte, Stat, dealing with 
 
 alienations in Mortmain ; 10 Edw. I., measurement of land, ord. of Inquests ; 
 
 Stat, of Rutland; 11 Edw. L, Stat. 34 Edw. I., Stat, de Conjunctions 
 
 de Mercatoribus ; 13 Edw. I., Stat. Feoffatis, Stat, on Amortization, ordo 
 
 Westminster 2, Stat, of Wlnton, Stat. Forestfe ; 35 Edw. I., Stat, de Aspor- 
 
 Civitotis Londini, Stat. Circumspcctte tatis Eeligiosorum, and so on to a 
 
 Agatis, Confirmatio Chartarum ; 14 still greater extent under Edw. III. 
 
 Edw. I., Stat. Exonia?; 18 Edw. I., This stupendous stream of legislation 
 
 Stat. Quia Emptores (Westminster 3), may be explained also by the cir- 
 
 Stat. de Judaismo, Stat. Quo Warranto, cumstance that the half century of 
 
 Stat. Modus levandi fines; 20 Edw. I., the incapable government of Henry 
 
 Stat, of Waste, Stat, de Defensione III. had piled up in all directions the 
 
 Juris, Stat, de Moneta; 21 Edw. I., demands made upon the legislature. 
 
 Stat, de iis qui ponendi sunt in The merits of Edward I. are also fully 
 
 Assisis, Stat, de Malefactoribus in acknowledged by Blackstone, iv. 425- 
 
 Parcis; 25 Edw. I., Stat. Confirma- 427. 
 tionis Chartarum ; 27 Edw. L, Stat. 
 
o 
 
 48 Constitutional History of England. 
 
 in the constant realization of a single fundamental idea ; the 
 combination of all the functions of the secular executive power 
 with the existing greater unions of communities — a combina- 
 tion by which the people became penetrated with the con- 
 sciousness of its political duties, inspired with an idea of 
 political unity, and competent to take the preservation of 
 peace and order in their own hands. In this profound system 
 of legislation, as also in Magna Charta, could be perceived the 
 hand of that well schooled bureaucracy which from the close 
 of Henry the Third's reign resumed its normal activity, and 
 continued the internal consolidation of the constitution, under 
 the guidance of a high-minded monarch, and which (in spite 
 of a cessation under Edward II.) finally accomiDlished under 
 Edward III. the building, in the course of a single century, 
 of the new edifice from the heterogeneous materials at hand. 
 
 The necessary cohesion of the counties, hundreds, and 
 boroughs, was already existing, thanks to the retention of 
 the Anglo-Saxon judicial system, to the now perfect recon- 
 ciliation of national contrasts, and to the opportune transfor- 
 mation of the jiidiciitm imrimn into the jury system. The 
 country was indebted to the harsh rule of the Norman period 
 for one great result, viz. the habit of the wealthy classes 
 of being eager and ready to perform the behests of the 
 State in military, judicial, and police functions. 
 
 The essential unity and power of the executive also existed, 
 thanks to the strong development of the royal sovereign 
 rights, to the strict management of the Exchequer, to the 
 judicial bench of the Curia Regis, and to the elements of a 
 council of State, which had been rising into prominence from 
 the time of Henry III. 
 
 The fault lay only in the insufficient combination of the two 
 •elements, for which neither the officialist system of Shirgerefas 
 and local bailiffs, nor the itinerant commissions sufficed ; 
 because such institutions in the hands of a despotic govern- 
 ment became the passive tools of oppression, and under a rule 
 of grandees were converted into mere unstable and violent 
 party instruments. 
 
The Century of Statutes. 340 
 
 This gap had been filled up in the former period by com- 
 mittees of parishes, so far as temporary needs required ; that 
 is, when the royal officer, who stood aloof from the people, 
 could not determine questions of fact and local questions,, 
 except on the testimony of the neighbours on oath, i.e. hy 
 means of the provost and four men of the villages, and by the 
 rej)resentative body of twelve men or more from the greater 
 unions. In this way the framing of Domesday Book had 
 been brought about ; in this way from time to time an estab- 
 lishment of inquests of office {ad quod damnum, etc.); the 
 police functions of the court leet ; the new method of deter- 
 mining the question at issue in civil actions, and the question 
 of guilt in criminal cases ; the ratings for military service, and 
 the first ratings for the hide-impost and income-tax. What 
 was now to be achieved was the permanent and uniform 
 blending together of these elements so as to form an organic 
 union of the central government with the government of 
 provinces, districts, and towns — such an organic union as in 
 our own time forms the problem which the German Empire 
 has to solve. The essentials were — 
 
 1. That the rules of administrative law should be as clearly 
 defined as possible, seeing that the fundamental articles of 
 Magna Charta did not as yet suffice for securing a fixed ad- 
 ministrative rule, and for the protection of the subjects. 
 
 2. The formation of the system of juries into permanent, 
 uniform, and organized institutions of justice, and of military,. 
 civil, and financial administration. 
 
 3. The development of the higher and lower district offices 
 (justices of the peace, coroners, constables, etc.), for all such 
 dispositions and measures of the executive as could not be per- 
 formed by the juries, but only adequately by individual officers. 
 
 In this manner the organic union of the English Govern- 
 ment with the counties, hundreds, and boroughs was brought 
 about ; so that the exercise of the undiminished i^rerogative 
 rights passed by virtue of legal authority to the officers and 
 committees of the provincial unions. Thus arises the world- 
 renowned system of English self-government, the indepen- 
 
350 Constitutional History of England. 
 
 dent elements of wliicli had existed already in the former 
 period.*** 
 
 I. A blending of the military system ivitli the constitution of 
 the shires, to form an organized militia (originating in the 
 reign of Henry III.) dming this period became necessary, 
 both for the national defence, and on account of the military 
 power of the barons within the realm. The personal liability 
 of the owners of knights' fees to serve, still formed the basis 
 of the ordinary military system ; but the feudal roll had 
 already shrunk considerably. The growing opposition of the 
 clergy had greatly restricted the feudal services of the clerical 
 crown vassals. The administrative maxims of the Exchequer 
 had, in the case of re-grants of land, rather aimed at acquiring 
 great revenues than at the permanent interests of national 
 safety ; many groups of estates were granted under the names 
 of '' baronies," for the purpose of raising the great releviiun 
 of a hundred marks, whilst the number of the shields was 
 reduced. The dividing up of knights' fees into parcels ren- 
 dered impracticable the furnishing of troops for real purposes 
 of war ; frequent alienations brought the system of holdings 
 entirely into disorder. In all directions the insular position 
 of the country showed its influence. The military conditions 
 existing on the Continent, the hundreds of baronies and for- 
 tified towns all competent to wage private warfare, the count- 
 less castles, the short campaigns and petty sieges were not 
 to be found in England. The few castles and fortressed towns 
 were as a rule in the hand or under the control of the King. 
 
 *** The complicated details are in the township, in the hundred, and 
 
 given more exhaustively in my "Gcs- in the shire. The Norman system was 
 
 chiehte des Self-government," 1868, strong in its higher ranges, in the close 
 
 pp. 144-204. The modern English relation to the Crown of the tenants 
 
 historians appear inclined to accept in chief whom the King had enriched" 
 
 this conception of the development of (Stubbs, i. 278). " The peculiar line 
 
 their constitution. Thus Stubbs, " The of Edward's reforms, the ever percep- 
 
 principlo of amalgamating the two laws tible intention of placing each member 
 
 and nationalities by super-imposing of the body politic in direct and im- 
 
 the better consolidated Norman super- mediate relation with the royal power, 
 
 structure on the better consolidated in justice, in war, and in taxation, 
 
 English substructure, runs through the seems to reach its fulfilment in the 
 
 •whole policy. The English system was creation of the Parliament of 1295" 
 
 strong in the cohesion of its lower or- (Stubbs, ii. 292). 
 ganisra, the association of individuals 
 
The Century of Statutes. 351 
 
 Hence had resulted a state of affairs, in which the summons 
 of the feudal militia only appears as a mustering. The 
 owners of the knights' estates pursue, each according to his 
 inclination, either agriculture, or military service for pay, or 
 again the highly esteemed State service. A standing feudal 
 militia only appeared essential for the border lands, which 
 accordingly retained a different military organization. Hence 
 as early as the time of Henry H., the system of the purchase 
 of immunity by scutages had begun. This purchase of dis- 
 charge becomes gradually the rule ; after Edward II. the 
 scutage becomes absorbed in the general ground-tax. A 
 complement was now found in the county militia, in the 
 form in which the Assize of Arms (1181), had remodelled it, 
 but which had not as yet attained to its full effectiveness. It 
 now receives an elaborate code of organization. With the 
 consent of Parliament the statute of Winchester, 13 Edward I. 
 c. 6, declares the liberi Jiomines who were capable of bearing 
 arms liable to serve in the militia and bear arms from their 
 fifteenth to their sixtieth year. In like manner as in the con- 
 stitution of the Koman centuries, five degrees were formed of 
 incomes of 15, 10, 5, 2-5, and under 2 pounds of silver. 
 Every possessor of lands of an annual value of £15 or 40 
 marks in money was to provide himself with a breast-plate, 
 an iron helmet, a sword, dagger, and horse ; of £10 to £15 
 the same, except the horse ; those possessing £5 to £10 in 
 land, a quilted doublet, an iron helmet, a sword and dagger ; 
 those with 40s. to 100s., a sword, bow and arrows, and dagger ; 
 those worth less than 40s. in land, a sabre, pike, and small 
 weapons ; those of less than 20 marks in personal property, 
 similar weapons. By this rating according to money value, 
 the possessors of knights' fees, citizens, free tenants in 
 villeinage, and householders, are ranked together in degrees ; 
 the wealthy freemen of the boroughs also, without regard to 
 landed estates. At the same time the more special provisions 
 of the Assize of Arms (Henry 11.) continue in force ; the King, 
 by virtue of these provisions, causes those bound to serve to 
 be registered and taxed by his commissioners, and the dis- 
 
352 Constitutional History of England. 
 
 obedient to be punished. In every hundred a chief constable 
 is appointed ; in the old tithings and vlllatm, the village bailiff 
 is generally made a petty constable, and receives in addition 
 to his old magisterial functions, a new military office. An 
 inspection of the troops (" view of armour ") is to take place 
 twice a year. In the interests of the general peace the militia 
 stood at all times under the orders of the sheriff. When 
 war threatened, however, the King sent a commission of men 
 experienced in war to bring the militia of the district *' into 
 military discipline." The double relation that now existed, 
 that of a claim of the Crown to feudal services arising from 
 the feudal bond, and to the service of the national levy, by 
 virtue of the militia code, was for a long time turned to ac- 
 count somewhat arbitrarily, in spite of the manifest unfair- 
 ness of making claims upon the communities for equipping 
 and maintaining the soldiers, in addition to the heavy taxa- 
 tion of the boroughs and freeholders. Under Henry II. and 
 Kichard I. the militia burden was frequently reduced to this 
 extent, that every two men bound to military service had to 
 equip and maintain a third, or every three a fourth, or every 
 eight a ninth man. But the regime of the nobles at the 
 beginning of Henry the Third's reign repeatedly demanded 
 with less consideration a forty days' service at the expense 
 of the townships, or of the county, or else the supply of 
 munitions of war and provisions. Under Edward I. and 
 Edward II. these equipments at XDrivate cost were frequently 
 required. (1) 
 
 (1) An official report by Sir Eobcrt of the county (Dors. Claus. 15 Hen. III. 
 Cotton contains a description of tlie m. 8). In 27 Henry III. the like 
 methods of raising soldiers in tliis services Avere demanded for the cam- 
 transitional period (cf. manuscript in paign in Gascon y (Rot. Vase. 27 
 the Cotton Library, Julius f. 6). Under Hen. HI.). In 1 Edward I., there was 
 Henry III. one man was to be furnished a levy of heavy-armed troops provi- 
 for every two acres of land, to do service sioned by the county. In 4 Edward I. 
 lor forty days, and at the public ex- one man and munitions for seven 
 pense of the township (Dors. Claus. 14 weeks were required from each town- 
 Hen. III.). In the following year the ship. Under Edward II. there were 
 men ofthe knights' fees down to twenty repeated mobilizations sumptibus pro- 
 shillings yearly value were ordered to priis. In 10 Edward III. a levy of 
 provide themselves with munitions and knights takes pLice, and a definite 
 provisions for forty days at the expense number of horsemen were ordered from 
 
The Century of Statutes. 353 
 
 Against this system, but above all, against the emi)loyment 
 of the national militia upon foreign service, a perfectly 
 intelligible opjoosition at last arose. According to 1 Edward 
 III., stat. 2, c. 5 and 7, no one shall be compelled to go 
 beyond his shire, excej)t when necessity and a sudden irrup- 
 tion of foreign foes into the realm requires it. According to 
 25 Edward III., stat. 5, c. 8, no one shall be compelled to go 
 beyond the realm under any circumstances whatever, — nor 
 beyond his county, except in cases of urgent necessity, — with- 
 out the consent of the Parliament. The regular service was 
 thus restricted to the county, and to the purjioses of national 
 defence. All that went beyond this was dependent upon the 
 sanction of Parliament. Both statutes were further confirmed 
 by 4 Henry IV., c. 13; and especially the Commission of 
 Array is so framed as to prevent the introduction into it of 
 new penal clauses. After the statute of Edward III., the 
 militiamen were, as a rule, maintained at the expense of the 
 Crown, with the exception of the mere wars of defence waged 
 against Scotland and Wales. After this there became mani- 
 fested in the military department, as also in all the other 
 departments of State, the gradual transition from specific 
 performance into money payment, by the formation of a body 
 of paid troops from select numbers of feudal and county 
 militia, (a) 
 
 the counties with the option of a formation of the feudal militia, and of 
 satisfaction in lieu thereof, according the king's embarrassments in con- 
 to a fixed scale. In 11 Edward III. a sequence: e.g. in 5 Edward I. "Pari, 
 levy is made of feudal vassals and men Writs," 213. At the commencement of 
 of the boroughs and townships from the reign of Edward II. a so-called 
 their sixteenth to sixtieth year, the statutum de miliiihus was published in 
 incompetent and aged to contribute the old fashion as an ordinance of the 
 to the expenses ; the objections raised commander-in-chief, which was issued 
 by Parliament were rejected. In 16 on the occasion of a parliament, and 
 Edward III. every man possessing was enrolled by command of the King 
 lands to the value of £5 is to furnish (Reeves, ii. 288). The contents of the 
 an archer for the King. In 20 statute had, however, chiefly to do with 
 Edward III. a levy is held of the towns the obligation to take up a knight- 
 and townships. In 24 and 25 Edward hood, and financial interests, and not 
 III. London furnishes three hundred the military discipline of the feudal 
 archers. militia. The chief progress made at 
 (a) At the commencement of Edward this period lay in the development of 
 the First's reign the most unequivocal the county militia. The constables of 
 traces are found of the inefficient this militia occur apparently as early 
 
 VOL. I. 
 
 2a 
 
354 Constitutional History of England. 
 
 The constitution of an army for foreign service at this period 
 was as follows. The mass of the horsemen was still made up 
 of the feudal nobility and their followers, under the titles 
 of barons, knights, esquires, and men-at-arms, among which 
 last class were included all heavy-armed troops without dis- 
 tinction of rank. It was still the office of the marshal to 
 arrange the heavy cavalry into equal squadrons {con- 
 stabularise) . The infantry, on the other hand, which was as 
 a rule five to eight times as strong in numbers, formed com- 
 panies of a hundred men each under constables or " cen- 
 tenars,'' and was divided into pikemen and billmen, and 
 heavy and light archers. In the Welsh campaigns it appears 
 that troops in uniform were already met with, and companies 
 of labourers, miners, and gunners occur as new elements. 
 After the parliamentary enactment of 25 Edward III., it was 
 found more convenient to raise such troops partly by com- 
 missions for the enlistment of volunteers in the counties, and 
 partly by contracts undertaking to supply them. The King 
 contracted with an influential lord as condottiere for the 
 supply of greater or smaller bands, at a daily rate for man, 
 horse, equipment, and arms. The external decay of the 
 feudal militia side by side with this new system does not 
 imply that together with the feudal array the martial spirit 
 and training of the great landowners had ceased. But a 
 division of labour was introduced, according to which the 
 duty of serving in the heavy cavalry was undertaken by pre- 
 ference by those who felt fitted for it, especially by younger 
 sons, in return for pay. Altogether this division leads to the 
 enhancement of the power of the great barons. Those of the 
 lesser vassals and of the younger sons whose inclinations 
 turned towards military service, marshalled themselves again 
 in the form of a retinue round the petty courts of the earls 
 and great barons. And here again were formed standing 
 companies of sub-vassals and landless men of a chivalrous 
 turn, skilled in the art of warfare, dressed in the colours 
 
 as Henry III. ; the designation of of the magisterial tithings is only 
 " petty constables," for the provosts customary from the time of Edward III. 
 
The Century of Statutes. 
 
 355 
 
 and bearing the badges (liveries) of a landowner, and in 
 which the comitatus of Tacitus revives in a new shape. The 
 history of the French war shows us that the better tactics, 
 mobility, discix)line, and arming of these masses gained the 
 day over the cumbrous feudal armies of France. The fact of 
 the simultaneous existence of the feudal and the county 
 militia enabled the strong features of the old and new system 
 to be combined, and rendered it possible to select for the 
 cavalry and infantry the most warlike and the most skilled 
 elements. The retinues of the great barons served like stand- 
 ing cadres, not merely to keep the heavy cavalry in constant 
 training, but also to perfect them in tactical manoeuvring, so 
 that in this direction also the English cavalry, in spite of 
 its moderate numbers, was a match for the unwieldy masses 
 of the French. (1^) 
 
 (1^) Compared with the decaying 
 feudal system of the Continent, where 
 the landlord, as such, still led his 
 tenants (with all the defects which 
 arose from the heterogeneous character 
 of the companies, tlie difficulty of 
 tactical disposition, and want of disci- 
 pline), this system, blending the feudal 
 militia and the national array, was de- 
 cidedly to be preferred. On the Con- 
 tinent the deficiencies were counter- 
 balanced by the fact that the enemy 
 suffered also from the same faults. 
 The still slow progress made by missile 
 weapons produced in tlie arming of the 
 troops a tendency towards strengthen- 
 ing the body-armour, which, in spite of 
 all the experiences of the Crusades, 
 remained always the same, and became 
 at length a caricature. King James 
 might well say in praise of armour that 
 it not merely protected the wearer, but 
 prevented him also from inflicting any 
 injury on others. Yet an attack of 
 horsemen against infantry was regarded 
 as irresistible until the invention of the 
 new tactical infantry arrangement. 
 On the Continent this arrangement was 
 first seen in the new system of the 
 phalanx, in the glorious struggles of 
 the Swiss against Austria and Bur- 
 gundy. In England it was manifested 
 in the formation of a light infantry, 
 which, exercised to act in few lines, 
 
 checked the onslaught of the cavalry 
 for the moment by palisades, and 
 through the more perfect construction 
 of their bows, by discharges thick as 
 hail pierced the heavy armour with 
 murderous effect, and then stormed 
 with furious speed into the breaches 
 they had made. When the two systems 
 encountered each other in the" great 
 French wars, the English method 
 showed its decided superiority. The 
 contracts made with lords and knights 
 as to furnishing soldiers are to be 
 found in great numbers in the archives 
 from Edward III. down to the close of 
 this period (Grose, " Military Anti- 
 quities," vol. i. 71 seq.). As instances 
 of the composition of such armies, I 
 confine myself to the following : At the 
 embarkation of 1346, there were 2500 
 knights and 3(1,000 followers and 
 infantry soldiers (Villani, p. 943). At 
 the siege of Calais, thirteen earls, 
 forty-four barons and bannerets, 1046 
 knights, 4022 esquires, constables, and 
 centenarii, 5104 vintenarii and mounted 
 archers, 19,954 foot-soldiers and Welsh- 
 men (" ArchsBol. Brit.," vi. p. 213 ; 
 Pauli, V. p. 657). At the levy under 
 Henry V., a duke was to appear with 
 fifty horses, an earl with twenty-five, a 
 baron with sixteen, a knight with six, 
 an esquire with four, a bowman with 
 one horse (Rymer, p. 227 seq.\ In the 
 
356 Constitutional History of England. 
 
 At the close of this period the relation of the two systems 
 of armaments had become reversed. The ordinary and 
 uniform national defence is the county militia. The old 
 feudal militia still consisted principally of the numerous 
 followings (liveries) of the greater Crown vassals, that is, of 
 very heterogeneous elements; but it was employed as an 
 active force now only in the northern counties on the Scotch 
 border. The necessary military stores had been since the 
 time of Henry III. deposited in the Tower of London, under 
 the charge of a hallistarius. In this period we meet with an 
 attiliator ballistarum for military weapons and accoutrements, 
 and a galeator, armourer, bowyer, and fletcher, who were 
 subsequently united in the fifteenth century under the Master 
 of the Ordnance. 
 
 II. The exercise of the judicial ijoiver becomes connected 
 with the county in a new fashion by means of the now estab- 
 lished system of furg=COUrtS. At the close of the former 
 period the three principles of the new judicial system had 
 become applied, which now were raised to permanent fun- 
 damental laws : 
 
 The separation of the administration of justice from the 
 question of evidence ; 
 
 The concentration of the administration of justice in the 
 persons of learned judges appointed by the King ; 
 
 The constitution of juries of the hundreds and counties, 
 appointed by a royal officer, to determine the question of fact. 
 
 The institutions of benches of judges, which, from the 
 
 council protocols under Henry V. and tween officer and soldier. A military 
 
 VI., the constitution of the smaller summons in the writs of 9 Edward IL 
 
 detachments destined for field and shows us that the number of the com- 
 
 garrison duty were altered as need batant Crown vassals, or, at all events, 
 
 required. In the cavalry the banneret of those liable to be called out, 
 
 received three shillings, the knight amounted almost to 200. For in- 
 
 two shillings, the esquire twelve pence dividual contributions relating to the 
 
 daily pay; the foot-soldiery, the archers, military organization of this period see 
 
 carpenters, and other labourers six- further in N. Harris Nicholas, "Tlie 
 
 pence and less. Here everywhere the Siege of Carlaverock," in 23 Edward I. 
 
 foot-soldier appears treated separately, (London, 1828, 4to), with a reprint of 
 
 and the relation between the light- the " Kolls of Arms," by Jn. Wright, 
 
 armed and heavy-armed, the horseman (London, 1864) ; White, " History of 
 
 and the foot-soldier, was no longer that the Battle of Otterburn," iu 1388 
 
 between master and servant, but be- (London, 1857). 
 
The Century of Statutes. 357 
 
 time of Henry III., appear somewhat more permanently 
 filled, now become connected with the counties by deputations 
 of their members. In civil proceedings the blending of the 
 two was primarily caused by the complaints occasioned by a 
 plurality of commissions of evidence at the central court. 
 To redress the delays and expenses thus occasioned. Magna 
 Charta had promised that the system should be reversed, and 
 the justices of the realm were to come into the county — an 
 arrangement which, however, proved hardly practicable in 
 the method then pursued. This system was definitely 
 organized by the statute of Westminster 2, 13 Edward I. c. 3: 
 *' Justices of Assize shall be two justices of the realm, ap- 
 pointed on oath, who should take to them one or two honour- 
 able knights of the county." The sheriff henceforth summons 
 the jurors only pro forma to the next terminal sittings at 
 "Westminster, "unless before that" {nisi prius) on a certain 
 day the justice of assize appear in the county, which from 
 this time was regularly the case. After further consolida- 
 tions by 27 Edward I. c. 4 ; 12 Edward II. c. 3 ; and 14 
 Edward III. c. 16, the whole of the functionaries of the 
 central courts enter into an organized connection with the 
 civil assizes through the medium of periodical commissions. 
 
 An analogous course was taken by the criminal jurisdic- 
 tion, which remained for a considerable time in a more un- 
 settled state. The deputation of special commissioners for 
 penal justice, "justices of oyer and terminer," still often took 
 place, since political struggles as well as the combination of 
 penal justice with the police control and the financial interests, 
 caused greater variations in this department. Gradually, 
 however, the commissions of oyer and terminer addressed to 
 the justices of the realm, as well as the more comprehensive 
 commissions of gaol delivery, became the established form in 
 which the penal justice of the central courts entered into con- 
 nection with the juries of the county. Through the regular 
 union of the civil and criminal commissioners, the newer ordo 
 judiciorum was carried out in practise. The separation of 
 the question of law from the question of fact now forms the 
 
358 Constitutional History of England. 
 
 fundamental character of the English judicial system in quite 
 a different fashion from that indicated in the judicium jyarium 
 of Magna Charta. For these reforms there were accordingly 
 needed express enactments of Parliament, as being deviations 
 from the charter. But after standing instruments for uniting 
 and developing the common law had been gained in the 
 central courts, the consolidation of juries, which had been 
 formed in the earlier period, took place in a threefold direction, 
 (i.) W^Z Clbil jurg existed after the assism of Henry II., by 
 virtue of statute only, for the originally enumerated cases; 
 and then in this form, that four knights of the shire appointed 
 for the purpose, and twelve jurors elected by them, were to 
 decide the principal question at issue. These form accord- 
 ingly a court of decision ^' per judicium parium v el per legem 
 terrde,'' Practical necessity had, however, extended the proof 
 by commissions of twelve persons on oath as "jurata " to 
 the whole civil procedure. In this more accessible and 
 cheaper form their verdict became limited to the question 
 of fact, and the method soon became so generally followed 
 that the circumstantial assisa with the four knights is less 
 and less frequently used. At an early period, also, pro- 
 ceedings in evidence are taken before the civil jury ; at first 
 in the form that the witnesses who were present at the recep- 
 tion of documents, combined with and delivered their inform- 
 ation to the jury ; and again, that they, independently of the 
 jury, gave their version of the facts at the judicial sittings. 
 The transition to examination of witnesses in another fashion, 
 and to other modes of taking evidence, was brought about in 
 the practice of the courts. A taking of evidence before the 
 jury was tolerably well developed at the close of the Middle 
 Ages (Fortescue de Laud. c. 26). 
 
 (ii.) ^i)e C^ranll fury was primarily connected with the county 
 assemblies which the royal justiciaries had to hold at periods 
 which became more and more regular. Their presentment 
 duties consisted in summoning the individual hundreds, and 
 causing the presentment made them to be inquired into and 
 confirmed by a special jury of each huudred. This procedure 
 
The Century of Statutes. 359 
 
 must, however, have appeared a waste of time and labour, 
 and from the desire for a quicker despatch of business a 
 change took place, the first traces of which are visible in the 
 year 1368. It had been found practicable to utilize the full 
 assemblies of the county court for these inquisitiones also, as 
 a grand inquest, or grand jury, in the face of which the pre- 
 sentment juries of the individual hundreds gradually decay. 
 The great committee of the county absorbs the committee of 
 lower instance, and makes use of the presentments of the 
 communities, as also the information of the individuals, only 
 as means to promote justice. In this manner accordingly 
 the grand jury takes upon itself the duty of indictment, and 
 in the face of it private prosecution more and more dis- 
 appears. When about the same time the institution of 
 justices of the peace had been established, a similarly con- 
 stituted grand inquest was also applied to the quarter sessions 
 of the justices of the peace. 
 
 (iii.) "^ftt petty fury in criminal cases, which Bracton 
 and Fleta represent as a continuation of the presentment 
 jury with i)artial changes in its composition, severed itself 
 from the other in the course of practice. The principal 
 separation was brought about by 25 Edward III. c. 3, accord- 
 ing to which every indictor (member of the jury of present- 
 ment) may be challenged in the second jury (verdict-jury). 
 And when soon afterwards the court of presentment became 
 merged in the great jury which was formed of the county 
 assembly, both jury courts appear under the names of the 
 " grand " and *' petty " jury in permanent separation. No 
 reliable trace of a hearing of witnesses and other modes of 
 taking evidence before this jury, can be discovered in the 
 whole of the Middle Ages. It is still always regarded as an 
 inquisitorial commission of the community which has upon 
 oath to try the indictments confirmed by the grand jury, and 
 finally to decide from their knowledge of the vicinage and 
 from information there collected " an cidjiahilis sit vcl non." 
 And on that very account "neighbourhood" was an essential 
 condition, and after the practice had become looser in the 
 
360 
 
 Constitutional History of England. 
 
 time of Edward III., it was required that at least six hun- 
 dredors, and in Fortescue's time four hundredors should sit 
 upon the verdict jury. (2) 
 
 In this way the fundamental maxim, " Veritas in juratore, 
 justicia et judicium in jure'' (Bracton, 186, h) became realized. 
 Common to all three forms is the tender regard paid zo the 
 equahty of the parties and the impartiality of the jurors. 
 This system of "fair trial " is the best and the most enduring 
 basis of English judicial life. After it had been carried out on 
 a great scale, the necessity arose of consolidating the duty of 
 serving on a jury. Originally the jurors in the county as 
 also in the sub-districts were chosen from among the tradi- 
 tional lawmen, that is, they were legates milites, liberi et 
 legates homines. But the duty of serving as juryman was by 
 its nature built upon a broader basis. For judging an 
 habitual participation was necessary, which was only prac- 
 
 (2) An old fundamental error con- 
 siders this thorough organization as con- 
 nected with the provisions of Magna 
 Cliarta, whereas the guarantee of the 
 judicium parium in Art. 39 of the 
 charter actually formed an impediment 
 to reform. Much as such reform was 
 practically required, public opinion 
 adhered as tenaciously as ever to the 
 Anglo-Saxon principle of constituting 
 a court of men and pares of the hundred, 
 appointed to find the verdict. But the 
 opposition was, as might be expected, 
 most keen in criminal cases ; and the 
 slower course of development of the 
 verdict jury can be also thus explained. 
 The practice of the courts found a 
 remedy at first in this way, that it 
 caused the accused to submit volun- 
 tarily to the verdict of a jurata, in 
 place of the customary proof. In case 
 the accused refused to do this, no other 
 expedient was known, but that of an 
 administrative measure, the so-called 
 jieine forte et dure (above, p. 190). In 
 this there was an evasion of the prin- 
 ciple by a sophistical trick, wtiich, 
 practised on the Continent in much 
 greater dimensions, leads to torture, 
 whilst in England it remains restricted 
 to a middle course, and is in later 
 times even acknowledged in this form 
 by Act of Parliament {vide Palgrave, 
 
 ii. 189, 190). By this firm adherence 
 to the old ordo judiciorum it is also 
 explained why in the criminal assizes 
 such importance was still attached to 
 appointing a number of knights of the 
 shire, as pares, on the commissions of 
 justices. Tlie bare fundamental idea 
 of the jury is, that the establishment 
 of fact in the trial (the determination 
 of the bases of the judgment of tlie 
 court) should proceed from the district 
 and community concerned, because the 
 knowledge possessed by the vicinage 
 of persons, things, and circumstances, 
 cannot be dispensed with, and least 
 of all, where the presiding justices only 
 come at stated times from long dis- 
 tances, and it is an established prin- 
 ciplti that they shall be strangers to the 
 county. At the close of this period 
 Fortescue in his " Laudes Legum 
 Angliai " regarded the criminal jury 
 still only as a practical institution for 
 judicial proceedings on evidence. The 
 annual participation of thousands in 
 the practical administration of justice 
 became politically important; as also 
 was the newer and more uniform dis- 
 tribution of the judicial burden among 
 knights, freeholders, and boroughs, 
 which has become a fundamental prin- 
 ciple of representation in Parliament. 
 
The Century of Statutes. 361 
 
 ticable for the greater landowners. In stating the question 
 of fact, an exact knowledge of the district of the vicinetum 
 was requisite, as well as personal integrity, and for this the 
 smaller freeholders were as well qualified as they were indis- 
 pensable. Participation in delivering judgment might appear 
 as an important political right ; the summons on the newer 
 commissions of evidence appeared as a newly established 
 service, and the taking part in such could scarcely become a 
 subject for class-jealousy. The danger now rather lay on one 
 side in the burdening of the poorer classes with this duty, 
 and on the other in the diminished trustworthiness, the cor- 
 ruptibility, and timidity of these elements. Therefore it was 
 necessary to fix upon an average scale of landed property, to 
 which the duty of serving on a jury should attach. In dealing 
 with the evil result : "that otherwise the rich would go free 
 and the poor constitute the juries," the stat. Westminster 2, 
 c. 38, enacts first that only freeholders of twenty shillings 
 value in land should be summoned to the assisa. By 21 
 Edward I. stat. 1 ; 2 Henry V. c. 3, this rating is doubled ; 
 only persons of forty shillings income from land (or one-tenth 
 of the rating of a knight's fee) should be summoned. (2^) 
 
 The fact that the royal justices of assize presided in it pre- 
 served at this time the character of the county court* as a 
 court of common law. In contradistinction to the ordinary 
 sittings of the county court, prelates, barons, knights and 
 freeholders still appear before the royal justices of assize ; 
 from each township twelve citizens, and from every village 
 the village bailiff with his four men. This suit royal of the 
 prelates and barons, which was again expressly confirmed by 
 the Assize of Clarendon, hindered the courts of common 
 law from being divided into separate courts for the nobles, 
 
 (2^) This has been at all times the presentment jury of the sheriff. Iii 
 
 practical side of the question. The other places acts of violence are spoken 
 
 wealthy bribed the sheriff, in order to of with which the jury are threatened 
 
 get free from service; tie parties en- by tlie litigants (22 Ass. pi. 44). The 
 
 deavoured to entertain and bribe the gradual disappearance of a Magna 
 
 poorer jurors. In 1 Edward IV. c. 3 ; Assisa composed entirely of knights 
 
 1 Kichard III. c. 4, the reasons pro- (of which we liave an instance as late 
 
 pounded speak of the abuse of poor and as the year 1348) is connected with the 
 
 unconscientious persons sitting on the aversion against serving on a jury. 
 
362 Constitutional History of England. 
 
 knights, citizens, and peasants : and even though the upper 
 classes display a constant tendency to be quit of the suit of 
 coui't in the county court, and though the statute of Merton 
 permits representation by proxy, and the statute of Marl- 
 borough releases persons of higher rank than a knight from 
 appearing in the sheriff's tourn, yet a liability to appear on 
 special summons still remains. The origin of a privileged 
 court in England is confined to the jurisdiction of the peers 
 over their members which sprang up under Edward II. 
 
 After all these changes the old office of sheriff has in 
 great measure lost its independent jurisdiction. In this 
 capacity it remains only an instrument of the supreme court 
 for functions in which a provincial organ is indispensable, for 
 instance for the issue of summonses, for executions, and for 
 the empanelling of a jury. Under Edward I. the sheriff's 
 judicial competence for civil matters is restricted to petty 
 suits not exceeding forty shillings ; to which are added his 
 inquisitorial, police, financial and administrative functions. 
 Through its police control, its privileges, and its fees, the 
 office is however still sufficiently important to be the object of 
 solicitation. Manifestly in order to fall in with the wishes of 
 the knighthood, the attempt was therefore twice made to fill 
 the sheriff's office by a county election. The first attempt 
 was made in 1258 by the statute of provisors, but ended in 
 pure party elections, and was subsequently annulled. The 
 second attempt (28 Edw. I.) had for its result that after seven 
 years the sheriffs were obliged to be deposed en masse, and 
 others appointed in their places. The suffrage proved inappli- 
 cable to the judicial and police officers. The sheriff accordingly 
 remains an under-officer of the Exchequer and the King's 
 court, and is proposed for the King's sanction b}^ the treasurer, 
 the chancellor, the barons of the Exchequer and the justiciarii 
 (9 Edw. II. stat. 2), as is done in effect at the present day. 
 He had to possess sufficient real estate to carry his responsi- 
 bility, and was not allowed to farm out his office. (2'') 
 
 (2^) The appointment of the sheriffs chancellor, and the judges (9 Edw. II. 
 who are proposed by the treasurer, stat. 2), was fixed at a time in which 
 
The Century of Statutes. 363 
 
 The indirect effect of these magisterial institutions, was 
 finally the further decay of the regular hundred and manorial 
 courts. No new law, no reform, was extended to them ; the 
 absolute validity of judicial documents in evidence is as a 
 rule confined to the royal courts of record ; the want of a jury, 
 of a right of distraint, and of summary penal jurisdiction, was 
 enough in itself to make them impracticable, and to bring 
 the jurisdiction over the villani (copyholders) more and more 
 completely to the regular courts. Even where a landowner 
 has been granted as a franchise the right of appointing a 
 bailiff by the clausula ''-non omittas,'" 13 Edward I. c. 29, the 
 sheriff' may execute every order of the court in such franchise, 
 if the bailiff does not do it properly. Of course fragmentary 
 remnants of the old regime still occur. The infangtheft and 
 outfangtheft were, under Edward L, occasionally put in force 
 by manorial courts, and as late as 1285 two cases occur in 
 which a court baron passes sentence of death for felony. 
 
 III. The exercise of the police ptower becomes connected with 
 the county in a new way, by the office of justice of t{)C peace, 
 which had been formed after a long series of experiments. 
 The parliaments of this period begin with complaints of the 
 insolence of the magnates, and of feuds and brawls, which 
 after the times of the Barons' Wars appear again periodically. 
 Hence there resulted together with the militia code a formal 
 police-code in the statute of Winchester, 13 Edward L, which 
 begins with the words: "As day by day robberies, murders, 
 arson, and thefts, occur more frequently than they ever did 
 
 the monarcliy was involved in a con- three presidents of the central courts 
 
 flict with the great barons on account of law were mentioned. In Fortescue's 
 
 of the appointment to the great offices time all justices of the realm were wont 
 
 of State. This statute secured on the to meet together with tlie great officers 
 
 one hand the constitutional influence and members of the council of State, 
 
 of the council, and on the other a These are all only variations in the 
 
 certain impartiality in making the course of business of the council of 
 
 appointments. The idea was that the State ; in like manner as the custom 
 
 chief officials of the permanent council of proposing three candidates to the 
 
 should exercise the right of proposal. King also originated from practice. 
 
 In 14 Edward III. stat. 1, cap. 7 ; 23 As to the still considerable fees at- 
 
 Henr. VI., cap. 8, accordingly the tached to the office of sheriff, cf. 
 
 Lord Chancellor, the Lord Treasurer, Thomas, Exchequer, 51. 
 the President of the Council and the 
 
364 Constitutional History of England, 
 
 before " — therefore the old police regulation touching the 
 *'hue and cry" was strongly enjoined, the landlord was made 
 responsible for the guests he harboured, the hundred for 
 reparation of damage done within its district, and a more 
 extensive duty to do militia service, and a system of watch 
 and ward introduced. But there was also a concurrence of 
 various social reasons for extending and multiplying the pro- 
 vince of the police-power. Town and country life in England 
 had not become quite separated each from the other, and 
 there existed free intercourse to such a degree that the com- 
 munities, having become mistrustful on account of their 
 liability to make compensation, had frequently to require that 
 suspicious characters should find security for keeping the 
 peace and for their good behaviour. With the comparatively 
 early decay of villeinage and with the introduction of free 
 transactions of hiring and letting, the intimate bond between 
 property and labour became loosened in many places. By 
 free intercourse and unfettered industry, the unstable rela- 
 tions between property and labour became welded together, 
 and capable much earlier than on the Continent of being 
 regulated by comprehensive laws. The numerous industrial 
 enactments, which in Germany must be looked for in the 
 police regulations of towns, and in the statutes of guilds, 
 appear here as subjects of general legislation; at first as 
 royal assisse and ordinances, and later as parliamentary 
 enactments. To these belong the legal fixing of the price of 
 bread, beer, firing, and other necessaries of life, assisse venalium 
 (at the same time with regulations against adulteration), the 
 most important of which is called the assisa paiiis et cerevisise 
 (51 Henry III. c. 5), all of which are continued as periodical 
 tariffs. Eegulations affecting the bakers' trade, the prepa- 
 ration and manufacture of leather and woollen cords, the 
 preparation of malt, brick-making, the coal trade and sale of 
 firewood, market police-rules, and the general provisions 
 of a trade-code form a very complicated legislation. (3) To 
 
 (3) The scope of these laws is best as 49 George III. c. 109, which affects 
 seen in the modern repeal acts, such forty statutes dealing with the woollen 
 
The Century of Statutes. 365 
 
 these were added the police laws affecting labour, which stand 
 in the place of the "law of socagers," and of the guild and 
 urban police institutions on the Continent. The first statute 
 of labourers, 23 Edward III., cap. 1, was promulgated after 
 a great national calamity, which had diminished the number 
 of working hands, and increased the ordinary rate of wages. 
 By it the working men are ordered to serve every employer 
 of labour at the customary wages. Connected with it there 
 became defined in practice the notion of combinations, that 
 is, of prohibited unions for obtaining an increase of wages. 
 Further connected therewith is the prohibition of giving alms 
 to able-bodied beggars. By 12 Eichard II. c. 7, every labourer 
 is forbidden to leave his jDlace of abode without a certificate of 
 the magistrate that there is a good reason for his doing so ; 
 whosoever is found wandering about without such certificate 
 can be apprehended and put in the stocks. Those who are 
 unable to work shall return, in case of need, to their birth- 
 place to be supported there. According to the strength or 
 weakness of the successive reigns so does the rigour of the 
 labour police vary (13 Eichard II. cap. 3 ; 14 Eichard II. 
 c. 1. 2 ; 2 Henry IV. c. 5 ; 4 Henry IV. c. 15 ; 5 Henry 
 IV. c. 9; 11 Henry IV. c. 8; 9 Henry V. c. 9, stat. 2; 
 8 Henry VI. c. 24; 27 Henry VI. c. 3 ; 17 Edward IV. 
 c. 1 ; 1 Henry VII. c. 2 ; 3 Henry VII. c. 8). But a warning 
 to exercise moderation existed in the rebellion of the peasants 
 under Eichard II. The statutory tariffs of bread and beer 
 were intended in some measure to act as a counterpoise to 
 this. Elements of a police des moeurs were also contained in 
 the comprehensive meaning of the term " common nuisances " 
 by which disorderly and immoral houses were punished ; in 
 laws affecting luxury in dress, food, and other extravagances 
 — the last-named in connection with fantastic practices 
 which the paid soldiery brought back with them from the 
 French wars. To this head belongs the dinner law (10 Edw. 
 III. stat. 3), de cibariis utendis, which allowed for dinner and 
 
 manufactures from 2 Edward III. A kind of general trade code resulted 
 downwards (cf. 19 and 20 Vict. c. 64). from 3 Edward IV. c. 4. 
 
366 Constitutional History of England. 
 
 supper only two courses ; the great laws against luxury (37 
 Edw. III. c. 8-14) relating to dress and meals, repealed, it 
 is true, in the following year, but partly revived under Edward 
 IV. Supplementary to the above there existed besides a 
 summary penal power residing in the King's Bench, as 
 custos morum, as well as the right of the magisterial police to 
 enforce the finding of a security for good behaviour in cases 
 of offensive acts of public immorality. The idea of nuisance 
 embraces, besides, a number of disputes between neighbours ; 
 among others also the first forms of highway regulations, and 
 a highway police. Further connected with these follow 
 hunting and fishing laws in an almost innumerable series. 
 
 To deal with this complicated system there had existed 
 hitherto merely the sheriff's tourn and the courts-leet. 
 Although the Great Charter had withdrawn from the Vice- 
 comes the royal criminal accusations, yet there still remained 
 to him the first interference, the taking of security, the police 
 inquisitio, as well as the functions of police magistrate, where 
 petty criminal cases were concerned. The investigation in 
 these courts was, however, somewhat different from the pro- 
 ceeding of the present day. It did not take place publicly 
 before the community, but in and by the community itself, 
 with constant summonings of bailiffs and lawmen, with 
 examinations on oath as to knowledge, ignorance, and belief. 
 It was not only that this constituted the heaviest burden of the 
 judicial duties of the people, the community having to be 
 summoned en masse ; the further and main fault was unmis- 
 takable, that the terms and forms of a court were inadequate 
 for the preventive purposes of a police of this description, 
 which presupposes a much greater amount of activity. The 
 local courts-leet were on this account just as little equal to 
 the performance of such tasks as w^ere the sheriff and his 
 under-bailiffs. Experience made it ever more clearly felt, 
 that assemblies of the community neither in i^leno nor yet in 
 committees could conduct a police administration in the form 
 in which it was then constituted, owing to the extended 
 character of the system of preservation of the peace and the 
 
Tfie Century of Statutes. 367 
 
 police laws for trade, labour, and morals. So soon as a police 
 system by virtue of express enactment, takes the place of 
 patriarchal regulations, the carrying out of these regulations 
 by single officers, and their more summary enforcement, must 
 lead to the creation of a judicial office. 
 
 As early as the reign of Kichard I. a first attempt was 
 made to associate with the sheriff, district-deputies, custodes 
 placitorum coronm, or coroners, who were described in the 
 capitula of 1194 as custodes placitorum coronm. Their func- 
 tions consisted in keeping a watchful eye on the royal taxes, 
 rights, and dues, and are probably identical with those of the 
 later coroners. Edward I. gives these officers exact instruc- 
 tions how to proceed with a commission of inquest chosen from 
 the neighbom'hood in the case of unusual deaths. After 28 
 Edward III. c. 6, they were chosen in the county court from 
 among respectable landowners, and presented to the King for 
 his appointment. This first formation did not develop itself 
 further ; it confined itself to inquests as to causes of death, 
 to cases of embezzlement of treasure, and to assisting the 
 sheriff in certain cases. The monarchy was probably not 
 inclined to extend the powers of these chosen officers. It 
 is likely that in early times, as a consequence of the inade- 
 quate principles of their election, they proved themselves 
 inadequate officials. (3'^J 
 
 (3^) Without doubt the coronator days, whenever a speedy investigation 
 occurs under John and in Magna on the spot was needed. Yiolent deaths 
 Charta ; and is described in detail in and cases of treasure trove thus became 
 the law books of Bracton, Fleta, and the principal province of the coroner. 
 Britton, c. 1. As to their procedure, According to the oldest indications we 
 a very thorough ordinance, 4 Edward I. possess, this officer was to be presented 
 cle officio coronatoris was issued ; and it to the King by the chancellor, the cur- 
 is also descrihed in the st at utum WalUce rent formula for which, a ''hreve de 
 (12 Edw. I. c. 5). In addition to the corona tore eUgendoy" is very ancient, 
 itinerant financial commissioners, other The jury to be summoned by the 
 persons also, who were presented from coroner is to be collected from the 
 the county itself to the King, could nearest villages to the inqiiisitio (per 
 exercise a control over the maintenance eorum sacramentum inquisitionem fa- 
 of the rights of the revenue and the ciant deliomine occiso), and it was re- 
 Crown ; out of this there was formed an garded as understood, that at least 
 inquisitio after the manner of a sheriff's twelve jurymen must be present, and 
 tourn, with commissioners of the town- twelve be of one accord in giving their 
 ship, which was to intervene in the verdict. Special qualifications were not 
 vacations between the periodical court required of this ex tempore commission. 
 
368 Constitutional History of England. 
 
 Towards the end of Edward the First's reign, in disorderly 
 times and districts, a kind of court-martial under justices of 
 trail baston began to be instituted, which was also in later 
 times occasionally repeated, but met with opposition on 
 account of its too summary character. Shortly after 
 Edward II. ascended the throne, conservator es pads were 
 appointed in every county, who were to reside continually 
 in their counties and visit all parts of the same, "to watch 
 over the observance of the police code of Winchester, and 
 the royal decrees relating thereto." This also remained 
 only a passing attempt. But a very serious occasion for 
 the appointment of local police magistrates arose] at the 
 accession of Edward III. After the deposition of Edward II., 
 his criminal spouse and her followers feared that general 
 disorder would ensue. They therefore caused by ordinance 
 (1 Edw. III. c. 16) the appointment in all the counties of police 
 magistrates, chosen from the ruling faction — '' bonnes gens 
 et loyaux assignees a la garde de la paix,^' to act as assistants 
 of the sheriffs and of the itinerant justices. In the following 
 year police-magistrates were appointed with a commission of 
 oyer and terminer, that is, with real penal powers. But these 
 again ceased when the occasion for their institution disap- 
 peared, and the change of party took place. The idea of the 
 appointment of police-magistrates from the district of the 
 county had in the meantime become popular. In 18 and 20 
 Edward III. new attempts and new proposals were made. In 
 21 Edward III. the commoners make a proposition to the 
 King, to appoint about six police magistrates in each county 
 — two lords, two knights, and two men of the law. The 
 difference of opinion on the matter lies principally in this, that 
 the King and council cleave to the royal prerogative of ap- 
 pointment, whilst the estates lay the greatest weight upon 
 the election of great landowners. But in the meanwhile the 
 disputes with the labouring classes had arisen, which necessi- 
 tated the statutes of labourers (23 Edw. III. c. 1; 25 Edw. III. 
 c. 8). For the putting of these laws into execution according 
 to their spirit and their letter commissioners endowed with 
 
The Century of Statutes. 369 
 
 extraordinary powers were appointed, who were to hold their 
 sittings four times a-year in each county. The idea of apply- 
 ing the principle of election to the statutes affecting labourers 
 could not for a moment be entertained. These police-magis- 
 trates, appointed by royal nomination, proved successful, and 
 agreeably to this precedent, after long experimental forma- 
 tions, there ensued at last in the year 1360 the appointment 
 of district police-magistrates, as a permanent institution, 
 by 34 Edward III. c. 1. *' In every county of England there 
 shall be assigned for the keeping of the peace, one lord, and 
 with him three or four of the most worthy men of the counties, 
 together with some learned in the law, and they shall have 
 power to restrain offenders, rioters, and other barretors, and 
 to pursue, arrest, take, and chastise them according to their 
 trespass or offence ; and to cause them to be arrested and 
 duly punished according to the law and customs of the 
 realm, etc., etc., and also to hear and determine at the King's 
 suit all manner of felonies and trespasses done in the same 
 county according to the laws and customs aforesaid." (3^) 
 
 (3'') The origin of the office of justice to the King (Lambard, 20). This pas- 
 of the peace is treated of at length in sage, which has been copied again and 
 Eeeve's History, ii, 472 ; iii, 216, 242, again, must have given rise to the erro- 
 265, 290; iv. 154. The old work of neousidea that there existed in England 
 Lambard, " Eirenarchia, or the Office elected or manorial justices of the peace, 
 of Justices of the Peace," is still in Officers chosen by the people, occupying 
 use in various editions, from 1581 to the magisterial office of justices of the 
 1619, 8vo. Still more detailed is peace, have never existed in England 
 Dalton's " Justice," 1618, last edition since the Conquest. Traditions of this 
 1697 fol., which contains historical sort, which are also repeated in Coke, 
 notices, and much confused matter. Inst., ii. 459, 558, 559, date from the 
 Historical excerpts from Hardy are constitution of the Anglo-Saxon town- 
 contained in the "First Eeport on ships. For the Norman period they 
 Constabulary Force," pp. 192-202, are, on the showing of the records, 
 (1830). The historical notices contained false, and incompatible with the whole 
 in Blackstone are taken from Lambard, course of the development of legislation 
 especially the vague and confused ex- touching justices of the peace. The 
 pression that there existed, according elected custodes imcis of this period 
 to common law, conservatores pads are partly the coroners, partly the re- 
 either by custom or by feudal tenure, cruiting officers of the militia, partly 
 with the obligation to maintain the the constables in the police admini- 
 peace, or such as had been chosen from stration, and partly anomalous person- 
 the people in the county courts (Lam- ages, witli whom in times of civil war 
 bard, 15-17). By the proceedings of experiments were made for a short time. 
 1 Edward III. c. 16 the choice of the These are officers having the right of 
 guardians of the peace was first of all first interference, of prosecuting the 
 taken from the people and then given presentments before the courts of law, 
 
 VOL. I. 2 B 
 
370 Constitutional History of England. 
 
 After many new proiDOsals had been made, Parliament 
 demanded that the police magistrates should hold common 
 sittings four times in each year ; this was granted, and by 
 36 Edward III. c. 12, it became law. In the ensuing year a 
 petition was addressed to the King to the effect that he might 
 be pleased to allow the knights and burgesses in Parliament 
 assembled, to elect ^' the justices of the peace, and the 
 justices of labourers and artificers," and that the persons so 
 elected should not be again removed. The reply ran, that 
 Parliament might propose the persons, but that the King 
 would appoint according to his pleasure. Once again, in 
 50 Edward III., a petition was presented, praying that 
 Parliament might appoint the justices, and that they should 
 not be deposed without the consent of Parliament. The 
 reply to it ran, that the judges should be aj)pointed by the 
 King and his (permanent) council, and herewith the election 
 question was settled for ever. 
 
 In this period, also, the more honourable title "justices" 
 occurs in addition to, or instead of, the older term, "c^fcs- 
 todes pads.'' The form of the commissions was at the com- 
 mencement of Eichard II. 's reign already similar to that of 
 our own day, and became gradually consolidated as a com- 
 prehensive instrument of penal justice, and police, and 
 especially the newly promulgated police-laws. The duties 
 of the commissions of peace were at this time twofold : 
 
 at most with the right of enforcing Abbot of St. Alban's, and came on for 
 the giving of security; but not royal trial before the King's Bench (20 
 justices of record with the right to Hen. VII.), the court declared, in con- 
 pass judgment, and endowed with the currence with the Attorney-General, 
 numerous extraordinary and discretion- that the King was not authorized to 
 ary powers of justices of the peace. concede by sucli a grant, to any person, 
 Just as little have manorial justices of the rigbtof appointing royal justices, 
 the peace ever existed in England. seeing that this was a prerogative in- 
 The usurpations of the nobility under separable fiom the Crown. Lambard 
 the House of Lancaster, and at the himself confesses (i. c. 3) that "all 
 time of the Wars of the Eoses, only offices for the maintenance of the 
 produced confused conceptions of the peace are originally derived from the 
 kind, and in a few cases also hasty King, and that no duke, earl, or baron, 
 and impolitic grants. But when a case as such, has a greater authority to 
 of this kind, touching the gnintofthe maintain the peace than any private 
 privilege of appointing justices of the man." 
 peace, occurred in a cliarter for the 
 
The Century of Statutes, 371 
 
 (i.) The preservation of the peace according to common 
 law ; that is, apprehension, arrest, enforced bail, and all 
 other police functions, which traditionally lay in the jurisdic- 
 tion of the Norman provincial magistrates. 
 
 (ii.) Analogous functions according to the statute of Win- 
 chester, the statute of Westminster, and the later laws relating 
 to the police control over trades and labour, which became 
 more numerous with each succeeding generation. Actual 
 criminal penalties were only inflicted by them when they sat 
 in a body in quarter sessions, with the assistance of a jury. 
 Their commission was drawn up on this matter in such 
 general terms, that they exercised a concurrent criminal juris- 
 diction with the itinerant justices. In another direction, 
 there were especially reserved to them, by the framing of the 
 statutes, jurisdiction over a number of smaller offences against 
 the regulations affecting trade, morals, and labour. No 
 intention could yet be perceived in this materially to restrict 
 the application of the jury. But the framing of the more 
 recent police laws, gave them also in their own persons a 
 comprehensive jurisdiction, which was to be exercised with- 
 out a jury. It was not until the statutes of the following 
 period that this became extended to an administration of 
 summary justice without a jury, even against the accused 
 person who denies his guilt. (S"") 
 
 The justices of the peace themselves must, according to 
 the petitions addressed to Parliament, be chosen from the 
 great landowners, whilst King and council look upon know- 
 ledge of the law as an essential qualification. As a body, 
 they were now according to local needs really composed of 
 both elements. The influence of the nobles under the house 
 of Lancaster first introduced a fixed qualification (18 Hen. vi. 
 
 (3°) According to 15 Richard II. c. them against the previous ordinances 
 2, their duties were to establish the and statutes, and to punish them ac- 
 ta cts of violent dispossession; according cordingly on their own confession, as 
 to Henr. IV. c. 4, sec. 2, " the justices if they had been convicted upon 
 of the peace are for the future to inquest." The statutes of the foliow- 
 have the power to hear on oath all ing period extend this gradually to 
 manner of labourers. Servants, and their an administration of summary justice 
 masters, and artificeis, toucliing all without a juiy even against the accused 
 things which have been perpetrated by denying his guilt. 
 
372 
 
 Constitutional History of England. 
 
 c. 11). The justice of the peace is to possess lands of the 
 yearly value of £20 (the rating, in those times, of a knight's 
 fee) ; however, when sufficient landed proprietors were not 
 available in the county, who were skilled in law and its 
 administration, the Lord Chancellor was authorized to place 
 on the commission other persons learned in the law. By 
 virtue of this clause, the rivalry between the landowners and 
 the justices of the peace learned in the law or ''the quorum," 
 continued down to the eighteenth century. The renuncia- 
 tion of their right to legally fixed daily allowances, which 
 became more and more the custom, at last brought about 
 the disappearance of the mere professional officials from the 
 commission of peace. (3*^) 
 
 (3^) In the clause of the commis- 
 sion, in which " two or more " justices 
 of the peace are authorized to try and 
 to judge, the proviso is added, that 
 among this number one or more should 
 always be appointed by name (" quorum 
 ah'quem vestrum A. B. C. D. unum esse 
 volumus "). Those thus appointed are 
 the members skilled in the law, who 
 on this account are technically called 
 " the quorum." In later statutes it is 
 also specifically determined whether 
 the justice of the peace is to act inde- 
 pendently, or whether he is to act with 
 the assistance of a colleague learned in 
 the law. This office of justice of the 
 peace, filled both by lawyers and land- 
 owners, is in fact only a new combina- 
 tion of elements that had long existed, 
 a new blending of property and office. 
 The King could from time immemorial 
 appoint justices of oyer and terminer to 
 hold the criminal courts ; by the new 
 arrangement he is obliged to appoint 
 them by preference from among the 
 resident landowners of the county. 
 The itinerant justices had their point 
 (Vapjyui, or centre of gravity, in the 
 royal council, and in the central courts 
 of law ; the justices of the peace have 
 theirs in the county, and form in their 
 periodical sittings a corporate body, 
 which now becomes permanently con- 
 nected \\ith the juries of the district, 
 and forms newly organized district 
 administrations for police purposes, in 
 the widest sense of the terra. In the 
 
 commissions of the itinerant justices, 
 in addition to the justices of the realm, 
 lords and knights of the county were 
 also appointed, but only as secondary 
 personages, whose participation soon 
 became a purely nominal one ; in the 
 commission of the peace the profes- 
 sional officers are only colleagues and 
 assistants learned in the law, who 
 gradually retire before the permanent 
 influence of the great landed proprie- 
 tors. As the non-acceptance of stipends 
 (after 14 Eichard II. c. 11) was de- 
 clared to be required of the honour of 
 lords and bannerets, the non-accept- 
 ance of wages altogether, soon appeared 
 called for by considerations of honour, 
 and thus the rush of lawyers and 
 small landowners to the commission 
 of the peace diminished. The great 
 landed proprietors thus obtained com- 
 pensation on a greater scale for their 
 decaying manorial courts. But for the 
 practical purposes of the police control, 
 the requisite stability and the necessary 
 force was thus gained. Inasmuch as 
 the justices of the peace were appointed 
 for the district of the county, and as 
 their official jurisdiction was from the 
 first to be exercised "as well within 
 as without the franchises," they held 
 authority over the disconnected mano- 
 rial districts. And herein already we 
 perceive the principal reason why the 
 justices of the peace gradually ousted 
 the old courts-leet. 
 
The Century of Statutes. 373 
 
 This new system of police control, as it steadily progresses, 
 thrusts into the background the old institutions, and first 
 of all the district police court of the sheriff. The turnns 
 Vicecomitis remains, it is true, side by side with the justices 
 of the peace. To the sheriff is also reserved the right of first 
 interference, of inquisition as well as criminal jurisdiction in 
 petty penal cases, with the co-operation of the townships. 
 So far the relation remained one of rivalry, but to the dis- 
 advantage of the sheriff, whose unpopularity still continued, 
 and whose police jurisdiction was doomed to further decay in 
 consequence of the inconvenient change of office from year 
 to year. Sheriffs were deprived of the important powers of 
 preliminary inquiry by 1 Edward IV. c. 2, 3 (1461). Their 
 functions were restricted to a jurisdiction of first instance, 
 and the taking of indictments, and the actual order of arrest : 
 all further proceedings had to be left to the next quarter 
 sessions. But, on the other hand, the execution of penalties 
 still remained to the sheriff; for which function the organiza- 
 tion and financial administration of the sheriff's office was 
 originally framed, and for which they remained suitable. 
 
 The same course of development was taken by the manorial 
 and borough courts-leet, which had branched off from the 
 sheriff's tourn. For a certain time they still competed with 
 the office of the justices of the peace ; that is, they acted by 
 means of a continued summons of the assemblies of the 
 townships for the purposes of the inquest and police convic- 
 tions. They still continue, but in principle are restricted to 
 their old jurisdiction at common law, except where the 
 criminal jurisdiction over new penal offences has been ex- 
 pressly given them by statute law, as was done frequently 
 in the province of police regulations affecting labour and 
 trade. In this condition of free competition, the court-leet 
 (except in very few places where accidental circumstances 
 kept it alive) becomes gradually overshadowed and choked 
 by the newer and more vigorous institution of justices of the 
 peace. These were at all times accessible, whilst the court- 
 leet was only opened twice in each year, and then only for a 
 
374 Constitutional History of England. 
 
 short time. The justices of the peace gain from generation 
 to generation new and effectual penal powers, whilst the court- 
 leet, as a rule, remains restricted to a cumbrous inquisition, 
 and to the penalties of the common law. At the close of 
 Edward the Third's reign (51 Edw. III.) Parliament again 
 prays that no penal offences shall be sent to the justices of 
 the peace, which ought to be decided in the leets of the land- 
 owners and boroughs. The answer ran, that the laws which 
 had hitherto been enacted (police regulations) could not be 
 maintained, if this petition was granted. From that time the 
 decay of the leets silently proceeded. 
 
 The subordinate functions of the maintenance of the 
 peace, which were exercised as a jurisdiction of first instance 
 in the townships, tithings, and villatw, by reeves and the 
 lawmen of the district, in the form of committees of the 
 township, together with the duty of giving informations, 
 passed gradually into the office of the reeves of the town- 
 ship, who now subordinated themselves to the justices of the 
 peace as they formerly did to the sheriff's tourn. These 
 inferior functions follow the course of development of the 
 higher ones. In the place of the indicting township, there 
 now appears at the sessions of the justices of the peace, a 
 tithing-man, who, from the time of Edward III., bears the 
 title of constable, a name taken from his militia functions ; 
 he makes his presentments there, and keeps watch over the 
 peace in his district (just as the chief constables did in the 
 hundred), with the old duties of a guardian of the peace, 
 and various new official functions which have been successively 
 imposed upon him by the police laws relating to trade, labour, 
 and morals. (S"") 
 
 (S*") It was a division of labour. In the private leets, too, the failure 
 
 by virtue of which the duty of making of the lawmen to appear was never 
 
 presentment, as well as that of appre- rigorously regarded. The current busi- 
 
 hendingthebreakerof the peace, passed ness accordingly fell more and more 
 
 to the constable alone. According to into the hands of the reeve alone, who 
 
 the statute of Marlebiidge (52 Hen. came to be often called "constable," 
 
 III.), the whole township was only to in consequence of his official duties in 
 
 appear in case of murder ; in all other the militia. In the statutes we meet 
 
 cases the sheriti' was to be content if with this title first in 12 Edward III. 
 
 the provost appeared with four men. It appears to be regarded in the war- 
 
The Century of Statutes, 375 
 
 IV. '2rj)t connection of \\}z financial ai^ministration toit?) i\)t 
 COUntg is bound up with a system of local taxation which 
 dates from earlier times. The dues of the county unions con- 
 sisted for a long time only of services and matters rendered 
 personally and in kind, whilst the central government had 
 even in early times adopted a properly organized revenue 
 system. Supplementary payment in money is already found 
 in Norman times, in consequence of the innumerable amercia- 
 ments and fines. The oldest payments in money were fines 
 inflicted for the neglect of duty by individuals or communi- 
 ties ; others served for procuring the necessary ways and 
 means for the fulfilment of a common duty. Directly or in- 
 directly, taxation was thus a complement of the judicial, 
 police, and military services owed by the greater and smaller 
 unions, in the imposition of which the pattern of feudal 
 burdens pervades the lower spheres as well, distributing taxa- 
 tion according to the scale of freeholdings, houses as well as 
 land, and profitable rights. In the practice of administration 
 three grades became formed, which although they are onl}'- 
 incidentally mentioned in the oldest statutes are presumed to 
 have existed. 
 
 1. The ''tithing" or " town-ley" (levy) served to discharge 
 the amerciaments and fines of the township, and answered 
 to the duties which the Norman constitution laid upon the 
 tithings. Such were amerciaments for escaped oflenders, for 
 the harbouring of breakers of the peace, outlaws and those 
 for whom no security had been given; amerciaments for 
 neglecting to keep the paths, highways, drains and smaller 
 bridges on roads belonging to the township in repair ; fines for 
 the neglect of accusations before the court. Where a special 
 court leet had been granted to the township, the expenses of 
 keeping the stocks in repair and other outlays connected with 
 
 like times which followed as the more Edw. III. stat. 1, c. 6 ; 36 Edw. III. 
 
 honourable title, and now drives the stat. 1, c. 2). In the west of England, 
 
 older designations from the popular however, townships are still found with 
 
 language. Towards the end of the two tithing-meti, of whom the first is 
 
 fourteenth century, it had become the constable of the King, the second 
 
 ordinary official title of the reeve (of. 2 simply " head-borough" (Lambard, 
 
 Edw. III. c. b ; 3 Edw. III. c. 14; 25 " Constables," pp. 9, 10). 
 
376 Constitutional History of England. 
 
 the local court were added to these : in somewhat later times 
 again, amerciaments for offences against the militia code, such 
 as failure to furnish troops, neglect to keep the weapons and 
 archery butts in repair, etc. Naturally such contributions 
 were raised by the local authorities, that is, by the provost with 
 the four men who represent the township at the sheriff's tourn. 
 After the name "constable" appears, in the fourteenth cen- 
 tury, in the place of that of provost, the name " constable's 
 tax " is the prevailing designation for the same thing. The 
 manner of distribution affected the same persons upon whom the 
 military, judicial, and police duties altogether fell, that is, the 
 freeholders, and consequently the lawmen of the court leet. 
 
 2. The hundred-rate served for the payment of the amercia- 
 ments and fines of the hundred, for the maintenance of the 
 hundred-court, to make good the disbursements of the chief 
 constable after the introduction of the militia system, for the 
 keeping of the bridges of the hundred in repair, and for con- 
 tributions to the county as we shall mention below. It appears 
 to have been apportioned by the bailiff (later by the chief con- 
 stable) among the individual townships, where we meet with it 
 again as " town cess," that is, as a common burden. The 
 oldest statutory mention of it is in 13 Edward I. c. 6. 
 
 3. The county rate serves for the amerciaments and fines 
 of the county, for certain expenses of the county court, prisons, 
 bridges, and certain military expenses. The raising of the 
 county contributions appears to have taken place originally in 
 such a manner that the sheriffs distributed them over the 
 hundreds. By 3 Edward I. c. 16, 18, it was indeed enacted 
 that the itinerant justices should raise these amounts from 
 the persons liable to pay; but as such individual rating 
 probably appeared to be impracticable, the older manner 
 remained the prevailing one, which was to distribute the 
 payment over the whole hundreds, and from these to divide 
 it among the townships, by which method a fixed and fair 
 proportion in the contributions was attained. But when the 
 proportions had been definitely fixed, the whole business of 
 assessing the taxes fell upon the townships. 
 
The Century of Statutes. 377 
 
 Such being the chief causes for the levying of imposts, there 
 arose accordingly a certain practice of assessing the neighbour 
 by the neighbour, to which people became accustomed by the 
 Norman inquest. The increasing expense of keeping the 
 roads in repair, and of the mustering of the militia, as well as, 
 later on, the furnishing of armed contingents which was ex- 
 pected of the districts, and many other local necessities, caused 
 on all sides the institution of committees of assessment. (4) 
 
 Meanwhile the time drew near when the employment of 
 commissions of the townships could no longer be disregarded 
 for the State taxation also. The raising of scutagia by the 
 Vicecomes took place indeed according to the feudal registers ; 
 but even here the frequent change of ownership and sale of 
 plots led to many disputes and to much , arbitrary action. 
 Still more numerous were the complaints of unfairness in 
 making the tallagia assessments. Hence at an early period, 
 instead of the sheriff, the itinerant commissioners of the Ex- 
 chequer were charged to negotiate with knights and boroughs 
 on these points. For great disputes as to rights of the Crown 
 ''juries of inquiry" were frequently appointed. But when 
 the Assize of Arms (1181) introduced service in the militia, 
 with classification according to property, Henry II. could not 
 avoid employing a number of knights and legales homines 
 sworn in for the purpose of acting as commissions of the 
 townships. When the raising of a Saladin tithe (1187), the 
 collection of Eichard the First's ransom, and the levying of a 
 
 (4) As to the first formation of tlie (Magna Charta), according to which 
 county, hundred, and local taxation, no township was to be forcibly corn- 
 compare the Keport on Local Taxation pelled to build bridges where this had 
 of 1843, pp. 5-7, and the memoir of not been customary at the time of 
 the Poor Law Board on Local Taxes of Henry II. These quotations prove 
 1846, p. 45. The want of legal pro- that the laws of the Middle Ages only 
 visions as to assessments only proves occasionally toucli upon these matters 
 that the general principles of the feudal to remove individual abuses. But spon- 
 and judicial duty decided the method. taneous growth prevails in no system 
 The report quotes as statutes which of taxation. It was in this case the 
 presuppose a local taxation, 52 Henry Norman system of government with 
 III. c. 24, touching the payments to its administrative system of tines, which 
 be made by the township when their had set the military, judicial, and police 
 lawmen fail to appear at the accu- duties in motion, in accordance with 
 sation proceedings before the sheriif the temporary necessities of the State, 
 or coroner ; and 25 Edward I. c. 12, 22 
 
378 Constitutional History of England. 
 
 general hide-tax in the same reign (1198) led to an entirely 
 new assessment of taxes according to the amount of hides 
 and of income, the appointment of knights of the shire and 
 others was for practical reasons unavoidable. This system 
 was continued under Henry III. For the assessment of the 
 carucagium of 1221 two knights were to be chosen in full 
 county court '' according to the will and advice of the county 
 court." For the income-tax of 1225 (ts) the assessment took 
 place on a sworn declaration of the person liable to taxation, 
 disputes were settled by a jury, the amounts collected by the 
 reeve and the four men, and paid to four knights of the shire 
 of the hundred (Charters, 355). The income-tax of 1232 (^) 
 was assessed by the reeve and four men elected by the town- 
 ship as ''assessors" upon their oath (Charters, 360). The 
 income-tax of 1237 was assessed upon the oath of the reeve 
 and four men of each township, with the assistance of elected 
 " assessors ; " the assessment was verified by four knights 
 and an ecclesiastic (Charters, 366). This method pursued 
 by the assessment commissions continued as a rule uniformly 
 under Edward I., and was among other cases employed in 
 the towns for the assessment of the wool-tax that had then 
 been introduced. After 25 Edward I. the committees of the 
 township appear as a permanent institution. The ordinance 
 prescribes that in each township four men shall be chosen, 
 who shall report their assessments to the county authorities, 
 who are thereupon to go from hundred to hundred and from 
 township to township to hear complaints and to correct errors 
 in the assessment. Nine years later (1306) it is decreed that 
 a commission (jury of twelve men) of every hundred shall 
 deliver their assessment to the assessors of the county. For 
 this purpose they shall go from township to township and 
 make with the provost and the four men a correct assessment. 
 The assessment commission of the county proceeds again from 
 hundred to hundred and from township to township, to see 
 that no wrong has been done. But the more frequently the 
 hundreds and counties agreed upon a fixed rate of contribution 
 to the local taxes for the sake of simplification, the nearer did 
 
The Century of Statutes, 
 
 379 
 
 the application of the like proportions to the State taxes come. 
 In the eighth year of Edward the Third's reign a widespread 
 assessment of individual townships at fixed sums had come 
 into practice, and from that time it became the custom to 
 assess boroughs and townships according to these propor- 
 tions, which are taken as a basis for taxation as between the 
 townships. The assessment and the collection from the indi- 
 viduals was left to the communitas. (4^) 
 
 V. Now that the county-union had become a firmly organized 
 entirety for military, judicial, police, and taxation purposes, 
 it was further developed by the ntcnsfon of i^Z SgStcm of 
 liistrict unions to a consftJcrabk number of borouQJ&s ; in the 
 majority of them in a more limited extent, but yet through 
 the application of the same principles, so that the constitu- 
 
 (4*^) Tlie proceedings taken upon the 
 first attempts at taxing the whole in- 
 come ari;;ing from personal estate are 
 treated of in Palgrave, " Common- 
 wealth," i. 275. At these first attempts 
 a threefold process was adopted : (1) 
 All inhabitants (with the exception of 
 the Crown vassals) were compelled to 
 prove on oath the full value of their 
 income, as was done in 8 John. (2) 
 An inquest was appointed to test the 
 case w^here the oath of the taxpayer 
 was doubted or called in question, as 
 happened in 9 Henry III. (3) By direct 
 assessment by inquests, which are 
 formed of townships or hundreds, in 
 16 Henry HI., and then repeatedly oc- 
 curring until Edward II.'s reign. In 
 the course of this period the position 
 of Vicecomea in the assessment had to 
 be quite given up, as the reclamations 
 against it were interminable. But 
 the itinerant justices were unsuited to 
 the duty on account of their deficient 
 knowledge of places and persons. Thus 
 also a permanent necessity compelled 
 the adoption of the inquest system. 
 Complaints that one was assessed too 
 high and another too low, were also 
 made to the Exchequer, out of which 
 a writ oi seqiialiter taxandum was issued 
 (Coke, "Inst.," ii. 77). The township, 
 for its part, was competent to raifC 
 the amount of the tax by distraining 
 movables and money (Hey burn v. Key- 
 
 low Mich., 14 Edw. II., B. R. Eot., 60) 
 or by civil action. The most important 
 information as to the assessment of 
 taxes under Edwaril I. we owe to the 
 treatise of T. Smith, " The Parish," 1857, 
 and especially the advantage of being 
 able to make more correct use of the 
 " iiiquisitiones nonarum." These in- 
 quisitiones (cf. Cooper, "Account," i. 
 286-293) arose under the stat. 14 
 Edward III. stat. 1, c. 20, by which 
 one-ninth and one-fiftetnth were voted 
 to the King for the extraordinary needs 
 of the State and for war purposes, and 
 which in this case were fixed at one- 
 ninth of the civic income, upon the 
 ninth lamb, sheep, and wool-skin (the 
 poorer classes being exempted). At 
 the same time the clergy had granted 
 one-tenth of their spiritualities and 
 temporalities according to the rating 
 of 1292. All this led to a complicated 
 assessment, for which three successive 
 commissions were now appointed. For 
 each county respectable persons were 
 ^appointed by name, to act as assessors 
 and venditors lor the assessment busi- 
 ness, and who by sworn men assessed 
 the ninth on corn, wool, and lambs; 
 and then again the old Church tax 
 and its relation to the ninth of the 
 actual produce. The digest of the ac- 
 counts for twenty-seven counties still 
 exists in the Exeliequer, and is printed 
 as Nonarum Inquisitiones (1807, fol.). 
 
380 Constitutional History of England, 
 
 tions of the boroughs resemble, on a small scale, those of the 
 county. 
 
 1. In the militia system the boroughs are in principle 
 incorporated with the counties, and furnish their contingents 
 according to townships, parishes, and hundreds just like the 
 country. For London, however, a separate militia system 
 soon arose, owing to the fact that the county of Middlesex 
 was included in the government of the city. A small number 
 of other towns obtained in this period by charter the '^ right 
 of a county," and together with it a special civic militia. 
 
 2. In the judicial administration a special court-leet had 
 become in the preceding period the characteristic mark of 
 the civic constitution. To certain cities a civil jurisdiction 
 was also granted after the new pattern of judge and jury. 
 But the more important civil and criminal cases were all 
 decided by the itinerant justices with a jury of the county. 
 
 3. The police administration also shows in the cities a 
 gradual overshadowing of the court leet by justices of the 
 peace. The number of the cities in which at the close of 
 the Middle Ages the court leet was still of importance was 
 probably not very considerable. The place of the court leet 
 is taken in very important cases by the justices of the peace 
 for the county, whose jurisdiction is expressly granted "as 
 well within as without the liberties," and therefore within 
 the separate civic districts. The good understanding sub- 
 sisting between the towns and the knighthood, as well as 
 reasons of practical convenience, explain why on the part 
 of the cities no opposition was raised on principle. Besides 
 this, the respectable landowners and lawyers of the towns were 
 also nominated as members of a commission of the peace. 
 Nevertheless, the later city charters, after Eichard II., were 
 frequently framed with a view to a separate commission of the 
 peace, whose quarterly sessions became an ordinary criminal 
 court for which the town issued its own list of jurors. 
 Side by side with this a rival jurisdiction of the justices of 
 the peace for the county generally continued to exist. The 
 special requirements of the market police were provided for 
 
The Century of Statutes, 
 
 381 
 
 in a special department of the clerk of the market, which 
 under the name of a '' court of the clerk of the market " 
 enacted penalties for certain offences against the market laws, 
 and under the name of a " court of pie-powder " served for 
 the decision of certain market disputes, and for the inspection 
 of weights and measures. 
 
 4. In the local taxation system the smallest boroughs 
 ranked as townships or parishes, though the majority ranked 
 as hundreds. London and some others, on the other hand, 
 ranked as counties. 
 
 The number of boroughs becomes according to this system 
 considerably increased. Under Edward I. fifty-four new ones 
 are enumerated ; under Edward II., sixteen ; under Edward 
 III., twenty- eight ; under Henry IV., three ; under Henry YI., 
 four ; and under Edward IV., two ; so that the number of 
 those places which possessed a kind of municipal constitution 
 at the close of the Middle Ages exceeded two hundred. (5) 
 
 (5) On the extension of self-govern- 
 ment to the municipalities, cf. Gneist. 
 "Gesch. d. Communal-Verfas." 194- 
 204. With respect to the State govern- 
 ment they are secondary formations. 
 The exercise of magisterial authority 
 could, from the nature of the public 
 business, be only confided to larger 
 unions. English self-government is 
 accordingly based upon the counties 
 and hundreds, that is, upon unions of 
 districts and bailiwicks, and not upon 
 townships. It is only the city of 
 London that properly speaking has the 
 character of a county. From this down 
 to a number of small market-towns, 
 the municipal constitution forms only 
 an imperfect application of county self- 
 government to a local uuion. The legal 
 bases of the municipal constitution 
 may, with Stephen and Merewether, be 
 referred to the same heads as in the 
 former period : — 
 
 1, The towns form a court leet or 
 some other separate judicial district. 
 It is, however, not sufficiently appre- 
 ciated that by the introduction of the 
 jury system and the justices of the 
 peace, the form of the old judicial 
 township was changed, and with it 
 the participation of citizens also. The 
 
 real life of judicial and police admini- 
 stration must be looked for in the 
 assizes, the justices of the peace, and 
 the jury. But the leet jury still re- 
 tained a right of proposing the mayor 
 or provost ; and this right in process of 
 time developed itself so far, that in 
 some places the leet jury actually elects, 
 whilst in others it only presents for 
 election (Scriven, " Copyhold," ii. 860). 
 In performing their police duties, the 
 lawmen of the leet could also pass 
 bye-laws which had the force of law 
 within the district. 
 
 2. The boroughs are still in the 
 position of fir ma hurgi. It is, however, 
 a fact not sufficiently appreciated by 
 Merewether, that this relation was 
 materially altered by the right of the 
 counties and cities to grant taxes. 
 
 3. The class of burgesses still con- 
 sists of the resident householders, who 
 are included among those paying " scot 
 and lot." The ordinances dating from 
 the era of the house of Lancaster still 
 recount the old characteristics of citizen- 
 ship, such as being sworn to the King 
 and the town ; living by their liveli- 
 hood, merchandise, or crafts ; house- 
 holding in their own persons and names; 
 bearing tax and talliage, lot and scot. 
 
382 
 
 Constitutional History of England. 
 
 These are the bases of self-government by which the central 
 government now entered into a firm bond of union with the 
 county government, by which the classes of society, though 
 differing in their landed and industrial interests, now become 
 united together to fulfil their political duties ; and, filled with 
 the consciousness of public duty and a common zeal for the 
 general welfare, all gain the capability of taking part in the 
 government of the country. The recognition of personal 
 liberty by Magna Charta is followed by the political liberty 
 which calls the existing middle classes to take part in the 
 government of the realm in the form of county and municipal 
 unions. The political self-consciousness thus strengthened, 
 from this time onwards unfolds itself in its firm national indi- 
 viduality, and challenges comparison with the great civilized 
 States of the Continent.*** 
 
 It has been frequently remarked that 
 the English towns have never attained 
 to the importance of those of the Con- 
 tinent. Their striving after separation 
 lasts only as long as the old regime 
 of the Norman Vicecomites. So soon 
 as those causes fell to the ground, 
 thanks to the central courts and the 
 altered position of the sherifis, the towns 
 remained unresistingly in the military 
 and other systems of the county unity, 
 and contented themselves with more 
 restricted immunities. Their participa- 
 tion in the jury and in the commissions 
 of peace, as well as equality in respect 
 of taxation, kept them in active inter- 
 course with the knighthood. Trade 
 and industry moreover existed from 
 time immemorial in the country also ; 
 conversely many landowners had also 
 town houses. The administration of 
 the provincial police magistrates gained 
 respect and popularity. In short, the 
 reasons are not found in England, 
 which in Germany forced the cities to 
 shut themselves off in fact and law and 
 to become fortresses, in order to avoid 
 sharingthe lot of the peasantry. Hence 
 the municipal government in England 
 was the reverse of that in Germany — it 
 was the weaker part of self-government ; 
 and thus may be explained the some- 
 what subordinate position of the muni- 
 cipal deputies in the Lower House, 
 
 though they exceed the knights of the 
 shires in number. 
 
 **# The quiet but grand significance 
 of this period is thoroughly appreciated 
 by Macaulay ("History," cap. 1.): 
 " Sterile and obscure as is that portion 
 of our annals, it is there that we must 
 seek for the origin of our freedom, our 
 prosperity, and our glory. Then it 
 was that the great English people 
 were formed, that the national cha- 
 racter began to exhibit those peculiari- 
 ties which it has ever since retained, 
 and that our fathers became emphati- 
 cally islanders, islanders not merely 
 in geographical position, but in their 
 politics, their feeling.^, and their man- 
 ners. Then first appeared with dis- 
 tinctness that constitution which has 
 ever since, through all changes, pre- 
 served its identity ; that constitution 
 of which all the other free constitu- 
 tions in the world are copies, and 
 which, in siDite of some defects, de- 
 serves to be regarded as the best under 
 which any great society has ever yet 
 existed during many ages. Then it 
 was that the House of Commons, the 
 archetype of all the representative as- 
 semblies which now meet, cither in the 
 old or in the new world, held its first 
 sittings. Then it was that the Common 
 Law rose to the dignity of a science, 
 and rapidly became a not unworthy 
 
The Century of Statutes. 383 
 
 Absolute rule is now superseded by a fonstltutional gobtm= 
 ment accottling to lato ; a government which by means of 
 permanent political institutions gives to the rights of the 
 individual, and to the participation of the people in the 
 government of the land, those guarantees which were aimed 
 at in Magna Charta. The constitution of the Government 
 and the division of power are now as follows : — 
 
 1. The ordinary administration of justice is consolidated in 
 fixed judicial bodies, or central tribunals. These represent the 
 most durable formation of the era of the rise of the estates 
 (cap. 22). 
 
 2. The conduct of the highest political business becomes 
 consolidated in a standing state council or permanent council 
 (cap. 23). 
 
 3. The participation of the prelates and barons in the 
 central government of the realm is fully established owing 
 to their being periodically summoned to the royal council; 
 in union with this they form the ParUamentum or Magnum 
 Concilium, which at the close of this period has developed 
 into an hereditary council of the Crown (cap. 24). 
 
 4. The participation of the communitates in the central 
 government develops into a House of Commons (cap. 25). 
 
 The whole development of the government by estates of the 
 realm confines itself, however, to the temporal side of the 
 State, which is now confronted by the gradually increasing 
 isolation of the ecclesiastical hierarchy (cap. 26). 
 
 rival of the imperial jurisprudence. aptitude for all the highest purposes 
 
 Then it was that the courage of those of the poet, the philosopher, and the 
 
 sailors who manned the rude barks of orator, inferior to the tongue of Greece 
 
 the Cinque Ports tirst made the flag of alone. Then, too, appeared the first 
 
 England terrible on the seas. Tlien faiut dawn of that noble literature, the 
 
 it was that the most ancient colleges, most splendid and the most durable of 
 
 which still exist, at both the great the many glories of England." Upon 
 
 national seats of learning, were founded. the obscurity described by Macaulay 
 
 Then was formed that language, less as existing, light can in most cases be 
 
 musical indeed than the languages of thrown from the fundamental bases of 
 
 the south, but in force, in richness, in this political system. 
 
384 Constitutional History of England. 
 
 CHAPTEE XXII. 
 
 ^fie OTourts of Common Hato, 
 
 The establishment of a definitely secured judicial system 
 in the spirit of true monarchy begins with Edward I. 
 The firmest barrier against arbitrary decisions under the 
 personal government was formed in this period by three 
 corporate ofiicial bodies under the names of Court of King's 
 Bench, Court of Common Pleas, and Court of Exchequer. 
 They may be designated the three ordinary Courts of Common 
 Law, side by side with which certain special courts of the 
 Norman feudal system still continued, to which I shall refer 
 at the close of the chapter. 
 
 I. '^TJe Court of iRing'S 23cnc{) had already under Henry 
 III. become organized as a nearly permanent court, in which 
 the King claimed the right to preside in person. This 
 tribunal was on that account still to follow the person of the 
 King as a " Curia coram Rege iihicunque fiierimus in Anglia,'^ 
 With this condition, the court consisted of a bench of four 
 or five justiciarii, whose president from Edward the First's 
 time was called " Capitalis Justicarius ad placita coram Rege 
 tenenda,'" and may to a certain extent be regarded as a 
 successor of the old high justiciary, but only for judicial 
 business. In this court are combined — 
 
 1. The placita coronse or criminal cases, extended so as to 
 include petty offences, but in such a manner that, as a rule, 
 the same cases can also be dealt with by the justices of the 
 peace at the quarter sessions. 
 
The Courts of Common Law. 
 
 385 
 
 2. The police control, which was from the first combined 
 with the exercise of penal justice ; the judges are in their 
 official capacity the supreme conservatores pads. 
 
 3. The constitutional appeal from the lower courts ; in 
 this sense Bracton calls the judges " capitales, generates, 
 perpetui et majores, a latere regis residentes, qui omnium aliorum 
 corrigere tenentur injurias et errores,'' that is to say, a higher 
 tribunal for the courts of the land, with the exception of the 
 Exchequer, which in its capacity of supreme court of finance, 
 stands in the same rank with it. (1) 
 
 II. '^{)C Court of Common ^Icas as a permanent court of 
 law for civil actions between private persons, in which no 
 
 (1) The formation of the Court 
 of King's Bench is intimately con- 
 nected with the discontinuance of the 
 office of Capitalis Justiciarius Anglias. 
 After the Battle of Evesham, Henry 
 III. did not again nominate to this 
 office. In 52 Henry III., however, 
 Eobert de Bruce was by patent ap- 
 pointed to be " Capitalis Justiciarius 
 ad placita coram JRege tenenda," and 
 from this time this is the ordinary 
 title of the president of the King's 
 court, who is no longer to be governor 
 general of the realm, but only a repre- 
 sentative of the royal power in its 
 judicial branch (Foss, " Judges of 
 England," ii. 135; iii. 18). The 
 number of his assistant justices was 
 under Edward I. as a rule four, in the 
 later years of the reign three ; under 
 Edward III. at first three, and then 
 again four (Foss, iii. 19, 342). For- 
 tescue (writing in the middle of the 
 fifteenth century) says, that four and 
 sometimes five justices sat in the 
 King's Bench. As to the jurisdiction 
 of the King's Bench, cf. Reeves, ii. 
 247, 248. If the King was within the 
 realm, the court, according to Norman 
 custom, was certainly always obliged 
 to follow him. Edward I. and Edward 
 III. insisted upon this, in spite of the 
 petitions of Parliament (Foss, iii. 339). 
 Under Richard II. also a circuit was 
 made to Coventry and Worcester. 
 But in tlie second half of this period 
 the sitting at Westminster became the 
 rule of practice, with the reservation 
 of a change of place in time of war and 
 
 VOL. I. 
 
 national calamities. The kings have 
 never expressly renounced tlieir tra- 
 ditional right of presiding in person. 
 John, from the fifth to the sixteenth 
 year of his reign, was frequently present 
 at the sittings (Foss, ii. 4), and also 
 held circuits in person in company 
 with certain of his councillors. Henry 
 III. also sat in person in judgment on 
 certain important cases, and notably 
 in an action brought against the bur- 
 gesses of Winchester administered 
 severe justice (Palgrave, i. 292). 
 Under Edward I. and II. we meet also 
 with isolated instances of the King 
 presiding in person (Palgrave, Privy 
 Council, 62). Circuits undertaken by 
 the King, so long as the separate in- 
 stitution of itinerant justices lasted, 
 occur until Edward Ill's accession to 
 the throne (Palgrave, Commonwealth, 
 i. 292). And even after the itinerant 
 justices had ceased as a separate in- 
 stitution, the King sometimes took 
 part in the circuits of the justices of 
 his realm. Under Henry VI., on the 
 other hand, it was, according to For- 
 tescue, no longer " customary " for the 
 kin^s of England to sit in court and 
 deliver judgment themselves (Foss, 
 iv. 215). Edward IV. is said to have 
 once sat for three days in the King's 
 Bench, but only " to see how his laws 
 were executed " (Allen, Prerogative, 
 93). Hence we perceive that the 
 monarchy was finally restricted to its 
 old formal authority in the department 
 of the administration of justice. 
 
 2c 
 
386 Constitutional History of England. 
 
 royal rights were involved had also, from Edward I.'s time, 
 its special president, under the name of a Capitalis Justiciarius, 
 and its regular seat at Westminster. To oppose the excessive 
 centralization, the statute of Gloucester (6 Edw. I. c. 8) 
 prohibited the royal central courts of justice from dealing 
 with claims not exceeding forty shillings ; these petty cases 
 were reserved to the county and local courts. Nevertheless 
 the number of actions had increased to such an extent that 
 from the time of Edward III. the number of justices was 
 augmented from three to six, and occasionally to seven. In 
 answer to complaints from the estates, the assurance was 
 repeatedly given that commimia placita were no longer to 
 be heard in the Exchequer. The administration of justice 
 by the King in person was also given up in these cases. (2) 
 
 III. SJe QLonxt of ^.XCJbtQUer now becomes separated, in 
 its capacity as a financial tribunal, from the administrative 
 central government of the Exchequer. The carrying out of 
 the fundamental provisions of Magna Charta rendered a 
 change in the administration necessary for a great part of 
 
 (2) The independent formation of sls capitalis justiciarius o^ this division 
 the Court of Common Pleas is, accord- (Foss, iii. 20). The number of the 
 ing to the careful researches of Foss assistant justices varied under Edward 
 (ii. 160 seq.), of subsequent^j date to I. between four and six; under Ed- 
 Magna Charta. The Germanic con- ward II. was as a rule six; in 6-9 
 ception of the judicial office, and the Edward II, a seventh was added to 
 desire to keep free from the influences their number. Under Henry VI. the 
 of court favour or disfavour, showed number once reached eight. The offi- 
 itself more strongly here than else- cial name of this court is " Commune 
 where. The necessity of a fixed and Bancum" and in contradistinction, the 
 determinate administration of justice King's Bench is called ^'bancum regis,'" 
 in ordinary civil disputes has been or '■'■ hancuyn nostrnm." The assurance 
 most keenly felt, especially under given in Magna Charta as to the fixed 
 John's system of government, who seat of this court of law was not 
 had, in the eleventh year of his reign, followed out to the letter ; a removal 
 sat in judgment at not less than still took place frequently, and notably 
 twenty-four places. This gave rise from Westminster to York (Foss, ii. 
 to the clause of Magna Charta 135, 175, 177 seq. ; iii. 16 ; 343 seq. ; 
 " Communia placita non sequantur iv. 13). But in the second half of the 
 curiam Regis sed teneantur in aliquo period the sittings at Westminster 
 certo loco." Under Henry III. this must be regarded as established by 
 assurance was acted upon in so far law. The limitation of its competence 
 that civil actions were for the most to claims exceeding forty shillings was 
 part dealt with in a special division rendered somewhat ineliectual by 
 of the King's court, and indeed at evasion by means of fictions (Black- 
 Westminster. But it was not till after stone, iii. 36). As to the limitation 
 the accession of Edward I. that Gilbert of the communia placita, cf. Foss, ii. 
 de Preston was definitely designated 135. 
 
The Courts of Common Law. 387 
 
 the Exchequer business. Free persons and free property 
 were at all times to be judged ''according to the law of the 
 land, and the customary forms of procedure." A number of 
 Barons of the Exchequer accordingly associated themselves 
 into a judicial body for this department of business, which 
 may be comj)ared with the judicial division in the German 
 *' Kriegs und Domanen Kammer " in later centuries. To 
 make these judicial decisions independent of the influence 
 of the heads of the department, the judicial division after 
 Edward II. also received its own president or Chief Baron, 
 who was as a rule chosen from among those joersons legally 
 qualified for the judicial office, and was often expressly 
 ajDpointed for life. 
 
 Notwithstanding this, the position of the court continued 
 to be a somewhat subordinate one. Its members were usually 
 appointed from among the higher officials of the Exchequer 
 department, from whom it was difficult to eliminate the 
 financial spirit. Hence it is the more readily conceivable 
 that the retention of the old method of assigning ordinary 
 pleas to the Exchequer now led to loud complaints. In 5 
 Edward I. a royal writ was addressed to the barons, which in 
 general terms prohibits them from dealing with communia 
 placita, as being contrary to the letter of Magna Charta. 
 This was repeated in the statute of Rutland (10 Edw. I.), 
 with the remark, that in this manner the King's suits as well 
 as those of the people were unduly protracted. As, however 
 (probably in consequence of the interest in the court fees), 
 the rule was often evaded, it was again repeated in the Articuli 
 super Chartas (28 Edw. I.), and then once more in 5 Edward 
 II. In later times the rule was again evaded by fictions. Yet 
 in substance a better state of civil and penal justice was 
 attained by the separation of the courts, which could be no 
 longer compared with the condition of things in the former 
 period. (3) 
 
 (3) At this time the Treasurer and for cases which were to be decided upon 
 
 the Chancellor of the Exchequer are argument, a number of barons formed 
 
 regarded as leading officers of the a Court of Exchequer Chamber. The 
 
 Exchequer, side by side with whom, appointment of a Cajpitalis Baro bv 
 
388 Constitutional History of England. 
 
 IV. 'S^!)e continuous tonsolitfation of t^t staff and the course 
 of business of the bcncj^es of futrgtS, is further shown in the 
 following alterations. The judicial benches gradually absorb 
 the separately appointed itinerant justices. Under 13 Edward 
 I. c. 30, the Justices of Assize and Nisi Prius were to be 
 appointed from the sworn justices of the King. According 
 to 27 Edward I. c. 3, 4; 12 Edward II. c. 3; and 14 
 Edward III. c. 16, every justice of the central courts and 
 every baron of the Exchequer may, if he is a professional 
 lawyer, sit as itinerant justice on any case, it being im- 
 material into which court the matter was introduced. Where- 
 as the itinerant justices were originally delegati priiicipis, 
 they now gradually apjDear as delegati of the permanent 
 courts. The commissions which were formerly separate 
 were now assigned to them in union, and became more and 
 more systematic. Under Henry VI. the maxim was established 
 that every justice of assize represents the whole tribunal in 
 which the action has commenced. Thus the most dangerous 
 feature of the old judicial commissions disapioears. About 
 
 royal patent only dates from May 30th, in the affairs of private individuals 
 
 1317 (Foss, iii. 196, 198 ; Thomas, whilst they were engaged in transact- 
 
 Exchequer, 107, ]08). The number ing the King's business; excepting 
 
 of the assessor judges was four, five, only complaints against officers of the 
 
 or six (Foss, iii. 196 ; iv. 233). These Exchequer, who retain their exclusive 
 
 assessors were as a rule promoted judicial privilege in the court itself 
 
 under-officials ; their pay remained (Foss, ii. 196). But it was not until 
 
 during the whole period far below Edward I.'s reign that it was acknow- 
 
 that of the justiciarii (Foss, iii. 44). ledged, that the parties have a right 
 
 Only the office of Chief Baron was as to such non-interference according to 
 
 a rule filled by servientes ad legem, the principles of Magna Charta (Foss, 
 
 whence also, according to 4 Edward iii. 22). When in later times there 
 
 III. e. 16, the Chief Baron can be ap- arose out of the official position of 
 
 pointed a justice of assize, " if he the Lord Chancellor a new equity 
 
 belong to the sworn Serjeants of the jurisdiction, which acted according to 
 
 King." It was not until the time of the j^rinciples of administrative justice 
 
 the Tudor dynasty that the barons without a jury, in addition to the 
 
 were put on a perfect equality with judges, the chief of departments, i.e. 
 
 the justices both in qualification and the treasurer, and the Chancellor of 
 
 rank (Foss, V. 409; vi. 17). The more the Exchequer, participated in this 
 
 conceivable is it, that the public, as new arrangement (Thomas, Materials, 
 
 well as the lawyers, viewed with ii.). The old Exchequer appears from 
 
 unwilling eyes civil actions brought that time to be dissolved into four 
 
 into the Exchequer. By the Statutum divisions ; which, however, are partly 
 
 de Scaecario, 51 Henry III. (1266), formed of the same persons : (1) The 
 
 it had been already provided that the Court of Accounts, (2) The Court of 
 
 treasurer and the barons should bind Eeceipt, (3) The Court of Pleas, and (4) 
 
 themselves by oath not to interfere The Court of Exchequer in Equity. 
 
Tlie Courts of Common Law. 
 
 389 
 
 the middle of Edward III.'s reign the special itinerant judges 
 disappear before the ordinary justices of the central courts. 
 In addition, it is true, special commissions of oyer and terminer 
 were still addressed to the local judges as necessity required 
 in turbulent times. After the introduction of the office of 
 justice of the peace, however, the local criminal commissions 
 acquire a permanent judicial form, and thus the organization 
 of the judicial offices was completed, (a) 
 
 The higher judicial staff now forms a paid and learned 
 official class, as a rule distinguished by titles, as knights- 
 bannerets, knights, or knights of the Order of the Bath. A 
 motion made in Parliament that it should itself pay the justices 
 their salaries, was rejected, {h) As personal servants of the 
 
 (a) The statute 13 Edward I. and 
 the following statutes aim at employ- 
 ing the whole staff of all the courts 
 in the civil assizes : 27 Edw. I. c. 3 
 and 4; 14 Edw. III. c. 16. But with 
 the circuits of the justices of assize a 
 general commission of oyer and terminer 
 became now more and more regularly 
 combined, addressed to the Lord Chan- 
 cellor, certain high officers of State, 
 barons, the justices of assize and their 
 representatives, for dealing with all 
 crimes and a large number of offences, 
 supposing that they have been com- 
 mitted and have been presented in the 
 county. But the right accorded by the 
 statute of "Westminster 2 of appointing 
 special commissions for special cases 
 still remained reserved. By 2 Edward 
 III. c. 2, the assurance was given that 
 such commissions should be regularly 
 issued to justices of the realm, and 
 only in urgent exceptional cases to 
 other persons (Coke, lust., ii. 419; 
 iv. 152). This was followed by a more 
 extensive commissio ad gaolas deJiber- 
 andas, for clearing the county prisons, 
 in which the separate prisons were 
 named under the great seal, A further 
 forum depreliensionis was thereby 
 originated, the first-named commission 
 only embracing a forum delicti com- 
 missi. Hence, as early as the reign of 
 Edward III., the start' of the special 
 itinerant justices diminishes (Foss, iii. 
 359-360). They are last mentioned in 
 the years 1333 and 1349. Pecuniary 
 
 interests also tended towards the same 
 end ; as every justice of the realm in 
 his capacity of justice of assize obtained 
 the considerable addition of £20 to his 
 salary. The commissions of oyer and 
 terminer, which were still specially 
 appointed, were only to be appointed 
 in urgent cases, and then in an impartial 
 manner, not by the magnates, and not 
 by the parties, but by the authorities 
 tliemselves (2 Edw. II. c. 2 : Coke, 
 Inst., ii. 419; iv. 152). According to 
 20 Eichard II. c. 3, no man is to be 
 justice of assize or of gaol delivery in 
 his own county, and no "magnate of 
 the realm " is to sit with the judges 
 in the assizes. 
 
 (h) The personal position of the 
 justices of the realm shows us their 
 honourable standing, nearly on a par 
 with that of the highest officers of the 
 realm. Personal disrespect towards 
 them was punished with great rigour 
 (Foss, iii. 43). Their salaries remained 
 during this period comparatively uni- 
 form, £40 for the chief justices, forty 
 marks for the puisne judges and the 
 chief baron. The justices and the 
 chief baron always received an addi- 
 tional pay of £20' as being justices of 
 assize, and many judges besides re- 
 ceived additional emoluments. Under 
 Henry YI. the chief justice of the 
 King's Bench had 180 marks ; the chief 
 justice of the Common Pleas 140 marks 
 (Foss, iv. 227). The official costume 
 was the same for the whole staff of 
 
390 Constitutional History of England. 
 
 King they are paid out of his personal income, and subjected 
 to his personal penal power. For example, Edward I. deposes 
 his chief justice, Hengham, and inflicts a fine of seven thousand 
 marks ; the other justices were fined from three to six thousand 
 marks for extortion, and probably, also for corruption. This 
 penal jurisdiction was not questioned in the century embracing 
 the reigns of Edw. L, 11. and III., and was repeatedly put 
 in force. But still more stringent was the precedent made in 
 Eichard the Second's reign, when the justices took part in 
 the feud of the great nobles, and returned a doubtful opinion 
 as to a royal ordinance. After the failure of an attempted 
 cowp d'etat, all who had been implicated in delivering the 
 opinion were condemned to death by Parliament for high 
 treason, and the chief justice, Tresilian, was executed, whilst 
 the sentence of death passed on the rest was commuted into 
 one of banishment ; the legality of this proceeding was also 
 maintained at the accession of Henry IV. This important 
 event left behind it for later times the impression that the 
 independence of a State tribunal required the judicial o£&ce 
 to be strengthened by the power of the landed interest, which 
 support was in process of time found in the Upper House, (c) 
 
 judges. As to the very solemn oath his personal judicial authority. Their 
 
 taken by justices, cf. Foss, iii. 360. appointment is accordingly not merely 
 
 The justices were selected from among as a rule subject to revocation (durante 
 
 the number of the graduated advocates, hene placito), but they are also subject 
 
 i.e. King's Serjeants. Even in the pre- to the King's personal penal jurisdic- 
 
 ceding period Foss reckons among 206 tion, which was apparently preceded 
 
 justiciarii ahout 125 men of the legal by an inquiry by an assembly appointed 
 
 profession. Under Henry III. out of for the purpose (Foss, iii. 262). In a 
 
 100 justiciar ii he only finds eleven of very summary and hasty manner Ed- 
 
 whom it may not be assumed that they ward III. proceeded to dismiss and 
 
 have practised in some way or other as arrest several justices (Foss, iii. 341) 
 
 advocates. In this period it can in in the year 1340, and again five years 
 
 almost every individual case be defi- later for a more serious cause (Foss, 
 
 nitely shown that the justices have iii. 365). In later times disciplinary 
 
 been advanced to their position from punishments had almost disappeared 
 
 the legal profession. In conformity by reason of irregularity in the conduct 
 
 with the old princijjles of a judicium of the business of the courts. But a 
 
 parium, the justices receive the honour more serious side to their responsibility 
 
 of knighthood, and usually even the showed itself in 10 Eichard II. Two 
 
 higher rank tanquam haneretti (Foss, justices were at that time murdered in 
 
 iii. 362, 364). a j^opular tumult, and a third was 
 
 (c) The personal responsibility of the executed for high treason. Kobert 
 
 judges was derived from theii- position Tresilian had allowed himself to be 
 
 as delegates of the King invested with employed, agreeably to the personal 
 
The Courts of Common Law. 391 
 
 The ordinary course of the civil and criminal justice in 
 individual decisions had after this time attained that steadi- 
 ness and stability which was in keejDing with the spirit of 
 Magna Charta. The law to be applied has now the distinct 
 character of ''judge-made law." From the thirteenth century 
 dates the definite distinction between common lata and statute 
 lata. The latter is the law proceeding from royal ordinances 
 and resolutions of Parliament ; the former is that created 
 by the blending of the Anglo-Saxon customary law with the 
 Norman feudal system, and the older maxims in the judicial 
 administration of the curia regis and the county courts. The 
 further development is now found in the central courts. '' The 
 common law rests in the breast of the judges of the court 
 of common law ; " it is a judge-made law from the very begin- 
 ning of this period, and in so decided a form that the authority 
 of the law books very soon dwindles, while the collections 
 of precedents, or year books, become the living source of law. 
 To maintain the unity of this law, analogous principles are 
 formed to those of the German common law : no customary 
 right can maintain itself against the statute law ; the custom 
 must be legitime prwscripta — that is, must have existed 
 anterior to Eichard I. ; it must also be rationabilis — that 
 is, practice excludes such customs as are in antagonism to 
 the leading principles of the law of the land. 
 
 wishes of the King, to bring about that compulsion had been used towards 
 a counter-revolution. A defeated party them, and were in like fashion con- 
 sought for this purpose to gain the denined to death and to confiscation, 
 decision of the highest judicial authori- hut tlie sentence was commuted into 
 ties, that an ordinance formerly issued banishment. See as to these events 
 in conformity with the law was illegid, Foss, iv. 3, 4, 102-108. The later 
 and "the authors of it guilty of high judicial staff remained so far outside 
 treason and punishable with death." the great party tVuds, that even at the 
 The Lord Chief Justice, who had change of dynasty under Henry IV., 
 already shown himself servile to the Edward IV., Richard III., and Henry 
 power of the day, collected his justices VII., the former justices were con- 
 m all secrecy and haste to deliver the firmed. Under Edward IV. only the 
 required opinion. The coup d'etat, two Chief Justices were excepted, of 
 however, completely failed ; the Chief whom one was already a fugitive 
 Justice fled, was apprehended, con- (Foss, iv. 380). The dread felt by 
 dcinned by Parliament to death for the justices of a collision with Parlia- 
 high treason, and executed on Feb- ment is notably shown in their refnsal 
 ruary 19th, 1388. The other justices to give any opinion as to the extent of 
 were also put on their trial by the the personal privileges of the High 
 Lower House, in spite of their excuse Court of Parliament in 32 Henry VI. 
 
392 Constitutional History of England. 
 
 A natural effect of the institution of judicial benches was 
 the development of a special legal profession. About the 
 time at which the central courts became permanently fixed at 
 Westminster, we find the first traces of inns of jurists, at 
 first comprising students, advocates, and under-ofiicers pro- 
 miscuously, but still (like the courts of law themselves) on 
 a great scale, and with a strongly prominent esprit cle corps. 
 In 20 Edward I. the first attorney's code was published ; 
 according to which the Chief Justice was to admit a certain 
 number (about 140) of efficient " Attornati et Aj)prentitii qui 
 curiam sequantur,'^ and exclude all others. Under the name 
 of Inns of Chancery, there then became formed small law 
 schools for the preparatory study of the law ; somewhat later 
 the practising advocates combine, and form the four Inns of 
 Court that still exist. In Fleta's work we meet with pro- 
 fessional degrees in servientes, narratores, attornati, apprentitii. 
 A statute (4 Henry IV. c. 18), orders an examination of all 
 attorneys by the judges, and a registration of their names 
 upon a roll. About the same time the higher class of advo- 
 cates begins to separate itself more decidedly from the lower 
 class of attorneys, and to form in the four inns of court a 
 sort of university. In conformity with the system of guilds 
 there arises the degree of mastership, of serviens ad legem, 
 serjeant-at-law, doctor juris; which is conferred by royal 
 writ, and forms an intermediate step to the class of official 
 judges. The Serjeants are appointed as substitutes for the 
 justices in the assizes, as such receive a salary, and are after- 
 wards advanced to the bench. Two Attornati Regis for guard- 
 ing the royal privileges are met with as early as the reign of 
 Edward I. Towards the close of the period, after Edward IV., 
 the two Crown advocates were distinguished by the titles of 
 King's Attorney, and King's Solicitor. In 11 Edward IV. 
 there appears for the first time the solemn official title of an 
 " Attornatus Generalis in Anglia cum potestate deputandi cleri- 
 cos ac officiarios sub se in qualicunque Curia de Becordo.'' (d) 
 
 (d) The development of a special and efect of the refined form of actions 
 legal profession is at once the cause at law. It was impossible for the 
 
The Courts of Common Law. 
 
 393 
 
 The procedure and the staff of the central courts still 
 remain formally connected with the chancellor. From his 
 office as officina jiistiti^ ipYoceed the writs commencing actions, 
 and all commissions under the great seal. As clavis regni the 
 chancery of the realm is accordingly open at all times. The 
 number of regular writs of daily use (writs cle cursu) had in- 
 creased to such an extent that in 12 Henry III. fifty-one 
 of them were sent to Ireland. Five such formula actionum 
 {cle recto, mortdauncestor, novell disseisin, de nativis, de divisis 
 faciendis) could even under King John be issued by the chief 
 justice without reference to chancery. These writs are 
 accordingly no longer writs of grace, but formidce actionum, 
 which are granted to litigants upon proper demand. Under 
 Edward I. the assisting counsellors of the chancellor were 
 
 parties to conduct such actions in per- 
 son. The clergy had formerly been 
 the counsellors Ijoth in the household 
 and the law-court ; " nuUus clericus 
 nisi causidicus." For many reasons 
 the papal throne now wished for a less 
 frequent employment of the clergy. 
 Even Richard I. had been obliged to 
 dismiss his Archbishop of Canterbury 
 from the office of chief justice ; and in 
 the provincial councils it was deter- 
 mined " ne advocati sint clerici vel 
 sacerdotes in foro secidari." Class 
 jealousy had a similar effect. The 
 noble Normans had in quite early times 
 enjoyed a certain education in the prac- 
 tice of the law ; laymen of lower rank 
 filled numerous situations as clerks, in 
 the Exchequer, with justices, sheriffs, 
 and bailiffs of every kind; and the 
 Norman administrative law shows us 
 that the laymen thus educated cer- 
 tainly had little more to learn of the 
 clerici. Now, about the time that the 
 central courts became established at 
 Westminster, inns for lay-jurists begau 
 to be formed. Under Edward IV. a 
 student in the inn required £28 
 yearly ; the nobility sent their sons 
 thither "in order to keep them from 
 vice, and to educate them in music, 
 dancing, history, and other accomplish- 
 ments." A modern compilation of all 
 the historical records of the origin of 
 the advocates' inns is given by Foss 
 (ii. 200 ; iii. 46 seq. 370-390 ; iv. 195 
 
 seq., 251 seq.). It is, however, impos- 
 sible to form a clear picture from these 
 fiagmentary notices. In 18 Edward I. 
 st. 4, there only appears the designa- 
 tion " countour." In 33 Edward I. 
 countours, attournees, apprentis; in 28 
 Edward I. c. 11, contours e sages gentz. 
 14 Edward III. c. 16 calls the class 
 of serjeants-at-law substitutes for the 
 justices of the realm for the assizes. 
 It was not until towards the close of 
 the period that Fortescue gives us 
 more connected information. At this 
 time ten smaller inns of Chancery had 
 been formed, side by side with which 
 stood the four great inns, Lincoln's 
 Inn, Inner Temple, Middle Temple, 
 and Gray's Inn, which provided the 
 higher education for the practice of the 
 law. No one was to be admitted to 
 the degree of serjeant-at-law " qui non 
 in prxdicto legis studio sexdecem annos 
 ad minus antea complerit " (Foitescwe). 
 It was bound up with such expensive 
 ceremonies, and imposed so many re- 
 strictions from considerations of honour 
 upon the practice of an advocate, that 
 it was frequentlj^ refused (Coke, Inst., 
 ii. 214 ; Foss, iv. 223), but was a requi- 
 site qualification for all justices of the 
 King's Bench and Common Pleas. The 
 mention of an Attornatus Begis begins 
 with the commencement of Edward I.'s 
 reign ; in most years two Atfornati 
 Begis were spoken of Foss, iii. 44,45), 
 both with a small salary of £10. 
 
394 Constitutional History of England, 
 
 also allowed to issue in plain cases new actiones utiles (writs 
 in consimili casu), but in more difficult cases only after obtain- 
 ing the consent of the members of Parliament learned in 
 the law. (e) 
 
 V. The jurisdictio ordinaria thus formed does not, however, 
 exclude a system which still continued in a restricted degree, 
 viz. t\)t SgStem of special courts, a continuation of the Norman 
 method of the administration of justice. These are the mili- 
 tary, the Court Marshal's, and the forest courts. 
 
 1. The military jurisdiction of the high constable and 
 marshal had proceeded from the regulations for the feudal 
 militia, and since the creation of hereditary feudal offices 
 had under that name attained a fixed form, though only 
 with a limited scope. Even in our day there exists in 
 the archives a roll of j)lacita exercitus regis dating from 24 
 Edward I., in which the high constable and marshal pre- 
 sides in the name of the King. An application to it of the 
 forms of the county jury could, of course, in war times be 
 never thought of. However, in 2 Eichard II. the Commons 
 endeavoured nevertheless to extend the provisions of Magna 
 Charta to this department also. They jDetitioned the King 
 that this court should not decide on cases of treason and 
 felony, " seeing that the said court decided according to the 
 law of arms, and not according to the common customs of 
 
 (e) As to the commencement of an new edition regards Britton as a con- 
 action by writs, cf. Palgrave, Privy densed adaptation to later ideas of 
 Council, pp. 16, 17. At the close of Bracton, wliicli must be placed after 
 the Middle Ages the number of the 1290, and is somewhat more recent than 
 admissible formulary writs de cursu Fleta's work. As to the other sources 
 had already considerably increased, of law of this time, cf. Biener, Das 
 as is shown by the treatise de natura Engl. Geschw. Gericht., ii. 28(3-298. 
 hrevium, dating from Edward IV. By From Edward II. date the collections 
 36 Edward III. c. 15 it was enacted of the decisions of central courts, which, 
 that proceedings by parol and de- under the name of Year Books, ex- 
 cisions of the courts should be in the tend through two hundred consecutive 
 English language ; whilst the regis- years, in presence of which the use of 
 trations and protocols of the courts the law books (notably those anterior 
 should be couched in the Latin official to Britton) almost disappears. The 
 language. A ccmnected picture of the criminal procedure is simple in corn- 
 practice as it existed under Edward I. parison with the civil. The whole of 
 is afforded by the law work of Britton, the working time of the justices of 
 written in French, which has been re- the realm was at this period confined 
 publirihed in a critical edition (Nichols, to the hours of the morning from eight 
 "Britton," London, 1865,2 vols.). This to eleven o'clock (Foss, iv. p. 226). 
 
The Courts of Common Laiu. 395 
 
 the country." In 13 Eichard II. c. 2, the assurance is given 
 that no dispute shall be dealt with therein, which can be dealt 
 with in an ordinary court according to the law of the land, 
 but only " contracts and other matters relating to records 
 of arms and war, within and without the realm," reserving 
 an appeal to the King. However, the right of the King 
 remained undisputed to order in time of war military courts 
 with summary procedure for all manner of offences to be 
 held by the high constable or marshal, or their deputies. 
 A curia militaris of this description is frequently mentioned 
 under Henry IV. ; it was continuously constituted upon French 
 soil, and even in the commission appointing the high constable 
 (Edw. ly.) the King commits to him : " plenam potestatem ad 
 cognoscendum et procedendum in omnibus causis de et super 
 crimine laesde majestatis, cseterisque causis quibuscunquCf sum- 
 marie et de p)lano, sine strepitu et figura judicii.'' Apart from 
 an irregular use made of it in the violent times of the later 
 wars of the Eoses, the military jurisdiction in actual time of 
 war continued as a constitutional institution down to the 
 Petition of Eight under Charles I. (1) 
 
 (1) The military courts contain the not be decided otherwise," as in the 
 
 elements of a chivalrous martial law. quarrel between Norfolk and Henry of 
 
 The legal equality of the classes in Lancaster under Eichard II. Even in 
 
 private law, however, and the divided the middle of the fifteenth century two 
 
 interests of the knighthood, did not cases occurred : in 1446, a duel be- 
 
 allow of any further expansion of a tween an armourer of London and his 
 
 special martial jurisdiction. But in journeyman, under the authority of the 
 
 consequence of the French wars and High Constable and Earl Marshal ; in 
 
 their contact with the nobility of the 1453, a duel between John Lyalton and 
 
 Continent, a collision of class feelings Eobert Norres, on account of an ac- 
 
 with the common law had unmistakably cusation of high treason. At the latter 
 
 come to pass. Nobles and knights de- the High Constable presided, before* a 
 
 manded the retention of the knights' vast concourse of peojDle in Smithfield. 
 
 court, at all events "in alFairs of honour But as a jurisdictio extraor dinar ia the 
 
 and for the maintenance of the de- court only enters in suhsidium by writ, 
 
 grees of rank ; " especially for disputes and in this weakened form is called a 
 
 touching arms, precedence, and other " court of honour." When the French 
 
 family distinctions ; whilst the common wars had ceased, and the pretensions 
 
 law of the central and county courts of the nobles had wasted away in the 
 
 did not take cognizance of these ob- bloodshed of the wars of the Roses, 
 
 jects, and especially not of satisfaction the court, as a magisterial department, 
 
 for simple atfronts. For a considerable became extinct; for the spirit of the 
 
 time longer the knights' court exercised parliamentary and county constitution 
 
 a real jurisdiction ; in it especially was antagonistic to its continuance, 
 
 duels had a place for affairs of honour After the period of the wars of the 
 
 which, " for want of witnesses, could Eoses such writs were no longer issued, 
 
396 Constitutional History of England. 
 
 2. The maintenance of the King's peace in the royal resi- 
 dence and its ]3recincts was reserved, as well as the jurisdiction 
 over the servants of his household. There existed for this 
 purpose a court held before the Steward of the Household, 
 and the Marshal as household officer, which within its sphere 
 of action excluded all other courts. The principle of the jury 
 was applied to it : in civil actions arising between courtiers 
 the jury is only constituted of courtiers ; in other cases a 
 common jury is empanelled (3 Edw. III. c. 2). An appeal 
 lies to the "King in his palace," which is delegated to the 
 King's Bench. (2) 
 
 3. Lastly, the special administration of justice in forest 
 cases w^as also reserved. The concessions made by the Charta 
 cle Foresta merely extend to the less rigorous exercise of the 
 ancient rights of the King, without introducing the restrictions 
 of Magna Charta. There remained accordingly in this pro- 
 vince a purely administrative justice without a jury. Once 
 every forty days the lower foresters assemble and form a 
 forest court (court of attachment or woodmote) to lay inform- 
 ations as to offences against the forest and hunting laws, 
 which were noted by the verderer. Thrice a year the 
 verderers hold a forest court (court of swanimote) upon these 
 informations and for the decision of disputed rights of pasture. 
 The upper court of the forest for more serious cases is formed 
 by two itinerant justices, the one travelling the whole of the 
 north, and the other the whole country south of the Trent 
 {court of justice seat or court of the chief justice in eyre). (3) 
 
 and the former court of law thus sinks from the royal residence. This juris- 
 
 down into a herald's office. Moreover, diction was never subordinated to the 
 
 after Henry VIII., the hereditary office King's Bench until in Edward III.'s 
 
 of high constable was not again filled reign a writ of error before the King 
 
 (Coke, Inst., iv. p. 124). "in his palace" was introduced 
 
 (2) The Court of the Steward of the (Thoms' " Book of the Court," pp. 
 
 Household was competent in disputes 302, 303). 
 
 between the servants of the royal house- (3) For the administration of justice 
 
 hold and in trespasses within the pre- in forest cases there existed until 
 
 cincts of the palace, even when only Richard I. a summus justiciarius om- 
 
 one of the parties is a royal servant; 7iimM /orestorwm, and then a commission 
 
 and in cases of debt and contract of four jiisticiarii with under-oflficials. 
 
 where both parties belonged to the The Charta cle Foresta provides for an 
 
 royal household. The precincts of the exceedingly numerous staff of forest 
 
 palace extended to a twelve-mile radius ofiicials. In every great forest there 
 
The Courts of Common Law, 
 
 397 
 
 Besides these older special courts a new administration of 
 justice proceeded from the newer administrative system of 
 the permanent council : the equity jui'isdiction of the Lord 
 Chancellor, the Courts of Admiralty, and the penal jurisdiction 
 of the Star Chamber, to which I shall refer in the next 
 chapter. 
 
 are to be four verderers as supervising 
 administrative oflScials and forest 
 justices. Under them are twelve in- 
 spectors of forests (regarders) for sur- 
 veys, investigation of contraventions 
 of the forest laws, clearances, etc. 
 Under them the foresters with the 
 duty of preserving both wood and 
 game, giving information against and 
 prosecuting transgressors. Besides 
 these there are rangers (gamekeepers), 
 agistors (inspectors of pastures), wood- 
 wards (keepers of woods), stewards and 
 beadles as court attendants and exe- 
 cutive officials. As head of the depart- 
 ment there is a Chief Warden of the 
 Forests. This administrative sphere 
 was regarded in the Middle Ages as 
 freed from the restrictions of the com- 
 
 mon law, and was entirely left to the 
 royal ordinance. In the Cliarta de 
 Foresta of Henry III. the heavy burden 
 of the general suit of court at the 
 sittings of the courts of the forest was 
 abated. Some mitigation of the bloody 
 punishments that were threatened was 
 obtained under Henry III. through the 
 Assize of Woodstock, 1184 (limitation 
 of capital punishment to the third 
 offence, etc.). The popular complaints 
 as to arbitrary afforestations continued 
 for a long time, though the antagonism 
 of the magnates was in later times 
 somewhat lessened by the fact that 
 they were allowed to participate to 
 a limited extent in the privileges of 
 the forest right. 
 
398 Constitutional History of England. 
 
 CHAPTEE XXIII. 
 
 ®j£ permanent or (2Dontinual (E^^mtiX—W^t (2[Dourt of (^Tfiancns. 
 
 The corporate constitution of the central tribunals appears 
 as the stronghold of the modern judicial system, that pillar 
 of the rising constitution, which as it gradually rose was 
 strengthened by the consolidation of the county and muni- 
 cipal unions into fixed corporations. Beyond doubt there 
 existed an intimate connection between both these formations 
 and the fundamental laws of Magna Charta. The one is 
 called forth and rendered effectual by the other ; the one is 
 a natural deduction from the other. These permanent 
 elements of the political system, however, form only a firm 
 encircling bond, within which the great sphere of the ordinary 
 business of the State is reserved for the decision of the 
 King. There is now formed from among the counsellors for 
 this round of business a Continual or ^Bnmancnt Council, 
 which first took the form of a governing body, when under 
 Henry III. a regency became necessary for the first time. 
 After Henry III. had substituted for it a personal government 
 with foreign favourites and subordinate clerks, the barons 
 and the prelates demanded in opposition thereto that the 
 great offices of State should be filled by ''suitable" persons, 
 and after a bitter struggle took the matters into their own 
 hands. But though at that time the issue was in a violent 
 party government, Edward I. from the standpoint of the 
 monarchy recognized the demand as righteous, and carried it 
 into effect. It is as a spontaneous creation of the monarchy 
 
Permanent or Continual Council — Court of Chancery. 399 
 
 that we now find, in addition to the Exchequer and the 
 central courts of law, a continual or permanent council for 
 the efficient despatch of State business, which discharged in 
 joint deliberation the highest affairs of the State, and thus 
 became the centre of the parliamentary system that was 
 now beginning.* 
 
 I. W^z functions of tje ^nmantnt Council may be com- 
 pared with those of the cabinet council of our day. But 
 we must not leave out of sight the comparative simplicity 
 of the times, the separation of Church and State, and the 
 hitherto personal character of the rule of the Norman kings. 
 The following heads may be in some measure distinguished 
 from one another : — 
 
 1. Advising the King upon the issue of ordinances in 
 the general province of Government. 
 
 2. Eesolutions as to war and peace, treaties with foreign 
 powers, summons of the feudal and county militia, measures 
 for the organizations of paid armies, and for their general 
 direction. 
 
 3. Eesolutions touching measures in case of national dis- 
 tress and tumult ; appointment of extraordinary commissions, 
 and instructions for such cases. 
 
 4. Advising the King where the jurisdictio extraordinaria 
 was to be exercised, which was reserved to the King for the 
 most important cases. 
 
 5. Eesolutions upon petitions of private persons,, corpora- 
 
 * The formation of the permanent the conclusions drawn. Hallam has 
 council has received a new elucidation turned these modern sources to account 
 by the reprint of the protocols of the (against Palgrave, f/c/e" Middle Age:^," 
 council in the work " Proceedings and c. viii. 3 note). Among the older 
 Ordinances of the Privy Council of literature, the work of M. Hale, " Juris- 
 England, from 10 Richard II. to 33 diction of the Lords' House of Par- 
 Henry VIII.," by Sir H. Nicolas (7 liament" (1796, 4to), is still valuable, 
 vols. 8vo, 1831-1837); upon this was The recent treatise of Dicey, "Privy 
 founded the monograph of Sir Francis Council " (Oxford Essays), is now out 
 Palgrave, " An Essay upon the Au- of print. The novelty of the forma- 
 thority of the King's Council " (1 vol. tion of the Council can be perceived 
 8vo, 1834), which for the first time in Edward I.'s reign in the still un- 
 attenipted to give a consecutive picture settled designation, " Continual Con- 
 of this political body and its relation seil " (Nicolas, i. 3), ♦' Secretum Con- 
 to the Parliaments of the Middle cilium" (Heming, b. ii.), '^Familiare 
 Ages, but sometimes went too far in Concilium" (M. Paris). 
 
400 Constitutional History of England. 
 
 tions, and counties, touching complaints of financial oppres- 
 sion, abuse of offices of trust, deficient legal protection, and 
 applications for and grants of pardon. These form the 
 ordinary current business of the council. In consequence of 
 the malpractices of the Vicecomites and local bailiffs, of the 
 necessity which had arisen for the remodelling of many in- 
 stitutions that had suffered under the throes of former con- 
 stitutional struggles and under the haughtiness of quarrelsome 
 magnates, such was necessarily its ordinary s^Dh ere of activity; 
 especially now that the Commoners in the national assemblies 
 were soon to become the mouthpiece for national grievances. 
 Throughout the whole of the Middle Ages, the Parliaments 
 are regarded as assemblies '' for the redress of wrongs and 
 remedy of abuses." With each Parliament petitions flowed 
 in, claiming every sort of relief, not merely in public matters, 
 but frequently also in petty private affairs, from all classes of 
 persons, and on all kinds of subjects. The " poverty of the 
 petitioner," the power and the number of his opponents, and 
 the inadequacy of the common law, form the ordinary motives 
 for appeal to the council. Herein can be perceived the 
 fundamental idea that "the King in council is there as the 
 final resource for every grievance, which the ordinary tribunals 
 are powerless to redress." (1) 
 
 (1) The sphere of action of the Crown vassals. As a matter of fact 
 council may be best compared to a the clause of Magna Charta touching 
 modern cabinet council, in which the the amerciaments of the Crown vassals 
 whole of the business of the central per pares suos was regarded as corn- 
 government is comprised, so far as it plied with, when the council fixed the 
 has not been assigned to the courts fine. Towards the Exchequer, too, 
 for decision according to constitutional the competence of the council was 
 principles, or to the Church to deal with not legally defined : at times important 
 according to its independent rule. financial business was reserved to it. 
 See the description which Sir H. Under the regency of Henry VI., 
 Nicolas, vol. i. p. 1, gives of it. Its feudal wardships,consents to marriages, 
 sphere of action is the same as that leases, etc., were reserved by the council 
 which the Norman kings informally to the Lords, including questions con- 
 filled by confidential persons and corning lunatics, who were occasionally 
 counsellors, whom they frequently brought before the council that inquiry 
 changed. The progress of the age might be made as to their state of 
 is seen in the corporate nature of this mind. In other cases it was merely 
 national body. Palgrave (" Privy accidental that sittings of the council 
 Council," p. 34) rightly assumes tliat were held under the roof of the Ex- 
 the council was looked upon as a chequer, 
 properly constituted " court " for the 
 
Permanent or Continual Council — Court of Chancery. 401 
 
 For the discharge of this mass of business it was enacted 
 (5 Edw. I.) that all petitions should in the first instance 
 be examined into by the judicial officers to whose department 
 they belonged ; and that only matters of importance should 
 be laid before the King and his council. In 21 Edward I. 
 the King appoints "receivers of petitions," which were ordered 
 to be assorted into five classes ; (1) for the Chancellor, (2) for 
 the Exchequer, (3) for the Judges, (4) for the King and 
 Council, (5) such as have already been disposed of. In this 
 manner they were to be " reported " to the King. The 
 appointment of receivers for this purpose soon became an 
 established institution, which is described in Fleta's law 
 book as a " Curia coram auditoribus specialiter a latere Regis 
 destinatis,'' ''they who have not to decide, but only to make 
 a report of what they have heard, in order that the King 
 may determine what shall be done touching the parties." 
 Under Kichard II., when the council had already entered into 
 more intimate relations with the magnum consilium of the 
 peers, the petitions are divided into three classes ; (1) bills 
 of grace and offices, which must be answered by the sovereign 
 in person ; (2) bills of council, which the council may dispose 
 of ; (3) bills of Parliament, which may not be answered with- 
 out consent of the Parliament. 
 
 The resolution on the report of the receiver could be made 
 in one of three ways : — 
 
 (i.) Immediate decision, generally written on the upper 
 margin of the petition by a member of the council : under 
 Henry V. and VI. generally by the chamberlain. 
 
 (ii.) Appointment of a special commissioner to redress any 
 extraordinary injury to the petitioner requiring a speedy 
 remedy. This is a delegatus a latere to whom a commission 
 of oyer and terminer was issued in the Chancery upon writ, 
 or by a mere writing. 
 
 (iii.) Eeference of the matter to the Exchequer, or other 
 court, especially to the Chancery. From Edward I.'s time 
 the answer " sequatur in cancellariam'' was a frequent one, 
 and given generally under the privy seal. 
 
 VOL. I. 2d 
 
402 
 
 Constitutional History of England. 
 
 The rules of procedure of the council were themselves a 
 subject of the royal right of ordinance, but under the house 
 of Lancaster, for the sake of greater solemnity, were frequently 
 issued from Parliament. For example, the regulations of 
 the council of 1406 were issued in Parliament, and registered 
 as an Act. Those of 1424 were annexed to the Act of Appoint- 
 ment. Those of 1430 were drawn up in the council, assented 
 to by the lords, read in the presence of the three estates, 
 and then signed by the council (Stubbs, iii. 251). (1^) 
 
 (P) As to the oldest methods of 
 procedure, especially the arrangement 
 of petitions into groups, cf. Palgrave, 
 pp. 23, 79. As to tlie form of the reso- 
 lutions, we find that — 
 
 (i.) The immediate personal deci- 
 sion was comparatively rare, and even 
 in the case of these marginal rescripts 
 it is frequently mentioned that they 
 were issued " on report being made in 
 the council." Henry V. often signed 
 his decrees with his own hand ; nume- 
 rous royal orders occur also without 
 signature (Nicolas, vol. vi. p. 214). 
 
 (ii.) The appointment of a special 
 commissioner by a commission of oyer 
 and terminer was a continuation of the 
 older personal administration of justice, 
 and led to collisions with the ordinary 
 I'urisdiction of the central courts, 
 against which the Parliaments began 
 quite early to remonstrate. The stat. 
 Westminster 2 (13 Edw. I.) already 
 gives the assurance, that no writ of 
 trespass ad audiendum et terminandum 
 should be issued in any other manner 
 than before the justices of one or the 
 other bench, or before the other justices, 
 except it be a heinous trespass which 
 demanded speedy redress. All such 
 assurances (r/c?e note S'^) were, how- 
 ever, so equivocally and uncertainly 
 framed, that they yet left room for the 
 gouvernement personel. 
 
 (iii.) The reference of the matter to 
 the Chancery (cf. Hardy, "Introduc- 
 tion to Close Kolls," p. 28) led to the 
 Lord Chancellor's office becoming a 
 separate court of law. 
 
 The later rules of procedure under 
 Henry VI. are known in detail and 
 instructive. The rules for the admi- 
 nistration of the council (2 Hen. VI.) 
 contain among others the following : 
 
 The council shall not interfere in 
 matters which are to be decided ac- 
 cording to common law, except where 
 one party is too powerful to enter the 
 lists with the other, or for other urgent 
 reasons ; The clerk of the council shall 
 select the bill of the poorest plaintiff, 
 which shall be first read and answered ; 
 One of the King's Serjeants shall be 
 sworn, to lend his best assistance to 
 the plaintiff, without fee, under pain 
 of dismissal (Nicolas, vol. iii. pp. 149- 
 152). A similar spirit is recognizable 
 in the regulations of 8 Henry VI. ; the 
 council was to interfere "if their lord- 
 ships found too much power on one 
 side and too little on the other." The 
 council had to hear, to deal with, to 
 communicate, to appoint with reference 
 to, and to decide upon, matters laid 
 before it. Charters of pardon, grants 
 of parsonages and offices, and other 
 matters of grace and favour, belong to 
 the King personally. On topics of 
 great moment and importance, it shall 
 deliberate, but not pass final judgment 
 without the King's advice. Where 
 the number of votes in the council is 
 equal, the matter must be laid before 
 the King, and the decision left to 
 him alone (Nicolas, vol. v. p. 23). In 
 8 Henry VI. c. 1, there follow certain 
 orders for regulating the use of the 
 signet, privy, and great seal, saving 
 the prerogative (Nicolas, vol. vi. p. 
 185). In the Cottonian manuscripts, 
 there are original decrees of the 
 council (probably dating from 22 
 Henry VI.), which provide (mter alia) 
 that " considering all such matters as 
 pass through many hands are less 
 likely to be decided to the prejudice 
 of the King or of any other person, it 
 has been found well that all bills to 
 
Permanent or Continual Council — Court of Chancery. 408 
 
 II. ^i)c personal constitution of ti^e council corresponds to 
 this sj)here of business. It consists of the persons whose 
 assistance the King requires for determining matters of the 
 highest instance ; to use a modern expression, the heads of 
 the departments of State, with a number of persons, whom 
 he has thought fit to summon to a continual dehberation on 
 such matters. Foremost among the officials is : — 
 
 {a) The Lord Chancellor, and in addition to him the chief 
 clerk of his office, the Master of the Kolls, as well as some 
 higher clerks (reporting counsel), being the persons who at this 
 period represent the most varied legal and official knowledge. 
 
 {h) The principal members of the central courts, i.e. the chief 
 justices and the other justices. 
 
 (c) The directing members of the Exchequer, the Treasurer 
 and Chancellor of the Exchequer. 
 
 (cl) The principal officers of the royal household, before 
 all the King's Chamberlain, who continued for centuries a chief 
 member of the council. Next to him the steward of the house- 
 hold, and after the administration of the royal court had 
 become further subdivided, the treasurer of the household, the 
 controller, and the maitre de garderohe. 
 
 (e) The Keeper of the Privy Seal. Now that the Chancellor 
 had become a chief officer of the realm, the King was again 
 in need of a cleric in the confidential position of a personal 
 cabinet secretary. Under Edward III. such a one appears 
 as a minister of State, with a formal oath of office (14 Edw. 
 III. c. 5), under the name of Keeper of the Privy Seal ; later 
 known as Lord Privy Seal. 
 
 (/) The Archbishop of Canterbury as Primate appeared, 
 conformably to the position of the Church, to be so essential 
 a member, that in 10 Eichard II. he submits a solemn 
 protest, wherein he claims for himself and his successors in 
 
 TThich the King assents shall be de- justice, the King's decree is taken in 
 
 livered to his secretarj-, in order that order to send them to the council, 
 
 he may draw up letters under the which then assigns them to the proper 
 
 royal signet to the Keeper of the court, except when the petitioners 
 
 Privy Seal, and thence from the Keeper are unable to prosecute according to 
 
 of the Privy Seal to the Chancellor." common law (Nicolas, vol. vi. p. 29). 
 Where petitions concern matters of 
 
404 Constitutional History of England. 
 
 office the right of assisting at all the sittings of the royal 
 council, be they general, special, or secret (Kot. Pari., iii. 223). 
 
 These are plainly the chief elements of the council. But 
 yet a clear distinction between them was wanting in the time 
 of Edward I., II., and III. As occasion required, lower 
 officials were also summoned to attend the council, to give 
 opinions and information, and to receive orders ; such as 
 King's Serjeants, Chancery clerks, escheators, itinerant 
 justices, and others. A definition of the ordinary members 
 began to be made when the rival power of the parliaments 
 first took cognisance of the constitution of the council. When 
 differences of this sort first arose, the following were designated 
 as members virtute officii : the Chancellor, the Treasurer, 
 Privy Seal, Chamberlain, and Steward (Kot. Pari., iii. 73). 
 These five were regarded as the chief members and managers 
 of the current business. Moreover, during the whole of the 
 Middle Ages there was no president of the council other than 
 the King himself, to whom it is naturally open to honour a 
 member with the temporary conduct of the business. For 
 instance, in the latter part of Edward the Third's reign, the 
 Bishop of Winchester was mentioned as "Gapitalis Secreti 
 Consilii ac Guhernator Magni Consilii." In cases of personal 
 impediment, the regent of the realm was for this reason the 
 natural president of the council, as in 1 Henry VI., the Duke 
 of Bedford, and later the Duke of York. 
 
 The somewhat fluctuating form of the council became 
 modified from the time when, under Kichard II. and under 
 the house of Lancaster, the estates of the realm began to take 
 a more decided share in the Government. In these later 
 times there appear seldom fewer than ten and generally a 
 greater number of spiritual and temporal lords as members of 
 the council ; with them sit the highest officers of State, now as 
 ordinary members, and no longer mingled with the under- 
 officials who were occasionally summoned. The growing power 
 of Parliament particularly aimed at subjecting the Lord Chan- 
 cellor and Keeper of the Privy Seal, as the two bearers of 
 the decisive national seal, to a definite responsibility. In 
 
Permanent or Continual Council — Court of Chancery. 405 
 
 all material points this was attained under the house of 
 Lancaster. In the eighth year of Henry IV. the King in 
 Parliament agrees that, for the maintenance of the laws of 
 the land, the Chancellor and the Keeper of the Privy Seal 
 shall not allow any warrant, grant by patent, judgment, or 
 other matter, to pass under the seal in their. possession which 
 should not so pass according to law and right, and that they 
 shall not unduly delay those that must pass. Attempts to 
 prosecute the Keeper of the Privy Seal were made as early as 
 Eichard II. Under Richard 11. and Henry IV. the members 
 were appointed annually, but their appointments regularly 
 renewed, unless accusations of bad behaviour or petitions to 
 be discharged from serving intervened. Their annual pay was 
 graduated according to their rank, as were also the fines for 
 neglecting to appear at the sittings. In a process of political 
 crystallization, the purely personal conseil du Roi of the Nor- 
 man kings had now become a department of State. (2) But 
 as the body was too large and too heterogeneous in its consti- 
 
 (2) The personal constitution of the Eolls of Henry IV.) ; as Lord Privy 
 
 council has been ascertained by Nico- Seal (34 Henry VIII.). This, however, 
 
 las from the protocols of the great did not exclude laymen and ecclesiastics 
 
 council with more exactness than in from being also employed as secretaries 
 
 former times. The Lord Chancellor is of the King, and on confidential special 
 
 everywhere conspicuous as the principal commissions, in which sense "King's 
 
 personage for the formal procedure, clerks " occasionally occur under John 
 
 though he is not president of the coun- and Henry HI, As to the older con- 
 
 cil, and by no means always the most stitution of the council, cf. Palgrave, 
 
 influential person in it. The impor- p. 20, seq. ; Nicolas, vol. i. p. 3, The 
 
 tance of the office of the King's Cham- statements of the latter relating to the 
 
 berlain is new : he is indebted to the period of Henry VI. have been made 
 
 influence of the magnates in the council very carefully. The royal council con- 
 
 of the realm for his improved position. sisted in 2 Henry VI. of twenty -three 
 
 In 15 Edward III. he expressly swore persons: the Duke of Gloucester, the 
 
 to obey the laws of the realm and the Archbishop of Canterbury, four bishops, 
 
 Great Charter. In 1 Richard II. he the Chancellor, the Treasurer, the 
 
 became a member of the regency. His Keeper of the Privy Seal, the Duke of 
 
 functions are to endorse petitions, to Exeter, five earls, four sires, and two 
 
 formulate royal immediate decrees, and messieurs, Thomas Chaucer and William 
 
 communicate with Parliament. In 11 Alyngton (Nicolas, vol. iii. p. 148). The 
 
 Richardll.andfrequently later he was salaries, fixed according to rank and 
 
 impeached by the estates. The posi- length of service were : for the Arch- 
 
 tion of the Keeper of the Privy Seal, bishop of Canterbury and the Bishop of 
 
 as he was first called in 13 Edward III. Winchester at 300 marks ; for a bishop, 
 
 c. 5, is also new ; later he appears as earl, and the lord treasurer 200 marks ; 
 
 Clerk of the Privy Seal (2 Richard H.) ; for a baron and banneret £100 ; for an 
 
 as Guardian de Privy Seal (Parliament esquire £40 (Nicolas, vol. iii. 155). 
 
406 Constitutional History of England. 
 
 tution or varied business, delegations and commissions were 
 issued, some of which form the nucleus of indeiiendent 
 departments. 
 
 III. W^t commissions anb tickgations of t^t council were 
 chiefly necessitated by the fact that more specially legal and 
 technical questions came before the council, in the case of 
 which it seemed proper to form a narrower committee for their 
 treatment and decision, or rather for passing an opinion 
 which was to influence the ultimate decision of the King. 
 The personage most suited, by reason of his position and his 
 under-officials, for the discharge of these more intimate func- 
 tions was the Chancellor. Hence the sub-commission was 
 most frequently composed of the Chancellor and the justiciaries 
 of the two central courts, and hence are issued ^' deer eta per 
 curiam cancellaride et omnes justiciarios,'' or " decreta cancellarii 
 ex assensu omnium justiciarionun et aliorum de Regis consilio.'' 
 In the first century of this period even formal proceedings are 
 somewhat frequently taken before the Chancellor and the 
 judges in Westminster Hall. Commissions of this description 
 take the place of the extraordinary judicial commissions of 
 prelates and barons which, in the former period, the Norman 
 kings were wont to appoint for the Crown cases reserved. 
 
 As a permanent institution there next arose a kind of com- 
 mittee for appeals from the Exchequer. As this did not 
 remain subordinate to, but was co-ordinate with the central 
 courts, an appeal could only lie to the King ; that is, to the 
 *'King in council." It was a matter of delicate questions of 
 financial law, which were well suited for a special council of 
 men well versed in matters of business. Hence a commission 
 was at first formed of the Chancellor, Treasurer, and two 
 justices ; but it was subsequently laid down in 31 Edward III. 
 stat. 1, c. 12, that the Chancellor and Treasurer should 
 meet together and have the documents laid before them, 
 summon the justices and other experts according to their 
 best judgment, demand reports of the barons of the Exchequer, 
 alter the Exchequer decree according to their opinion, and 
 remit it to the Exchequer for further consideration. 
 
Permanent or Continual Council — Court of Chancery. 407 
 
 Still more important was the creation of a separate Court 
 of Equity, which proceeded from this system of delegations. 
 Certain petitions and questions touching i^roperty were, fi'om 
 their peculiar nature, not so well adapted for hearing before 
 the justices of the realm as before the Chancellor, who might 
 still be looked upon as the prime authority and chief repre- 
 sentative of a more universal juristic education. In course 
 of time deficiencies and hardships were conspicuous in civil 
 justice, which could not be redressed in the ordinary course 
 of justice, either because they were ill-suited for a jury, or 
 because they could not be decided according to the funda- 
 mental principles of the common law (such as fraud, accident, 
 trust, that is, actio and exceptio doli). Hence there sprung 
 up a " remedial jurisdiction," supplendi et corrigendi juris 
 civilis causa, analogous to the praetorian jurisdiction, in which 
 the Chancellor proceeding according to wquitas (that is, 
 principally according to the principles of the Eoman and canon 
 law), directs his reporting secretaries or Masters, and then 
 decides jjer decretum. The most frequent cases of this equitable 
 jurisdiction from Eichard II. to 37 Henry YI., were cases of 
 conveyances to uses inter vivos; but even in those early times 
 the sphere of action was probably a wider one, and from the 
 very nature of the jurisdiction, the office of Chancellor con- 
 tinued until the close of the Middle Ages to be filled by 
 ecclesiastics. (3) 
 
 (3) The delegations of the council Council, certain great oflScers, judges, 
 and the equitable jurisdiction of the and others. But neither the expre^fcion 
 Lord Chancellor have one and the same " concilium ordinariinn " nor " legale " 
 origin. The establishment of sub-com- occurs in the official records; nor do 
 missions of the Council was primardy we find any regulation as to its mem- 
 an administrative measure, and not a bers or procedure. We can, accord- 
 constitutional institution. It was only ingly, no more make a magisterial 
 after the lapse of time that such department of this institution than of 
 creations, owing to continually arising the shifting judicial commissions of the 
 needs of the same kind, adopted the Norman period. Under Edward III., 
 character of magisterial departments. for example, proceedings were fre- 
 It is only juristical pedantry which quently assigned to the "Chancellor, 
 would at once make of these ex tempore Treasurer, and others of the King's 
 commissions formal departments of council" (Reeves, iii. 386). In 44 
 State. Upon the authority of Hale a Edward III. a difficult case was heard 
 so-called '■'concilium ordinarium" or before "the Chancellor and all the 
 " concilium legale" was said to have justices of the King's Bench and Cum- 
 existed, being composed of the Privy mon Pleas" (Foss, iii, 337). Even in 
 
408 Constitutional History of England. 
 
 It is quite conceivable that these functions occasioned con- 
 flicts with the Parliaments, which are chiefly aimed at the 
 civil jurisdiction of the Chancellor, but partly also at the penal 
 jurisdiction exercised by the King in council, the abolition 
 and clear definition of which were equally impracticable. In 
 25 Edward III. the Commons protest against any one being 
 brought before the council on account of his freehold, or on 
 account of such suits as affect life and limb, and against 
 any one being fined by informations laid before the council 
 or one of the ministers, unless such legal procedure shall have 
 been " formerly customary." In the answer to this the 
 extraordinary criminal procedure was expressly reserved ; 
 *' mes de chose que toiiche vie ou memhre, contempt ou excesses," 
 it shall remain as formerly customary (Palgrave, Council, 35). 
 It was apparently agreed that the assignment of ordinary 
 actions to the courts was to be understood " salvo jure regis," 
 that is, with reservation of extraordinary causse 7najores to 
 the King ; but the Parliaments wished to co-operate in this. 
 In 27 Edward III. the Commons themselves expressly consent 
 
 earlier times, under Edward II., West- magisterial compulsion for their fulfil- 
 minster Hall was named as the place ment (Reeves, iii. 188). From the time 
 at which the Chancellor holds his of 2 Edward III. the assignment of the 
 sittings; this place was called "illag- matter with this view under the formula 
 num. Bancum" (Foss, iii. 177), and the '■^ sequatur in cancellariam" becomes 
 sittings were described as being " in more and more frequent, and soon also 
 plena cancellaria" (Rot., cl. 25, Edward with the further addition "'■Jiat ulierius 
 III.). The Admiralty Court was an justicia in cancellaria ; non potest juvari 
 instance of such delegations of the per communem legem, veniat in cancel- 
 council, which was an outcome of a laria et ostendat jus suum ; fiat ei justi- 
 special commission of the King, with cia spcundum legem cancellarise " (Foss, 
 a jurisdiction in the ports, and over iii. 178 ; Hardy, "Introduction to Close 
 oifences committed on the high seas ; Rolls," p. 126). From the time of 
 perhaps existing as early as Edward I., Richard II., or at all events under the 
 with powers more limited in later houseof Lancaster, the jurisdiction over 
 times on motions of the estates under Uses stands prominently forth as tlie 
 Richard II. Another delegation is principal object (Reeves, iii. 381). But 
 formed by the Court of Requests under beyond doubt the special jurisdiction of 
 the Lord Privy Seal (Spence, "Equit- the Chancellor was also a delegation of 
 able Jurisdiction," i. 851). The prac- the King's council (Palgrave, Privy 
 tical need for a remedy for the clumsi- Council, 25 ; Spence, " Equitable Juris- 
 ness of the common law, led to the later diction," i. 709-71G ; Hallam, " Middle 
 jurisdiction over "equitable obliga- Ages," note x.). England had thus 
 tions," the fulfilment of which was left attained to the necessary completion 
 by the common law to the conscience, of its system of private law, which 
 whilst the common wants of life and whs accomplished in Germany by the 
 the existing views of law necessitated a reception of foreign law. 
 
Permanent or Continual Council — Court of Chancery. 409 
 
 to an extraordinary criminal procedure against clerics who 
 appeal to the papal chair ; in the statute even imprisonment 
 for an indefinite time, *' during the King's pleasure," is 
 threatened, as well as forfeiture of lands and personal property, 
 of those who should refuse to answer for such a contempt 
 before the King, or his council, or his chancery, or before his 
 justices (Palgrave, 39). In 42 Edward III. c. 3, upon a com- 
 plaint raised by the Commons, it was indeed promised in 
 general that none should be required to answer before the 
 courts except by regular judicial procedure. But the extra- 
 ordinary power of the council remained unaffected by this, and 
 in turbulent times, such as followed under Kichard II., it was 
 exercised with a wide scope by the council and the chancery, 
 for the maintenance of peace. But in civil procedure the 
 Chancellor's writ of subpoena gave rise to a new petition (13 
 Eichard II.) "that neither the Chancellor nor the council 
 after the close of Parliament should issue any ordinance 
 against the common law, and the old customs of the country, 
 and against the statutes that had been passed or that were 
 to be passed in that Parliament, but that the common law 
 should take its course without respect of j)ersons, and that 
 no judgment once delivered should be annulled but by due 
 course of law " (Palgrave, 45). The answer ran with the 
 usual ambiguity, to the effect that the former customary 
 procedure should remain in force, " so that the King's royal 
 right be assured," and if any one felt aggrieved '' qiCil 
 monstre en especial, et droit lui soit fait''' (Palgrave, 70). 
 Protest was not raised against the extraordinary judicial power 
 of the King in general, but only against such proceedings 
 on the part of the council, without sanction of Parliament. 
 In the stat. 17 Eichard II., protest was only made against 
 citations before the King's council and the chancery based 
 upon false information (Eeeves, iii. 194). In 1 Henry VI. 
 the Commons complain of the citations before the council 
 and the chancery, in matters '' in which a legal remedy is 
 afforded by the common law ; " in like manner a writ of 
 subpoena was not to be issued until the justices of one or the 
 
410 Constitutional History of England, 
 
 other bench had first tried and attested the fact, that the 
 plaintiff had in this case no remedy at common law (Pal- 
 grave, 50, 51). In 8 Henry VI. jurisdiction was reserved to 
 the council in quite indefinite terms " so often as their lord- 
 ships should find too great power on the one side, and on 
 the other too great weakness," or if they should otherwise 
 find •' some reasonable cause " (Palgrave, 81). Finally, in 
 the stat. 31 Henry VI. c. 2, the offences were specially men- 
 tioned by name for which the council was wont to summon 
 offenders before it, and the procedure defined that was 
 therein observed, especially the more rigorous courses, by 
 which disobedience to ordinances under the privy seal or 
 under a writ of subpoena were to be prosecuted as contemptus 
 regis (Palgrave, 84, 86). This extraordinary penal jurisdiction 
 was in later times exercised in the Court of the Star Chamber, 
 and was, therefore, frequently designated by this name. (3'^) 
 
 IV. The position of the Horti ^i)anc£lIor as ftcati of tj)e 
 (JTj^anarj) tiepartment forms in a certain sense the keystone of 
 the constitution of the council. As the great ofdce of the 
 Chancellor had remained the common bond of the central 
 courts, it also serves as clavis regni for other business of the 
 King's council. All solemn decrees of the King in council 
 here received their authoritative character. The Protonotarius 
 of the Chancellor managed the preparation, despatch, and 
 registration of the State treaties in the treaty rolls. The rest 
 of the State business was recorded in the charter, patent, 
 
 (3") The opposition of Parliament to of action for the administrative powers, 
 the jurisdiction of the King in council in spite of the advance of definite 
 begins from the time when Parliament legal arrangement in the political 
 had become consolidated into a united rights of the realm. The practice of 
 body (Hallara, note xi.; Spence,"Equi- the chancery succeeded better in de- 
 table Jurisdiction," i. 343-351). In a fining for itself more exactly tbe 
 decision which afterwards became diiferent branches of its civil jmis- 
 famous, the "Chamber Case" (Croke's diction, as to which Spence (" Equi- 
 " Report," vol. v. c. i. p. 168), the table Jurisdiction of the Court of 
 judges acknowledged " that the court Chancery," vol. i. 334 seq., 420 i^eq., 
 of Star Chamber had existed long be- 435-683, 692-716) afi'ords us the most 
 fore the proclaiming statute 3 Henry comprehensive survey. A controversy 
 YII., as a very high and honourable as to the respective advantages of 
 court." The above evidence shows "Bench" and "Office" had already 
 how far this assumption was well begun within these narrow limits 
 founded. There here remained a field dm*ing the Middle Ages. 
 
Permanent or Continual Council — Court of Chancery. 411 
 
 close, and fine rolls. The most numerous administrative 
 documents belong to the province of the Rotuli literarum 
 clausarum, " Close Kolls," so called because they were issued 
 with the seal under cover, in contradistinction to the litterse 
 patentes, which were addressed to all faithful subjects. Here, 
 as elsewhere, centralization and the transaction of business 
 by means of writing mutually influence each other. In the 
 preceding period royal orders were still sometimes given by 
 word of mouth in the Exchequer, even in judicial matters. 
 Now writing became the unconditional rule, and the import- 
 ance of the great seal at the same time increased. Apart from 
 charters, which are publicly issued in Parliament, and in 
 which the mere ^' sign manual " was for a long time retained, 
 the use of the great seal is regarded as essential for all writs ; 
 in it the development of the English State from the goiiverne- 
 ment personnel is symbolized. From the time of Henry III. 
 it is really the clavis regni, the faithful companion of the 
 King, even in a foreign land. As the history of the great seal 
 is thus identical with that of the most imj)ortant State 
 documents. Sir H. Nicolas began to write its biography 
 (Nicolas, vol. vi. p. 148, seq.). The order to use the great 
 seal can be given, either by word of mouth, or in writing ; 
 but a document only becomes a solemn State Act when the 
 great seal has been actually affixed. In cases of the King's 
 absence, a duplicate of the great seal was given to the 
 Chancellor for writs de ciirsu which were issued by him upon 
 his own responsibility, but this duplicate was always given 
 back after the occasion for its use had ceased. For non- 
 official correspondence the privy seal was at first used, and 
 when this also had attained a political meaning, the signet. 
 As early as 28 Edward I. c. 2, the assurance was given that 
 no common law writ should be issued under the privy seal. 
 The struggle against the privy seal which commences from 
 that time marks the struggle of the estates against the 
 gouvernement personal. (4) 
 
 (4) The Lord Chancellor as head of ance with the development of the use 
 the chancery attains greater import- of the seal (Nicolas, "Proceediogs," 
 
412 
 
 Constitutional History of England, 
 
 The staff that was necessary for the discharge of this multi- 
 farious judicial and chancery business, consisting of a chief 
 as well as of a number of reporting counsellors or " Masters 
 in Chancery," and clerks, received its form in this period. 
 Among the numerous staff of clerks the chief of the office now 
 stands out conspicuously as the Ciistos Rotulorum Cancellarise 
 Domini Regis. He was first described by this name in the 
 Patent Koll, 14 Edward I. Under Edward II. this Master of 
 the Kolls was specially appointed by the King, took a special 
 oath of office, and was inducted into his office with great 
 pomp (Foss, iii. 327). The appointment was very generally 
 made for life, or *^ quamdiu bene et fideliter se gesserit in 
 officio " yet sometimes otherwise " quamdiu nobis placuerit " 
 (Foss, iv. 4). From this time he was regarded as Vice-chan- 
 cellor, and was ranked in the stat. Kichard II. c. 2 in 
 precedence to the justices of the central courts. (5) 
 
 vol. vi. p. 148). The most important 
 Botuli which have been partly pub- 
 lished by the Record Commission are 
 the following : — 
 
 (a) The Charter Rolls, containing the 
 royal grants to cities, boroughs, and 
 corporations, rights of market, and the 
 like. The collection begins with 1 
 John, and runs to 7 Henry VIII., after 
 which date such grants were made in 
 the form of patents. See Rotuli Char- 
 tarum, 1199-1206 (ed. Hardy, 1837, 
 et seq.). 
 
 (b) The Patent Rolls, containing the 
 grants of offices, lands, titles, and the 
 like, which were issued in open docu- 
 ments with the great seal affixed. They 
 begin with 3 John. See Hardy, " Des- 
 cription of Patent Rolls in the Tower 
 of London," 1835. 
 
 (c) The Close Rolls, containing royal 
 mandates, letters, and writs, princi- 
 pally rescripts addressed to private 
 persons on private matters, closed on 
 the outside with the seal. They begin 
 with 6 John. See Rotuli Utterarum 
 cZfmsarwm,1204-1227 (Hardy ,vols.i.ii.). 
 
 (d) The Fine Rolls, containing the 
 grants of the Crown fiefs, with the dues 
 for alienation, relevia, consent to mar- 
 riage, etc. See Hardy, " Rotuli Fiuium," 
 and above, p. 171. 
 
 With few exceptions the great seal 
 cannot be used without the express 
 order of the King, either (1) verbally, 
 or (2) by writing under his signet, or 
 (3) by writing under the privy seal 
 addressed to the Chancellor, or (4) by 
 writing under the signet addressed to 
 the keeper of the privy seal, who there- 
 upon communicates the royal pleasure 
 to the Chancellor by a warrant under 
 the privy seal. The origin of written 
 instruments sealed with the great seal 
 is given in Pal grave ("Commonwealth," 
 vol. 1. p. 147 ; Privy Council, 13) ; 
 for the continuous history of the great 
 seal under the separate reigns, cf. Foss 
 (" Judges," Index, vide Seal). A juris- 
 tic survey of the royal writs accord- 
 ing to the dilFerence in their legal 
 nature is given in Coke, Inst., ii. 40. 
 
 (5) The staff of the chancery now 
 takes a firmly organized form with the 
 growing importance of the office in the 
 administration of tlie realm. The list 
 of the chancellors of this period is 
 given by Foss (Judges, vol. iii.). As 
 early as Edward II. the title " Cancel- 
 larius Anglise " occurs twice ; and the 
 honorary title "Lord Chancellor " from 
 this time comes into gradual use. As 
 a rule the chancellors are still chosen 
 from the higher clergy ; under Edward 
 
Permanent or Continual Council — Court of Chancery . 413 
 
 III. amono^ seventeen chancellors were 
 four archbishops and eight bishops, 
 but on the other hand also one knight 
 and four professional jurists. An at- 
 tempt of Parliament to thrust out the 
 clergy from this position, failed, and 
 the lay chancellors were always after 
 a very short time replaced by prelates 
 (Foss, iii. 320). The higher chancery 
 clerks now received the title of ^'■Magis- 
 tri" or Masters in Chancery (Spence, 
 vol. i. 359 seq.), for as these clerks with- 
 out exception belonged to the lower 
 clergy, the custom arose of applying 
 their title of rank as Magistri to their 
 office. Towards the close of Edward 
 IIl.'s reign, we find the title of " Mas- 
 ters " used in the documents contain- 
 ing their appointment (Foss, iii. 334). 
 
 In the company of the Chancellor they 
 are also active in Parliament, in which 
 they usually officiate as receivers of the 
 petitions, whilst the class of " triers " 
 was formed of the prelates, barons, and 
 justices. More numerous still was of 
 course the staif of the clerici desecundo 
 gradu, as they are now termed, in con- 
 tradistinction to the Magistri or clerici 
 de primo gradu. As head of the de- 
 partment for the registration of the 
 State treaties stood the Protonotarius, 
 whose treaty rolls from Edward I. to 
 22 James I. are still in existence. The 
 whole of the clerks inhabited an inn 
 near the royal palace, and received 
 their salary and supply of provisions 
 from the royal household. 
 
414 Constitutional History of England. 
 
 CHAPTEK XXIV. 
 
 W^t ^arlfament of \\}z ^rdates anU i3arons. 
 
 From the time of Edward I. there were connected with 
 the permanent council, as the seat of the central government, 
 certain periodical meetings of notable prelates and barons, 
 who became united with the King's council, into a " great 
 council ; " and then separated themselves as an Upper House 
 from what was afterwards the *^ House of Commons." 
 Edward I. on ascending the throne found a condition of 
 things existing in which prelates and Crown vassals had 
 already for a generation past exercised their right to impose 
 scutages and aids, and had been summoned to deliberate 
 upon important resolutions of the realm. Convinced that 
 such participation in the central government was henceforth 
 unavoidable, he made this concession without any reserve, 
 and in the course of his reign extended it beyond the original 
 design. The functions and constitution of these parliamentary 
 assemblies assume a form from which at length proceeds an 
 hereditary peerage of secular lords. 
 
 I. The concilium of the prelates and barons formed, from 
 Edward the First's time, a constitutional \i\\k in X\^z adminis- 
 tration of X\^i realm, and as a periodical council, was ordinarily 
 convoked four times a year, so that the magnates met together 
 with the royal permanent council, and during the period of 
 meeting formed a '' great council," in which those who were 
 summoned in virtue of office, ecclesiastical dignity, and 
 property, took their places side by side. We have here to 
 
The Parliament of the Prelates and Barons. 415 
 
 do, not with a mere estate of the realm, in which a privileged 
 class of landowners claim a right to be heard, but with a 
 constant and regular participation of the magnates in a 
 political system with fully developed military, judicial, police, 
 and financial powers. The competence of the Magnum Con- 
 cilium is bound up with these prerogative rights. The un- 
 limited royal powers are now exercised under the constitutional 
 co-operation of the magnates ; the portion of the government 
 which remains indefinite and informal is the residue of 
 personal rule. Reserving its indefinite authority, the principal 
 functions of the great council which still survive in the Upper 
 House as it exists at the present day, may be already separated 
 off into a quadruple sphere of action : a court of law, a 
 tax- granting body, a State council for the administration of 
 the realm, and a legislative body. 
 
 1. Under Edward I. its position as a court of law is j^rominent. 
 The parliament in this reign, is pre-eminently intended to 
 be a judicial assembly, to which the other functions are 
 annexed. In this sense (which was also that intended by 
 the barons in the Provisions of Oxford) Edward I. convokes 
 four times in each year a ixuiiamcntum, and he only departed 
 from this rule afterwards in very turbulent times. In this 
 sense in later reigns the motion was repeatedly put and agreed 
 to, that at least once in each year a parliament, that is a 
 judicial assembly of the magnates, shall be holden. Its 
 models, the Echiquier of Normandy, and the Parliaments in 
 France, and the Germanic fundamental idea by which the 
 secular government wears the character of a court of law, 
 were all of some influence upon its creation. The competence 
 of this court is bound up with the King's right of taking 
 the most important and difficult cases to his court. The 
 current law suits were certainly now, indeed, assigned to 
 the corporate central courts, as they had formerly been to 
 the county courts. But this delegation did not annul the 
 royal right of personally directing the court in extraordinary 
 cases (above, p. 406), as was the case in the German Imperial 
 Constitution, where a court of officials sat in addition to the 
 
416 Constitutional History of England. 
 
 imperial court, and a parliamentary revision of the body of 
 official judges was reserved. It has never been constitutionally 
 determined which placita belonged to the jurisdiction of Par- 
 liament, for the King never renounced his power of reserving 
 the most important and extraordinary cases to his personal 
 appointment of a judicium parium ; and the estates themselves 
 were interested in upholding these powers, from the time 
 when their right of co-operation had been constitutionally 
 established. Hence civil and criminal cases might in the 
 first instance, as well as in the higher instance, be brought 
 before Parliament, if the matter appeared of sufficient impor- 
 tance. As extraordinary cases of the highest importance, 
 the following presented themselves : — 
 
 (a) Complaints against erroneous decisions of the central 
 courts, which were admitted by a royal writ of error, and now 
 came before the King in council, for which the Magnum Con- 
 cilium offered itself as the higher, more powerful, and more 
 illustrious body. In the year books 29 Edward III. 14 
 (Hale, Jurisd., 41), the justices plainly declare it to be the 
 prevailing opinion that the Permanent Council is not the place 
 to upset the decisions of the central courts. The assistance 
 of the great council in this matter proceeded tacitly from 
 the necessity which had arisen for a higher authority. (1) 
 
 (1) The parliament is now the judi- his character of chief magistrate con- 
 cium parium o£ the estates, an institu- suited. What once,iu the action against 
 tion which the magnates had long Thomas Beeket, appeared ns an extra- 
 endeavoured to establish. The expres- ordinary convocation, is now the regular 
 sion " parliament " was at the close of method of its composition. The Peers' 
 this period pre-eminently used in this Report acknowledges tliat this change 
 sense (Parry, " Parliaments," xi. ; Peers' had been tacitly effected, that in Rotuli 
 Report, vol. i. 1G9-171). In accordance 1 Edward III. all spiritual and tem- 
 with Fleta's text-book, the Parliament poral lords were already regarded as 
 was under Edward II. described as a the natural constituents of this court ; 
 constitutional tribunal, '^ coram Bege et but that the time when this change 
 Concilio sua in prsesentia Domini came about could not be exactly deter- 
 Begis, Procerum et Magnatum regni, mined (Report, v. 296, iv. 876). Only 
 in Parliamenfo suoJ' A change had in this sense the assurance was given in 
 been made in the selection only ; whilst 4 Edward III. tliat parliaments should 
 in former times the royal judicial com- be holden annually, or more frequently 
 missions were based upon personal if necessary (Peers' Report, i. 802) ; for 
 selection out of many, it was now the neither the Lords nor the Commons 
 class of the magnates that had become were interested in a frequent convoca- 
 formed into a body, which the King in tion of tax-imposing assemblies. 
 
The Parliament of the Prelates and Barons. 417 
 
 {h) Impeachments of members of the Parliament itself. 
 From the moment that the great council had attained a 
 certain stability, the demand was raised to recognize it as the 
 judicium parium of its own members. The demand for a 
 special judicium parium for the Crown vassals had hitherto, 
 merely on account of the unequal position of the hundreds 
 of lesser vassals, never taken a definite form. Now, since 
 an organized body and an external limitation existed, the 
 demand for a court of peers for this narrow circle had become 
 practicable and unavoidable. It had been to a certain extent 
 prepared by that ordinance of Henry III. which had exempted 
 the great barons from the ordinary suit of court in the county 
 court. It appeared the more justifiable in proportion as the 
 great council began to invite the justiciaries of the central 
 courts to act as deliberating members at the meetings for 
 delivering its legal decisions. It was natural that the lords 
 should object to recognize their assistants of the legal profes- 
 sion as a judicium parium over their own persons. The new 
 expression, ^' piers de la terre,'' occurs for the first time as 
 an official term, in the judgment passed on the De Spencers 
 in 15 Edward II. : " Accordingly we peers of the land, earls, 
 and barons in the presence of the King do declare that," etc. 
 In the proceedings against Mortimer, and in the disputes with 
 Archbishop John of Canterbury, the demand is still more 
 definitely marked. In 15 Edward III. it was raised, upon 
 the motion of the barons, to a statute, to the following extent, 
 *'that no peer of the land should be condemned to the loss 
 of his temporal possessions or to arrest or imprisonment 
 unless by verdict of his peers in Parliament." {a) 
 
 (a) A hundred years earlier, when, these judicial assemblies, it was natural 
 
 in the action against the Earl Marshal, tliat they should bejiin to be regarded 
 
 the claim for a court of peers was as a more select peerage, as ^' piers de 
 
 raised, Bishop Peter de Eoches declared la terre" The claim for such a peers' 
 
 that there were no peers in England of court for the meml)ers of the great 
 
 the same kind as those in France, and council was moreover hastd on the old 
 
 that the King, by means of his judges, privileges of office of the Norman 
 
 had a perft ct right to sit in judgment period, which had always accorded to 
 
 upon his foes. But after tlie spiritual the members of the higher courts an 
 
 and temporal lords had for a whole extraordinary and separate right of 
 
 generation year by year appeared at appearing before their own judicial 
 
 VOL. I. 2 E 
 
418 Constitutional History of England. 
 
 (c) Next follow accusations against the royal great of&cers, 
 which with due regard to the depositaries of power and law, 
 could not he sent for trial before justices, as being mere 
 advisers of the ro3^al council. They are sent as extraordinary 
 placita to the *' King in council," which latter for these cases 
 could only be ''the great council." This course, in addition 
 to imparting to them a just importance, certainly in early 
 times indicates the mark of violent party passion. With the 
 increasing power of the great constitutional body of the realm, 
 this jurisdiction extended into all three directions ; and whilst 
 retaining the forms of a council, became the extraordinary 
 supreme tribunal of the realm. (1^) 
 
 2. The same body is at the same time a tax-granting 
 assembly for the scutagia and the extraordinary auxilia of 
 the Crown vassals. It had been firmly established by the 
 precedents under Henry III., that the baronage granted 
 these taxes through a committee of notable prelates and 
 barons, who being convoked byro^^al writ as greater taxpayers 
 represented the mass of the lesser. Edward I. respected this 
 
 department, exchequer, etc. In 15 rege in plenajparliamento^' {cL'ReYiOxis, 
 Edward III. the barons bring in an i. '300). The uncertainty, too, of the 
 emphatic motion in respect hereof, and forms of procedure, derived from the 
 on the opinion of a specially appointed Norman judicial commissions, lasts for 
 commission of four bishops, four earls, a long while. In 11 Richard II. 5, 
 and four barons, together with the sages lords appellant move articles of im- 
 de la ley, a statute was issued in the peachment for high treason (for these 
 same session to the effect that "no incidents, see Pari. Hist., i. 410-440). 
 peer of the realm, crown officer or other In recollection of the forms of the old 
 should be arraigned on account of his administration of justice, the court is 
 office, condemned to tlie loss of his styled " council " (Peers' Report, App. 
 temporal possesbions, thrown into prison iv. 729) and their verdict "award," 
 or arrest, tried or judged, except by the which only becomes final by the assent 
 aw ard of his peers in Parliament " of the King. After the opposition had 
 (Peers' Report, i. 314, 315). taken the helm, the commons on their 
 (l**) But in this question indefinite- side in 21 Richard II. impeach the arch- 
 ness as to limits was and remained the bishop, Thomas Arundel, of high trea- 
 lieritage left by the Norman Curia son, who by " award " in Parliament 
 Megis. In Mortimer's case (3 Edw. was condemned to banishment. Other 
 III.) the magnates protest that they are peers were accused by the lords appel- 
 not bound to sit in judgment upon lant, and condemned to death and 
 Simon de Beresford, because he is not banishment. The older resolutions of 
 their peer. On the other hand, they 11 Richard II. were for the most part 
 caused Thomas de Berkeley, a Crown annulled ; in 1 Henry IV. the last reso- 
 vassal who had been summoned by lutions were declared null and void, 
 writ, in accordance with custom, to be and the former ones (11 Richard II.) 
 condemned by a jury of " milites coram revived. 
 
The Parliament of the Prelates and Barons. 419 
 
 right of the vasscals. But a deeply felt violation of it in the 
 twenty-fifth year of his reign, with the refusal of the clergy to 
 pay taxes, combined with war, financial distress, and discon- 
 tent in the country, compelled him in the confirmatio chartarum 
 (25 Edw. I. c. 6), to agree to a still wider concession, which, 
 as a principle, restricts the grant of all auxilia, scutagia, and 
 tallacjia to the common consent of the prelates, barons, and 
 commons in Parliament assembled (cap. 25). Under each 
 subsequent reign this concession was confirmed, extended, 
 and protected against violations. This periodical right of 
 granting taxes gives the great council an unassailable position, 
 and a continual support to its other claims ; but this right 
 had to be early shared with the representatives of the com- 
 munities, which from this point were gradually gaining a 
 preponderance. (2) 
 
 3. The Magnum Concilium is the supreme deliberative 
 council of the realm for the most important measures of the 
 Government. Primarily for decrees of war and peace, on 
 account of the important military rank of the great barons ; 
 but just as much for internal affairs also. Its functions are 
 thus far the same in principle as those of the continual 
 council (p. 399). Naturally the most important were reserved 
 for the great assembly; but on that very account the least 
 important were not excluded. For these indefinite functions 
 the assembly pre-eminently bears the name of " concilium,'' 
 and not of "parliament." But the regular recurrence of the 
 assembly gave the magnates an ever-increasing influence 
 upon the Government in the following principal points. 
 
 First of all a participation in the current business of in- 
 vestigating and replying to petitions. x\s the convocation of 
 the parliaments was marked by the presentation of the 
 greatest number of petitions, it was natural to claim for the 
 
 (2) In the straits of war in 25 Ed- versal opposition to it now led to the 
 
 ward I. the raising of an aid from all sfatutum de tallagio non concedendo 
 
 landowners of the value of £20 for the (25 Edw. III. c. 5, 6), the origin of 
 
 campaign in Flanders was ordered by which is mentioned below, Chap. xxv. 
 
 the ordinance of the King in the council seel. 
 (Peers' Report, i. 220, 221). The uni- 
 
420 Constitutional History of England, 
 
 referees (receivers and triers of petitions) that they should 
 be appointed from among the estates themselves. In the 
 stormy time of the " Ordinances of Ordain ers " (5 Edw. II.) 
 this claim was established; 3'et the jDrocedure in respect of it 
 varies according to the spirit of the Government. In 14 
 Edward III. 1, c. 5, it was decreed, that from thenceforth there 
 should be chosen in every parliament one prelate, two earls, 
 and two barons, invested with the royal commission and 
 authority to hear on petition all complaints of delay or 
 violations of justice, and to bring before the next Parliament 
 all difficult cases suitable to be heard there. This is a kind 
 of perpetual committee of Parliament, like that still existing 
 in the Upper House. As late as the middle of Edward the 
 Third's reign, chancery clerks, royal justices, and peers are 
 arranged together as triers and auditors, the first as rejDorters, 
 and the latter only for the purpose of preliminary inquiry. 
 
 Further, the council acquired an influence upon the appoint- 
 ment to the great offices. In quite early times the King 
 declares his willingness to aj)point such persons as are ''agree- 
 able " to the great council, yet with the reservation of his right 
 of appointment (Kot. Pari., iii. 258, 349). Frequently, too, 
 the great officers are sworn into the great council. Influential 
 and skilled members of the great council acquire in this 
 position a natural claim to a summons to the administra- 
 tive council, which under the circumstances could hardly 
 be refused. During the minority of the king, the Magnum 
 Concilium naturally exercises a paramount influence ujoon 
 the formation of the executive council, as at the accession of 
 Edward III., Kichard IL, and Henry VI. But also under a 
 sovereign who actually ruled, in constitutional conflicts the 
 magnates frequently force the ruling council of the realm upon 
 the King. For instance, in 9 Edward IH. the Earl of Lan- 
 caster, as president of the council, undertakes the government 
 with the promise on oath that he will conduct no national 
 affairs without the advice of the council, and that every 
 member of the council who gives advice which is prejudicial to 
 the realm shall be removed in the ensuing Parliament. In 
 
The Parliament of the Prelates and Barons, 421 
 
 12 Edward II. it was resolved that the King should have 
 two bishops, one earl, one baron, and a baron or banneret of 
 the Earl of Lancaster, as coadjutors, and all that could be done 
 without Parliament should be decided with their consent, and 
 all that was done without this consent was to be regarded as 
 null and void, and set right by resolution of the peers in 
 Parliament. The great party struggles after Henry VI. end 
 in periodical appointments, depositions, and condemnations 
 of the executive members of the Continual Council by the 
 Magnum Concilium. Under the house of Lancaster the 
 greater part of the executive council of the realm consists of 
 members who owe their position to the high estimation in 
 which they are held in the great council. (3) 
 
 (4) The Magnum Concilium becomes in this manner the 
 law-giving assembly of the realm. The statute of Marie- 
 bridge at the close of Henry the Third's reign formed the 
 most important precedent for the regular deliberation of the 
 
 (3) As a deliberative assembly of 
 the King, the concilium of the mag- 
 nates has the same indefinite powers 
 as the executive Continual Council. 
 All national affairs were, under certain 
 circumstances, settled w'ith their advice 
 as the circumstances of the realm and 
 the monarchy demanded . There appear 
 here the same occasional encroach- 
 ments and rebuffs as in the provincial 
 diets of the German states. As early 
 us 4 Edward I. " prelates, earls, barons, 
 and others of the King's council, 
 justices, and regis fuleles in Parlia- 
 ment " resolve on war against AVales. 
 In the course of the later -wars, and 
 in the disputes with the papal curia, 
 they were very frequently asked for 
 their consent. "Where petitions were to 
 be considered, they were summoned 
 in cases where a legislative act or a 
 special procedure was needed for the 
 purpose of redress, whilst those which 
 were to be discharged in the ordinary 
 course of law and administration, only 
 came before the chancellor, judges, 
 and council (Peers' Report, i. 245). 
 From this point of view the great 
 council participates also in the dele- 
 gations. The extraordinary civil and 
 
 criminal jurisdiction of the council 
 was repeatedly favoured by the 
 Magnum Concilium, but with the 
 modifying circumstance that the lords 
 frequently came into conflict with the 
 permanent council as to their partici- 
 pation in it. In an address of the dis- 
 contented magnates in 10 Richard II., 
 it is expressed that "the King should 
 assemble the lords, nobles, and com- 
 mons once in each year in his Parlia- 
 ment, as being the highest curia of 
 the realm, in which all equity should 
 shine as clear as the sun ; and in which 
 both poor and rich should find a never- 
 failing shield and protection by the 
 restoration of peace and quietness, and 
 the removal of every kind of wrong." In 
 21 Richard II., on motion of the com- 
 mons, a committee of twelve lords was 
 appointed to try, answer, and despatch 
 various petitions and matters which 
 needed to be discharged after the close 
 of Parliament. It was the arbitrary 
 acts of this committee that brought 
 about the fall of the King (Pari. Hist., 
 i. 482-498). Under Henry VI. an ano- 
 malous epoch of revolutionary excesses 
 becrins. 
 
422 Constitutional History of England, 
 
 King with his magnates on important and extensive acts of 
 legislation, and one which follows close on former isolated 
 precedents. Without renouncing his traditional right of or- 
 daining, Edward I. had, at the beginning of his reign, 
 introduced a deliberation with his Magnum Concilmm upon 
 all important laws which involved a change in civil and 
 criminal, as well as in judicial procedure. From the statute 
 of Westminster 1, until late in the reign of Edward III., the 
 great council is the ordinary body for the discussion of laws, 
 Avith reservation of the occasional ordinances of the King in 
 council, which, after the end of Edward the Third's reign 
 are no longer sufficient to alter laws which had been passed 
 in full ParHament. This legislative position, which was in 
 harmony with the national [and indestructible legal concep- 
 tion of a legislation consensu mcUonini tcrrm (above, p. 97), 
 naturally fell to the prelates and barons, so soon as their 
 I)ORition as a supreme tribunal and council of the realm and 
 as a tax-granting body had been definitely established. Their 
 predominant influence is also visible in the language of the 
 statutes, in which, since the time of Edward I. and Edward II., 
 the French language, as the tongue of the upper classes, 
 begins to oust the official Latin. After 3 Edward II. a 
 change in the iDhraseology was introduced, which, under 
 the name of Parliament, meant sometimes the highest 
 judicial, and sometimes the legislative assembly of the realm. 
 The latter meaning became the leading one under the following 
 reigns. In addition to the great council, Edward I. began to 
 summon representatives of the counties and towns, merchants 
 and others, to such deliberations as affected the narrower 
 sphere of the Commons (cap. 25). This right began to be 
 shared also with the Lower House as the influence of that 
 house in the province of taxation increased. (4) 
 
 (4) In 3 Edward I. the statute West- The most important legislative acts in 
 
 minster 1 was passed " with the con- the following generation were passed 
 
 sent of the temporal and spiritual lords with the concurrence of the Magnum 
 
 of the communitas," by which phrase, Concilium, but as yet without the co- 
 
 as under Henry III., the whole number operation of the county delegates, and 
 
 of the vassals summoned to the Par- of the towns. For example, in 13 Ed- 
 
 liament is meant (Report, i. 173, 174). ward I., the statute Westminster 2, de 
 
The Parliament of the Prelates and Barons. 423 
 
 But in all these four directions there continues, in the 
 course of the period, an ascendency of the Magnum Con- 
 ciliitm over the executive council of the realm ; so that 
 towards the close of the period, the continual council appears 
 occasionally as a committee of the great council. The struggles 
 between the monarchy and the magnates, which were fought 
 out under Henry III. in the barons' war, become now a 
 struggle between council and parliament. 
 
 II. ^i)£ constitution of tl)c parliament of i^t magnates had 
 been roughly sketched out by precedents down to the close of 
 Henry III.'s reign. After Simon de Montfort's parliament 
 had failed, Henry HI. had again adopted the customary 
 method of summoning by royal wTit his bishops and abbots, 
 his earls and barons, that is to say, a selection of the latter, 
 to the deliberative assembly; and this order of things con- 
 tinued during the century of the three Edwards. The nature 
 of the council continued regularly to affect the selection of 
 the persons that were to be summoned. 
 
 To the parliament as a judicial assembly, only spiritual and 
 temporal Crown vassals could be summoned ; because other- 
 wise the principle of the judicium j)c[rium would have been 
 violated. 
 
 donis conditionaUhus, and the confinna- missal of the commoners, the prelates 
 tion of Magna Charta, ^'■lidbito super and barons remain (Parry 99, 100). 
 hoc cum suo concilio tractatn " (Report, However, from this period parliaments 
 i. 19-1). In like manner the furm of without the assistance of the corn- 
 expression was still retained which moners are more rarely held. The 
 called the assembly (even without any assembly in 20 Edward III. (271h 
 summons of Commons) a "Pa/7m?/?e}i;- March, 1346), was still a Magnum 
 /um" (as in 27 Ed w. I., Report, i. 237). Concilium of that kind which, in a 
 In 28 Edward I. the statutes, in spite marked manner, was called a "con- 
 of the presence of the commoners, were vocation " (Peers' Report. App. iv. 557). 
 only passed with the advice of the An assembly of this cliaracter is met 
 i^reat council (Report, i. 238, 239). In with also in 27 Edward III., perhaps 
 3 Edward II. mention is made of the also in 45 Edward III., and once again 
 common consent of all bishops, earls, in 2 Richard II. (Rot. Pari,, iii. 55 ; 
 and barons " i)i pleno parliamento " ; Peers' Report, i. 320). Occasionally 
 in 4 Edward II. the consent in full we still meet with laws which have 
 Parliament is spoken of immediatel}^ only been discussed with the justices 
 after the counties and towns have been or the continual council, such as the 
 dismissed (Report, 1. 261). In 6 Ed- statute of Acton Burnell, 11 Edward I. 
 ward III. the clergy and the commons (Report, i. 190, 206-208) ; the statute 
 were dismissed, whilst the prelates and <le prisonihus, 23 Edward I. (Rejiort, 
 those of the council remained behind i. 217); the ordinances for Ireland, and 
 for further deliberation (Parry, 97). the statute de prxrogativa regis, 17 
 Later in the same year, after dis- Edward II. (Report, i. 286). 
 
424 Constitutional History of England. 
 
 To the parliament as a tax-granting assembly for the pur- 
 poses of the scutagia, the tencntes in cajnte were necessarily 
 summoned. But on this mere question of taxation the greater 
 vassals might be regarded as representing the lesser. 
 
 Of the parliament as a deliberative assembly, in addition 
 to the smaller council, the ecclesiastical dignitaries were 
 customary members, and the most illustrious Crown vassals, 
 to a certain extent, members by birth. Moreover, since ex- 
 perience in military and political business was here of great 
 moment, there could be no objection to summoning to the 
 council illustrious men without Crown fiefs, and even of 
 foreign family (such as the Beaumonts and Grandisons), as 
 can be proved to have taken place in a few cases. The 
 qualification for a foreigner by grant of an immediate knights' 
 fee was not hard to attain. 
 
 Lastly, for the parliament as a legislative assembly, a 
 selection of the most distinguished men {meliorcs terrse) was 
 from time immemorial the rule. But the more that in the 
 course of time, the business and the official staff became 
 consolidated, the more did this consolidation lead to a legal 
 definition of qualification on a well-balanced average, in the 
 same way as all formations of estates of the realm can be 
 ultimately reduced.* 
 
 From this point of view three groups, viz : the spiritual 
 lords, the temporal lords, and the members of the council, 
 were summoned to the great council. 
 
 ^YiQ first group is formed by the spiritual lords, who according 
 to time-honoured custom take the j)recedence ; archbishops, 
 bishops, abbots, priors, and the heads of the religious orders. 
 
 * The qualification for parliament is contain exceedingly important matter 
 known with tolerable accuracy from nt the end of the list of lords created, 
 the preservation of the parliamentary Parry (Parliaments, 52-54) gives a 
 •writs since 23 Edward I., and from table of the temporal lords. I iiave 
 their being printed and elncidated in given a complete tabulary statement 
 thegreat works of Prynne (1659-1664), of the number of the prelates, mag- 
 and Dugdale (1685), and in the Re- nates, and members of the permanent 
 ports on the Dignity of a Peer. The council summoned to attend each par- 
 First Eeport has been, on account of liament from 11 Edward I. to 1 
 its importance, reprinted at four dif- Richard II., in the second edition of 
 ferent times (1819, 1820, 1823, and my " Engl. Verwaltungsrecht " (1867, 
 1829). In like manner the continua- vol. i. pp. 382-387). 
 tions find completions (vols, ii.-v.) 
 
The Parliament of the Prelates and Barons, 425 
 
 From the first it can here be perceived, that the two arch- 
 bishops, and nineteen bishops must be regularly summoned 
 in their double character of heads of the Church and great 
 vassals of the Crown. Wherever these summonses are im- 
 perfect, it arises from vacancies, or from personal absence 
 or temporary impediments; or the summons is for smaller 
 deliberative assemblies, for which a narrower selection had 
 been made. The number of the abbots appears for a long 
 time to vary, much according to the object of the summons. 
 Many of those summoned deprecate the expensive and bur- 
 densome honour, and assert that they are not bound by 
 virtue of their possessions to pay suit of court to the Curia 
 llegis. After 15 Edward III. it was acknowledged in a 
 number of precedents that those were to be excused from 
 obeying the summons " who did not hold by barony, but only 
 in frankalmoign." From that time the number of the abbots 
 became more and more definitely fixed at about twenty-five. 
 In consequence of the occasional summons 122 abbots belong- 
 ing to different monasteries were, however, summoned at 
 one time or another. Still more fluctuating was the sum- 
 moning of the priors and heads of the three ecclesiastical 
 orders. Of the priors, only a small number were summoned 
 on each occasion, and after 15 Edward III., the non-posses- 
 sion of a Crown fief was recognized as a reasonable excuse. 
 But in consequence of frequent variations, forty-one i^riors 
 were summoned, of whom only two can be regarded as regular 
 attendants. (1) 
 
 (1) The prelates who were sum- debated, a greater number was periodi- 
 
 moned comprise first of all the arch- cally summoned. In 15 Edward III., 
 
 bishops and bishops. Where the ques- two abbots and two priois were ex- 
 
 tion is one of the grant of aids, the cused from attendance, because they 
 
 summons is as complete as possible, did not hold by barony, nor anything 
 
 and during the vacancy in a see, the whatever in capite, for which they 
 
 representative in the spiritual office would have been bound to come to the 
 
 {i.e. the Keeper of the Spiritualities) parliaments aud councils (Parry, 112). 
 
 was called upon. Occasionally the In the same year several others also 
 
 Archbishop of Dublin was also sum- were excused from appearance, because 
 
 moned. The number of the abbots they only held in frankalmoign (, Parry, 
 
 appears to have been gradually fixed 113). (A case of this kind occurs as 
 
 at about twenty-three or twenty-five ; early as 12 Edw. II.). This appears 
 
 only where the granting of a subsidy from that time to be treated as an 
 
 •or a crusade or the like, was to be established reason for being excused. 
 
426 Constitutional History of England. 
 
 The second group (the temporal lords) embraces, in the 
 century of the three Edwards, the earls and the barons. The 
 earls are still the acknowledged heads of the Crown vassal- 
 dom, although their dignity is only based upon patent, and 
 not upon the feudal possession of a county. The small 
 number of lords thus characterized appears to have been 
 regularly summoned from the first nearly in the same way 
 as the bishops, so that the omission of any can be explained 
 by minority, absence, or personal hindrance. In later times 
 there is added to these the very small number of dukes, 
 marquises and viscounts, of like character, appointed by 
 patent. On the other hand, the leading principle for the 
 summons of the barons is very hard to determine. The 
 customary method under Henry III. (according to the origin 
 of all concilia optimatum), consisted in the King's inviting the 
 most illustrious and the greatest feudatories to represent all 
 the rest in the law-court, the council, and the tax-granting 
 assembly. This point of view still left a wide oj)en field. For 
 instance, Edward I. summons to an assembly of the realm at 
 Shrewsbury in 1283, 110 earls and barons, whilst to West- 
 minster in 1295, only 49. The citations under Edward I. 
 vary between 40 and 111 ; under Edward II., between 88 
 and 123 ; under Edward III., between 24 and 96 ; under 
 Eichard II., between 29 and 48 ; under Henry IV., between 
 24 and 37 ; under Henry Y., between 20 and 32 ; under Henry 
 VI., between 15 and 42 ; and under Edward IV., between 23 
 and 37. In the first century of the period the change is so 
 frequent, that 98 lords were summoned on one occasion only ; 
 and 50 lords only two, three, and four times, without their 
 names ever occurring again. Others were summoned in their 
 
 Still more indefinite are the sum- proxy. The abbots particularly were 
 mouses addressed to the priors and excused, when grants of taxes were to 
 heads of the orders. The latter dis- be made, in the event of their sending 
 appear owing to the abolition of the a procurator (Parry, 68), But some- 
 ecclesiastical orders and for other times the sending of proxies is ex- 
 reasons, so that at last only a fixed pressly forbidden, us in G Edward III. ; 
 number of two priors remained. In and in the course of the period the 
 the first century of this epoch the demand of appearance in person at the 
 writs of summons for the most part deliberative assembly becomes more 
 required appeaiance in person or by and more strict. 
 
The Parliament of the Prelates and Barons. 427 
 
 own lives, but their descendants were never summoned. 
 Great i^rominence being given to the grant of taxes, weight 
 was certainly laid upon financial considerations, and such 
 Crown vassals only were at first regarded as paid the great 
 rdevium of a hundred marks on change of possession. Further, 
 a regard to the hereditary great offices was decidedly neces- 
 sary, although the high constable and the earl marshal were 
 only specially summoned as such after 51 Edward III. Un- 
 mistakable regard was also paid to certain great families » 
 According to the purpose and place of summons, and accord- 
 ing to personal confidence, there could be summoned round 
 a fixed and determinate nucleus of about thirty barons, a 
 number two or three times as great ; and in the whole course 
 of the Middle Ages there occurs not a single case in which 
 the barons have refused a place among them to any one thus 
 summoned. But the possession of a great Crown fief, with 
 all its inherent importance with regard to military service, 
 taxation, sub-vassals, and authority in the county, was neces- 
 sarily to be considered in the summons, so far as the King 
 was interested in having the mouthpieces of the Crown 
 vassals in his council. Husbands of heiresses were generally 
 summoned ; owners of parcels of land, where a partition 
 had taken place, were sometimes summoned and sometimes 
 l^assed over. Beyond these considerations the century of the 
 three Edwards never advanced. (2) 
 
 (2) The group of the temporal lords parcels. Instead of the impracticable 
 comprises in the first century only the universal summons, and the equally 
 earls and the barons. Under Edward impracticable election, there remained 
 III. the dignity of a duke was first accordingly only the royal selection by 
 created for the princes of the royal writ. To the stormy national assembly 
 house, and after 2-i Edward III., it in 49 Hen. III. Simon do Montfort had 
 became customary to place such a duke only summoned his adherents, five 
 of royal blood, or the Prince of Wales, powerful earls, and eighteen barons,, 
 at the head of the persons summoned. among them probably many lesser ones 
 After 10 Eichard II. there are fre- (Peers' Pieport, iii. i06, seq.). After 
 quently added to these one or two the restoration of the royal authority,, 
 marquises; after 23 Henry YI. also Henry III. naturally summoned a meet- 
 one viscount; in 31 Henry YI. three ing of his faithful followers. This 
 viscounts. The difficulty lies only in event has been rightly described by 
 the number of the so-called barons. an old historian, whom Coke cites from 
 The Crown vassaldom was at all times Camden, '' Stat nit et ordinavit, quod 
 unequally composed of great lords, omnes illl comites et harones AngliXy. 
 simple landowners, and owners of small quibus ipse rex dicjnatus est hrevia 
 
428 Constitutional History of England. 
 
 The tliird group of the Magnum Concilium was formed by 
 the members of the council. Not only the oldest modes of 
 summoning, and the object with which a deliberative assembly 
 was holden, but also certain recorded events prove that 
 originally the executive members of the council voted in 
 Parliament as such. In 20 Edward I. the Rotidi prove that 
 under the Concilium Proccrum ct Mcigncitum, the chancellor, 
 the justiciaries and the higher officials of the council, as 
 such, are included (Peers' Keport, i. 206-208). Even for 
 the grant of taxes and ih.Q judicium parium, the right of voting 
 in this capacity could not well be denied to the lowest Crown 
 vassal. But just as unmistakably the united influence of 
 the great prelates and lords in the great assembly soon 
 asserted its ascendency over the mere bureaucratic element. 
 The first shock to the position of the mere officials had been 
 given by the Statutes of Ordainers (5 Edw. II.). But the 
 more decisively the idea of a '^ peerage " among the lords 
 who were summoned came into prominence, and in 15 Edward 
 III. attained a legal recognition, the more usual it became 
 
 summonitionis dirigere, venirent ad had to " baronies," which, according to 
 Parli amentum, et non alii, nisi forte the rating of the Exchequer, pay the 
 Dominus Rex alia hrevia eis dirigere great relevium of a hundred marks. 
 voluisset.'^ But it is wrong to regard It seems that in the century of the 
 this as a new statute ; it is only the three Edwards a body of about thirty 
 description of the original condition barons became fixed as an average 
 of things (Peers' Report, i. 395 ; iii. number, with the reservation (1) that 
 114). And so it continues in the the tenure by barony did not as yet 
 century of the three Edwards. With- give a legal title to a summons, and 
 out reckoning anomalous smaller de- (2) that on the other hand lesser 
 liberative assemblies, the number of tenants could be also summoned out 
 summonses under Edward I., II., and of personal confidence, and occasionally 
 III., varies between 21 and 123. We even such as did not hold any fief 
 cannot, therefore, doubt that the sum- of the Crown. As a rule the writs of 
 mens by writ in this century carried summons insist upon a personal appear- 
 no hereditary right to a seat (Peers' ance ; but the temjDoral lords were for 
 Eeport, i. 325, 326 ; iii. 117, 265). But a still longer time allowed proxies, 
 the difficult question remains still un- particularly to represent them at acts 
 solved as to what other principles the of taxation. In 35 and 3G Edward III., 
 procedure acted upon. Martial effici- two anomalous assemblies occur, to 
 ency alone cannot have been decisive ; which seven countesses and three 
 and just as little did legal distinctions baronesses were summoned, with the 
 exist in feudal tenure. With regard demand made upon them to let them- 
 to the grants of taxes, and the frequent selves be represented by " trusty men." 
 mention of tenure " by barony " among The question here, wliich at all events 
 the abbots, it appears probable that the wns expressly mentioned in the latter 
 financial point of view was predomi- year, was the special one of furnishing 
 oant; that is, a special regard was armed men for the campaign in Ireland. 
 
The Parliament of the Prelates and Barons. 42^ 
 
 to summon the prelates and the great feudatories, who- 
 belonged at the time to the council of the realm, in the 
 ranks of the other peers, because this had begun to signify 
 both politically and socially a higher position. The member- 
 ship of the council becomes gradually absorbed by the members 
 of the great council, who now understood their position as 
 forming a unity. Accordingly as members of the council the 
 chief justices, the justices, and the councillors of the second 
 and third rank were now only summoned by special writ. 
 The justices in most cases appear merely as the assistants 
 of the lords. With regard to taxation and the jurisdiction 
 of peers the fusion of the peers in council and the peers 
 in Parliament appears perfected ; it is quite different, however,, 
 as to the deliberative and legislative assembly, in which the 
 continual council, being still a concilium in concilio, forms, 
 as Hale calls it, the administrative body under the personal 
 direction of the King. The subjects of deliberation were pre- 
 pared in the smaller council ; the proceedings conducted by 
 officers of the council; all conclusa recorded by officers of the 
 council ; all decrees resolved subsequentl}' discussed in the 
 council (until Henry YI.) ; all sittings took place in the council 
 chambers of the royal palace, and the servants were ordered 
 to attend from the royal household, as is the rule to this 
 day. The regular sittings of the permanent council were only 
 periodically interrupted by these plenary assemblies of the 
 estates of the realm '* ad ardua negotiaJ' The convocation of 
 the notables for this j)urpose may (according to Palgrave's 
 appropriate ex^Dression) be called the terms of the council, 
 corresponding to the terms of the courts of law. That the 
 great council under Edward I. appeared thus to its contem- 
 poraries, is proved by the words of Fleta (ii. 2), which co- 
 ordinate it with other departments or curi^, as ** Curia Regis 
 in Parliamento.'' (3) 
 
 (3) In its original position the execu- council seems always to have been pre- 
 
 tive council is an integral element of sent in Parliament, and every impor- 
 
 Parliaraent. In harmony with the tant act of the King in Parliament 
 
 Peers' Report, Parry (Parliaments, 116) appears to have been sanctioned by the 
 
 remarks upon 18 Edward III. : " The advice of his council. The meetings of 
 
430 Constitutional History of England. 
 
 III. '^ftt ticbelopmcnt of t]&c i)critabilit5 of tfie temporal pcnagt 
 from these conditions becomes gradually discernible in a 
 few symptoms, under the dynasty of the house of Lancaster. 
 Here internal causes were at work, which in every process 
 of political formation take an outward shape when the sub- 
 stance is already finished. It was the personal importance 
 of the great lords for the State which silently decided this 
 question. For the military service of the State a great vassal 
 with his warlike followers was of quite as much importance 
 as a small county, and this importance became greater owing 
 to the French and Scotch wars. For taxation the baronies, 
 which paid the great relevium of a hundred marks, and £100, 
 connected as they were with periodical subsidies, profitable 
 wardship, and incidental feudal dues, had as much weight 
 as a small county, and more than that of the majority of the 
 small market towns, which were already summoned to send 
 burgesses to Parliament. In war as in the council, the great 
 lords are personally a prominent element, which is more and 
 more firmly established by their meeting together in person to 
 discuss the " ardita negotia regni.'' This annual meeting, this 
 customary discussion of the great business of the State gives 
 them that experience, that importance, and those qualities 
 which engender the justifiable feeling of a birth-membership, 
 which at the same time has its root in their local position. 
 
 Parliament were still considered as five of the council ; " again in 2 Ed- 
 meetings of the King's select council, ward II., sixteen justices et ministri ; 
 at which the lords and commons as the in ?> Edward II., seven of the council 
 great council of the King, for legisla- and others; in 6 Edward II., sixteen 
 tive purposes, and for granting aids, justices and sixteen clerks of council ; 
 and for their advice on extraordinary again in 6 Edward II., " forty-two of 
 occasions, were summoned to attend " the council ; " in 14 Edward II., "thirty- 
 (cf. Report, i. 317). The statements two judges and of the council." The 
 respecting the members of the council justices, masters, and clerks of the 
 who were summoned are, however, for council were often expressly mentioned ; 
 the most part exceedingly Indefinite, after Edward III. very frequently a 
 so much so that the higher, middle, and number of King's Serjeants (Foss, iii. 
 lower officers are confused together. In 370). Whilst the writs of summons 
 23 Edward I. the justices of both addressed to the magnates run " cum 
 foenches, the itinerant justices, the cseteris imelatis tractaturi" those ad- 
 fcarons of the Exchequer and " others dressed to the justices leave out 
 from the council " are mentioned ; in " Cceteris," and thus express that the 
 1 Edward II. thirty justices and others officers, as such, do not stand upon an 
 of the council; in 2 Edward II., "thirty- equality with the peers. 
 
The Parliament of the Prelates and Barons. 431 
 
 With the development of the county mihtia, they became also 
 the skilled leaders of the national array. With the institution 
 of justices of the peace, after 34 Edward III., they took the 
 head of the police control, and the quarter sessions, that is 
 to say, of a great portion of the criminal justice and internal 
 administration of the country. Their eminent personal in- 
 fluence in the neighbourhood of their residence and their 
 estates, is increased by their jDrominent position as the greatest 
 tax-payers wherever, land-tax, income-tax, county-tax, and 
 local-tax was to be paid. Their local influence reflected upon 
 their position in the great council, and their position in the 
 council uj)on their local influence. The aggregate of such 
 conditions becomes at all times bound up with tenure. 
 According to the common law succession, the whole of these 
 customary duties and this customary position pass to the 
 eldest son or other heir, and only to him. The right of the 
 kings to summon by their writs those whom they choose out 
 of hundreds, could no longer ignore such claims. The feeling 
 of the equality of this x^osition had already become so strongly 
 developed in the party struggles under Edward II., that the 
 statute 15 Edward III. formally acknowledges those sum- 
 moned by writ as "pares rcgni,'' and thus legally severs them 
 from the great number of the other tenentes in capite. The 
 distinction that subsisted between the greater and the lesser 
 vassals in army, law-court, administration and taxation, at 
 length, after a struggle that had lasted for centuries, attained 
 legal recognition. The house of Lancaster was now enabled 
 primarily to support its usurped throne upon the recognition 
 of the body so constituted. The legality of the present political 
 government was established by the mutual recognition of King, 
 Lords, and Commons ; and if this recognition was to mean 
 anything, it had to proceed from a body constituted according 
 to old custom, and not from an arbitrarily summoned number 
 of partisans. The council of the prelates and barons accord- 
 ingly from that time attained a fixed form; the number of 
 those summoned became smaller and more constant in its 
 attendance, and the element of the new members who were 
 
432 Constitutional History of England. 
 
 summoned merely out of personal confidence becomes reduced. 
 Frequent deliberations upon military matters as well as 
 military merits had also caused a number of "bannerets " to 
 be summoned ; but for these new members also, the writs of 
 summons are more and more regularly issued. Although the 
 royal right of personal summons is never given up, yet it 
 silently assumes the shape of a permanent attribute of a 
 permanent body.* The question was simply one of giving 
 legal form to what had been accomplished de facto. 
 
 But this legal form could not be deduced from the mode 
 of enfeoffment by the crown and the writs of summons 
 hitherto in vogue. The summons by writ could not, being 
 a single act of invitation, express or found a permanent right. 
 Just as little could the peerage be attached to fixed and 
 determined estates, for then every lesser Crown vassal might 
 have raised like pretensions, and every purchaser and new 
 acquirer of such an estate would, by virtue of the alien- 
 ability of the English fiefs, have been able to lay claim 
 to a peerage, and the royal right of summons would have 
 been materially restricted. In every respect this was not 
 intended. The development to which the State had attained 
 had gone beyond the idea of the older feudalism, which 
 under Stephen had combined the Constahularia and the 
 Marescalcia Anglic with certain estates. The suppression 
 of manorial jurisdiction over independent estates, and the 
 legal equality of the common law for all classes, rendered such 
 a relapse impossible. The new legal form in which an here- 
 ditary estate of the realm and nobility by birth could attain 
 recognition, was only that of a royal patent or a charter. 
 After the Conquest the sole higher title of nobility, that of the 
 earl, was based upon patent ; from Edward III. downwards, 
 a ducal dignity was also created by patent ; from Eichard II. 
 that of a marquis. The dignities which were conferred after 
 10 Edward III. upon princes of the blood royal, were creations 
 of a purely personal character, as princes of the royal family 
 did not hold any fiefs whatever of the Crown. The precedence 
 
 * Cf. infra, the note to this chapter. 
 
The Parliament of the Prelates and Barons. 433 
 
 of the royal house and the higher dignities could not possibly 
 be disputed by the lower ranks of the peerage. According to 
 the principle of this title of nobility, in 11 Eichard II. John 
 de Beauchamp of Holt, Crown vassal of the knight's fee of 
 Kidderminster, was appointed in consideration of his services 
 and noble descent, Lord Beauchamp, Baron of Kidderminster, 
 in hereditary possession for himself and the heirs male of 
 his body, with all the rights, etc., of a baron. Since during 
 the hundred years preceding this, certain barons, to the ex- 
 clusion of the rest, had been summoned to Parliament, nothing 
 else could be meant by the newly conferred "rights" than 
 primarily such a summons. The title " Baro " being thus 
 recognized as an hereditary title of nobility, its claim like that 
 of other titles of nobility to a summons to Parliament was 
 legally acknowledged. Much as this first creation was opposed 
 to the wishes of the magnates, yet it finally was decisive 
 as to the legal rank of the peerage. ? The Crown vassals who 
 had been hitherto summoned by writ, came thus into a new 
 position. Now that the newly " baronized " favourites claimed 
 to be an hereditary estate of the realm, a similar claim could 
 not be denied to those older and more illustrious barons who 
 were ordinarily summoned to attend. The style of " baron " 
 became accordingly a legally recognized title of nobility for 
 barons of the realm. There existed in the fifteenth century 
 two modes of summoning to the peerage : (1) by patent, for 
 dukes, marquises, earls, viscounts and patented barons, legally 
 recognized as hereditary by patent : and from the middle of 
 Henry YI.'s reign to the present time this method has become 
 more and more the usual one; (2) by writ for unpatented 
 barons *'by custom." This title by custom was in the 
 fifteenth century hereditary for the older and more eminent, 
 but not for others. Mere personal summonses became rare 
 even under the house of Lancaster ; under the Tudors, they 
 entirely ceased ; and under Elizabeth the courts interpreted 
 a summons by writ to be hereditary, "by virtue of custom." 
 In harmony with the character of a personal nobility, in 20 
 Henry VI. the right of the peers to be judged by the Upper 
 
 VOL. I. 2 F 
 
434 
 
 Constitutional History of England. 
 
 House was also extended to their wives, and widows; but 
 beyond this it did not go. Thus took place the most difficult 
 birth of any hereditary nobility in the Euro^Dean world ; 
 but it was a most well-earned, and therefore a durable 
 nobility. 
 
 Note to Chapter XXIV. — The 
 origin of the heritdbilihj of the tem- 
 poral peerage is the subject of a long- 
 standing dispute, perpetually renewed, 
 because in the process of building 
 up the State the result took a form 
 decided by the reciprocal and active 
 influence of numerous factors, whilst 
 jurisprudence, heraldry, and the politi- 
 cal and social party views of the State 
 only take cognizance of the individual 
 and external elements of the phenome- 
 non. The Peeis' Keport rightly regards 
 the recognition of a legal peerage as 
 the first step towards the formation of 
 an hereditary national nobility, be- 
 ginning with the judgment against the 
 De Sponsors in 15 Edward II., in 
 which, however, none of the bishops 
 took part, a circumstance which was 
 afterwards used, with other reasons, 
 for declaring the sentence null and 
 void (Parry, 85). In the same way, 
 in 4 Edward III. the earls and barons, 
 as peers of the realm, tried Mortimer 
 and his accomplice. At the same 
 time the protest is made that they 
 were not bound to sit in judgment upon 
 " others than their equals." Whilst 
 Magna Charta recognizes a judicium 
 parium only in the sense of a judicial 
 fellowship (in which sense John granted 
 even the Jews a, judicium parium),theve 
 now springs into life the new claim of 
 the " pares terrse ; " that is, of a fellow- 
 Bhip of rank difi'erent from the 2yci7'es 
 of the county. This is legally recog- 
 nized in 15 Edward III., the decisive 
 act by which the barons of Parliament 
 separate themselves from the other 
 tenentes in capile, as a nobility of the 
 realm. This class privilege extends 
 also to the time during which no 
 Parliament is sitting, and later even 
 to women and widows. The Peers' 
 Keport (i. 313, 314) acknowledges the 
 importance of this act to its fullest 
 extent. A further weight is laid by 
 the Keport upon the rules of pre- 
 cedence as laid down in 5 Richard II. 
 
 c. 4, by which temporal and spiritual 
 lords are legally mentioned as a class 
 distinct from the knights. More deci- 
 sive w^as the succession of the house of 
 Lancaster, the legal title to which de- 
 pended upon the recognition of this 
 body. Under Henry IV., in the action 
 against the Earl of Huntingdon, a 
 further formal concession was made 
 when the King deputed the Lord High 
 Steward as his representative to hold 
 the Peers court, and thus introduced a 
 piece of the ceremonial of a feudal 
 cour de haronie. Accordingly, the 
 number of the Upper House under the 
 Lancastrians became more uniformly 
 fixed, and owing to its limitation to 
 the most distinguished members, 
 smaller, in harmony with the tendency 
 of a favoured class. In noticing the 
 very small number summoned in this 
 period, we must remember that many 
 were often absent in foreign wars. 
 The martial tendency of this era intro- 
 duced into the writ of summons the 
 titles appertaining to the feudal array. 
 In 51 Edward III., and in 2-5 Richard 
 II., besides the barons, one or more 
 cMvalers are spoken of. The style of 
 sieur is more rare. Under Henry VI. 
 a new form of expression begins to 
 be employed. In 3 Henry VI. the 
 nineteen barons summoned to Parlia- 
 ment were described as seventeen cM- 
 valers, one miles, one magister. From 
 6-9 Henry VI. all barons are styled 
 chivalers ; in 18 Henry VI. twenty- 
 three chivalers, Baron de Greystock 
 " and others " were summoned ; in 27 
 Henry VI. twenty-five barons chiva- 
 lers, nine barons milites, four barons 
 domini de. This distinction between 
 chivalers, milites, armigeri, and domini, 
 continues until the close of this reign, 
 and under that of Edward IV. The 
 legal and practical equality of the tem- 
 poral barons accordingly did not ex- 
 clude degrees in their military rank ; 
 and it was only by very slow degrees 
 that the title of " baron," like that of 
 
The Parliament of the Prelates and Barons. 435 
 
 earl, marquis, etc., became an estab- 
 lished title of nobility in the modern 
 sense of the term. The title " lord," 
 on the other hand, does not designate 
 a dignity created by the Crown, but 
 is only a title of courtesy for numerous 
 other oflSces and dignities. In general 
 the concession of a peers' court, accord- 
 ing to the spirit of the royal preroga- 
 tives, does not as yet exclude the 
 arraignment of peers in extraordinary 
 cases by justices with a jury, without 
 the legality of the proceedings being 
 called in question. Against the nobles, 
 too, the continuance of a personal right 
 residing in the King to constitute a 
 court in extraordinary cases was still 
 asserted. This was done most fre- 
 quently in case of the prelates. In 
 25 Edward III. the Primate in the 
 name of the clergy presents a petition 
 to the effect that since the archbishops 
 and bishops hold their temporalities 
 of the King in capite, they are so far 
 ^^ piers de la terre," in the same way 
 as other earls and barons. But this 
 spiritual peerage did not arrive at 
 full maturity, for the clergy laid claim 
 to the far more valuable right of a 
 special ecclesiastical jurisdiction, and 
 claimed the far more extensive privi- 
 lege of clergy, having almost com- 
 pletely severed themselves from the 
 temporal constitution. 
 
 The legal form for the heritability 
 of the temporal peerage is creation by 
 patent or charter, which definitely 
 declares the heritability of the dignity. 
 The " creation " of new barons can only 
 date from such a grant ; for the " sum- 
 mons " by writ to each separate session 
 had not in itself the character of a 
 " dignity " conferred. The arbitrary 
 modern expression which speaks of a 
 creation of peers by writ, is only a 
 source of confusion and dispute. But 
 it is remarkable that for a length of 
 time the higher creations by patent 
 were proclaimed " in Parliament." In 
 6 Edward III. the Prince of Wales 
 was appointed Duke of Cornwall, and 
 in like manner six new earls in 6 
 Edward III., " by common assent and 
 council of the prelates, earls, barons, 
 and others of our council in Parlia- 
 ment." The question here was not of 
 the granting of new fiefs, but of per- 
 sonal dignities ; thus we find in 36 
 Edward III. a prince of the blood 
 
 created Duke of Clarence, though 
 such a dukedom had never existed 
 (Kep., i. 326). Various acts of this 
 sort occur between the years 1337- 
 1414, and the later jurisprudence 
 asserted that such an appointment 
 was to be regarded as proceeding from 
 the " whole legislature," without per- 
 ceiving that if this had been the case 
 the peerage would have become an 
 exclusive guild. But the proclama- 
 tion of solemn acts of the feudal lord 
 in the " cour de baronie " was an old 
 feudal custom, and the so-called " con- 
 sent " to them is a remnant of the 
 acclamation of the bystanders in the 
 popular court, which in no case was 
 a condition of the validity of the trans- 
 action. Hence can be sufficiently ex- 
 plained that it was the creation of the 
 highest dignities which took place in 
 Parliament, and that occasionally other 
 lords were created out of Parliament 
 without mention being made of " con- 
 sent," and that this form subsequently 
 fell again into disuse. Concise discus- 
 sions on this point are contained in 
 Sir Harry Nicolas' "Keport on pro- 
 ceedings on the Earldom of Devon" 
 (App. ix.). The later procedure proves 
 that the kings did not allow their 
 right of free appointment to be in 
 any wise limited by a right of Parlia- 
 ment to "consent." The patent of 
 appointment defines at the same time 
 the manner in which the dignity shall 
 descend, which is sometimes framed 
 narrowly, and sometimes extended to 
 embrace all the legal heirs of the 
 body. Upon this are based the varia- 
 tions of heritability which remain to 
 the present day. But after heritability 
 by patent was made the rule, and the 
 number of the new " barons by patent '* 
 increased from generation to genera- 
 tion, it was impossible, having regard 
 to the legal equality of the peerage, to 
 put the original stock in a lower posi- 
 tion than the new. The older mem- 
 bers who were continuously summoned 
 could now claim an hereditary right 
 by writ, " by prescription," as was also 
 assumed by the Peers' Eeport (i. 342), 
 with the very just remark that the 
 newer creation " by patent " could not 
 possibly have appeared as the better 
 and more advantageous method, if 
 there had ever existed a peerage by 
 virtue of the tenure of certain estates, 
 
436 
 
 Constitutional History of England. 
 
 i.e. a barony by tenure (Rep., iii. 
 119). 
 
 It was not until the power of nobility 
 had made progress under the house of 
 Lancaster, that this old feudal con- 
 ception comes so far into prominence 
 that in 11 Henry VI. the earldom of 
 Arundel was directly claimed and re- 
 cognized as a " barony by tenure ; " so 
 that the habit arose of assuming the 
 existence of a mode of tenure " by 
 service of attending the legislative 
 assemblies," which, with all the deduc- 
 tions made therefrom is historically 
 and legallv erroneous (Peerage Eeport, 
 iv. 269, 270). The seats of the lords 
 in Parliament were based upon custom 
 within this body, and formed so far a 
 special corporate customary law or law 
 of Parliament. In 11 Richard II. the 
 ecclesiastical and temporal peers ac- 
 cordingly claim "as their liberty and 
 franchise that all cases of high nature, 
 concerning the lords of Parliament, 
 should be awarded in Parliament. 
 For that the realm of England never 
 was or shall be ruled by the civil law ; 
 nor was it their intent that a case of 
 so high a nature as this appeal should 
 be tried by the course, process, or order 
 used in inferior courts," and this claim 
 was willingly acknowledged by the 
 King, but did not succeed in estab- 
 lishing any deviation from the prin- 
 ciples of the common law. Accord- 
 ingly the justices in 7 Henry IV. made 
 a distinction between the right to the 
 name and title of a peerage, and the 
 right to a seat in Parliament. The 
 latter they urged was an exclusive 
 question for the King and the peers; 
 the former, on the contrary (being a 
 private claim of family right) was a 
 common law point, and belonged to 
 the jurisdiction of the ordinary courts 
 of law (Nicolas, " Proceedings," iii. 57, 
 seq.'). But as to the peers who were 
 summoned by writ, the practice of Par- 
 liament accepted the important limi- 
 tation, that the writ certainly did not 
 confer an hereditary peerage and an 
 hereditary nobility, where the indi- 
 vidual thus summoned had not really 
 taken his seat by virtue of the writ — 
 a maxim which was finally established 
 in the case of Edward Nevill, in 8 
 James I. The appointment by patent 
 was in other directions expressly and 
 repeatedly recognized by the tribunals 
 
 as a personal dignity, apart from any 
 real connection with any definite landed 
 estate, and it was particularly declared 
 by Lord Justice Holt that this barony 
 by patent forms " a title of dignity and 
 parcel of the name." The long list of 
 the later peers was created by patent, 
 and the mere summons by writ has 
 long since fallen into disuse, except 
 for a special case. In 22 Edward I. 
 for the first time the custom is met 
 with of summoning to Parliament the 
 son of a duke, a marquis, or an earl, 
 out of courtesy, even in his father's 
 lifetime, under the title of a second 
 barony, which the father holds either 
 really or nominally ; and this custom 
 has been observed down to the present 
 day. The summoning of the son in 
 addition to the father was only regarded 
 as a personal ad interim measure ; such 
 a peerage is merged in the principal 
 peerage, when the succession arises, 
 and thus creates no hereditary dignity. 
 The still continuing dispute as to 
 whether the English peerage was not 
 originally a barony by tenure, arose 
 from social ideas. All classes of society 
 wish, not to acquire their political 
 rights, but to enjoy them by virtue of 
 tenure, and by inherent right. Hence 
 the social conception always kept re- 
 curring to the favourite idea of an 
 estate of the realm based merely upon 
 possession ; whilst the English peerage 
 is not built upon the bare possession of 
 privileged estates, but upon personal 
 summons to the council of the realm, 
 summons which only became by cus- 
 tom hereditary in a direct ratio to the 
 customary performances entailed upon 
 the tenants of great estates. The 
 favourite social ideas which are in 
 constant conflict with this fact, even 
 in the Middle Ages, gave rise to a 
 work entitled, " Modus tenendi Par- 
 liainentiim" which according to one 
 manuscript is intended to be an ex- 
 position of " How William the Con- 
 queror adopted the mode of summoning 
 Parliament from Edward the Con- 
 fessor." The tenant of thirteen and 
 one-third knights' fees is, according to 
 this document, able to claim a right of 
 summons to Parliament as a baron ; 
 that is, a recognition as belonging to 
 an estate of the realm ; and the tenant 
 of twenty knights' fees as an earl, — an 
 opinion which is apparently based upon 
 
The Parliament of the Prelates and Barons, 437 
 
 a mere calculation of the amount of 
 the relevia. Sir Edward Coke seriously- 
 regarded this manuscript as a genuine 
 legal authority, and modern investi- 
 gations endeavour to prove a higher 
 antiquity for it by placing it as far 
 back as Edward I. In that case it 
 would only prove that even in those 
 days feudalism was a favourite hobby. 
 Its positive statements were almost 
 in accordance with the condition 
 of the Parliament in the fourteenth 
 century, which the auth(jr endeavours 
 as far as possible to refer to custom 
 of time out of mind (Select Char- 
 ters, 502). But it is not necessary 
 
 when examining the many curious des- 
 criptions of the " Modus" which are 
 at variance with documentary legal 
 history, to think exactly of a feudal 
 Pseudo-Isidor ; they are rather similar 
 transformations to those which occur 
 even in our own day in the drawing up 
 of all genealogical trees, and are tlie 
 conceptions of a herald's office and not 
 of politics and public law. Good re- 
 marks on this point are made by Pauh' 
 (" Bilder aus der Englischen Vorzeit," 
 1858, p. 65, seq.), together with vivid 
 sketches of the procedure in Parlia- 
 ment. 
 
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