Ya\e UmversWv Librarv 39002002145077 THE ORIGIN AND GROWTH OF THE ENGLISH CONSTITUTION %n I^igtorical €reati£e IN WHICH IS DRAWN OUT, BY THE LIGHT OF THE MOST RECENT RESEARCHES, THE GRADUAL DEVELOPMENT OF THE ENGLISH CONSTITUTIONAL SYSTEM, AND THE GROWTH OUT OF THAT SYSTEM OF THE FEDERAL REPUBLIC OF THE UNITED STATES By HANNIS TAYLOR, LL. D. Late Minister Plenipotentiary of the United States to Spain IN TWO PARTS PART I. THE MAKING OF THE CONSTITUTION **Tum Laelius, nunc fit illud Catonis certius, nee temporis unius, nee hominis esse constitutionem Reipublicae. " — Cicero. " The new building has been raised upon the old groundwork; the institutions of one age have always been modelled and formed from those of the preceding, and their lineal descent has never been interrupted or disturbed." — Palgrave. " And thus it comes to pass that Magna Carta, the Acts of the Long Parliament, the Declaration of Right, the Declaration of Independence, and the Constitution of 1787 constitute the record of an evolution." — Bkantly. " The Government of the United States is not the result of speeial creation, but of evolution. ' ' — Fiske, BOSTON AND NEW YORK HOUGHTON MIFFLIN COMPANY LONDON: SAMPSON LOW, MARSTON & COMPANY (Limited) ($fr fiiticrai&e press, Cambridge DISCARDED BY Q W. U. LIBRARY Copyright, 1889, Br HANNIS TAYLOR. All rights reserved. TO THE MEMORY OF HIS MOTHER, DEDICATES THIS BOOK. PREFACE. The task essayed in this work involves an attempt to draw out, within the limits of two octavo volumes, the entire historic develop ment of the English constitutional system, and the growth out of that system of the federal republic of the United States. In the Intro-, duction an effort has been made to emphasize the fact that the consti tutional histories of England and of the United States constitute a continuous and natural evolution which can only be fully mastered when viewed as one unbroken story. That story the author has attempted to unfold in the light of the latest researches, — English, German, French, and American, — and in such a manner as to impart to it something of a human interest. The double effort has been made to satisfy the critical student of the " Science of Politics " as to fulness and accuracy of detail, and at the same time to interest every American citizen who desires to read within reasonable limits the en tire history of the wonderful constitution under which he lives. The growth of English and American constitutions, considered as a single progressive development, is a subject of paramount importance and of almost universal interest. By the sixteenth century nearly every effort that had been made to establish representative government upon the continent of Europe had come to an end. In England only, among the Teutonic nations, did the representative system survive ; in England only has the representative principle — which has been called " a Teu tonic invention " — been able to maintain a continuous existence. In that way the English nation has been able to hand down the representa tive principle from the barbarian epoch to modern times ; in that way England has become the " mother of parliaments," — the teacher of the science of representative government to all the world. Since the begin ning of the French Revolution nearly all the states of continental Eu rope have organized national assemblies after the model of the English vi PREFACE. parliament in a spirit of conscious imitation. But the typical English national assembly, embodying what is generally known as the bicameral system, was not copied into the continental European constitutions until it had first been reproduced in a modified form and popularized by the founders of the federal republic of the United States. In the several colonial commonwealths founded by English settlers upon American soil, the typical English national assembly reappeared in an embryonic form as the predestined product of a natural process of reproduction; and the framers of the federal constitution of 1787, abandoning the original idea of a federal assembly consisting of a single chamber, adopted the English system of two chambers in the form in which that system had reappeared in the several states. Thus rendered popular by its successful reproduction in the American constitutions, state and federal, the " British political mode was followed by France, by Spain and Portugal, and by Holland and Belgium, combined in the kingdom of the Netherlands ; and after a long interval by Germany, Italy, and Aus tria." 1 To the student of the " Science of Politics " the typical English national assembly, therefore, appears not simply as the local legislature of the United Kingdom, nor even as the imperial parliament of the British Empire, but higher still, — as the accepted model of popular government throughout the world. Until recently the attainment of a full and comprehensive knowledge of this all-important subject was beset with serious difficulties, which can be explained only through a brief exposition of the peculiar manner in which the history of the English people has been written. The Eng lish language had grown old, and English literature had passed what has been called its Augustan age, before any serious effort was ever made to open up the vast domain of English history. With the richest accumulation of historical records in all Europe — "whether we con sider them in relation to antiquity, to continuity, to variety, to extent, or to amplitude of facts and details"2 — mouldering beneath their feet, English scholars, until very recent times, were content to shed light upon every theme save that involved in the history of their own country. Not until near the close of the last century was any deliberate effort ever made to write the history of the English people. 1 Sir Henry Maine, Popular Government, records were, in 1858, finally brought together P-„I;L , (c. „ . t, . , pnder the roof of the present Record Repos- -1 The words of Sir Francis Palgrave, under itory. whose auspices as deputy keeper the public PREFACE. vii And when the investigation was at last begun, it was prosecuted according to the method which has prevailed in the exploration of the Nile, whose course has been mapped out by explorers who have slowly ascended from its mouths to its source. Beginning with modern times, the English historians have gradually worked back ward until at last the sources have been reached. This assertion can easily be maintained by a few familiar illustrations. Hume began his "History of England" with the accession of the house of Stuart^ — the volumes which treat of the preceding period were pinned on as an after-thought. How innocent Hume was of any real knowledge of the early and mediaeval history of England he puts beyond all question when he tells us in his autobiography that, prior to the accession of the house of Stuart, "it is ridiculous to consider the English constitution ... as a regular plan of liberty." Hallam be gan his " Constitutional History " with the accession of the house of Tudor, — three meagre chapters in the Middle Ages sufficed to con tain all he desired to say of the preceding period. The magnificent ruin known as Macaulay's " History of England " really begins with the accession of the house of Stuart, — a single chapter sufficed to con tain all that the most brilliant and the most inquisitive of Englishmen cared to say of the ten eventful centuries which precede that event. Some deep and serious reason must certainly have impelled three minds at once so acute and comprehensive to pass so lightly over the early and mediaeval history of their country in order to begin their narrations in comparatively modern times. That reason is not hard to find. The truth is, until recently, the real history of early and mediaeval England has remained a sealed book. Only within the last fifty years have the charters, chronicles, and memorials in which was entombed the early history of the English people been made acces sible ; and only within the last twenty years have they been subjected to the final analysis which has at' last extracted from them their full and true significance. These facts become more comprehensible when we remember that only within the period last named has the study of history, as a distinct and substantive branch of knowledge, been raised to an independent position at the two great English uni versities. Not until 1870 was the study of modern history put upon an independent footing at Oxford ; and not until 1875 was a separate tripos for universal history instituted at Cambridge. But when the viii PREFACE. emancipation of history was thus finally brought about, the work was done with genuine English thoroughness. Under the influence of Professors Stubbs and Freeman at Oxford, and Professor Seeley at Cambridge, the scientific study of history has at last been carried to as high a point in England as it has ever reached upon the Con tinent.1 Sharon Turner tells us, in the preface to his " History of the Anglo- Saxons," published between 1799 and 1805, that when his first volume appeared, "the subject of the Anglo-Saxon antiquities had been nearly forgotten by the British public. . . . The Anglo-Saxon MSS. lay still unexamined, and neither their contents nor the important facts which the ancient writers and records of other nations had preserved of the transactions and fortunes of our ancestors had been ever made a part of our general history." The honest effort made by Turner to arouse his countrymen to a sense of interest in the beginnings of their national life was followed in 1800 by an inquiry in parliament into the state of the public records, which resulted in an able report upon the condition of the archives, and in the appointment of a commission "to methodize, regulate, and digest the records." The conduct of the work of preservation and publication proving unsatisfactory in the hands of the Record Commission, its direction was finally intrusted to the Master of the Rolls, who in January, 1857, "submitted to the Treasury a proposal for the publication of materials for the history of this country from the invasion of the Romans to the reign of Henry VIII." Invaluable as are the official publications, which have been prefaced and edited by the most competent critics and scholars that the Master of the Rolls could draw to his aid, they can never over shadow or supersede the works of one who was the real path-breaker into the jungle of early English history. To Kemble belongs the imperishable honor of being the first to bring to light the most valu able of the early records, and to apply to their interpretation the rich results of German research into the childhood of the whole Teutonic race. No matter whether the Germans drove the English into his torical scholarship or not, the fact remains that Kemble, who studied under the brothers Grimm at Gottingen, was the first to reject every suggestion of Roman influence, and to clearly perceive the all-impor- I See "The Study of History in England at the University of Ghent, Johns Hopkins and Scotland," by Paul Fredericq, professor Studies, fifth series, x. pp. 17, 32. PREFACE. IX tant fact, now generally admitted, that the national life of the English people, both natural and political, began with the coming of the Teu tonic invaders who, during the fifth and sixth centuries, transferred from the Continent into Britain their entire scheme of barbaric life. In 1839 Kemble began the publication of his " Codex Diplomaticus ^Evi Saxonici," whereby " upwards of fourteen hundred documents, containing the grants of kings and bishops, the settlements of private persons, the conventions of landlords and tenants, the technical forms of judicial proceedings, have been placed in our hands." In 1840 Thorpe published his " Ancient Laws and Institutes of England ; " and in 1848 Kemble published his "Saxons in England," in which was embodied the first effort ever made to state in a systematic form the results of the new sources of knowledge which he had done so much to bring to light. A co-worker with Kemble was Sir Francis Pal- grave, who in 1832 published "The Rise and Progress of the English Commonwealth," and in 1851-64 the "History of Normandy and England." Kemble may have been guilty of exaggeration ; he may at times have been misty in his conclusions. Sir Francis was no doubt often fanciful ; at times he was certainly garrulous. And yet the fact remains that these pioneer scholars were the path-breakers who opened the way for the coming of the two English historians who have raised the science of history to as high a pitch, perhaps, as it has ever reached in ancient or modern times. Not until Mr. Frgenjan^had completed his "History of the Norman Conquest," not until Bishop" Stubbs had completed the " Constitutional History," the " Select Charters," and " the wonderful prefaces," did the grand inquest into the early and mediaeval history of England, which Kemble and Palgrave had inaugurated, reach a definite and final result. Not until the head waters of the mighty river had thus been reached, not until the direction of the stream during its earlier course had been clearly mapped out by competent hands, did it become possible either for the general student of the history of the English people, or for the special student of the English constitution, to begin with the sources, and trace them without interruption to their ultimate conclusion. Until the analysis had ended, it was impossible for the synthesis to begin. The advent of the new learning touching the early and mediaeval history of England — which has rendered obsolete and worthless X PREFACE. nearly all of the older disquisitions made before the fresh sources of knowledge had become available — has rendered necessary a reconsid eration of nearly every branch of English history from a new point of view. Not until the early periods, which contain the starting-points of everything, had been fully mastered, was it possible to firmly estab lish the premises upon which every far-reaching argument touching the social or political life of the English nation must necessarily pro ceed. One of the first to perceive the necessity for a recasting of English history as a whole, from the new point of view, was the late John Richard Green, the gentle scholar, whose master hand was the first to trace the entire course of the history of the English people from its long-hidden sources in the "village-moots of Friesland or Sleswick," across the Northern Ocean into Britain, and across the Atlantic into North America. Several years before the publication of the " History of the English People," the author of this work undertook the humbler and narrower task of drawing out, in the light of the new learning, the entire historic development of the English constitution, — a task which, up to that time, no one had ever at tempted. Since then has appeared the now famous " History of the English Constitution," by Dr. Rudolph Gneist, Professor of Law at the University of Berlin ; and also a work entitled " English Constitu tional History," by the late Thomas Pitt Taswell-Langmead, sometime Professor of Constitutional Law and History at University College, London. It is to the author rather a source of pleasure than of regret that the publication of these meritorious works should have preceded his own. All attempts so far made to write a complete history of the English constitution are merely tentative, — the historian who is to cast the entire theme in its final form is yet to come. His coming will finally be made possible through a series of imperfect efforts to execute his task by a succession of historical students, each one of whom will make some advance toward the common goal by utilizing all that is strongest, and by discarding all that is weakest, in the works of his predecessors. The history of the growth of the English constitution, extending as it does through the annals of fourteen centuries, is by far too vast a theme for any one mind to assail in the way of original research. The best of the modern historical schools recognize the fact that the study of the history even of a single country can only proceed in a PREFACE. XI truly scientific manner through a system of cooperation based upon a division of labor. Each epoch must first be made the subject of thorough investigation by specialists who work upon the sources (what the Germans call Quellenstudieri), and extract from them, through a kind of laboratory process, their full and true significance. Not until the original documents and other sources have been taken from the mine and purged of their dross by these special workers do the facts which they contain become available to those who desire to build upon them broad and comprehensive generalizations. In the collection of the materials which have entered into the structure of this work the author has striven to select out of the mass with which the subject is encumbered only such as have passed through the crucible of the lat est and most enlightened criticism. In the attempt which has been made to work the materials thus collected into such a combination as will reveal a natural and unbroken sequence of constitutional growth, the method of the historical school has been followed, — a school which dogmatizes but little, which has little or nothing to do with d priori theories, and which teaches, with Sir James Macintosh, that "constitutions are not made, they grow." Only by the aid of this method, which recognizes the law of growth as the law of constitu tional life, is it possible to trace the mighty stream of Teutonic democ racy from its sources in the village-moots and state assembles of Fries- land and Sleswick across the Northern Ocean into Britain, and across the Atlantic into North America. Only by the aid of this method is it possible to demonstrate the fact that the federal republic of the United States is the lineal descendant of those ancient German tribal federations of which we catch our first glimpses in the pages of Cae sar and Tacitus. When, in the light of this method, we contemplate this vast and unbroken development, which has affected so profoundly the destiny of mankind, we " Doubt not through the ages one increasing purpose runs, And the thoughts of men are widen'd with the process of the suns." Although the historical method, which teaches the unity of all his tory, necessarily ignores such arbitrary divisions as sever the history of ancient from that of modern times, it nevertheless recognizes the fact that in the history of peoples, and of their institutions, there are epochs of growth so marked that they may be made the subject of separate and distinct treatment. The history of the growth of the xn PREFACE. English constitution may be broken into two broad and well-defined periods. The first, which extends from the Teutonic conquest to the end of the Middle Ages, may be termed the formative period, — the period of "the making of the constitution." Although it may be true in a vague and general sense that the struggle of the constitution for existence came to an end in the reign of Edward I., it can hardly be maintained that its structure was complete in any full and perfect sense until its vital organ, the parliament, had developed all of its powers and privileges, — a result which was not reached earlier than the reigns of the Lancastrian kings. To this formative period — which has been made the subject of Bishop Stubbs's "Constitutional History," in three volumes — the author has devoted his first part or volume. To the second period, entitled " the after-growth of the consti tution," — one part of which has been treated by Hallam, in three vol umes, and another, by Sir Thomas Erskine May, in three volumes, — the author has devoted his second part or volume. Each part of this work may, therefore, be regarded as a complete treatise upon a distinct period of constitutional growth usually considered separately. And yet each part is so constructed that, when the two are taken together, they embrace a consecutive and harmonious treatment of the entire theme viewed as one unbroken development. During the years which have passed by since the preparation of this work began, the author has received so much of sympathy, encourage ment, and helpful criticism from historical scholars, not only in his own but in foreign lands, that he might be justly deemed ungracious should he now fail to make fitting acknowledgments to those from whom he has received special consideration. Some years ago it was his good fortune, during Mr. Freeman's last visit to the United States, to form a cordial acquaintance with the Nestor historian, who has made perhaps the largest and most invaluable contributions to the historical science of modern times. While that lamented and illustrious -scholar for a long time consciously contributed very much to this undertaking in the form of encouragement, suggestion, and criticism, he uncon sciously revealed to the author the fact that he was a master of that somewhat rare art of bestowing kindness without condescension. To his brother-scholar, the Rt. Rev. William Stubbs, Bishop of Oxford, the obligations of the author, although of a less personal, are not of a less serious character. To the master of the constitutional his- PREFACE. xiii tory of the Middle Ages, who sits alone at the head of his serene science, all students of the English constitution must go for the key, before they can hope to enter into its inner mysteries. While the pages of the "Constitutional History" and the "Select Charters" may not be inviting to the careless inquirer, to the earnest student they are mines of fact and of thought which may be worked with out limit and without exhaustion. To Dr. Rudolph Gneist, Professor of Law at the University of Berlin, and to M. Boutmy, member of the Institute, and Director of the School of Political Sciences of Paris, the author desires to make special acknowledgments. Amongst those of his own countrymen who have generously aided him with judicious criticism and friendly encouragement, it is no less a pleasure than an honor to name Mr. John Fiske, of Cambridge ; Hon. J. Ran dolph Tucker, of Virginia ; Dr. H. B. Adams, Professor of History and Politics at the Johns Hopkins University ; the late Mr. Alexander Johnston, Professor of Jurisprudence and Political Economy at Prince ton ; Mr. S. M. Macvane, University Professor of History at Harvard ; Dr. James C. Welling, President of Columbia College, Washington, D. C. ; the late Judge John A. Campbell, of Baltimore, and his peer less daughter, Mrs. Henrietta Campbell Lay ; Mr. Richard M. Venable, Professor of Law at the University of Maryland ; Mr. Wm. Preston Johnston, President of the Tulane University of Louisiana ; Mr. Alfred Goldthwaite, of New Orleans, La. ; the Hon. John T. Morgan, United States Senator from Alabama ; and the Hon. N. H. R. Dawson, National Commissioner of Education. In his own home the author desires to express his thanks to his friends, the Hon. John Little Smith, the Hon. Fredrick G. Bromberg, and Peter J. Hamilton, Esq., three scholars of whom any city might be proud. And, last and most of all, may he not indicate, even in this public way, to his good wife, — whose loving hands have, during a period of many years, lessened the pain incident to feeble eyesight by transcribing these pages, often again and again, — a sense of gratitude which he " can ne'er express, yet cannot all conceal." Mobile, Alabama, September 12, 1889. ANALYTICAL TABLE OF CONTENTS. INTRODUCTION. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC OF THE UNITED STATES. 1. The typical English state the political unit in our federal system . i 2. The state as the ancient city-commonwealth i Comparative philology ; comparative politics _ 2 Village community the unit of organization ; the Greek city-commonwealth . 3 Only conception of the state in the Hellenic world ; Aristotle the founder of polit ical science 4 " Man js born to be a citizen ; " the Italian city-commonwealth ; extension of the Roman franchise 5 3. The state as the nation 6 The Teutonic tribe 7 Parallel between the Greek, Latin, and Teutonic tribe ; Greek and Latin tribes unite in city-commonwealths ; Teutonic tribes gather into nations .... 8 Tribal sovereignty ; territorial sovereignty the outcome of "the process of feudali- zation" 9 4. Growth of the English Kingdom 10 " The Teutonic theory " 11 Teutonic settlements in Britain substantial reproductions of the older tribal life ; the mark reappears as the township ; earliest form of the representative princi ple ; the hundred ; the early kingdoms 12 The heptarchic kingdoms ; the consolidated kingdom ; new society purely Teu tonic 13 Representative principle a Teutonic invention ; representative government dies out everywhere but in England 14 6. Growth of the English Colonies in America: physiography of North America '5 Struggle for its possession between England, France, and Spain ; European na tions agreed that discovery gave title '6 England based her claims upon voyages of the Cabots ; the great title-deed, — James I.'s charter of 1606 l7 The London Company and its work ; the Plymouth Company and its work . 18 The soil granted to the colonies by the crown and not by the parliament . . 19 Colonies mere corporations created by the crown ; the royal colonies — Virginia 20 Ordaining power of the king in council ; first American representative assembly . 21 English law the basis of colonial rights ; the charter colonies — Massachusetts . 22 internal organization ; charter annulled in 1684 by a scire facias ; Connecticut and Rhode Island live under their charters until long after the Revolution . . 23 xri CONTENTS. The proprietary colonies — Maryland ; modelled after the Palatinate of Durham ; first state assembly an Old-English gemot 24 Carolina and Locke's Fundamental Constitutions. American theory of colonial rights 25 English theory 2<> Out of the conflict grew the War of the Revolution. Internal organization of the colonies ; English kingdom the product of aggregation 27 Federal republic of the United States product of the same principle ; counties and townships everywhere the organs of local administration 28 In the northern colonies the township, in the southern the county, the more active local agent 29 Functions of both more evenly balanced in the middle colonies ; the township in New England ; township as the manor ; as the parish 30 The New England town meeting 31 Manors in Maryland ; proprietor founds the system 32 A court baron at St. Gabriel's manor ; a court leet at St. Clement's. Dutch manors in New York 33 The patroon as lord of the manor ; manorial courts jn New York . . 34 The manor a self-governing community. The parish in Virginia . . . .35 Virginia towns grow into counties which are divided into parishes "... 36 Resemblance between the English and Virginia parish ; both hardened into close corporations 37 The Southern county : its judicial functions ; administrative ; court-day . . 38 Difference in local organization between North and South ; incorporation of New England towns ' • • • • 39 Municipal history of Boston ; incorporation of Southern towns .... 40 American corporations possess no inherent power of taxation 41 Growth of colonial assemblies 43 They assume a bicameral form 44 Colonies transformed into sovereign states which are substantial reproductions of the English kingdom 45 Legislative power ; constitutional limitations an American invention ... 46 The executive power ; the judicial power • • • 47 The assize or circuit court the special possession of the English race ; feudal prin ciples still linger at the base of American land law 4° 6. Federalism as a System of Government 48 A perfect federal government ; the nearest approaches to such an ideal, the Achaian League, Confederation of Swiss Cantons, Seven United Provinces of the Neth erlands, and the United States of America 49 Federal governments divided into two classes, — confederated governments and composite states ; Greek federalism ......... 5° The Achaian League, whose national government acted directly upon the citizen ; makers of the Constitution of the United States had no real knowledge of that ancient League ; only acquainted with the Teutonic leagues ..... S1 All of which rested on the requisition system. Effects of geography upon federa tion in America S2 Effects of the growth of population upon federation ; New England Confederation of 1643 S3 New France and the struggle for expansion 54 Effects of the French and Indian war on the cause of union ; Stamp Act Congress of 1765; first Continental Congress of 1774; second, of 1775 . . . . 55 CONTENTS. xvii Declaration of Independence, July 4, 1776; Congress the national government down to March 1, 1781. Articles of Confederation 56 The western territory ; Maryland's influence upon the land cessions to the United Slates 57 Character of the first federal constitution ; it represented no material advance in the history of federalism ; inter-state citizenship 58 Washington ; his circular letter of June 8, 1783 59 The Federal Convention of May 14, 1787 59 Canonization of the second constitution ; the constitution not a " creation " . 60 Proceedings of the convention 61 Race-traits of the framers ; prior political training ; Blackstone and Montesquieu 62 Causes which compelled the making of the second constitution ; financial impotency of the confederation 63 Root of the evil the requisition system ; four great motives for union ... 64 The new path-breaking idea (bahnbrechende Idee) ; Pelatiah Webster ; Noah Webster 65 Tocqueville ; the new idea became the basis of the present constitution ; Davie ; Hamilton 66 The new idea forces the construction of a composite state 67 Division of the federal head into three departments; Jefferson; division made according to the maxim as then understood in England 68 The executive department ; the President and George III 69 The legislative department ; the " Virginia plan," — the greater against the lesser states . » 70 Adoption of the English bicameral system ; the " New Jersey plan " . . . 71 The " Connecticut Compromise ; " the senate organized upon a federal, the house upon a national basis. The judiciary department 72 The Supreme Court of the United States has no prototype in history ; the guardian of the constitution 73 Inferior federal courts a reproduction of the English itinerant system . . 74 . National Citizenship 74 Inter-state citizenship ; constitution failed to define national citizenship ; the Dred Scott case 75 First section of the Fourteenth Amendment first defines national citizenship; Slaughter-House Cases 76 Under Fourteenth Amendment, citizenship of the United States the primary citizen ship, — a principle which completes the logical symmetry of the constitution; judgment in the Slaughter-House Cases a bulwark against the centralizing ten dencies to which the civil war had imparted a fresh and menacing force . . 77 . Summary 77 xviii CONTENTS. BOOK I. THE OLD-ENGLISH COMMONWEALTH. CHAPTER I. THE TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. 1. General Character of Teutonic Conquest on the Continent . . . 8i Italy, Gaul, and Spain Latinized and Christianized by the end of the fourth centu ry ; Teutonic invaders settle down in the midst of the Continental nations ; con quest nowhere assumed the form of extermination 82 Conquerors adopt the language and creeds of the conquered ; the older society re mained Roman and Christian, — it did not become heathen and Teutonic . . 83 2. General Character of Teutonic Conquest in Britain. Roman civilization in Britain nothing but an exotic ... 84 The invaders cross the sea in small companies ; invasion became in Britain the equivalent of extermination within certain limits 85 3. Result of the Contrast: "A Germany outside of Germany " .... 86 4. English Nation Teutonic as to Race 86 All after-comers of the Low-Dutch stock ; the Normans originally of the same stock 87 5. English Language the Result of the Fusion of all the Low-Dutch Dia lects into one composite whole 87 MaxMiiller's view, — "English is Teutonic and nothing but Teutonic" . . 88 6. Institutions : general character of the Teutonic political system ; the substruc ture of the English constitution ; in the same sense in which the English lan guage is Teutonic, the English constitution is Teutonic 89 7. The Problem to be worked out involves an examination of the entire process of development through which the primitive Teutonic constitution has passed in Britain under the combined action of internal growth and external influence . 90 CHAPTER II. THE FOUNDERS IN THE FATHERLAND. 1. Early History of the Teutonic Race — Caesar and Tacitus . . .91 2. Caesar's Sketch: chastity of the Germans ; annual allotments of land ; aversion to neighbors 92 No common magistracy in times of peace ; fidelity to the war-leader ; hospitality ; the Gauls 93 3. Germania of Tacitus : the attempt to make Germany a Roman province . . 93 Germania an abstract of manners, customs, and institutions ; its rare historic value 94 4. Distinctive Race-traits 94 The word " German " probably of Celtic origin ; absence of cities ¦ • • 93 5. The State and its Subdivisions: the civitas of Caesar and Tacitus . . 95 The state as a personal organization occupying a definite area of territory ; the largest division of the state, — the pagus, gau, or hundred ; village-communities, — via of Tacitus 96 CONTENTS. xix 6. Distinctions of rank: nobles, freemen, freedmen, and slaves; the simple free man ; shares in the annual allotment ; his right to bear arms 97 His wergild. The noble ; emancipation of youths ; freedmen ; the unf ree . . 98 Agrarian dependents ; slaves 99 7. Ownership of Land : the village community 99 The patriarchal theory ; collective land-ownership yields to individual ownership . 100 Waste lands the last to be divided ; the Russian mir ; the village council. Teutonic villages : the mark system 101 The vicus identical with the mark ; the mark in the time of Tacitus ; structure of the mark 102 The village ; sacredness of the homestead ; the arable lands ; the common or waste lands 103 The mark-moot ; theory of aggregation 104 As stated by Kemble ; as stated by Freeman 105 8. The Hundred and the Hundred Court : their names have varied in different countries 106 Their influence as institutions ; the hundred court, like all other Teutonic courts, a popular assembly ; president of the hundred court chosen in the state assembly 107 9. The State Assembly : its functions chiefly political 107 Its business prepared beforehand by a permanent council which settled all minor questions 108 10. Criminal Law : all offences except treason and effeminacy could be atoned for by fines • 108 11. Kingship : principle of election. Sovereignty in states non-monarchical . . 109 12. Military Organization : its likeness to political organization. The comitatus, its divisions of rank; relative duties of princeps and comes no Origin of feudalism. The host composed of three elements, — the main body of the people fighting in groups united by the family tie, the chosen infantry from the hundreds, the bands of professional warriors each under its own princeps . .111 Divisions of the host give form to civil organization in conquered lands . . 112 13. Teutonic Heathenism : its influence on national character . . . .112 Geographical limits of Teutonic mythology; in the song of Beowulf is revealed the moral temper of the English people ; each Norse god impersonated some physical or moral force ; the hope of a life beyond the grave . . . . 113 The primitive religion as a source of principles and morals ; a century and a half of English heathenism 114 14 Engles, Saxons, and Jutes : the Saxons ; our earliest knowledge derived from Ptolemy 114 Account of Eutropius ; only a portion of the Saxons pass into Britain. The An gles or Engles : only one of the three tribes mentioned by Tacitus . . . 115 Whole tribe probably passed into Britain ; Engles gave their name to the new na tionality, — the conquered land became Engla-land or England. The Jutes . 116 CHAPTER IIL « THE TEUTONIC CONQUEST AND SETTLEMENT OF BRITAIN. Roman Britain: the Roman conquest ; Caesar 1 17 Plautius and Agricola ; Britain becomes a Roman province ; superficial character xx CONTENTS. of Roman civilizatioh a mere military department. The defences of Britain ; barriers against the Picts 118 Saxons appear as pirates in the Channel in A. D. 287 ; first attack Britain in 364 ; " the Saxon Shore ;" Britain left to her own defence 119 2. Importance of the Period of Teutonic Conquest and dimnesB of its History : the Welsh driven to the west ; out of the fusion of the Teutonic set tlements grew the English nation ; period of historic darkness and legend . .120 Fragmentary history of the conquest ; Gildas ; English Chronicle ; Nennius ; Chris tianity and the early laws 121 Baeda; archaeological and geographical research 122 3. General Character of the Conquest and Nature of the Early Settle ments: character of the migration ; distribution of the land . . . .122 The host embodies all the elements of political organization ; structure of the primitive rice or kingdom 123 The heptarchic kingdom an aggregation of primitive kingdoms ; the primitive king dom a reproduction of the civitas of Caesar and Tacitus. The new society purely Teutonic 124 Fate of the Roman cities ; the new system of municipal life 125 4. Distinctions of Rank 125 The free and the unfree ; the free, the ceorl and eorl ; the unfree, laets and slaves . 126 The slave the mere chattel of his lord 127 Practice kinder than theory ; the primitive village community in Britain a min iature democracy; growth of the new kingship; invading tribes non-monar chical 128 The heretoga or ealdorman ; the ealdorman advanced to the dignity of kingship ; blending of the hereditary with the elective principle 129 The ealdorman remains the head of his district. Tribal sovereignty ; the king's powers and duties ; the dignity of kingship grows as the process of aggregation advances :3° The comitatus ; the hlaford = the loaf -giver ; the gesith or companion ; the thegn- hood = the new nobility by service 131 benefits derived by the thegn from his lord; the thegnhood becomes a territorial nobility .... I32 Its ranks ever open to the class beneath it ; the relation of lord and man, — repre sents but one element of feudalism ; the trinoda necessitas, — a threefold obliga tion from the citizen to the state ; feudalism in embryo 133 6. Ownership of Land and the growth of great Estates : family land ; com mon land ; folkland ; the ethel or alod ; the mark 134 The homestead the earliest form of individual ownership in land ; the principle next extended to arable lands ; decay of the system of common cultivation . . . 135 Survivals of the system, — Lammas lands ; the word " mark " in England ; the mark as the township ; family land an estate of inheritance 136 Inalienability of family land ; wills depend at first for validity upon family consent. Common lands, — their history coextensive with that of the law of real property 137 Folkland ; growth of great estates ; probabilities as to their origin . . . 138 The dependent township ; title to its lands vested in the lord ; the free communi ties lose their independence ; the dependent township becomes the manor ; book- land ................ 139 The witness of the community ; the new method of conveyancing ; the estate con veyed by book usually a fee simple ; the alod disappears in the book-land . . 140 CONTENTS. xxi Rights of a grantee of book-land depend upon the terms of the grant. Laenland, its origin and attributes ... A laen generally an estate for life ; occupancy at the will of the lord ; an " unbooked . laen" 142 6. The Township and the Tun-moot : the tun-moot regulated the internal af fairs of the township, and elected its officers and representatives ; the township as the parish r ,, As the manor ; functions of the tun-moot divided between the parish vestry and manorial courts ... ........ 144 7. The Hundred and the Hundred-moot i44 Modern hundred originally a shire wr 8. The Early Kingdoms and the Folk-moot : for a long time the early kingdoms preserve their folk-moots and their tribal kings 146 The heptarchic kingdoms and the witenagemot : the primitive national assemblies purely democratic ; in the heptarchic kingdoms such assemblies shrink up into bodies purely aristocratic, — the folk-moots become witenagemots . . . 147 Representative principle not yet extended to national assemblies .... 148 CHAPTER IV THE GROWTH OF NATIONAL UNITY. 149 1. The Limits of Teutonic Conquest: Britain as a country never ceased. to exist until after the battles of Deorham and Chester Conquest then assumed a more humane form ; nature of the early settlements ; distribution of the conquered territory ; settlements of the Jutes, of the Saxons, of the Engles 150 2. Formation of the Heptarchic Kingdoms: the war-leader becomes king; early kingdoms bound together in seven or eight larger aggregates . . .151 Survival of ancient boundaries and tribal kings 152 3. Relation of the Heptarchic Kingdoms to each other : the Bretwaldas ; Palgrave's view ; Baeda 1 52 The Chronicle; Kemble's brilliant criticism ; Freeman's view ; Green's view . 153 Supremacy of bretwaldas only a temporary and uncertain overlordship. National unity the joint work of the church and the sword ; the kingdoms of Northern, Central, and Southern Britain ; this threefold division only broken down after a struggle of two centuries . 154 4. The Conversion and the Gro'wth of Unity in the National Church: for a century and a half the Teutonic conquerors of Britain remained heathens. Latin Christianity and its conquests ; Kent the first Christian kingdom . . 155 Gregory's plan of ecclesiastical organization ; London and York ; ^Ethelberht un dertakes to propagate the faith ; conversion of the East Saxons ; East Anglians reject the new faith ; Eadwine of Northumbria ; his conversion followed by that of the Deirans 156 Penda and the heathen reaction ; Celtic Christianity and its conquests; tribal life of Ireland ; St. Patrick ; elsewhere the church becomes national and episcopal ; in Ireland it becomes tribal and monastic 1 57 Celtic monastery at Hii; Oswald; missionaries from Hii convert Northumbria; conversion of the West Saxons; conversion of the Mercians and East Saxons . 158 Battle of the Winwaed (655) breaks the power of English heathenism ; Synod of xxii CONTENTS. Whitby (664) ; English church accepts Christianity in its Latin form ; organiza tion of the English church by Theodore 159 " He was the first of the archbishops whom the whole English church consented to obey ; " annual councils at Clovesho ; Theodore breaks up the great dioceses into smaller sees . '60 Primacy of Canterbury; York; Theodore's work completed under Eadward the Elder. The unity of the church foreshadows the unity of the state ; the church councils the first national gatherings 161 5. The Struggle for Supremacy between Northumbria, Mercia, and Wessex: supremacy of Northumbria; Eadwine the first Northumbrian bret- walda ; overthrown at Hatfield in 633 ; Oswald reestablishes Northumbrian su premacy 162 Oswiu finally unites Bernicia and Deira ; Northumbria gives place to Mercia . 163 6. Supremacy of Mercia: ^Ethelbald; Mercian supremacy broken by Wessex in 754; Off a rebuilds the Mercian power 163 Cenwulf ... 164 7. Final Supremacy of Wessex : Cerdic and Cynric first kings of the West Sax ons; battle of Deorham (577) secures the Severn Valley 164 Defeated by the Welsh in 584 ; internal dissensions weaken Wessex for two centu ries; Welsh in their rear remain unconquered until 815 ; Ecgberht, the eighth and last bretwalda ; visits the court of Charles the Great; ascends the throne of Wessex in 802 .... 165 Final conquest of Cornwall (815) ; overthrow of Mercia and Northumbria ; Ecg berht unites all the English kingdoms under the sway of Wessex . . .166 8. From Ecgberht to Eadgar (829-958) 166 The Danish invasions ; at first mere plundering raids ; the period of conquest and permanent settlement; Alfred and the Danes; Peace of Wedmore in 878 . 167 The Danelagh ; all England outside of the Danelagh grows into a compact king dom ; Eadward the Elder begins, and ^Ethelstan completes, the conquest of the Danelagh 168 Eadgar the Peaceful finally unites Engle, Saxon, and Dane under his sway ; Britain becomes Englaland, — " Wessex has grown into England " 169 CHAPTER V. CONSTITUTION OF THE CONSOLIDATED KINGDOM. 1. The Shire System : its growth a vital element in the process of national develop ment ; the early shire formed by a union of townships ; the modern shire identi- tical with the primitive state 170 With the triumph of Ecgberht the work of consolidations begins ; " The state of the seventh century became the shire of the tenth, while the shire of the seventh century became the hundred of the tenth " 171 Historical origin of certain of the modern shires 172 2. An Outline of the Constitution in the tenth Century : central powers of the state vested in the king and witan; local administration, in the shires . .172 The folk-moot survives as the shire-moot, — early shire-moot as the hundred-moot ; classification of the central powers of the state in accordance with moderrf ideas 173 3. The Executive Power— the King. Saxons, and all other tribes that en- 1 in the Conquest, non-monarchical 174 CONTENTS. xxiii Kingship in Britain an outgrowth of conquest ; right of election limited by the hereditary principle ; growth of the new kingship 175 Peace and justice belong at first, not to the king, but to the folk. In the growth of kingship is involved all the elements of constitutional life. The comitatus . .176 Relation of lord and man : the king becomes the lord of his people ; so recognized in the early laws ; the national peace becomes the king's peace ; the king becomes the source or fountain of justice 177 The folk-land becomes terra regis. Growth of territorial lordships . . . 178 The dependent village community becomes the manor after the Conquest . . 179 AU the elements of feudalism exist before the Conquest. The movement from the personal to the territorial organization : the free community passes through " the process of feudalization " 180 Nature and extent of the royal authority ; Eadgar; the king's wergild . . . 181 Royal revenue not contingent upon legislative grants ; dues in the form of rents ; receipts from fines ; treasure-trove and the like 182 4. The Legislative Power : the king and the witan 182 The folk-moot ; the witenagemot ; likeness between Old-English and Achaian as semblies 183 The folk-moot shrinks up into the witenagemot ; composition of the witan ; every freeman probably retained the abstract right to be present in the national assem bly ... 184 Witan composed of the king and the magnates ; Witan of Wessex becomes the Great Council of the Empire ; usually consisted of about a hundred members . 185 Powers of the witan ; king legislates with the counsel and consent of the witan ; character of the early laws ; taxation 186 Danegeld ; ecclesiastical legislation ; treaties and alliances 187 Alienation of folkland ; bookland converted into folkland ; the folkland becomes terra regis 188 The witan could elect the king ; nearest relative of the last king usually chosen, when fit ; the witan could depose the king 189 Deposition of Alchred, of Sigeberht, of Eadwig, of ^Ethelred .... 190 5. The Judicial Power : the witan and the local courts ; all primitive Teutonic courts popular assemblies 190 In the home-land justice administered in the hundred court and state assembly. The tun-moot possessed only quasi judicial functions 191 The burg-gemot identical with the hundred court 192 The hundred court ; identity of modern hundred and early shire ; the word " hundred " as applied to the territorial district, first occurs in Eadgar's law; constitution of the hundred court 193 It met monthly ; head officers of the hundred. Police organization : the frithborh or peace-pledge ; self-help ; right of feud 194 Agency of the family in the prevention of crime ; all fines divided between the state and the injured person or his relatives 195 Wergild or life-price unit in the system of compensation ; the family or maegth as a police organization ; decline of its influence 196 New police system embodied in tithings and hundreds as numerical divisions . 197 Numerical divisions merge their functions in townships and territorial hundreds ; frithborh (peace-pledge) incorrectly translated by Norman lawyers into frank pledge. The shire-moot '9^ Headship of the shire divided between the ealdorman and sheriff; the term"ge- refa" »» xxiv CONTENTS. Sheriff the nominee and steward of the king ; the constitution of the shire-moot ; the bishop sat in it to declare the ecclesiastical law ; ancient system of appeal . 200 Witan a supreme court of justice in both civil and criminal cases .... 201 6. Germs of Jury and Representative Systems imbedded in the local Courts : local courts survive the Conquest ; embryonic forms of the representa tive principle 202 Shire and hundred courts both representative assemblies ; the "judices " . . 203 Probable origin of the jury of presentment ; origin of the trial jury ; archaic legal procedure 204 Teutonic conception of proof ; three independent means of proof, — oath, ordeal, and documents ; transaction witnesses 205 Community witnesses ; inquest of proof introduced by the Normans . . . 206 Documents and the ordeal ; absence of an equitable jurisdiction ; strictness of the common law modified by compromises ; prominence of the representative prin ciple 207 "7. Private Jurisdictions : sacu and sdcn 207 Private law courts certainly existed before the Conquest ; product of " the process of feudalization ; " the profits of jurisdiction (sdcn) first granted . . .208 Next, jurisdiction (sacu) itself; controversy as to the time of the origin of private jurisdictions 209 A grant of sac and soc usually conferred the right to hold a private hundred court. Origin of the manorial system 210 Court baron ; court leet; customary court 211 T8. From Eadgar to William (958-1066) : National unity and the feudal tendency to destroy it ; royal authority prematurely developed ; weakened by the counter- force of the feudal and provincial spirit 212 Influence of the personal character of the king ; struggle between the crown and the local magnates, in which the defensive power of the nation was broken . . 213 The last Danish invasion ; Swegen 214 Cnut ; his election as king of all England ; divides the kingdom into four earl doms 215 The cry for Eadgar's law ; Harold and Harthacnut ; last division of the realm be tween two acknowledged kings. Eadward the Confessor ; Godwine . . . 216 Harold elected king ; national consolidation completed through the Norman con quest 217 BOOK II. THE NORMAN CONQUEST. CHAPTER I. THE NORMAN DUCHY AND ITS DUKES. 1. The Kingdom of the West Franks : partition of the empire of Charles the Great; inroads of the Northmen .218 The bulwark of Gaul against the invader ; hundred years' struggle between Paris and Laon .......,.,,, t .210 CONTENTS. xxv 2. The Danish Settlement at Rouen: planted by Rolf in 911 . . . .219 Origin of the Norman Duchy ; first collision between Normandy and England ; birth of William the Bastard in 1027 or 1028 220 3. Origin and Character of Feudalism in Gaul : the Roman and Christian sub structure ; real character of the Frank conquests 221 Frank political organization ; the vill ; the hundred ; the province ; the king ; the national assembly. Feudalism par excellence of Frank origin . . . .222 Feudalism as a system of land tenure : lord and man ; commendation ; the bene- ficium 223 Feudalism the product of the union of the beneficiary system with that of com mendation ; benefices become hereditary ; Capitulary of Kiersi. Feudalism as a system of government: provincial magistracies become hereditary; growth of immunities 224 Sovereignty of provincial lords ; the central authority reduced to a mere shadow 225 4. Internal Organization of the Norman Duchy : dukes probably ruled with the advice of a council of magnates 225 Duchy becomes French, Christian, and feudal ; relations between the duke and his baronage 226 5. Normandy and England 226 Marriage of ^Ethelred and Emma ; after jEthelred's death Emma married Cnut ; Harthacnut the issue of the marriage ; election of Eadward the Confessor, Em ma's son by ^Ethelred 227 Growth of Norman influence in England ; William's first visit to England ; Ead- ward's alleged promise to William, — its constitutional value .... 228 National reaction against Norman influence ; the election of Harold, which Wil liam refused to recognize ... ....... 229 6. William's Conquest of England 229 Harold retains the West Saxon earldom, — Eadwine and Morkere, the earldoms of Mercia and Northumberland ; Norwegian invasion ; the fight at Stamfordbridge ; William lands at Pevensey ; treachery of Eadwine and Morkere disables Harold 230 Election of Eadgar after Harold's fall ; crown offered to William ; his election and coronation ; the duke of the Normans becomes king of the English . . . 231 CHAPTER II. THE NORMAN KINGS OF ENGLAND. 1. The Double Origin of William's Kingship : its national aspect ; its feudal aspect 232 The national revenue ; the feudal revenue ; William's anti-feudal policy ; he strengthens the royal authority and consolidates the kingdom .... 234 2. Gradual advance of the Conquest : submission of southeastern England ; conquest of the west and north 234 Devastation of the north as recorded in Domesday; the Conquest not complete until 1070 235 3. The Work of Confiscation and Regrant : theory under which English lands were forfeited ; main body of the people undisturbed in their possessions . . 235 Folkland becomes terra regis; estates of great men generally forfeited; no new kind of tenure systematically introduced by William 236 xxvi CONTENTS. No immediate change in the nature of military service 237 4. Elements of Feudalism imbedded in the Old-English System: manorial system originates in Old-English and not in Norman law 237 An embryonic feudalism prior to the Conquest ; Norman feudal ideas more fully developed ; their influence upon the growth of the idea of tenure ; the king be comes the supreme landlord 238 Feudalism hardens into a methodical system under William Rufus . . .239 5. Effects of the Conquest on Central Organization : the king and the witan ; continuity of the national assembly unbroken by the Conquest . . . .239 Testimony of a chronicler who had lived at William's court ; the witan as the great council retains all of its old powers 240 Elective kingship finally yields to the doctrine of hereditary right ; taxative and ju dicial powers of the great council ; its power to regulate ecclesiastical business ; a great practical transformation .......... 241 The national assembly becomes a feudal court subject to the king's pleasure. Growth of the inner council, — curia regis ; a standing committee of the greater body 242 Early history of the council obscure ; ennobling effects of menial services rendered to royalty ; ducal household of Normandy prototype of royal household of Eng land 243 New ministerial officers, — the justiciar ; the chancellor 244 The treasurer. The curia regis the source of the entire judicial and administra tive machinery of the constitution ; the curia as a legal tribunal .... 245 The financial session of the curia, — the exchequer ; the leading subjects of revenue ; exchequer records . 246 Origin of the itinerant judicature ; justices from the Norman curia sit in the Old- English shire-moots ; financial visitations followed by judicial .... 247 Fusion of Norman and Old-English judicature. The breaking up of the curia re gis ; beginnings of the king's bench as a distinct tribunal 248 Common pleas fixed at Westminster ; the final division into three distinct courts. Judicial supremacy of the king in council ; classification of petitions . . . 249 The chancellor ; his common law jurisdiction ; his equitable jurisdiction ; his court becomes a distinct tribunal ; equity one of the agencies by which strict law is adapted to the expanding wants of society 250 Maine's view : " Legal Fictions, Equity, and Legislation." The privy council . 251 Its judicial functions, as developed in the star chamber ; its administrative, as devel oped in the cabinet 252 6. Effects of the Conquest on Local Organization: the township, hundred, and shire ............... 252 The township as the manor ; the word " manor " of Norman introduction, but the manorial system of Old-English origin ; number of manors at the date of the Survey 2J3 Manorial courts ; liberties or honors. Courts of the shire and hundred kept up by William ......... 2C4 Employed for fiscal purposes by William Rufus and Henry I. ; composition and procedure of shire-moot unchanged, — with the addition of trial by battle . . 255 Survival of the hundred court. Centralization of justice and the growth of immu nities undermine the ancient local courts ; how the king came to be regarded as the source of justice " ,.g Instances of royal interference with local justice prior to the Conquest"; after the Conquest such interference by special writs ripened into an established' custom . 257 CONTENTS. xxvii Ancient presidents of the shire disappear ; their places filled by royal officers ; the itinerant system firmly established in the reign of Henry II. .... 258 7. Effects of the Conquest on Ecclesiastical Organization: . . . 258 Deposition of the native prelates ; English Church drawn into greater dependence upon Rome ; William's restrictions upon the papal power ..... 259 Severance of ecclesiastical from temporal business. Creation of a distinct system of ecclesiastical courts 26b Systematic study of the canon law begins in the reign of Stephen. Distinct ecclesi astical councils 261 During the primacy of Lanfrancsuch councils met frequently ; William limits eccle siastical legislation. Diocesan and provincial councils 262 Diocesan organization ; the system completed under Eadward the Elder ; national councils short-lived 263 Government of the church finally passed to convocations of Canterbury and York ; representation of the clergy in parliament 264 8. The Domesday Survey 264 Causes which brought it about ; chronicler's entry under the year 1085 . . . 265 Manner in which the Survey was taken ; William treated as the immediate successor of Eadward ; unit of inquiry the manor 266 Manorial group divided into two classes ; fewness of free tenants ; tenants in vil- lenage constitute the bulk of the population ; Norman lords fail to recognize in practice the degrees of villenage 267 9. Gemot of Salisbury : weakness of the royal authority before the Conquest ; Wil liam remedies old evils and guards against new ones 268 Disruptive tendency of Frank feudalism ; William makes himself every man's im mediate lord 269 10. William Rufus, — the Gro'wth of Feudal Tenures: revolt of the Norman nobles crushed by the aid of the English 270 Flambard becomes justiciar and systematizes military tenures, which are applied to estates of the church 271 The body of the people oppressed through the local courts 272 11. Henry I., — the Administrative System 272 Henry's charter the parent of the Great Charter ; Henry's marriage with Margaret 273 Creation of a new ministerial nobility ; Bishop Roger of Salisbury ; he organizes the curia into a strong judicial and ministerial body 274 And also invigorates the local courts 275 12. Stephen, — the Anarchy : the oath to Matilda ; the Angevin marriage . . 275 Election of Stephen, — his charters; civil war begins; wail of the Peterborough Chronicler ; barons exercise sovereign rights 276 Treaty of Wallingford ; death of Stephen and accession of Henry of Anjou . 277 CHAPTER III. HENRY OF ANJOU — THE PERIOD OF FUSION. 3. The growing together of Old-English Local Machinery and Norman System of Central Administration 27& The modern constitution the outcome of the fusion ; superstructure Norman, sub structure Old-English 279 xxviii CONTENTS. Norman central system the outgrowth of the new kingship ; central and local sys tems first drawn together through the visits of the itinerant justices . . .280 Commixture of royal and customary law; origin of the trial jury; union of races 281 Fusion complete at the accession of Henry II 282 2. The Restoration of Order 282 3. The Institution of Scutage or Shield-money 283 Assize of arms 284 4. Henry's Effort to establish the Reign of Equal Law: conflict with the clergy 284 Becket as primate ; first quarrel between Thomas and the king touching taxation ; Thomas the forerunner of Hampden 285 The second quarrel touching clerical immunities ; council at Clarendon . . 286 Constitutions of Clarendon the concordat between church and state . . .287 Permanent results of the constitutions ; Thomas's reluctant assent and exile . 288 4 Reorganization of the Central System : the national council a perfect federal court ; its relation to the witenagemot 289 Influence of the practice of summons ; the practice as defined in the 14th article of the Great Charter ; form of the summons draws the line between lords and com mons ... 290 King legislates as of old with the advice and consent of his council, — charters, assizes .... . 291 Provisions, statutes, and ordinances 292 6. Taxation under the Old-English, Norman, and Angevin Systems: the Danegeld or land-tax 292 Old-English unit of assessment the hide ; extent of the normal hide ; talliage . 293 Hidage and carucage different forms of Danegeld. Taxation under the Norman system ; gradual development of military tenures 294 The Great Survey based upon hides and carucates ; growth of the system of knights' fees out of the older system of hides 295 The army composed of both feudal and national elements ; scutage. Excepting the customs, all taxes fell upon land . 296 While the hide remained the unit of assessment, Domesday the rate-book of the kingdom ; new expedient for ascertaining the number of knights' fees . . .297 Taxation of personal property; assize of arms (1181); the Saladin tithe of 1188 assessed by local jurors ; lands assessed in the same way in 1 198 . . .298 Taxation and representation. Indirect taxation, — the customs ; tax on imports ; tax on exports 299 Exclusive right of parliament to authorize taxation ; first formal discussion of a grant in the Council of Oxford in 1 197 300 7 Reorganization of the Curia Regis : its financial overshadowed by its judicial aspect 30I In 1 176 the staff consisted of eighteen justices; in 1178 reduced to five ; the king's bench as a distinct tribunal ; Dialogus de Scaccario ; Tractatus de Legibus Anglia 302 8. Reorganization of the Provincial System, — the Local Courts : shire and hundred courts not only popular but representative assemblies ; delegation of judicial authority ,0, Attendance enforced by fines ; Schoffen, Scabani, or Echevins ; ordinance separat ing spiritual and temporal courts ,0. Attendants of shire and hundred courts ,0» CONTENTS. xxix Composition for non-attendance ; reorganization of the local courts. Assize of Clarendon, 1 166; presentment of criminals prior to the assize . . . .306 Scheme of presentment contained in the assize ; the accused required to go to the ordeal ............... 307 Assize of Northampton, 1176; primitive form of the grand jury ; its later develop ment. Use of the petty jury in criminal cases 308 Trial by ordeal forbidden by the Lateran Council ; compurgation superseded by ordeal 309 The petty jury takes the place of both ; that result reached by the end of the thir teenth century 310 By the end of the fifteenth appears the trial jury of modern times. Trial by battle j usual mode of prosecuting murder down to the close of the fifteenth century ; Ashford v. Thornton, 1818 ; " appeals " not abolished until reign of George III. 311 Assize of Arms, 1181 ; ancient military force of the shire reorganized and rearmed; the militia of modern times. Assize of the Forest, 1184 312 Royal hunting-grounds in the days of Cnut ; forest regulations of the Norman kings; Assize of Woodstock, 1 184 ; a forest a special jurisdiction or franchise outside of the common law 313 Organization of the forest courts ; courts of the Forest of Knaresborough . . 314 9. Development of the Itinerant Judicature and the Origin of Juries . 314 Typical English law court the product of the union of the curia and shire-moot : Old-English judicature ; influence of the local courts ; but little interference from the central authority 315 Centralization of justice after the Conquest ; the writ process .... 316 The king's courts sitting in the shires; judicial iter of 1096 317 Itinerant system became a permanent institution under Henry II. ; its complete or ganization generally dated from 1 176; arrangement of circuits; meaning of the term Nisi Prius 318 Decline of the judicial powers of the sheriffs ; 24th article of the Great Charter. The courts of assize distinguished from the ancient county courts . . . 319 A full representation of the county convened to meet the itinerant justices ; the county assembly now represented only by the grand and petty jurors ; how the change was brought about 320 Old-English legal procedure ; private summons ; the issue ; the burden of proof ; four means of proof known to the customary law 321 A new means of proof (trial by battle) added by the Normans; how the form of trial was determined. Origin and history of juries 322 The trial jury the product of the union of Old-English and Norman elements ; jurors originally witnesses and nothing more ; history of the jury divided into two epochs 323 The barbaric theory of proof; witnesses swore only to the assertion of their chief; transaction witnesses ; community witnesses ; they spake the voice of the commu nity as to the fact in question 324 Community witnesses after the Conquest. The inquisitio per testes derived by the Normans from the Franks, who probably took it from the Theodosian code . 325 An inquisition a royal inquiry executed in a local court through the oaths of wit nesses ; difference between customary witnesses and those of the inquest ; Domesday the fruit of a vast royal inquest 32" Same system applied in William's day to the trial of private cases involving land; a simple inquisition of the Norman period 32? XXX CONTENTS. The community witnesses now appear in a new relation ; whether produced by a party or convened by an officer, they were the same body of men. Recogni tions, — how they differed from a simple inquisition 328 Introduced by Henry II. under the name of assizes ; nature of the Great Assize 329 A substitution for trial by battle in suits for freeholds ; recognitors mere witnesses 330 In England only was the jury of proof transformed into the jury of judgment ; trial by jury gradually superseded aU other methods of trial 331 As the fittest it survived 332 CHAPTER IV. THE WINNING OF THE CHARTERS. 1. Growth of the Royal Authority after the Conquest ... . . .334 Centralization of justice and finance 335 Origin and character of the struggle for the charters 336 2. Rise of the three Estates,— the Clergy, the Baronage, and the Com mons : estate system denned ; clergy, baronage, and commons, and not king, lords, and commons 337 King not an estate. Estate of the clergy ; effects of the Conquest on the national church 338 Gregory VII.'s effort to make the clergy a distinct order ; ecclesiastical policy of William and Lanf ranc ; growth of the canon law .... ... 339 Ecclesiastical divisions of the kingdom : the province ; the diocese and its subdi visions 340 The archdeacon's court ; the bishop's court ; the archbishop's court ; court of pe culiars ; court of delegates 341 System of appeal. Matrimonial and testamentary causes. The new system of ec clesiastical councils 342 National councils short-lived; provincial convocations of Canterbury and York ; " convocation is the miniature of parliament "....... 343 Its power to legislate ; Mr. Gladstone's view. Election of bishops ... 344 Origin of chapters ; election of English bishops in the early days . . . .345 Their election after the Conquest ; the question of investiture ; Concordat of Worms, 1122 346 Anselm and Henry I. Rome and the pallium 347 Appeals to the papal court in • disputed elections ; John and Innocent III. Sum mary " . 348 Estate of the baronage identical with the house of lords 349 1 Distinction between English and continental nobility ; the witan survives as the house of lords 350 Continuity of the witan ; a practical transformation wrought by the Conquest . 351 The ancient assembly becomes the king's court of feudal vassals ; practice of sum mons as defined by the Great Charter 352 Every peer supposed to hold a barony directly of the king j nature of the baro nial tenure ,«, Barony by summons ; feudal rule of primogeniture ; the right to be summoned be comes hereditary. The lords spiritual ,,. Estate of a bishop or abbot regarded as a fief ; title of "barones" added to that of " sapientes." Estate of the commons ,.. CONTENTS. xxxi The term " commons '• as understood upon the Continent ; as understood in Eng land ; representatives of English shires and towns unite in the house of com mons ^ ,r6 Summary ,ct 3. Pressure of the Royal Authority upon every Class in the Reign of Richard L : taxation under Henry II. ; land taxes, — hidage and scutage , tax ation of personal property 358 Taxation under Richard I. ; administrations of the justiciars .... 359 The effort to raise ,£100,000 for Richard's ransom; Richard's second and last visit to England 360 Visitation of the justices in 1194; popular rising under Fitz-Osbert; opposition of the baronage to taxation in 1 198 361 The patriot bishop of Lincoln ; clerical opposition to taxation ; assessment of real property 362 Clergy practically outlawed 363 4. From the Accession of John to the Loss of Normandy in 1204 . 363 The right of succession ; coronation speech of Archbishop Hubert ; Arthur's mur der in 1203 364 Loss of Normandy and its political results ; the new ministerial nobility . . 365 The baronage assume the leadership of the nation 366 5. From the Loss of Normandy to the signing of the Great Charter at Runnymede : the character of John 366 Powerlessness of the crown when opposed by the three estates ; the great quarrel over the appointment of primate 367 Decision of Innocent 368 He claimed the right of nomination. Theory of the mediaeval empire : Roman Empire and Catholic Church two aspects of a single Christian monarchy; contin uous existence of the Roman Empire the key to mediaeval history . ¦ . 369 Dante and St. Thomas as disputants ; mediaeval claim of papal supremacy as re stated by Cardinal Manning ; the papal supremacy naturally assumed a feudal shape 370 John refused to receive the new primate; the interdict, March 23, 1208; John breaks with the clergy 371 The excommunication, 1209; the deposition, 1212; defection of the baronage . 272 John submits to Innocent, May, 1213; surrenders his kingdom and takes the oath of fealty, and is delivered from his enemies 373 John's quarrel with the nobles ; taxation of the baronage and military service . 374 The barons refuse to serve abroad 375 Council at St. Albans, August 4, 1213; representatives from townships summoned. Geoffry Fitz-Peter recurs to the laws of Henry I. ; in the council at St. Paul's Langton reads the charter of Henry I. 376 First representative parliament. The years 1214 and 1215; John's expedition to Poitou ; defeat at Bouvines, and truce with Philip 377 Meeting of the barons at St. Edmund's, November, 1214; reassemble in arms in January, 1215, and make a truce with the king until after Easter . . .378 In Easter week they meet again at Stamford ; "Army of God and Holy Church" marches on London ; John's surrender 379 Great Charter of Liberties signed at Runnymede, June 15, 1215 . . • 380 6. Analysis of the Great Charter : a compact between the crown and the estates — a national act — the consummation of the work of union .... 380 xxxii CONTENTS. A summing up of the traditional liberties of the EngUsh nation ; completion of the estate system .',.'.' Richard and John claimed that the will of the prince was the law of the land; the nation claimed that it was the laws of King Eadward as amended by King Wil liam ; the effort to fix the limits of innovation 382 Each estate covenants for its special rights, while the nation covenants for the com mon rights of all. The church granted free elections. The baronage relieved of many feudal burdens by the crown; the same burdens removed from their under tenants 3 3 Aid and scutage limited; reliefs, wardship, and marriage regulated . . .384 A restraint upon alienation, 1217. The commons : English middle class embraced all freemen below baronial rank 3°5 Privileges of London and of all other cities and towns guaranteed ; rights of the shire communities; rights of merchants and of simple freemen. Provisions which relate to the nation as a whole 3&° The constitution of the national council defined ; no taxation without its consent 387 Reforms in the judicial system .388 General principles to govern the administration of justice ; amercements ; writ of praecipe ; writ of inquisition ; criminal accusations 3°9 Intestates ; collection of the king's debts ; the forest code. Miscellaneous provi sions. Articles of a temporary nature 39° Guarantees for the enforcement of the charter. Signing of the charter marks the beginning, not the end, of a conflict ... 391 The struggle continues for more than eighty years ; duplicity of John ; the barons condemned at Rome 392 Innocent condemns and annuls the charter ; the king renews the struggle ; the French invasion, May, 1216 393 John dies, October 19, 1216 394 7. Outline of the Constitutional Struggle during the Reign of Henry III: First regency since the Conquest ; William Marshall appointed regent ; reissue of the charter with certain serious omissions 394 Defeat of the French ; treaty of Lambeth, September, 1217 ; second reissue of the charter; Charter of the Forest; administration of Hubert de Burgh, 1219-1232 395 Third reissue of the charter in 1225 ; Henry completes his emancipation in 1227 ; a resident continual council can be traced from Henry's minority . . . 39° Ministerial responsibility, and the doctrine that the king can do no wrong, dates from this time ; Langton dies in July, 1228 ; Peter des Roches. Henry's personal rule '. 397 The justiciar ceases to be viceroy and becomes simply the head of a law court ; foreign influences at work ; conflict between the crown and papacy on one side and the English church and nation on the other 39^ Earliest authorized report of a parliamentary debate, 1 242 ; the proposed reform of 1244; from 1244 to 1254; knights of the shire reappear in the parliament of 1254 399 Disclosure of the king's debts to the parliament of 1237. The Barons' War, 1258- 1272 ; Simon of Montfort 400 Provisions of Oxford, 1258; Provisions of Westminster, 1259 .... 401 Knights of the shire in the parliament of 1261 ; award of St. Lewis; battle of Lewes, May, 1264 402 Knights of the shire in the parliament of 1264; famous parliament of 1265, to which representatives are for the first time summoned from the cities and towns . 403 CONTENTS. xxxiii Battle of Evesham, August, 1263. Dictum de Kenilworth, October, 1266 ; Statute of Marlborough, November, 1267 404 8. From the accession of Edward I. to the enactment of "Quia Emp ires " 405 Statute of Westminster First, 1275 ; free elections ; reform of legal procedure . 406 Statute of Gloucester, 1278 ; statute of mortmain, 1279 407 Remedy for evasions of statute ; conquest of Wales, 1282-83 • • ¦ .408 Statute of Merchants, 1283; incorporation of Wales with England . . .409 Statute of Winchester, 1285 ; Statute of Westminster Second, 1285 ; bill of excep tions ; restraints upon alienation 410 Restraints in favor of the family ; a grantee of bookland 411 Restraints in favor of the lord ; estates tail ; Taltarum's case ; Statute of Westmin ster the Third, 1290 412 Edward's fame as <± legislator. Growth of the common law; Glanvill; Bracton 413 Influence of the imperial and pontifical jurisprudence ; Britton and Fleta ; Mirror of Justices ; Fortescue ; Littleton ; Coke 414 Judicial decisions become a source of law ; records of adjudicated cases exist from the time of Richard I.; the Year Books 415 9. Parliament as an Assembly of Estates 415 Election and representation ; the shire court ; representatives of the shire in the national council 416 Representatives from cities and towns first appear in the parliament of 1265 ; growth of the estate system synchronizes with that of the representative system ; the model parliament of 1295 . . 417 10. Close of the Constitutional Struggle with the final Confirmation of the Charters in the 25th of Edward 1 418 Conquest of Scotland ; the bull " Clericis laicos ; " attack upon the clergy, January, 1297 ; quarrel with the baronage 41 g Edward's extreme measures ; resistance under the leadership of Bigod and Bohun ; confirmation of the charters promised 420 The king makes peace with the archbishop ; the omitted provisions of the Great Charter ; Edward's extreme measures produce the counter-movement led by the earls 421 Who resist the coUection of the unauthorized taxes ; close of the struggle ; char ters confirmed at Ghent, November 5, 1297, — " Confirmatio Cartarum " . . 422 Provisions of the new articles as to taxation ; exclusive right of the nation to au thorize taxation finally admitted by the crown. Summary 423 BOOK III. THE GROWTH AND DECLINE OF PARLIAMENT. CHAPTER I. HISTORY OF PARLIAMENT FROM EDWARD I. TO HENRY IV. 1. Place of the English Parliament in the History of Institutions: repre sentative government a Teutonic invention 4^ It survives in England only among the Teutonic nations ; English bicameral sys tem first reproduced in the English states in America 429 xxxiv CONTENTS. And then in most of the states of Continental Europe 430 2. Continuity of the History of the English Parliament : the primitive na tional assembly survives as the house of lords ; house of commons the product of the representative principle imbedded in the organization of the shires and towns 430 Two great stages of transition; historical origin of the witenagemot ; it survived the Conquest 431 And passed thereafter through a great practical transformation; it became the king's court of feudal vassals ; influence of the practice of summons . . .432 The line thus drawn between lords and commons; constitution of the feudal council modified by the growth of the estate system 433 Primary assemblies die out everywhere but in England 434 3. Effects of the Process of Feudalization upon the National Council: English peerage identical with the house of lords 434 The holding of an estate by barony the original qualification for personal summons, although the special writ did not necessarily follow such tenure ; the hereditary right to receive the writ the real basis of peerage ; feudal rule of primogeniture ; peerage by writ descends by operation of law to the heirs of the person ennobled 435 Heiresses ; degrees of dignity in the peerage ; earls and barons only prior to Ed ward III. ; a duke created by patent ; a baron created by patent in 1387 . . 436 Peers created by the king in Parliament ; bannerets. Legislative and judicial pow ers of great councils of Norman and Angevin kings 437 Survival of " counsel and consent " 43^ 4. Judicial Powers of the House of Lords: relation of the continual to the great council 43^ All ordinary causes decided by the continual council, or by the courts born of it ; only extraordinary causes remain for the judgment of the peers. House of lords as a court of peers for the trial of its own members ; statute of 15 Edward III . 439 A peer may be tried like a commoner for a misdemeanor : the lord high steward and his court 44° House of lords as a high court for the trial of all persons impeached by the com mons ; proceedings against the lords Latimer and Neville 441 Private accusations by " appeal " abolished by Stat. Hen. IV. c. 14, 2 ; impeachments becoming obsolete ; the law of impeachment as finally settled . . . • 442 House of lords as a court of error in civil cases . 443 5. House of Commons the Product of the Representative Principle im bedded in the Organizations of the Shires and Towns . . .443 How the main body of the people as thus organized win the right to participate in national affairs ; the commons refuse to participate in judicature, except in at tainders and impeachments 444 Representatives of the commons take their place in parliament as a part of the estate system 445 6. Origin and Structure of the Shire and Town Communities . . 445 Modern shire an aggregation of hundreds ; the representative principle at work in the shire ; shire system survives the Conquest 446 The shire under the Norman name of county ; Old-English shire-moot brought into contact with the Norman curia regis ; a full assembly of the shire met the jus tices itinerant 447 Agenda of the iter of 1194. The sheriff becomes the executive head of the shire ; de cline of the judicial powers of the sheriffs; coroners of the thirteenth century; right to appoint the sheriffs 448 CONTENTS. xxxv Office for a time elective; finally appointed by the exchequer; the coroner; the office stiU elective ; venderers 440 The shire the training-school of the English people in self-government ; election and representation employed in every branch of business ; presentment of crim inals ; the system of recognitions 4 m Representation comes into contact with taxation when personal property is brought under contribution ; Saladin tithe assessed by local jurors; a method of assess ment soon extended to real property. The shire police system . . . 451 The " view of frank-pledge ; " the manorial court leet j sheriff's tourn and leet ; busi ness of the courts leet as county police courts 452 Justices of the peace ; judicial functions conferred in 1344 453 Court of quarter sessions ; high and petty constables. Origin and structure of the ' English town 454 Township system the basis of the municipal system ; Roman municipalities perish ; the burgemot another form of the hundred court 455 All the elements of municipal life drawn from a Teutonic source ; the township as the parish ; as the manor 436 Relation of the town to the constitution of the hundred ; sac and soc ; the corporate body of Birmingham the sheriff and court leet fifty years ago ; cities as " coun ties corporate " 457 London as a distinct shire ; as a standard for imitation. The gild . . . 458 Uncertain origin of the gild system ; oldest detailed account of gild organization English ; tendency of gilds to consolidate 459 The " town gild " becomes the " merchant gild ; " its relation to the town ; gild law becomes town law ; the gild hall becomes the town hall 460 The struggle for emancipation from sheriff and lord ; the firma burgi . . . 461 The towns appeared in full county court by representatives ; purchase of commer cial privileges ; the towns win the right to elect their own magistrates ; the leet jury . 462 The elective bailiff superseded by a " mayor ; " inherent power of the " communi- tas ; " incorporation implied by the grant of gilda mercatoria ; condition of things at the beginning of the thirteenth century 463 John's charter to London ; summary 464 Appearance of the Shire and Town Representatives in the National Council, and their final Union in one House: earliest writ summoning shire representatives to parliament, 1213 ; the writ of 1254; the assembly at St. Alban'sin 1261 465 Earl Simon's famous parliament of 1265 ; Edward's model parliament of 1295 ; knights of the shire elected by the whole body of freeholders in full county court ; 14th article of the Great Charter, — its probable purpose . . . 466 Elected knights appear instead of the whole body of minor tenants in chief; repre sentative character of the knights, as well as the qualification of the electors, determined by the character of the county court 467 Practice of election and representation in the county court ; first limitation upon the franchise, 1430. Representatives from towns on the royal demesne sum moned to the council at St. Alban's, 1213 468 Representatives from the cities and towns first summoned to parliament by Earl Simon in 1264; representatives from the towns first recognized as an integral part of parliament in 1295 469 Under the writ commanding the sheriff to return members from the towns, he could extend or withhold the privilege, «s he saw a 47° 'xxxvi CONTENTS. Reluctance of the boroughs to send members ; who were the electors of the bor ough representatives ; mediaeval history of English towns not yet fully worked out ; the sheriff's procedure under the election writ 471 The formal election of all representatives took place in the county court, while the real election of borough members took place in the boroughs themselves ; sher iffs required by law to send precepts to the proper officers of cities and towns . 472 Returns to be made by indenture ; the formal election in the county court ; the elec tors in a city were the citizens, in a borough the burgesses ; who were citizens and who were burgesses depended upon local usage, where not regulated by charter 473 Generalization of Bishop Stubbs ; Municipal Corporations Act of 1835 . . 474 Eligibility of the elected members ; representatives from shires not always knights ; residence made a qualification of both electors and elected, by statute of Henry V., which became obsolete ; formally repealed by 14 Geo. III. c. 58 . . . 475 Representatives required to give security for their attendance ; the plena potestas ; wages. The constitution of parliament established through the development of the writ process 47*> Parliamentary writs issued by the king with the advice of the council ; annual parliaments ; meeting place of national councils ; Westminster in the days of the Confessor ; in the days of the Norman kings ; Henry III. rebuilds the abbey and enlarges the palace 477 Westminster becomes the seat of government in the reign of Edward I. ; the meet ing of parliament, — opening speech ; triers of petitions appointed . . .478 It is probable that the three estates deliberated apart from the beginning, save when assembled for some special purpose ; lay and spiritual baronage perpetuate their separate organization in the house of lords, while the representative members unite in the house of commons ; parliament definitely and finally divided into two houses in the reign of Edward III 479 In 1352 commons ordered to the Chapter House ; in 1377 Sir T. Hungerford chosen speaker; the chancellor presides in the house of lords ..... .480 8. The Clergy as an Estate of Parliament: the prcemunientes clause . . 480 The clergy opposed Edward's plan from the beginning ; clergy taxed themselves in convocation until after the restoration of Charles II. ; Sheldonian compact of 1664 ; wherein the clergy renounced the right of separate taxation . . .48' They gain the right to vote for members of the house of commons .... 000 9. Early Participation of the Commons in Taxation : taxation, during the Norman period 482 Lay and spiritual baronage consulted in the great council, — the clergy through the archdeacons, and the commons through the county courts ; the exchequer officers, when negotiating with the shires, sat in the county court 483 The representative system, long familiar in the county courts, applied to national purposes ; the elected knights summoned to parliament as a matter of fiscal ex pediency 484 Representatives from the towns summoned for the same reason ; the struggle for municipal independence ; the firma burgi ; the "free aid" ..... 485 Transition from special to general consent in taxation ...... 486 10. Exclusive Right of Parliament to authorize Taxation: declaration of this exclusive right contained in Great Charter premature 486 Guarantees contained in the Confirmatio Cartarum ; right of the crown to talliage the towns on the royal demesnes 487 CONTENTS. xxxvii This right becomes extinct in the reign of Edward III. Parliamentary control over indirect taxes ; toll originally imposed directly upon the ship ; prisage ; origin of the duty on exports 488 Export tax on wool first fixed by the parliament of 1275 ; first legal foundation of the customs revenue, — " magna et antiqua custuma ; " the " nova " or "parva custuma 489 Before the close of the reign of Edward III. the right of parliament to control every form of taxation fully established. Feudal taxation resting upon individual consent transformed into national taxation resting upon general consent ; scu tage, talliage, and the three regular feudal aids become obsolete .... 490 Tax on personal property originally actual tenths and fifteenths ; assessment of 8 Edward III. ; the subsidy ; older feudal taxes supplanted by subsidies and fif teenths ; a general land tax, a uniform income tax, and a general tariff . . . 491 " Tunnage " and " poundage " 492 11. Participation of the Commons in Legislation: the great functions of gov ernment monopolized for a time by the king and his feudal council . . . 492 Right of the commons to participate in taxation drew after it the right to participate in legislation ; supply dependent upon the redress of grievances ; procedure by petition 493 Such petitions as demanded redress by the making of an ordinance or statute ; the statute coined out of the petition and answer ; nearly all legislation based on petitions during the fourteenth century ; right of the commons to assent to legis lation not clearly established until reign of Edward II 494 Abuses and uncertainties which grew out of the procedure by petition . . 495 Evils of the old system remedied by the introduction o£ bills in the form of stat utes ; transition from royal to national legislation. Difference between a statute and an ordinance ; ordaining power of the king in council, and the enacting power of the king in parliament ^96 In drawing to itself the control of legislation parliament stopped short of complete victory ; difference between a statute and an ordinance defined .... 497 12. Parliamentary Control over the Royal Administration : the minority of Henry III. the first since the Conquest ; an inner royal council ; responsibility of ministers to the nation in parliament ; Provisions of Oxford, 1258 . . . 498 Confirmatio Cartarum, 1297; the Lords Ordainers, 1310 499 Right of the baronage to the exclusive control of the royal administration ; grow ing power and influence of the commons ; they win the full right of deliberation in the reign of Edward III., assent to the treaty of peace with Scotland, and are consulted as to the war with France 5°° Hundred Years' War ; right to appropriate the supplies to special purposes . 501 Right to audit the public accounts S02 13. The Right of Impeachment: first clear case of a parliamentary impeachment, 1376; impeachment of Michael de la Pole ; doctrine of ministerial responsibility placed upon a definite constitutional basis 5°3 Legal fiction that the king can do no wrong 5°4 14. The Right of Deposition: the right of the witan to depose the king; a right never asserted by the feudal councils of the Norman and Angevin kings . ¦ 504 The right revived by the assembly of estates. Deposition of Edward II. ; the Lords Ordainers ; Edward's fate settled by the parliament of 1327 . • ¦ S°S Six articles drawn up by Bishop Stratford ; Edward assents to his son's election. Deposition of Richard II. ; his temper in youth . 506 Causes of the peasant revolt ; condition of the laboring classes at the beginning of xxxviii CONTENTS. the Black Death in 1348 ; population so reduced that hired labor became dear and scarce ; the council attempts to regulate the rate of wages by ordinance ; Statute of Laborers, 1349 507 Conflict between capital and labor intensified by the teachings of the LoUard preachers; the poll-tax; rising of the commons begins on the 5th June, 1381 ; the political grievance 508 The social grievance ; Wat Tyler and the Kentish men ; the men from Essex and the eastern counties ; Richard's pledges to the Essex men ; revolt lasted but little more than a fortnight 509 In spite of cruelty and repression the purpose of the revolt fully accomplished; within a century and a half after the rising, villeinage an obsolete institution ; yeo man class becomes the basis of the electoral system. The marked change in Richard's temper dates from the French marriage in 1396 510 He rebukes the commons and demands the name of the offending member ; a fresh definition of treason, 1397 ; parliament of Shrewsbury, January, 1398, made Rich ard practically absolute ; grant of a subsidy for life 511 Reaction which followed his usurpation cost him his crown and his life ; quarrel between Norfolk and Hareford ; Henry of Lancaster exiled and his estates con fiscated ; Henry lands in Yorkshire July 4, 1399 512 Procedure upon the deposition of Richard II. ; the question of the succession ; strict rule of hereditary descent not yet applied to the crown ; Henry's elevation the result of a parliamentary revolution 513 Authority of parliament reached the limit of its growth through the results of the revolution 514 CHAPTER II. HISTORY OF PARLIAMENT FROM HENRY IV. TO HENRY VII. 1. Review of the Growth of Parliament from the Conquest to the Ac cession of Henry IV.: the sum of governmental power originally vested in the king in council is reduced by a double process of subtraction ; greater part of the judicial work of the council transferred to the courts of law and equity . 515 Due process of law defined ; the assembly of estates draws to itself the control of the legislative, taxative, and fiscal business of the kingdom 516 •Five substantive rights possessed by parliament at the close of the fourteenth century ; neither process of subtraction exhaustive ; an undefined reserve of both judicial and legislative power remains to the king in council 517 A definition of the prerogative 518 2. Definition of Parliamentary Privileges the Work of the fifteenth Cen tury : privileges belonging to parliament as a whole ; origin of the modern form of legislation . . 518 Bills may originate in either house, except money bills and bills touching the peer age. Privileges belonging to the two houses separately all depend upon a single code jig Privileges of the lords ; right of audience with the sovereign ; presidency of the- chancellor ; right to vote by proxy ; right to be tried by peers, and freedom from arrest . . . C20 Privileges of the commons : right to elect a speaker ; his demand of the rights and privileges of the house . t2i CONTENTS. xxxix The modern form of the demand and response. Freedom of speech : Haxey's case 522 Young's case ; Strode's case ; case of Eliot, Holies, and Valentine . . .523 Question finally settled by Bill of Rights. Supply made dependent upon redress of grievances ; doctrine announced in the reign of Henry III. ; originally the grant preceded the redress . 324 Finally the grant is withheld until the petitions are answered. All money bills must originate in the commons ; king shall not take notice of matters debated in par liament pending the debate 523 Right of the commons to regulate elections 526 The franchise regulated by statute in 7 Henry IV. ; the disfranchising statute of 8 Henry VI 527 The commons regulate by law the sheriffs procedure in elections ; right of the com mons to try contested elections 528 Right originally vested in the king in council ; justices of assize given power to in quire into election returns 529 Right to determine validity of elections first asserted by the commons in the reign of Elizabeth ; right finally settled in the reign of James 1 530 Immunity of members of gemots and parliaments from personal molestation ; laws of /Ethelberht, Cnut, and Eadward 531 Statute of 11 Henry VI. Exemption from legal arrest and distress; Thorpe's case S32 Authority of the mace ; writs of privilege at first issued by the chancellor ; Ferrers' case 533 The privilege as defined by statute in 1770. Right of conference with the lords . 534 3. The House of Lancaster 535 Its right to reign based upon a parliamentary title ; the succession four times reg ulated by parliament during the reign of Henry IV 536 Henry IV. and the church, — the statutes against heresy ; state of the law prior to the statutes - 537 Wycliffe and the Lollards; statute of 1382 to which the commons did not as sent 538 The statute De Haretico Comburendo, 1401 ; the final and most cruel statute passed in 2d of Henry V. 539 Henry IV. and the commons ; their growing influence based upon the money power 54° The right to make supply depend upon redress finally established ; two vitally im portant principles of constitutional law defined in 1407 541 4. The Continual Council 541 A standing committee of the great council ; can be traced as a definitely organized body from the minority of Henry III. ; beginnings of the doctrine of ministerial responsibility 542 Growth of the doctrine that the crown should be controlled by the council, and the council by the parliament ; general scope of the council's duties ; its functions leg islative and judicial as well as executive 543 The council during the reigns of Edward II. and Richard II 544 The council after the accession of Henry IV. ; the commons request in 1404 that the members of the council be appointed in parliament ; council thus appointed upon the accession of Henry VI 545 Parliament imposes regulations upon the council and fixes the pay of its members j _ — xl CONTENTS. the sworn and paid councillors come to be known as the " privy council," during the reign of Henry VI 546 5. Origin of the Admiralty : office of admiral 547 Beginnings of the navy ; Old-English fleets ; the Conqueror and the Cinque Ports ; origin of the permanent fleet; the admiral as the president of the high court of admiralty ; code of sea laws which denned its jurisdiction ; Laws of Oleron . 549 Encroachments of the admiralty court upon the common law tribunals, — stat. 13 Rich. IL, stat. 15 Rich. IL, stat. 21 Hen. IV 550 Vice-admiralty courts in English colonies in America ; colonial governors made vice- admirals ; admiralty jurisdiction as ultimately denned in the United States . . 551 6. Henry VI. and the Dynastic Struggle known as the War of the Roses : Henry VI.'s the fourth minority since the Conquest . . . .552 A parliamentary regency established ; the struggle for supremacy in the council . 553 Legitimation of the Beauforts 554 Beaufort, who in 1424 had been made chancellor, in 1441 became chief minister ; Suffolk ; England loses her continental possessions ; the struggle between Som erset and York begins 555 Pedigree of Richard of York 556 An heir born to Henry VI., October, 1453 ; with the first battle of St. Alban's, May, 1455, civil war begins ; York becomes protector ; Margaret assumes the leader ship of the Lancastrian cause 557 Battle of Bloreheath, September, 1459 ; flight of York, Salisbury, and Warwick ; York triumphs at Northampton, July, 1460, and states his claim to the crown . 558 A compromise which secures the succession to the house of York after Henry's death ; York slain at Wakefield in December ; Edward IV. seized the crown and sceptre at Westminster, March 4, 1461, by virtue of his hereditary title . . 559 Decisive battle of Towton, March 29, 1461 560 7. Outline of the Constitution by Sir John Fortescue: all governments di vided into three classes 560 King of England a " rex politicus : " " Quod principi placuit legis habet vigorem " not an English maxim ; limitations imposed upon the crown by the parliamentary system tgl Parliamentary and jury systems the practical guarantees of liberty . . .562 8. The House of York : its accession marks the beginning of a long period of re action ' . "562 Collapse of the immature parliamentary system ; the monarchy powerless when faced by a coalition of the three estates 363 Is emancipated through the decay of the estate system. Decline of the baronage : Continental feudalism ; William's anti-feudal policy in England . . . .564 Feudal anarchy of Stephen's reign; anti-feudal policy of Henry II. ; scutage; strength of the baronage as a military body . . . . - . . . .565 Baronage weakened by the breaking up of great estates through subinfeudation ; an attempt to nourish the dying feudalism by an artificial process, — giving of liveries 566 Champerty and maintenance; heraldry rfy; Badges of service become hereditary ; heralds incorporated into a court under the earl marshal ; power of the baronage as a military force broken by the discovery of gunpowder ,go The church loses its patriot spirit ; struggle between the crown and papacy re newed in the reign of Edward I ,gq CONTENTS. xii Stat. De Asportatis Religiosorum ; Stat, of Provisors ; stat. for the protection of the king's court ; stat. 13 Rich. II. ; Stat, of Praemunire 570 Growing wealth and influence of the clergy ; the Lollard revolt . . . .571 Statutes of heresy designed to protect the church's spiritual authority ; the church threatened with confiscation 372 Alarmed by the double assault, the church sought shelter at the feet of the mon archy. Decline of the commons ; the lower house, at first a truly representative body, ceased to be so through limitations of the franchise 573 Elected knights originally chosen by the whole shire community ; franchise fixed upon a broad popular basis by stat. 7 Henry IV. ; stat. 8 Henry VI. the first dis franchising statute in English history . . .... 574 Tendency in the towns for the few to appropriate the franchises which were the birthright of the many 575 Revival of the monarchy under Edward IV. ; forms of the older constitutional life retained 576 Edward claimed that the Lancastrian kings were kings " de facto non de jure " . 577 Edward's policy of peace ; a sweeping bill of attainder and a life grant of the cus toms ; meetings of parliament grow less and less frequent 578 No statute in favor of liberty during Edward's reign ; benevolences. Expansion of the judicial powers of the council 579 Such powers first restrained, then expanded by statute j scientific perfection of the law in the reigns of Henry VI. and Edward IV 580 Its practical inefficiency due to the turbulence of the times ; extraordinary powers of the council invoked for the preservation of order in the reign of Henry VI. ; Edward IV. converts the council into an engine of tyranny ; jurisdiction of the high constable 581 Constructive treason and torture ; bills of attainder and the procedure thereunder 582 Usurpation of Richard III. : declared protector on 4th May, and crowned 6th July, 1483 . 5S3 Henry Tudor challenges the crown, — his pedigree ; his first attempt in October, 1483, unfortunate ; Richard's only parliament met in January, 1484 . . 584 Statement of Richard's title blending the elective with the hereditary theories . 585 An outcry against the extortions and impositions of the preceding reign ; benevo lences forbidden and popular legislation enacted ; statute upon the subject of uses ; tunnage and poundage and a subsidy on wool granted for life . . . 586 Fall of the house of York ; it establishes tyranny and yet fails to guarantee order 587 When invasion is threatened, Richard returns to the collection of benevolences ; Henry lands at Milford Haven, August 7th ; battle of Bosworth fought in Leices tershire, August 22, 1485 588 INTRODUCTION. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC OF THE UNITED STATES. i. As the Constitution of the United States embodies a The typical federal union of political sovereignties whose separate exist- ^°fe the ence is older than that of the Union itself,1 the simplest prin- p0^'.0*1 ' * r unit in our ciple of analysis indicates the fact, that, in order fully to federal sys- grasp the nature of the composite whole, it is first necessary to comprehend the nature of the units out of whose aggre gation it arose. Any exhaustive investigation into the struc ture of our federal system must necessarily begin with the historical origin of the states that compose it.2 The leading and practical purpose of this treatise will be to unfold in one unbroken story the gradual process of historical development through which the typical English state in America — the political unit in our federal system — came into existence. 2. A great French orator has said that " words are The state things," and to this the philologist may add, that, like all ^entdty- other human things, they are subject to the endless variations C0™S°n" which are brought about by the changes of time, place, and circumstance. To the student of the " Science of Politics " 3 this truth is of paramount importance, for the reason that the cardinal terms in which he has to deal often represent in one age a train of ideas which completely vanish in another. Of this fact the word " state " may be used as a striking illus tration. As employed in modern times the word "state" presents to the mind a political conception which a states- 1 "They existed before it. They ville, Democracy in America (Bowen's could exist without it." — Bryce, The ed.), vol. i. pp. 73, 74. American Commonwealth, vol. i. p. 14. s The word Politics is here used in 2 " To examine the Union before we the sense which it bears in the name have studied the states, would be to of the famous work of Aristotle. In adopt a method filled with obstacles, this sense it is used by Bagehot in his . . . The great political principles Physics and Politics, by Pollock in his which now govern American society History of the Science of Politics, and undoubtedly took their origin and their by Freeman in his Comparative Pali- growth in the state." — De Tocque- tics. 2 INTRODUCTION. man of the ancient world could hardly have grasped, for the reason that the political organization which we call the state had, in the ancient world, no existence. In order clearly to contrast the ancient conception of the state with that which exists in modern times, it will be necessary to utilize the re sults of recent research into the early history of political in stitutions. By the marvellous discoveries which have been made within the present century by the masters of the science of language, a great flood of light has been shed upon the earliest forms of social organization which existed in those nations with whose history we are at all concerned. Compara- Through the labors of the comparative philologists, not only 0gy.p 10- kas tjie orjgjnai unity of the Aryan race been clearly estab lished, but its prehistoric language has also been so far re constructed as to distinctly indicate the stage of civilization attained by it before the departure from the common Aryan home. In the words of Peschel, "When the ancient vocab ulary of the primordial Aryan age is restored by collecting the roots common to all the members, we at the same time obtain an outline of the social condition of these nations in the most ancient period." a This great revelation, which in the history of the intellect has been called " the discovery of a new world," 2 has been brought about by the applica tion of the comparative method to the study of language, whereby the roots common to a large group of kindred tongues have been traced back to a common source. But the comparative method has not been confined to the study of language only ; it has found a new and a broad field for its operation in its application to the comparative study of politi cal institutions, of forms of government. Alongside of the science of comparative philology a new science has lately Compara- sprung into existence which has been styled comparative tivepo tics. p0jitics t0 tne votary 0f this new science "a political con stitution is a specimen to be studied, classified, and labelled, as a building or an animal is studied, classified, and labelled by those to whom buildings or animals are objects of study. We have to note the likenesses, striking and unexpected as those likenesses often are, between the political constitutions 1 Cf. Enc. Brit., 9th ed. vol. viii. p. 622. the work of Fredrick Schlegel, in 2 See Max Miiller's comments upon Science of Language, p. 165. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. J of remote times and places ; and we have, as far as we can, to classify our specimens according to the probable causes of those likenesses." 1 The most valuable single result so far attained by the application of the comparative method to the study of political institutions is embodied in the discovery that the unit of organization in all of the Aryan nations, unit of or- from Ireland to Hindoostan, was the naturally organized asso- thfe vfflagS. ciation of kindred — the family swelled into the clan — which c?mmu- in a settled state assumed the form of a village- community.2 "The two things, in short, the clan and the village-community, are the same thing, influenced only by those circumstances, geographical or otherwise, which allow one clan or company to adopt a more settled life, while another is driven to linger in, or even to fall back upon a ruder state of things. The -yeVos of Athens, the gens of Rome, the mark or gemeinde of the Teutonic nations, the village community of the East and, as I have said, the Irish clan, are all essentially the same thing." s When we have firmly taken hold of this fact ; when we clearly understand that the original unit of organization was the same in all the Aryan nations, whether situated on the shores of the Mediterranean or the Baltic, we have possessed ourselves of the atom or unit, which, in different forms and different com binations, everywhere enters into the structure of the state. Following the usual historical order, we naturally turn to The Greek the Hellenic world, in which the science of politics was born, m7nwea"ith. in order to ascertain the elements of political organization which there existed when authentic history begins. The dominant political idea which we there encounter is embodied( in the independent city which stands towards all other cities as a sovereign commonwealth whose internal affairs are regu lated by its own domes tic Lj:_onstitution._ When the internal organization of such a city is examined, the fact is revealed that the city-commonwealth is a composite whole, which has arisen out of the aggregation of village communities. The first stage in the aggregation is represented by the gather ing of a group of village communities or clans (ykvta) into a 1 Freeman, Comparative Politics, p. The village -community is not, how- 23. In this brilliant work the name of ever, an exclusively Aryan possession. the new science finds its origin. — Maine, Early Hist, of Inst., p. 77. 2 Cf. Sir Henry Maine, Village-Corn- 8 Comparative Politics, p. 102. munities in the East and West, passim. science. 4 INTRODUCTION. brotherhood (^.parpta) ; the second by the gathering of brother. hoods into a tribe ; the last by the gathering of tribes into a city. " Several families formed the phratry, several phratries the tribe, several tribes the city. Family, phratry, tribe, city, were, moreover, societies exactly similar to each other, which were formed one after the other by a series of federa- oniycon- tions."1 The aggregate thus made up, the independent city, the's'tate0 embodied the only practical conception of the state which ex- S ttieXHd-d istec* m tne Hellenic world.2 To the Greek mind the state, lenic world, the city-commonwealth, was an organized society of men dwelling in a walled city with a surrounding territory not too large to allow its free inhabitants to habitually assemble within its walls to discharge the duties of citizens.3 In this system of cities, internally organized after one general model, Aristotle, were contained the political conditions with which Aristotle, ofpoUucai' the acknowledged founder of political science,4 was brought into contact ; and, in obedience to his practical temper, he begins his political speculations with a description of the forms of government actually existing around him. It is probable, that in order to collect sufficient data to support the statements and conclusions contained in his Politics, he made, as a preparatory study thereto, the collection called the Constitutions, which is said to have contained a descrip tion of the organization, manners, and customs of one hun dred and fifty-eight states or cities.6 However that may have been, he informs us in the general introduction, which forms the first book of his Politics, that the state differs from the household only as to the number of its members, a fact which will appear from an examination of its elements. Out of the very necessities of social existence arise the relations of hus band and wife, parent and child, master and servant, and thus the household is formed. Out of a union of households /CX Di!> CoulanSes> Tke Ancient City familiar with each other. "Awyicalop (bmalls trans.), p. 168. See, also, yvupl&w iiW^Kous, ircuof Tire's eiffi, robs Comparative Politics, p. 104. lroKiras. rot., bk. vii. ch. iv. 13. 2 "During the most brilliant times * See Pollock, Hist. Science of PoW of the Greek Commonwealths, the tics, p. 1. City, and nothing higher or lower, was 6 The main bod of materia]s thus the one acknowledged political unit." collected has been lost, but the frag- Comparativc Politics p. 83. ments which remain have been col- 8 Anstotle thought that a state lected and annotated by Neumann, and should not be so large as to deny to are contained in Bekker's Oxford edi- its citizens the opportunity to become tion of Aristotle ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 5 arises the village or tribe. Out of the union of villages or tribes arises a community of a higher order, the state, which is the natural and necessary completion of the process of ag gregation in which the family is the unit or starting point. Neither the family nor the tribe is in itself sufficient for all the wants of social existence ; it is only in a union of tribes — the state — that man finds the one form of life that will fully develop all of his capabilities. The conclusion thus attained is embodied in Aristotle's famous maxim that " man •• Man is is born to be a citizen." The cityless1 man (ojtoAcs) — the ^"^J* * natural man of Hobbes and Rousseau — must be more or less than man, — either superhuman or a monster. Aristotle's political reflections were confined in the main to the constitu tions of Greek states, and the typical Greek state was the in dependent city. It is true that sometimes a Greek city would be reduced to a relation of bondage to another city, and it would sometimes confederate upon equal or unequal terms with other cities ; but there was never any such thing as ad mitting either subjects or allies to a common franchise, there was never anything like a merger of the independent city into a larger aggregation, which, in any proper political sense, could be called a nation.2 When we pass from the Greek to the Italian peninsula, The Italian we there find the idea of the independent city to be the lead- mo^reaith. ing political idea, and we also find the Italian city to be the resultant of the process of aggregation heretofore described in which the village community or clan is the unit or starting point. In Italy the village-community appears as the gens. Out of the union of gentes arose the tribe, out of the union of tribes arose the state or city-commonwealth.3 But the idea of the state as an independent city was never carried out with the same completeness in Italy as in Greece, for the reason that the Italian cities, which were generally smaller than those of Greece, manifested a greater willingness to join together in confederations. In this way the history of an cient Italy is far more a history of confederations than of 1 " He is the unit out of whom, if have stared and gasped." — Pollock, there be only enough of them, theorists Hist. Science of Politics, p. 9. of the Social Contract school under- 2 Comparative Politics, pp. 84, 91,92. take to build up the State. This is an 8 See De Coulanges, 751* Ancient enterprise at which Aristotle would City, pp. 131-146, 154-177. 6 INTRODUCTION. single cities.1 And yet it was upon the soil of Italy that a group of village communities grew into a single independent city 2 that centralized within its walls the political power of Extension the world. The way in which Rome accomplished this mar- manfnuv vellous result was by departing from the exclusive policy of chise. the Greek cities, and by extending the right of Roman citi zenship alike to her conquered enemies and to her faithful allies. The franchise of the Roman city was first extended to Italy, then to Gaul and Spain, and finally to the whole Ro man world.3 In the end a right so widely bestowed became of course utterly worthless ; but the theory upon which the right was conferred was never for a moment lost sight of. The freeman who received the franchise of the Roman city could only enjoy it within her own walls ; it was only within the local limits of the ruling city that the supreme powers of the state could be exercised.4 And so whether we take for illustration the exclusive Greek city, or the great Latin city extending its franchise to all the world, the ancient concep tion of the state as the city - commonwealth stands forth clearly and distinctly defined. The state 3. Out of the settlements made by the Teutonic nations tfonhe "a upon the wreck of the Roman Empire has gradually arisen the modern conception of the state as a nation occupying a definite area of territory with fixed geographical boundaries,- — the state as known to modern international law. In the Germania of Tacitus we have the contemporaneous observa tions of one of the greatest and most accurate of historians upon the social and political organization of the Teutonic race while yet in its childhood. By the aid of this invaluable sketch it is possible to establish by direct and positive evi dence the existence of those primitive elements of organiza tion, common to the whole Aryan world, whose existence in the Greek and Italian peninsulas can only be inferred from 1 " The Italian confederations had extending the privilege of Roman citi- from the beginning a closer union and zenship to all the free inhabitants of a nearer approach to national unity the empire, see Maine, Ancient Law, than the later and more brilliant con- p. 139; Gibbon, Decline and Fall, vol federations of Greece." Comparative i. pp. 185, 193, 194. Politics, p. 96. i " Within the walls of Rome alone ¦j Maine, Early Hist, of Inst., p. 84. could be consummated all the acts of » Guizot, Hist. Rep. Covt.,pp. 181,182. a Roman citizen." — Guizot, Hist. Rep. As to the edict of Antoninus Caracalla, Govt., p. 184. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. «7 traces and survivals. In the words of Sir Henry Maine, — "As societies do not advance concurrently, but at different. rates of progress, there have been epochs at which men trained to habits of methodical observation have really been in a position to watch and describe the infancy of mankind. Tacitus made the most of such an opportunity." 1 According to his account the race now called Teutonic, although of the same physical type, and speaking the same language, and although possessed of a common mythology, and a common system of social, political, and military institutions, did not possess in its own tongue a common name by which to de scribe the race as a whole, nor any form of central political organization.2 This homogeneous race was broken up into an endless number of political communities or tribes which stood to each other in a state of complete political isolation, except when united in temporary confederacies. The typical Teutonic tribe — the civitas of Cassar and Tacitus — repre- Teutonic sented an aggregation of hundreds, while the hundred rep- %^'a~ot resented an aggregation of village-communities.3 The spot ^,ffiS.ar and inhabited by the village community is called in German muni ments the mark, — an area of land marked out and defined The mark. by settled boundaries. The absolute ownership of the terri tory embraced within the mark was vested in the community itself, or in the state of which the mark was a part, while the right to its common enjoyment was vested in its qualified members. Territorially the mark was divided into three parts, — the village lands, the arable lands, and the common or waste lands. In the centre of the mark was situated the village in which the markmen dwelt in their homesteads, sur rounded by inclosures and out -houses. The possession of such a homestead was evidence of the fact that its possessor was a fully qualified member of the mark, and as such en titled to a full share in the enjoyment of every right that be longed to any other member of the community. The arable mark was usually divided into three great fields, whose culti vation was regulated by a system of minute and complicated rules, while the use of the woods, pastures, and meadows was enjoyed in obedience to a scheme of strict proportion. The 1 Ancient Law, p. 116. » See below, bk. i. ch. ii. c. 5. 2 Tac. Germania, cc. 1-4. INTRODUCTION. Parallel be tween the Teutonic, ¦ Greek, and Xatin tribe. "Teutonic t tribes gath- i ered into i nations. internal affairs of the mark were regulated by a village coun cil or mark-moot in which every markman had his place. In the assembly of the mark was transacted all business which arose out of the system of common cultivation, and out of the enjoyment of common rights.1 The parallel between the Teutonic, the Greek, and the Latin tribe seems to be com plete. The yevos, the gens, the mark represent the same thing — the village- community ; while the foarpia, the curia, the hundred seem to represent the same thing — a group or union of village-communities.2 Out of the aggregation of such intermediate groups or hundreds arose the tribe itself. But here the parallel ceases. In the Mediterranean peninsulas the resultant of a union of tribes was the city-commonwealth, — in Teutonic lands the resultant of a union of tribes was not a city at all but a nation.3 In ancient Greece and Italy the city became the heart, the centre of social and political life ; while in countries inhabited by the Teutonic race the idea of the city never became dominant. The Teutonic city, if it was to be found at all, was simply the dwelling-place of part of the nation who were in no wise privileged above those who dwelt beyond its bounds. At the time Tacitus wrote the typical Teutonic tribe (civitas) was a distinct commonwealth, the lar gest and highest political aggregate. Not until nearly a hun dred years later were these scattered tribes, gathered into larger wholes — into nations.4 When this stage was reached, when tribes were fused into the higher political unit — the nation — the primitive Teutonic conception of the state or commonwealth widened into its full and final development. But another stage of growth had yet to be passed before the new unit, which thus arose out of an aggregation of tribes, reached the full modern conception of the state as a nation possessing a definite portion of the earth's surface with fixed .geographical boundaries. The fact must be borne in mind tthat the primary bond which united the people who composed : a Teutonic nation was a personal one, — the national king i For the authorities as to the prim- at all." Ibid., p. 101. "In Greece and itive Teutonic mark, see below, bk. i. Italy the union of tribes formed only ir'C'2' ^- d t-j- the clty; among all the branches of 3 ^^^"^"Pohtus, pp. 102-105, 1 r7- the Teutonic stock the union of tribes 3 The Teutons passed from the tri- formed the nation." Ibid, d 120. bal stage into the national stage with- * Zeuss, Die Deutschen und die Nach out ever going through the city stage barstamme, pp. 303, 304 ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 9 was first among the people, the embodiment of the national being, but not the king of a particular area or region of ter ritory. The idea of sovereignty was not associated in the Teutonic mind with dominion over a particular portion or subdivision of the earth's surface. The Merovingian line of Tribal sov- chieftains were not kings of France, they were kings of the ereignty' Franks ; Alaric was king of the Goths wherever the Goths happened to be, whether upon the banks of the Tiber, the Tagus, or the Danube.1 The leading idea which seems to have prevailed among the conquering nations who settled down upon the wreck of Rome was that they were simply encamped upon the land whose possession they had won. The conception of sovereignty which the Teutons brought with them from the forest and the steppe was distinctly tri bal or national and not territorial. The general nature of the transition whereby the primitive notion of tribal sovereignty was gradually superseded by that of territorial sovereignty has been described as a movement from personal to territo rial organization ; 2 from a state of things in which personal freedom and political right were the dominant ideas to a state of things in which those ideas have become bound up with and subservient to the possession of land.3 The most striking Territorial single result of the transition, — which, for the want of a bet- thTout- ter term, has been called "the process of feudalization,"4 — "hi pro- is that the elective chief of the nation, the primitive embodi- cess of feu- . , ... . . ... t i ¦ dahzation." ment of the tribal sovereignty, is gradually transformed into the hereditary lord of a given area of land. The new con ception of sovereignty, which thus grew out of " the process of feudalization," did not become established, however, until after the breaking up of the empire of Charles the Great, out of whose fragments have arisen most of the states of modern Europe. The completion of the transition is marked by the accession of the Capetian dynasty in France. When the hundred years' struggle between the Dukes of Paris and the descendants of Charles the Great ended in the triumph of Hugh Capet, he not only assumed the dynastic title of 1 Maine, Ancient Law, p. 100 ; Free- » Stubbs, Const. Hist., vol. i. p. 166. man, Norm. Conq., vol. i. p. 53. 4 Maine, Village - Communities, lec- 2 Palgrave, Eng. Commonw., pt. i. ture v. " The Process of Feudaliza- p. 62. tion " is its title. 10 INTRODUCTION. ( King of the French, but he also styled himself King of ) France.1 Hugh Capet and his descendants were kings in the \ new territorial sense ; they were kings who stood in the same (' relation to the land over which they ruled as the baron to his estate, the tenant to his freehold. The form thus assumed by the monarchy in France was reproduced in each subse quent dominion established or consolidated ; and thus has i arisen the state-system of modern Europe in which the idea i of territorial sovereignty is the basis of all international rela tions.2 The modern conception of the state is, therefore, an outgrowth of "the process of feudalization" through which i the Teutonic nations passed after their settlement within the j limits of the Roman Empire. Growth of 4- Amongst all the states that have arisen out of the set tle English tlements made by the Teutonic nations on Roman soil, there kingdom. J ' is not one whose political life has remained more pure, or whose political development has been more persistent or more unbroken than that of the English kingdom. This condition of things has arisen in the main out of the special circumstances under which the Teutonic settlements in Britain were made. In the first place the very physical difficulties that had to be met and overcome impressed upon the Teutonic invasion of Britain a character and form at once local and peculiar. The invaders were compelled to cross the sea in ships, and their sea craft and war craft could only transport bodies of men more or less numerous, and not great armies of invasion by which the whole land could be suddenly over run. All the evidence goes to show that the Teutonic invad ers came into Britain in disconnected bands, more or less numerous, each under its own leader, who singled out some 1 " The important change occurred Francorum and Rex Francis was other when the feudal prince of a limited ter- than right in a general way. Those ritory surrounding Paris began, from things came in gradually. Roi de the accident of his uniting an unusual France comes in pretty early, as early number of suzerainties in his own per- as Wace. I doubt whether Rex Fran- son, to call himself King of France, at cia is ever used, till Hen. IV's Rex the same time that he usurped from the Francia; et Navarre, as a formal Latin earlier house their dynastic title of title." See also Norman Conquest, vol. Kings of the French." —Maine, Ancient i. Appendix, note M, p. 395. L^> P- I04- 2 Upon this whole subject of " terri- Mr. freeman was at first inclined to torial sovereignty," and its relations to challenge this statement. He has since modern international law, see Maine, written me as follows: "I should not Ancient Law, pp. 90-108. say that what Maine says about Rex ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. II special district of country for conquest and settlement. Such a leader, with the limited force at his command, necessarily circumscribed his efforts to a narrow area, from which by dint of hard fighting he was obliged to drive the Celtic masters of the soil. In this way, bit by bit, the land was won. Moving from the south, the east, and the northeast, the invaders drove the Britons slowly to the west. The struggle from its very nature was a bitter one. Invasion no « The Tea longer signified, as upon the Continent, forcible intrusion, — theory." it became, within the districts which the conquerors made their own between the middle of the fifth century and the end of the sixth, practically equivalent to extermination. " The plain fact is that, in utter contrast to the phenomena of Teutonic conquest on the mainland, the Britons were, as a race, exterminated within those parts of Britain which the English occupied while they were still heathens. . . . How far in any particular district the vanquished were slain, how far they were simply driven out, we never can tell. It is enough that they were exterminated, got rid of in one way or another, within what now became the English border." 1 " Though the literal extirpation of a nation is an impossibility, there is every reason to believe that the Celtic inhabitants of those parts of Britain which had become English at the end of the sixth century had been as nearly extirpated as a nation can be. The women would, doubtless, be often spared ; but, as far as the male sex is concerned, we may feel sure that death, emigration, or personal slavery were the only alter natives which the vanquished found at the hands of our fathers."2 Under such favorable conditions as these the whole fabric of Teutonic life was replanted in a practically free and unincumbered soil. In a state of pure barbaric 1 Freeman, The English People in its Green, Making of England, p. 132. Three Homes, p. 133. For the contrary view see, as to the 2 Norman Conquest, vol. i. p. 18, survival of Roman civilization, Coote's 3d ed. As Mr. Freeman is now gener- Romans of Britain (1878); as to the ally regarded as the champion of " the permanence of the Celtic race, Pike's Teutonic theory," I have preferred to Origin of the English ; as to Celtic state it in his own language. His influence upon language, Kennedy, latest utterance upon the subject is Ethnological and Linguistic Essays contained in his Four Oxford Lectures, (1861) ; as to "The Welsh Element in 1887, in which he quotes DOtn of the English Law,'' Law Magazine and Re- passages given in the text. See his view, No. cclviii. Nov., 1885 ; Taswell- lecture on Teutonic Conquest in Gaul Langmead, Eng. Const. Hist., pp. 2, 3, and Britain, pp. 61-112. See also and notes. ship. 1 2 INTROD UCTION. heathenism the invaders passed, without intermediate proba tion, from their seats in the far north to their island home, bearing with them in their blood and bone the primeval polity of the fatherland. The details of the process by which the old Teutonic polity was transferred to Britain are not recorded, but from the state of things which is found to exist when authentic history begins the conclusion is irresistible Teutonic that the Teutonic settlements in Britain were a substantial in BritSn S reproduction of the older state of things described in the reproduc-al Germania. The chain of evidence upon which this conclu- tions of the sion rests, " no criticism is strong enough or sharp enough to older tribal , ' . & ° • r life. sever. 1 The village community which appears in Germany as the mark, reappears as the tun or township in Britain, where it becomes the "unit of the constitutional machinery."2 The town- The township, like the mark, is at once a cultivating and a political community, and in its qualified members resides the power to order their own village and agricultural life. This power is vested in the village assembly or tun-moot in which the townsmen regulate the internal affairs of the township by the making of by-laws, a term which is said to mean laws enacted by a " by,,; as the township was called in the northern shires. The tun-moot elected its own officers, and also pro vided for the representation of its interests in the courts of the hundred and the shire, where the gerefa and four discreet Earliest rnen appeared for the township. In this arrangement appears re™es°enta-e tne earliest form of the representative principle. " In these tive princi- four discreet men sent to speak for their township in the old county assembly, we have the germ of institutions that have ripened into the House of Commons and into the legislatures of modern kingdoms and republics. In the system of repre sentation thus inaugurated lay the future possibility of such 'gigantic political aggregates as the United States of America."3 Out of a union of townships arose the hundred, out of a union of hundreds arose the primitive rice or kingdom, — the The primi^ civitas of Caesar and Tacitus.4 But before the historic period doms.'"8" begins these primitive states in which the settlers originally grouped themselves have ceased to exist as independent com- i Stubbs, Const. Hist., vol. i. p. 71. » john Fiskej American p0UHcal 2 Ibid., vol. 1. p. 82. Ideas, p. 71. 4 Stubbs, Const. Hist., vol. i. p. 119. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 1 3 munities, — they have become bound up in seven or eight larger aggregates generally known as the heptarchic king- The hep. doms. These larger aggregates were finally fused into a ku?gdoms. single consolidated kingdom, which is the ultimate outcome of the process of aggregation in which the local, self-govern ing communities descend in status without the loss of their autonomy. The consolidated kingdom represents an aggre- The consoi- gation of shires ; the shire an aggregation of hundreds ; the ,^!d ^^ hundred an aggregation of townships. Upon the sub structure thus made up of local, self-governing communities the English political system has ever depended for its per manency, its elasticity, its enduring power. In every one of these communities the idea of local self-government, was intensely developed, and in their very structure were im bedded, from the beginning, the germs of the representative system. And from the tendency — conscious or uncon scious — upon the part of Englishmen to reproduce these self-governing communities in other lands has resulted the ascendancy and power of the English nation as a colonizing nation. The entire fabric of the new society — out of whose New sod- political elements arose in Britain the constitution of the Teutonicf consolidated kingdom — was purely Teutonic. Its language was made up of a set of dialects of the Low German ; the only religion which it possessed was the religion of Woden ; its only conception of government and law was a purely Teutonic conception. The witness of language, of religion, and of law all point to the one irresistible conclusion that, within the limits which they made their own, the conquerors of Britain " created a Germany outside of Germany." x The old Teutonic constitution was thus replanted in its purity in the free and unincumbered soil of an island world, where it has been able to work out its historic development in a state of comparative isolation. So deeply were its foundations laid in its island home that it has been able to survive, and to preserve its identity, through all the vicissitudes of time and of change through which it has passed. In the political history of the world the Teutonic constitution, which thus matured on British soil, occupies the foremost place for two 1 Taine, Hist, of Eng. Literature, Teutonic conquest and settlement of vol. i. p. 50. Upon the subject of the Britain, see ch. iii. bk. i. tonic inven tion. 14 INTRODUCTION. reasons. In the first place, it has had the most continuous and unbroken development ; in the second place, out of that unbroken development has been evolved the most important political principle with which the world has so far become acquainted — the principle of representative government. Represen- Of this principle, which has been justly called a Teutonic dpieeaPTenu- invention, the ancient world knew practically nothing.1 The political systems of all the Teutonic nations, as they appear to us when written history begins, contained germs of the representative principle, — germs which were imbedded in the organization of their local, self-governing communities. And in every one of the modern European states that have arisen out of the settlements made by the Teutonic nations on Roman soil a serious attempt has been at some time made in the direction of representative government. But the remark able fact is that in every Continental state in which such an attempt was made, it ended at last in failure and disappoint- Representa- ment. By the sixteenth century every effort in the direction rnenfdles™" °^ representative government upon the Continent of Europe out every- na(j COme to an end.2 In England only among the Teutonic where but . ,. , , . . . t, 1 in England, nations did the representative system survive ; in England only has the representative principle been able to maintain a continuous existence. In this way the English nation has been able to hand down the representative principle from the barbarian epoch to modern times ; in this way England has become the " mother of parliaments " — the teacher of the science of representative government to all the world. Since the date of the French Revolution nearly all the states of continental Europe have organized national assemblies after the model of the English Parliament in a spirit of conscious imitation.3 1 "It is the great political invention This epoch lasts from the sixteenth of Teutonic Europe, the one form of po- century to the French Revolution." — litical life to which neither Thucydides, Guizot, Hist. Rep. Govt., p. 258. See Aristotle, nor Polybios ever saw more also p. 15. than the faintest approach."— Freeman, « "The British political model was Hist. Fed. Govt., vol. 1. p. 67. followed by France, by Spain and Por- In the fourth period, on the Con- tugal, and by Holland and Belgium, tment, all efforts towards a represen- combined in the Kingdom of the Neth- tative system have failed or almost erlands; and, after a long interval, bj entirely disappeared; pure monarchy Germany, Italy, and Austria." — Maine, prevails. England alone decidedly Popular Govt., p. 13. obtains a constitutional government. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 15 5. In our own land the case is far otherwise. The repre- Growth of sentative systems which sprang up as a part of the constitu- 'oioSef in* tional machinery of the several provincial states founded by America- English settlers upon American soil were in no proper sense the result of imitation. Like the states themselves of which they were a part, they were the predestined product of a natural process of reproduction.1 The constitutional history of these provincial states does not begin with the landing of the English in America in the seventeenth century, but with the landing of the English in Britain in the fifth.2 The English emigrants who founded upon the eastern coast of what is now the United States a group of colonial common wealths brought with them in their blood and bone, and in a matured form, that peculiar system of political organization which had been slowly developing in the mother country for centuries. They brought with them ready made the lan guage, the law, the institutions of the old land to be modified and adapted to the changed conditions of the new. The settlements. made by the English colonists in America in the seventeenth century were in all material particulars substan tial reproductions of the English settlements made in Britain in the fifth. In both instances the settlers crossed the sea in ships in small companies, and in both lands they grouped themselves together in distinct and practically independent self-governing communities.3 The tide of Aryan migration, from which has been peopled Physiogr» both the Old World and the New, has traversed no land in North its whole westward course more capable of supplying all of An™eJs°^. the varied wants of a great and growing nationality than that fects upoa in which the English settlers in America made their homes, tion. The vast expanse of territory now embraced within the limits of the United States offered to the European emigrant not only nearly every variety of soil and climate to which he had 1 " The local assemblies in which 2 Freeman, The English People in its the colonists were represented ' were Three Homes, p. 360. not formally instituted, but grew up by s " Wherever the Anglo-Saxon race themselves, because it was in the na- has gone, wherever they have carried ture of Englishmen to assemble.' " — their language and laws, these commu- Maine, Pop. Govt., p. 223. Hutchinson nities, each with a local administration says, "This year (1619) a House of of its own selection, have gone with Burgesses broke out in Virginia." See them." — Mr. Justice Brown, in The Seeley, The Expansion of Eng,, p. 67. People v. Draper, 15 N. Y. pp. 532, 562. i6 INTRODUCTION. Struggle for possessionbetweenEngland,France, and Spain. European nations agree that discovery gives title. been accustomed in the Old World, but it also offered him easy access to its heart through a system of mighty water ways navigable through nearly their entire course. The fact that most of the navigable rivers of America flow eastward made the new land easily accessible from the Atlantic to those who had once passed the difficulties and perils of its navigation westward. In addition to such inducements as these America also offered to the European emigrant a new and cheap source of bread with which to sustain the begin nings of life in the wilderness.1 Early in the sixteenth century a spirited competition began between England, France, and Spain for the possession of that part of North America which is bounded on the north by the great lakes and the St. Lawrence, on the south by the Gulf of Mexico, on the west by the Mississippi, and on the east by the Atlantic. The results of the first period of struggle for the possession of the heart of the New World may be summed up in the assertion that while Spain succeeded in securing a footing upon its southern, and France upon its northern border, every attempt at settlement made by Englishmen in America during the sixteenth century ended before its close in failure and disappointment. The only circumstance from which England could draw any consolation whatever was embodied in the fact that while her rivals had secured a precarious hold upon Canada and Florida, their mutual hos tilities and contentions2 had prevented either from entering into possession of the vast and priceless central district in which the English settlements of the seventeenth century were destined to be established. During that period it was that the permanent English settlements in America were made which were finally incorporated in the thirteen colonies that grew into the Federal Republic of the United States. In order to regulate the competition for the possession of the New World, and to avoid conflicting settlements, and consequent war with each other, the European nations agreed "to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted; 1 As to the "Effects of the physio- 2 See Doyle, English Colonies in graphy of North America on men of Am., Virginia, etc., p. 100. European origin," see Narrative and Critical Hist, of Am., vol. iv. pp. x.-xxx. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. IJ should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession."1 The principle thus established assumed that the Indian tribes found upon the soil were mere temporary occupants. According to the theory of the English constitu tion the title to all newly-discovered lands accrued to the king in his public and regal character, and the exclusive right to grant them resided in him as a part of the royal preroga tive : " upon these principles rest the various charters and grants of territory made on this continent." 2 The claim of English the English crown to the territory upon which the English ^^^ settlements in America were made was based upon the voy- aP°sn0™£ ages of the Cabots made along the American coast during Cabots. the years 1497-98.3 The first patent issued to the Cabots — the oldest surviving document connecting the old land with the new 4 — gave to the patentees the right to sail under the royal ensign, and to set up the royal banner in any newly dis covered land as lieutenants and vassals of the king. The inchoate right thus acquired by discovery at the close of the fifteenth century did not ripen into a perfect title until early in the seventeenth, when the permanent English settlements in America were made. The great title-deed under which V^f^ the English settlers in America took actual and permanent jaLsfi/s-" possession of the greater part of the Atlantic seaboard is Ahpraer,°f represented by a charter granted by James I. on the ioth l6°6- April, 1606, to certain patentees, wherein he created two distinct corporations; and then, in the same document, granted to the one known as the London Company the sec tion of North American seacoast lying between 340 and 380 N. lat. ; and to the other known as the Plymouth Company the section lying between 41 " and 450 — each grant having an indefinite western extension. The intervening expanse, lying between 380 and 41 °, was placed as a march or border 1 Marshall, C. J., in Johnson v. Mc- 4 This document, which is dated 5 Intosh, 8 Wheat, p. 573. March, 1495 ( 1496 new style), is printed 2 Taney, C. J., in Martin et al. v. The in the Hakluyt Society's edition of the Lessee of Waddelt, 16 Peters, p. 409. Divers Voyages, and in Rymer's Fee 8 See Nar. and Crit. Hist. Am., vol. dera. iii. pp. 1-58. 18 INTRODUCTION. land between the domains of the two companies, and its common use was made subject to the limitation that neither should plant a colony within a hundred miles of one pre- viously made by the other.1 Although the two corporations thus intrusted with the mighty work of English colonization in the New World — a work which in the hands of private adventurers had been so singularly unfortunate — were short lived, the fact remains that during the brief period of their existence they not only established representative government upon American soil, but they also brought about the founding of two typical settlements which have moulded the whole The Lon- after course of American history. Under the auspices of the don Com- London or Southern Company was founded in 1607 the Vir- pany and L J ' its work, ginian settlement at Jamestown — the first permanent settle ment made by Englishmen upon the soil of the New World, Twelve years later (1619) the management of the London Company passed into the hands of liberal-minded men at horne who gave to the infant colony the right to convene the first American representative assembly.2 Five years later (1624) the charter of this company, which had thus made its impress upon all time, was brutally revoked through a legal judgment, which was " one of the earliest of those efforts in which the Stuart reigns were so fruitful, efforts to wrest the process of law to the arbitrary purposes of the crown." 3 Out of the vast territory originally granted to the London Company were carved the domains finally distributed between the five southern colonies of Virginia, Maryland, North Carolina, ThePrym- South Carolina, and Georgia.4 Under a license obtained Company from the Plymouth or North Virginia Company a Puritan work.*3 settlement was established in 1620 at Plymouth, in the south eastern part of what is now the State of Massachusetts, by a 1 This charter may be found in Char- first published in 1857 in the Collec- ters and Constitutions, compiled under tions ofthe N. Y. Hist. Society. the order of the U. S. Senate, by Ben : s Doyle, English Colonies in America, Perley Poore, part ii. p. 1888. It is Virginia, etc., p. 182. also contained in Stith, and in Hazard's i I will here refer once for all to the. Hist. Collections. admirable article upon the United 2 The manuscript proceedings of States — " Part I. History and Consti- this assembly, contained in the State tution " — in Enc . Brit., 9th ed., bj Paper Office, London, were published Prof. Alexander Johnston,' of Princeton, in 1874 as a State Senate Document, to whom I am indebted for several Colonial Records of Virginia, with valuable suggestions notes by T. H. Wynne. They were ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 19 band of separatists from the English Church, who had for a time dwelt in Holland, prior to their final departure from the mother country to their New England home. North of the Plymouth settlement was established at a little later day another, by men of the same general creed, but of a broader culture, which, in March, 1629, was incorporated by royal charter under the name of the Governor and Company of Massachusetts Bay in New England — a charter which was obtained in order to put at rest any difficulty as to the title of the colony originally derived from a grant made to it by the Council of New England.1 After establishing the colony of Massachusetts Bay, into which the Plymouth settlement was finally incorporated,2 the North Virginia Company in June, 1635, surrendered its charter to the crown, and out of the territory which had been granted it were carved the domains finally distributed between the four northern colonies of Mas sachusetts, Connecticut, Rhode Island, and New Hampshire. Out of the march or border land, fixed between the territories of the London and Plymouth Companies by the original grant of 1606, were carved the domains of New York, New Jersey, and Pennsylvania, from the last of which was clipped the State of Delaware. In this wise the heart of North America, which passed to the English crown by right of discovery, was granted, as any royal manor might have been granted,3 first, to the two trading companies created by the charter of 1606, and, after their dissolution, to the thirteen colonies which united in the making of the Declaration of Independence.4 The soil upon which the English colonies in America were The soil planted was granted to them as terra regis by the English the colonies crown ; it was not granted to them as folkland by the English £wt. and parliament.5 The charters under which the colonial govern- not.py th\ r ° parliament. • 1 For the history of these settle- ters were issued to two companies of ments, see Nar. and Crit. Hist., vol. English adventurers. One of these iii. pp. 219-384. charters is the root of English title to 2 October, 1691. the East, and the other to the West. 8 The language of the charter is, One of these companies has grown "To be holden of us, our heirs and into the Empire of India; the other successors, as our Manor of East- into the United States of North Amer- Greenwich, in free and common socage, ica." — The Am. Commonw., Bryce, and not in capite." vol. i. p. 416. 4 " Within the period of ten years, 6 See Essays in A. S. Law, pp. 91- under the last of the Tudors and the 93, 98-100. first of the Stuarts, two trading char- 20 INTRODUCTION. Coloniesmere cor porationswith char ters irrevo cable as to the crown. The royal colonies — Virginia. ments were organized were likewise royal grants ; they were not concessions from the English legislature. In contempla tion of English law the whole group of colonial governments in America created or confirmed by royal charters were mere corporations created by the king, and subject like all others of their kind to his visitorial power, and to the power of his courts to dissolve them in a proper case presented for that purpose.1 Until some cause of forfeiture arose, the grant, as between the crown and the patentees, was irrevocable, — it being the settled doctrine of English law that after a grant of .corporate powers made by the crown had been once ac cepted, the crown could not resume the grant without the con sent of those in whom its privileges had been vested.2 The irrevocable rights thus acquired by the colonists as against the crown were revocable, however, at the hands of the parliament. Under the theory of the English constitution, then as now, " Its power is legally speaking illimitable. It may create, and abolish, and change, at its pleasure, with or without the assent of the people or corporation to be thereby affected."3 A practical illustration of the exercise of this parliamentary power may be found in the famous Municipal Corporations Reform Act of 5 and 6 Will. IV., by which the whole English municipal system was reorganized and reestab lished. Subject to this illimitable power of the Imperial parliament the English crown organized upon the soil of the New World a group of colonial governments, whose differences of internal organization, and whose greater or less dependence upon the crown, distinguished them broadly from each other.' Those colonies to which the crown gave most sparingly the right to regulate their own affairs are generally known as royal colonies, — a typical representative of which may be found in the Colony of Virginia, whose early constitutional growth happily illustrates the general proce'ss of evolution through which the most dependent of the English settlements in America was rapidly transformed from a servile corporation 1 The charter of Massachusetts was cancelled in 1684 by the crown judges in a proceeding begun by scire facias (Palfrey's New Eng., vol. iii. pp. 391- 393) ; that of Virginia, by a legal judg ment rendered in 1624. 2 Cf. Dillon, Municipal Corporations, vol. i. p. 109, 2d ed., and cases cited. 8 Ibid., p. no. 4 See Fiske's classification of the colonial governments, The Critical Pi- riod, etc., p. 65. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 21 into a self-governing state organized upon the model of the English kingdom. The government of the London Company, whose charter granted by James I. in 1606 contained the germs of the Virginian constitution, was vested in a resident council of thirteen appointed by the crown who were author ized to choose their own president, and to govern " according to such laws, ordinances, and instructions, as shall be in that behalf given " by the king. This resident council was subject to the control of a superior council in England, which was also subject to the ultimate ordaining power of the king in ordaining council.1 In the spring of 1609 this complex system of royal thTklng in government was relaxed in favor of local control through a council. reorganization of the company whereby the non-resident coun cil was abolished and the government of the colony vested in a single resident council nominated by the king in the first instance, but vacancies in which were afterwards to be filled by a vote of the whole company. Under this council, — which was authorized to choose a governor, and " to make, ordain, and establish all manner of orders, laws, directions, instructions, forms and ceremonies of government, and magis tracy fit and necessary for and concerning the government of the said colony," 2 — the Virginian settlement became almost an independent and self-governing community. In 161 2 still further concessions were obtained in favor of the company ; and in 1619, under its instructions, the governor summoned First Amer- an assembly of burgesses from the several hundreds, counties, sedative"6' and plantations embraced within its limits, which met on the a|semb]y> 30th of July.3 The history of the Virginian settlement down to this point clearly illustrates how rapidly even a royal colony slipped from the actual grasp of the crown, and how in its internal organization it involuntarily reproduced the outlines of the ancient constitution. As the basis of its local organization we find the hundred and the shire ; in the colo- 1 As to the distinction between the tive legislative assembly ever held in ordaining power of the king in council America was convened in the chancel and the law-making power of the king of the church at James City or James- in parliament, see below, book iii. ch. i. town, and was composed of twenty-two § 10. burgesses from the eleven several 2 Language of the second charter, towns, plantations, and hundreds, see Charters and Constitutions, part ii. styled boroughs." — Nar. and Crit. p. 1899. Hist., vol. iii. p. 143. 8 On that day " the first representa- 22 INTRODUCTION. nial governor we have a reflected image of the kingship ; in the royal council — the house of lords; in the house of English law burgesses — the house of commons.1 The foundation of the the whole °f whole fabric was English law ; in the original charter it was fabric. provided " that all and every the persons, being our subjects which shall go and inhabit within the said colony and plan- tation, and every their children and posterity, which shall happen to be born within any of the limits thereof, shall have and enjoy all liberties, franchises, and immunities of free denizens and natural subjects within any of our other domin ions, to all intents and purposes as if they had been abiding and born within this our realm of England, or in any other of our dominions." 2 In spite of the wanton proceedings by which its charter was annulled by a judgment of the king's bench in June, 1624, and its affairs transferred to the privy council, the Virginian settlement survived as a royal colony, and its government as finally organized was vested in a rep resentative assembly chosen by the people, in a royal council nominated by the crown, and in a royal governor armed with a veto power upon legislation. Such was the general struc ture of a royal colony,3 a type which, originally represented by Virginia alone, came to be the prevailing type before the severance from the mother country. The char- In the same sense in which Virginia stands as the typical , ter colonies . , . . , , — Massa- representative of the royal colonies, Massachusetts stands as the typical representative of the opposite class, — consisting of Massachusetts, Rhode Island, and Connecticut, — gener ally known as the charter colonies, despite the fact that their foundations were laid without the aid or sanction of charters at all. As Tocqueville has expressed it, " in general, char ters were not given to the colonies of New England till their existence had become an established fact. Plymouth, Provi dence, New Haven, Connecticut, and Rhode Island were formed without the help, and almost without the knowledge of the mother country." 4 It may therefore be said that their 1 The process of reproduction is well 2 See Charters and Constitutions, stated by Doyle, English Colonies in part ii. p. 1891. Am., Virginia, etc., pp. 215-220. "The 8 See Chalmer's Introduction, vol. i colonists proudly looked on the Con- pp. 13-16. stitution of their various States as cop- 4 Democracy in America, vol. i. p. 45 les of that of the mother country." Connecticut has been graphically de- Green, Hist. Eng.People.voliv. p. 169. scribed as " a State which was bora, ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 23 free constitutions were older than their charters. The royal charter of 1629 which organized a group of New England settlements into a corporation under the title of the Governor and Company of Massachusetts Bay, and then authorized them to regulate their own affairs as a practically independ ent and self-governing community, was in fact nothing more than a recognition of a preexisting state of things.1 The internal or- government of the Massachusetts colony was vested by the sanation. charter in the governor, deputy governor, and eighteen assist ants, all of whom were to be annually elected by the freemen. The only dependence under which the colony labored at the outset grew out of the fact that it was subject to the control of a corporation in England composed of those by whom its organization had been brought about. With the extinction of this company through the transfer of its charter to Amer ica that tie was severed, and Massachusetts became, as far as a colony could become, an independent commonwealth, and continued to be such down to the annulment of its charter charter a* in 1684 by a scire facias. By the new charter granted it °684ebyn in 1 69 1 its original independence was much curtailed by a * provision which gave to the crown the right to appoint a royal governor with an absolute veto upon legislation. Both Rhode Island and Connecticut preserved their free charters " unaltered down to the Revolution ; and even then — so com pletely adequate were they to all their wants — they did not change them. The charter granted to Connecticut by Charles II. in 1662 was continued as her organic law until 1818 ; while the charter granted in 1663 to Rhode Island was continued as her organic law down to 1842.2 Between the royal and charter governments stood a middle class known as proprietary, which approached nearer to the latter than the former in respect to their freedom from royal not made, which grew by natural accre- " The Genesis of a New England State," tion of townships, which formed its Johnston, Johns Hopkins Studies, ist own government, made its own laws, series, XI. p. 6. engaged in its own alliances, fought its 1 " But, if it be not a paradox to say own wars, and built up its own body, so, the constitution of Massachusetts without the will of King, Kaiser, or was older, than the existence of the Congress, and which, even at the last, colony." — Doyle, English Colonies in only made use of the royal authority to Am., Puritan, etc., vol. i. p. 104. complete the symmetry of the bounda- 2 See Charters and Constitutions, ries it had fairly won for itself." See part i. p. 252 ; part ii. p. 1603. scire acias. 24 INTRODUCTION. The propri- control. The proprietary system, which grew out of the idea etaryjys- tliat tne WQr]c_ 0f colonization could be better accomplished Maryland: by private individuals than by corporate enterprise, rested upon a series of grants made by the crown to one or more proprietors of vast tracts of land coupled with an almost un limited power of government and legislation. The first pro prietary government that bore fruit was that of Maryland, whose constitutional history begins with the grant made in 1632 to the first1 Lord Baltimore of the tract of land lying to the north of that actually settled, by the Virginia Company. By this grant the proprietor and his successors were not only invested with the title to the land, but they were also author ized to make laws with the assent and advice of the majority of the freemen or their representatives, free from all real de pendence upon royal authority.2 The details of political organization were in a great measure confided to the discre tion of the proprietor, whose original conception of a constitu tion consisted of a governor, council, and primary assembly, — a veritable Old-English gemote — in which every freeman her primary had the right to represent himself and to vote. Gradually as supplanted the primary plan grew inconvenient it was supplanted by a sentative6" representative system, and in 1647 the governing body was system. divided into two chambers, the lower consisting of an elective house of burgesses, the upper of the councillors and of those specially summoned by the proprietor.3 In the grant to the proprietors of Carolina we find the same absoluteness of sovereignty over the land, and the same freedom from royal control, with more careful provision however in favor of the freeholders who were endowed with a charter right 4 to par ticipate in legislation. Here it was that the proprietors at tempted to create a political fabric through the aid of Locke — a philosopher of the Social Contract school — whose Fundamental Constitutions quickly illustrated how vain it 1 Before the patent passed the seals within his county palatine." — Nar. George Calvert died, and the charter and Crit. Hist. vol. iii. p. 520. was granted to his son Cecilius, second 8 As to the history of the early as- Lord Baltimore. semblies, see Ibid., pp. «8-Mi, 53& a <«tu t> • j "'""""i <"== xuiu., pp. 520-531, jji* The Province was made a county See also Doyle, Virginia, etc., pp. 286- palatine; and the Proprietary was in- 291. vested with all the royal rights, privi leges, and prerogatives which had ever been enjoyed by any Bishop of Durham ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 2$ was to attempt to govern Englishmen by a paper constitu- Carolina tion J whose complicated and artificial details offended the ^fncwts national instinct by departing from the primitive tradition, j^™8''" When the proprietary system is viewed as a whole the great landlords to whom the original grants of land and political authority were made must be looked upon as the mediums or conduits through which the crown conveyed to the colonists the boon of local self-government. The colonies of Maryland, New York, New Jersey, New Hampshire, Pennsylvania (in cluding Delaware), Carolina, and Georgia were at the outset proprietary. But as the proprietors one by one surrendered their charters to the crown they were all transformed into royal colonies, except Maryland, Pennsylvania, and Delaware, which remained proprietary down to the Revolution,2 — sub ject to the charter right of their governors to veto legis lation. The fact that the soil upon which the English colonies in America* America were planted came to them through royal grants,3 Cobmai° the fact that every form of political organization established nghts' thereon rested upon royal charters, were the foundation stones upon which the colonists gradually built up, in the light of their actual experience, their theory of the political relations which bound them to the mother country. Their rights as Englishmen endowed with "all liberties, franchises, and immunities of free denizens and natural subjects " flowed from their charters which, as between themselves and the crown, were irrevocable though not non-forfeitable contracts. The earliest form of direct legislative control to which any of the colonies were subjected in the form of ordinances or instructions for their government emanated, not from the law-making power of the king in parliament, but from the ordaining power of the king in council. And at a later day 1 For the first draft of the Constitu- » " The title to the English colonies tions, see Carroll, vol. ii. p. 361 ; for the was not in the people of England nor later modifications, see the Shaftesbury in the state, but in the crown, and de- Papers, under the years in which they scended with it. The crown alone were issued. could sell or give away these lands. 2 "There were thus at last three The crown could make laws for the proprietary, seven royal [Va., N. Y., inhabitants, and repeal them ; could N. J., N. H., N. C, S. C., and Ga.], appoint their rulers, and remove them. one semi-royal [Mass.], and two charter Parliament could do neither." — Nar. colonies" [Conn, and R. I.]. — See and Crit. Hist., vol. vi. p. 3. Enc. Brit., 9th ed., vol. xxiii. p. 730. 26 INTRODUCTION. when the colonial assemblies began the work of legislation on their own account, the validity of their enactments depended, not upon the approval of the English parliament, but upon that of the royal governor who stood as the ever-present rep- resentative of his royal master. With the founding of the colonies, and with the organization of their political systems, the crown had everything to do ; the parliament practically nothing. Apart from the control which it had exerted from the beginning over their external affairs in matters of trade and navigation, the colonies, prior to the latter part of the eighteenth century, had not been drawn within the widening The crown circle of its imperial authority. The whole tendency of their thTon'Jy tie early experience was to lead the colonies to believe that the bouna the crown was tne only tie which bound them to the mother colonies to country, that to each one of them the king stood in the direct England. , . ¦" . , . . . , ,. , , . relation ot chief executive, that to him alone duties were due, and that the only proper mediums of communication between the crown and the colonies were the colonial parliaments. In their local legislatures the colonists had learned how to tax themselves, and how to regulate their home affairs through laws of their own making.1 Losing sight of the fact that England had grown into an empire since the work of coloni zation began, the colonists clave to the earlier conception which regarded the home parliament simply as the legislative English organ of the United Kingdom. As such they held that it colonial0 nad no right to invade the jurisdictions of their colonial rishts- assemblies in order to legislate directly upon their internal concerns. While remoteness and self-interest were alike intensifying in the colonial mind this reasonable yet narrow conception, the growth of English dominion was leading English statesmen at home to elaborate a theory which, in the gorgeous language of Burke, clothed the English parlia ment with an " imperial character, in which, as from the throne of heaven, she superintends all the several inferior legislatures, and guides and controls them all without anni hilating any."2 In the hands of a practical tax-loving statesman like Grenville this imperial theory was not con- i This is well put by Fiske in The 2 Speech on American taxation Critical Period of Am. History, p. 63. April 19, 1774. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 27 fined to mere supervision ; in such hands it was held to mean that the Imperial parliament could at any moment override the acts of the colonial assemblies, without consulting their wishes at all, and tax and legislate for the people of Massa chusetts and Virginia just as it could for the people of Kent and Middlesex. Out of the conflict which finally arose Out of the between the English and the colonial theories as to the grew'tL practical omnipotence of the Imperial parliament over self- r^"^;^6 governing communities beyond the four seas, grew the War of the Revolution, and the severance of the colonies from the mother country.1 Having briefly outlined the external relations of the colo- internal or- nies both to the crown and to the parliament, let us return If theVoi™ to the question of their internal organization. In the sketch omes- heretofore drawn of the growth of the English kingdom the conclusion was reached that in its matured form it repre sented an aggregation of shires, — each shire representing an aggregation of hundreds, each hundred, an aggregation of townships. In the examination which will be hereafter made of the making of England the fact will be drawn out that the "unit of the constitutional machinery" was the township — the English form of the village-community — the primary form in which Englishmen group themselves together for self-government. Out of a union of townships grew what English was finally known in England as the hundred ; out of a union theBpro™uct of hundreds grew the modern shire; out of a union of modern jf0jjggrega' shires grew the English kingdom. The most important fact which this process of state-building reveals is that the Teu tonic conquerors of Britain accomplished the work of conquest in small companies, and that, in obedience to the race instinct, they grouped themselves together in townships out of whose coalescence finally arose the larger aggregates. The power to subdue and settle a new country, and then to build up a state by this process of aggregation, constitutes the strength of the English nation as a colonizing nation. By this process, 1 The two conflicting theories are cause that stated by Turgot, who said clearly stated by Green, Hist, of the that " colonies are like fruits, which English People, vol. iv. pp. 226-230. cling to the tree only till they ripen? As Although this conflict of theory as to the soon as America can take care of itself jurisdiction of the Imperial parliament it will do what Carthage did." — CEuvres was no doubt the visible and technical de M. Turgot, Paris, 1808-1811, vol. ii. cause of separation, was not the real pp. 19, 66. 28 INTRODUCTION. Federal re- capable under favorable geographical conditions of unlimited thebunited expansion, has been built up the federal republic of the United ducfonhe States. " In America ... it may be said that the township same gener- was organized before the county, the county before the State a pro. . : .¦.. ^ State before the Union."1 In order to ascertain how the English colonies in America were constructed, we must look behind their charters at the lives of the men who made the settlements out of which they grew. " Under the shell there was an animal, and behind the document there was a man. . . . The shell and the document are lifeless wrecks, valuable only as a clue to the entire and living existence. We must reach back to this existence, endeavor to recreate it."a In the effort to recreate the process through which the English colonies in America were made, we must keep steadily in view the process through which their prototype in Britain was made. The elements of organization in both were the same, and the general principle upon which such elements coalesced was substantially the same. It may be stated as a general rule that the English colony in America, like the English state in Britain, represented an aggregation County and of counties, and that each county represented an aggregation theo'rgans 0I townships. The hundred — the intermediate division ofiocaiad- between the township and the county, — appeared in the tion. structure of some of the colonies, but being unnecessary to the local wants of the new land it passed out of view.3 In some instances the colony was formed by the coalescence of the local communities before a charter was granted ; in others the charter was granted first and the colony then subdivided into districts as the local communities were organized. The fruit of both processes was the same — a dependent state — subdivided into counties and townships as the organs of its local administration. The most striking fact which stands 1 Tocqueville, Democracy in Am., 2 Taine, Hist, of Eng. Literature, vol. i. p. 49. " Upon the township was vol. i. p. 1. formed the county, composed of several » The hundred existed in Virginia towns similarly organized; the state and in Maryland, and may be else- composed of several counties, and, where. As to its history in Virginia, see finally, the United States, composed of " Local Inst, of Va.," Ingle, J. H. Stud- several states ; each organization a body ies, 3d series, II.-III. p. 41. "A Tyth- politic, with definite governing powers in ing-man in each Manor, a Constable in a subordinate series." — Address of each Hundred." — Bacon, Laws 0] Mr. Lewis H. Morgan before Am. Ass. Maryland, 1638. for the Adv. of Science, Boston, Aug. 26, 1880. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 29 out in the history of these local communities in the new land is that wherever the one became the active agent of local administration, the other, while it did not cease to exist, became dormant. In America the county and the township did not reappear as co-working agents dividing the duties of local administration in anything like equal proportions. In in the the northern colonies where population became dense, and "oionfe? where the active spirit of the English yeoman and trader *« t0.1™- reproduced a system of political life as closely organized as it southern was vigorous, the township became the active organ of local the active administration for the simple reason that its compact organ- agent- ization was better adapted than that of the shire to the local wants of New England. In the southern colonies where population was more sparse, and where the southern planter reproduced the more tranquil life of the English gentleman who had little or nothing to do with the life of towns, the county became the active organ of local administration for the reason that it satisfied all of the political wants of a rural population.1 To that extent the local organizations of the northern and southern colonies were different from each other. "Townships and town arrangements exist in every state ; but in no other part of the Union is a township to be met with precisely similar to those of New England. The farther we go toward the South, the less active does the business of the township or parish become ... As we leave New England we find that the importance of the town is gradually transferred to the county, which becomes the centre of administration, and the intermediate power between the government and the citizen."2 While the township or parish was thus overshadowed in the southern colonies by county organization, the New England county maintained nothing more than a shadowy existence as a local district for certain judicial purposes.3 In the middle colonies the two opposing 1 In revising the MS. Mr. Freeman " the two lands represent two different here wrote : " I found in Virginia peo- sides of England. Virginia more nearly pie spoke of the county just as they do reproduced the England of the time of here. In New England the county the settlement. New England more seemed lost. There the town was the nearly reproduced the England of an thing, when the city had not swallowed earlier time." it up." In his " Introduction to Am. 2 Tocqueville, Democracy in Am., Inst. Hist.," J. H. Studies, ist series, vol. i. pp. 99, 100. I. p. 17, Mr. Freeman, in comparing Vir- 8 See Washburn, Judicial Hist, of ginia with New Fngland, has said that Mass., p. 31, note I. 30 INTRODUCTION. Composite systems fought for the mastery, and the result was a com- thfrmddie posite system which approached nearer than either to the colonies, original model by dividing between the town and the county in something like equal proportions the duties of local gov ernment.1 The town- The remarkable fact is that the township reappears upon £ngiandew tne s01^ °^ New England rather in the form in which it appeared in Britain when the foundations of the English kingdom were laid than in the form in which it there existed when the migration to America began. The township as it originally appeared in Britain was at once a cultivating and political community in whose qualified members resided the power to elect their own officers and to order their own village and agricultural life. This power was vested in a single village assembly or tun-moot in which the townsmen met to regulate their internal affairs by the making of by laws, — laws enacted by a " by " — as the township was called in the northern shires. But during the ten centuries which intervened between the Teutonic conquest and settle ment of Britain and the making of the English settlements in America the primitive township passed through a marked "Township transformation. In the process of English feudalization the ;„,— e man township was transformed into the manor of the lord, and the once free townsmen became the lord's tenants, while the greater part of the ancient jurisdiction of the tun-moot passed to the manorial courts. And more than this, the township in the home land became involved in ecclesiastical as well as as the par- in feudal relations. As a division in the territorial organiza tion of the church the township became the parish, and as such its boundaries were used to define the jurisdiction of a single priest, — "in small parishes the idea and even name of township is frequently, at the present day, sunk in that of the parish ; and all business that is not manorial is dispatched s; en> Historical Society3 — is contained incontestable evidence of the fact that a court leet was held in that manor at intervals between 1659 and 1672.4 "In 1776 there were still unsold seventy thousand acres of proprietary manors lying in nine counties. In the Maryland Reports is to be found a notable lawsuit over Anne Arundel Manor. The proprietor, Lord Frederick Calvert, sought by means of a common recovery to break the entail upon the manor, and thus prevent its passing into the hands of a natural son of the former proprietor."6 The evidence is equally clear as to the existence in New Manors in York of the manorial system. The agent which Holland employed in the colonization of New Netherland was the West India Company, whose general government was vested, 1 Coke's Copyholder, p. xxxi. nied, was a popular institution, a kind a History of Maryland, vol. ii. p. 581. of Town Meeting on the Lord's Manor. In an editorial note, p. 25, of " Old Such a manorial survival is, like the Maryland Manors," Dr. Adams says, old Town Pasture at Annapolis, a con- " Here, then, is instanced by Bozman necting link between Province Mary- himself a concrete case of a manorial land and Early England." — See note court, the records of which Mr. Boz- by Dr. Adams to " Int. to Am. Inst. man appears to have seen." Hist.," J. H. Studies, ist series, I. p. 13. 8 These records, presented to the 6 Old Maryland Manors, p. 8. For society by Col. B. U. Campbell, are the case referred to, see 2 Harris and printed as an appendix to Old Maryland McHenry, p. 279. As to the effect of Manors, pp. 31-38. manorial customs upon the rights of 1 " The Court Leet, the existence of tenants, see Dorsey v. Eagle, 7 Gill and which in Maryland has long been de- Johnson, p. 321 (1835). 34 INTRODUCTION. The " pa- troon " as lord of the manor. by the charter granted in 1621, in a board composed of nineteen delegates. In June, 1629, the States-General rati fied the document called " Freedoms and Exemptions " pre viously granted by the governing body of the West India Company " to all such as shall plant any colonies in New Netherland." Under the immunity thus granted and con firmed, each proprietor or "patroon" who planted a colony of fifty souls, upwards of fifteen years old, was not only entitled to a large expanse of territory " as a perpetual inheritance," but he was also authorized to erect it into a seignorial fief or manor within which he was entitled to many of the feudal rights incident to lordship. The colonist, whom the "pa troon " was required to furnish with a well equipped farm, was bound in return to pay to the lord a fixed rent, in addi tion to a portion of the product of the farm and a part of the increase of the stock. The tenant could not sell his produce elsewhere until the lord had first refused to buy it ; he was required to have his grain ground at the lord's mill ; from the lord he had to obtain a license to fish and hunt within the domain.1 As lord of the manor the " patroon " was the heir of all who died intestate,2 and as such he was empowered "to administer civil and criminal justice in person or by deputy within his colonie, to appoint local officers and magistrates; to erect courts and to take cognizance of all crimes committed within his limits." 3 " Theoretically, the patroon was always present in his court baron. Practically, the government of the colony was administered by a court composed of two commissaries and two schepens, assisted by the colonial secretary and the schout." i The manorial system thus established by the Dutch in New Netherland was perpetuated under English forms, after the territory was conquered by the English and transformed into the colony of New York. In Livingston the patent creating Livingston Manor, granted by Governor Dongan in 1686, authority was given for establishing "in the said Lordship and Mannor one Court Leet and one Court Baron ... to be kept by the said Robert Livingston his Heirs and assignes for ever or theire or any of theire Stewards 1 See " Dutch Village Communities 8 O'Callaghan, Hist, of New Nether- on the Hudson River," Elting, /. H. land, vol. i. p. 320. Studies, 4th series, I. pp. 12-16. * Broadhead's Hist, of N. Y., p. V>% 2 Broadhead's Hist, of N. Y., p. 305. Manorial courts.- ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 35 Deputed and appointed," 1 etc. Under the English and Dutch manorial systems thus established in Maryland and New Netherland the proprietors or "patroons " were nothing more nor less than feudal lords who were endowed with the right to exercise within their own manors all of the feudal incidents of tenure and jurisdiction. Thus did the dying feudalism attempt to strike its roots into the free soil of the New World as a permanent institution. The effort was of course short lived. In spite of the oppressive seignorial rights granted to The manor the lord, the fact remained that the manor was a self-govern- ermnlcom- ing community. In the court baron the free tenants acted muni'y- both as judges and jurors ; in the court leet criminal justice could only be enforced against a tenant through the judg ment of his peers. In the leet the manorial officers were elected by the tenants, who there enacted by-laws for their own government.2 The growth of local political life in Maryland and New York, although hampered and retarded for a time by the feudal obstructions by which it was sur rounded, soon waxed strong enough to break through them all, and to cast aside as obsolete and worthless the shell in which it had passed the period of its incubation. Having noted the reappearance in New England of the The parish English village community in its primitive form as the town- in l^glnIa• ship, and in Maryland and New York in its feudal form as the manor, let us turn next to Virginia, where it reappears in its ecclesiastical form as the parish. As the township was the form of local organization specially demanded by the social and economic wants of the settlers of New England, it there reappeared as the primary unit of local self-government. "Upon the township was formed the county, composed of several towns similarly organized ; the state composed of several counties," 3 etc. Thus in New England, as a general rule, we find the state to be an aftergrowth which arises out of a process of aggregation in which the township is the unit or starting-point. In Virginia, which will be accepted throughout as a typical representative of the colonial group to which she belonged, the work of state-building, guided by 1 Docs. Relating to Col. Hist. ofN. K, 8 Mr. L. H. Morgan's Address here- vol. ii. pp. 375, 376. tofore cited. 2 See Old Maryland Manors, pp. 14- 16. 36 INTRODUCTION. the peculiar social and agricultural wants of the first settlers, Virginia proceeded upon entirely different principles. In Virginia the fnto'coun-6'1 colony was first created as an entirety and then subdivided ties in 1634. [n^0 self -governing districts as rapidly as they were demanded by the growth of population. As early as 1618 the governor and council were ordered to divide the colony into counties ; 1 not until 1634, however, was such a division actually made. In that year the colony was divided into. eight shires which were to be governed as English shires were governed, with lieutenants and sheriffs, and "sergeants and bailiffs where need requires." The eight shires2 "were James City, the country around Jamestown, Henrico, around the settlement of Sir Thomas Dale, Charles City, Elizabeth City, Warwick River, Warrosquayack, Charles River, and on the eastern shore, Accomac. That these counties, as a rule, took their names from and embraced the settlements is a curious phase in English institutions — for it was nothing more or less Virginia than the towns growing into the counties. This was very grow into different from the origin of counties in England and in New whlchlre England. ... In 1680 there were twenty counties, a word divided into introduced into the laws in 1630, and the number increased parishes. J -7' as it became necessary. . . . When the county had finally become crystallized, it was divided into parishes, precincts for the constables, and walks for the surveyors of highways, the last two divisions being subject to such rules and altera tions as the county court thought fit to make." 3 When the Virginia parish thus appears in its normal shape it is as a subdivision of the county — a subordinate unit subject to the direction and control of the county court. The parish which, like its prototype, thus stood in a subordinate relation to the county, was endowed with all of the ecclesiastical, and nearly all of the civil authority possessed by the English original. "The parish was, as a rule, a division of the county for religious purposes ; but the governing body of the parish, the vestry, had considerable authority in civil affairs."4 "The township of New England was the parish of England, shorn of its ecclesiastical powers ; the parish of Virginia was the 1 See Rev. P. Slaughter's History of 8 Local Institutions of Virginia,lnAe, Bristol Parish, 2d ed., p. 4; Town and pp. 81-83. County Govt, Channing, p. 43. 4 Town and County Govt., p. 48. 2 Hening, vol. 1. pp. 223, 224. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. $"] English parish stripped of some of its civil functions. In Resem- Virginia the parish as it existed in England was instituted, twee^the" although, on account of the peculiar circumstances of the English and v 11 u, ini note 1. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 55 sions and to retire from North America. The results of the Effects of French and Indian War were momentous in their effects upon S"iS the cause of union. By the overthrow of the one enemy that ^u°bne ^e they feared, the only real cause for the dependence of the union- colonies upon the mother country was removed at a blow; by their joint endeavors was won that vast domain beyond the Alleghanies which was destined to become a national possession ; in the thick of the fight the new nationality heretofore unconscious of its real character finally awoke to a sense of its oneness. The struggle for expansion thus be came the training-school in which the colonists were for the first time made to realize their capacity for concert of action upon which they had mainly to rely in the greater fight that was soon to come. Within two years after the making of the Peace of Paris, by which the French and Indian War was formally terminated, the colonies were called upon to act in concert in resisting the Stamp Act which in February, 1765, had passed the Imperial parliament.1 When Massachusetts stamp Act spoke the word for the first American congress, the nine of Oct. 7, 1765. the thirteen colonies that met in New York in response to the summons took the first step on the way to union. Nine years later, when Massachusetts at the suggestion of Virginia again gave the word, the First Continental Congress assem- First Con- bled in Philadelphia in September, 1774, in which all the congress. colonies were represented except Georgia. In this the first ept" I774' American assembly which was really national, and in which Washington sat in his colonel's uniform, the new-born spirit of union was embodied in a resolution which made the cause of the people of Massachusetts the cause of all by the dec laration that if force shall be used " all America ought to support them in their opposition." In the Second Conti- Secn0t^enbft nental Congress which met in the same place in May of the congress. Mav 177c following year all of the colonies appeared, and, in the sum mer of 1 776, all took part in the two great acts 2 which gave 1 It "passed through both houses Lee moved a resolution, which was with less opposition than a turnpike adopted by congress on the nth, bill." — Green, Hist, of the Eng. Peo- " That these United Colonies are, and pie, vol. iv. p. 230. The Peace of Paris of right ought to be, free and inde- was the fruit of a treaty signed in Paris pendent states. . . . And that a plan of in February, 1763. For its history, see confederation be prepared and trans- Parkman, Montcalm and Wolfe, vol. ii. mitted to the respective colonies for p. 383, etc. their consideration and approbation." 2 On the 7th of June Richard Henry *J 56 INTRODUCTION. Declaration of Inde pendence.July 4, 1 776. Congressthe national governmentdown to March 1, 1 781. Articles of Confedera tion. life and character to the new nationality. By one concurrent act, performed through their representatives in congress as sembled, the colonies severed their political relations with the English crown, and thus became independent states, save so far as that independence was limited by the federal relations into which they had entered prior to the making of the Dec laration of Independence.1 What those federal relations were depends upon the nature and extent of the powers of the Second Continental Congress which was the cohesive force which held the states together, and managed their federal af fairs from the time of its meeting down to the ist of March, 1 78 1,2 when the articles of confederation took effect as a constitution binding on all the states. Down to that time the congress was the national government — such a govern ment as it was — de jure and de facto ; and the general scope of its powers cannot be more clearly expressed than in the language of Justice Chase, who said that " The powers of congress originated from necessity, and arose out of and were only limited by events, or, in other words, they were revolu tionary in their very nature. Their extent depended on the exigencies and necessities of public affairs." 3 The move upon the part of congress to devise some form of confederation under which the colonies could permanently unite preceded by three weeks the promulgation of the Dec laration of Independence.4 But the task proved a difficult one. Not until after a year and a half had been consumed 1 "The transformation of the colo nies into ' states ' was, therefore, not the result of the independent action of the individual colonies. It was accom plished through the 'representatives of the United States;' that is, through the revolutionary congress, in the name of the whole people." — Von Hoist, Const. Hist, of the U. S., vol. i. p. 5. To the same effect, see Fiske, The Critical Period, p. 91. This seems to be the more reasonable view, but the Supreme Court of the United States, in Ware v. Hylton, 3 Dallas, p. 224, expressed through Justice Chase a con trary opinion, as follows : " I consider this as a declaration, not that the Uni ted Colonies jointly, in a collective ca pacity, were independent states, etc., but that each of them was a sovereign and independent state." 2 On that day Maryland signed the articles and completed the constitu tion. 3 See Ware v. Hylton, 3 Dallas, p. 232. Von Hoist incorrectly attributes this statement to Jay, C. J. 4 The committee appointed under the resolution of the nth of June, 1776, to draft "articles of confederation and perpetual union," completed its work by the 12th of July, but the result was not finally adopted by Congress until November, 1777. " John Dickinson is supposed to have been the principal author of the articles of confedera tion ; but as the work of the commit tee was done in secret, and has never been reported, the point cannot be de termined." — The Critical Period, etc, P- 93- ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. $f in study and debate did the draft of the first constitution of the United States reach completion. Not until November, 1777, were the articles of confederation submitted by con gress to the states for adoption, — whereupon they were promptly signed by all except Delaware, New Jersey, and Maryland. Their refusal to enter into the confederacy grew out of the controversy as to the ultimate ownership of the great western territory of which France had been dispos- The west sessed. After the Revolution had extinguished the rights of tory.6" the English crown in this vast domain, Virginia, New York, Connecticut, and Massachusetts undertook to claim it for themselves under conflicting and irreconcilable titles. The three resisting states, whose western boundaries were irrev ocably fixed, could never hope to share in this great heri tage unless its ownership should be vested in the corporate person of the new nationality. To prevent such a contin gency the claiming states had procured an amendment of the articles to the effect that no state should be deprived of ter ritory for the benefit of the United States.1 Delaware and New Jersey soon withdrew from the controversy, leaving the fight for national dominion over this priceless possession to Maryland alone. In her " Instructions " to her delegates Maryland's read in congress, May 21, 1779, her position was clearly and uVnthe distinctly defined. She claimed " that a country unsettled ^"nScte0s" at the commencement of this war, claimed by the British the United States. crown, and ceded to it by the treaty of Paris, if wrested from that common enemy by the blood and treasure of the thirteen states, should be considered as common property, subject to be parcelled out by congress into free, convenient, and inde pendent governments, in such manner and at such times as the wisdom of that assembly shall hereafter direct." 2 For tunately for the future of the country, from this high ground she never withdrew. In January, 1781, Virginia agreed con ditionally to yield her claims ;3 on March 1, 1781, New York executed a transfer of her rights to the United States ; and on that day Maryland completed the new constitution by giv ing it her adhesion.4 Exactly three years thereafter Virginia 1 See Journals of Congress, vol. ii. 3 Journal of Va. House of Delegates, .304. ' p. 79- 2 See Ibid., vol. iii. p. 281. 4 Journals of Congress, vol. ill. pp. 58 INTRODUCTION. conveyed without conditions, and in due time Massachusetts and Connecticut did substantially the same thing. In this way the new nationality became the sovereign possessor of " the whole northwestern territory — the area of the great states of Michigan, Wisconsin, Illinois, Indiana, and Ohio (excepting the Connecticut reserve)," x which, under the ar ticles of confederation, it had no express right either to hold or govern.2 Not until Maryland had been assured that this great prize should belong to the new confederacy, not until its right to possess this vast domain as folkland had been clearly admitted, did she agree to become a member of the league whose constitution soon proved itself to be more weak, more worthless, more impotent than that of any of the older Teutonic leagues after which it had been patterned. In their first effort American statesmen exhibited no fertility of re- character source in the making of federal constitutions. The new federal con- fabric simply embodied the old story of a confederation with stitution. tne federal power vested in a single assembly, without an ex- ecutive head, and without a judiciary. Congress could make treaties with foreign nations, but it could not force the states to observe them ; it alone could decide controversies between the states, and yet it could not enforce the final decree ; it could declare war, but it could raise neither men nor money save through the old and ineffectual system of requisitions interstate upon the states as states. If there was one feature that ' "5 ip- raised the new constitution above its fellows it was the new system of interstate citizenship which it embodied.3 But such a negative virtue as that was not sufficient to save it from the general condemnation which fell upon it as its de ficiencies were day by day revealed in the storm and stress of protracted war. Federalism, which as a system of govern ment already stood low enough in the estimation of mankind, 581, 582, 591. What has been here said domain, a power totally foreign to the as to the influence of Maryland in this articles of confederation," under the great transaction has been chiefly drawn ordinances of 1784 and 1787, see Dr. from the brilliant monograph of Dr. Adams's paper cited above, p. 44; Fiske, H. B. Adams, entitled " Maryland's The Critical Period, pp. 192-207. Influence upon Land Cessions to the 8 See sec. one, art. four, of articles. United States," J. H. Studies, 3d "The articles of confederation first series, I. brought in the rule that any one might 1 The Critical Period, p. 194. at will transfer his membership from one 2 As to " the exercise of national state to another." — Bancroft, Hist. 0} sovereignty in the sense of eminent the Const, vol. i. p. 118. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 59 was put in no better plight by the first American experiment. The full significance of that fact naturally fell with the great est weight upon the heart of the mighty chief whose person- washing- ality was called upon to supply the unity and cohesion which ton'~~ could not be derived from the new constitution. As Luzerne wrote of him to Vergennes at a little later day, " More is hoped from the consideration of a single citizen than from the authority of the sovereign body." 1 From the very oui.set Washington saw that no good could come of the new compact unless more adequate powers were vested in the federal assem bly. In the month before the articles were finally accepted by Maryland he wrote : " I never expect to see a happy termi nation of the war, nor great national concerns well conducted in peace, till there is something more than a recommendatory power in congress." 2 So completely had this conviction taken hold of his mind by the close of the war, that he made its ex pression the most solemn feature in the circular letter which his circular in June, 1783, he addressed through the governors of the states June's" to the whole people as his "legacy" to his country. "The I?83' newspapers of the day, as they carried the letter of Washing ton into every home, caught up the theme, and demanded a revision of the constitution, ' not by congress, but by a conti nental convention, authorized for the purpose.' " 3 Ere the echo of Washington's great appeal had died away the states, under the lead of Virginia 4 whose conduct he inspired, gath ered in the famous federal convention of 1787 in which was framed the present constitution of the United States. 7. The work of the federal convention which met in Phila- The Fedei delphia on May 14, 1787, is generally and justly regarded as tion, May the most perfect and the most important piece of political 14' 1? 1' work ever performed by a deliberative assembly in ancient or modern times. In the words of Mr. Gladstone, "As the British constitution is the most subtile organism which has proceeded from progressive history, so the American consti tution is the most wonderful work ever struck off at a given 1 August, 1783. Printed in Appen- through which the convention was dix to Bancroft, vol. i. p. 326. brought about, and as to the parts 2 Washington to Sullivan, February taken by Washington and Madison, 4, 1781. Sparks, vol. vii. p. 402. see The Critical Period, etc., pp. 212- 8 Bancroft, vol. i. p. 1 13. 229. As to Virginia's initiative, see 4 For the details of the process Bancroft, vol. i. ch. viii. 60 INTRODUCTION. time by the brain and purpose of man." 1 The men themselves who accomplished the mighty task seem to have been over come at its close by the grandeur of their achievement. When the masses of the people had the opportunity to ex amine its provisions, and to feel the practical benefits which it wrought in their political condition, they too became im bued with a spirit of intense admiration ; they put it upon a pedestal and made it a popular idol ; as a German historian Canoniza- has expressed it, the new constitution soon passed through a constitu- e process of canonization.2 The one evil effect of this ardent tlon- and uncritical spirit was to mislead for a time the minds of men as to the real character of a work whose true value as an enduring institution rises higher and higher in the light of its actual history. The uncritical enthusiasts who looked upon the framers of the new constitution as demigods and not as men, and who held up their work as a spontaneous creation produced under the effects of an intellectual inspi ration, unwittingly put upon it the gravest reproach to which it could possibly have been subjected. It is just because it was no such thing that it has been able to survive all the vicissitudes through which it has passed, and to stand forth to-day stronger and better for having passed through the severest ordeal in which any political fabric was ever tested. The consti- To the student of institutions the constitution of the United "creation." States is not a " creation " at all, neither is it a paper constitu tion in the sense in which that term is usually understood. If it had been, it would have withered long ago and disap peared along with the many other paper constitutions formu lated about the same time by the excited dreamers of the French Revolution who refused to believe with Sir James Mackintosh that "constitutions are not made, they grow." In the light of the calm critical spirit which now prevails, and with the abundant historical knowledge at the command of all, there is no reason why any one should be misled as to the real origin and character of our federal constitution. 1 This statement is quoted only as that a viable constitution can ever be evidence of the esteem in which the ' struck off at a given time by the brain work of the convention is held by the and purpose of man.' " See The Nev greatest of statesmen. I believe with Princeton Review, September, 1887, p. Professor Johnston that, " If the bril- 186. liant success of the American constitu- 2 Von Hoist, vol. i. pp. 64-70. tion proves anything, it does not prove ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 6l From the biographies of the framers themselves it is easy to ascertain what their race-traits were ; from the histories of the colonies from which they came it is equally easy to ascer tain what had been the character of their prior political training and experience; from the history of the events which had recently preceded their meeting we can derive with out any great effort the overshadowing causes which brought them together. As to the secret proceedings of the conven- Proceed- tion itself, industry has exhausted its resources in gathering convention. together every scrap of existing evidence which can possibly throw light upon the subject.1 The incomplete Journal of the convention has been edited and published under the sanction of congress ; the contemporaneous private correspondence of the members has been gathered together from every quarter ; the archives of our own state department have been carefully searched ; the archives of the foreign governments that had representatives in the country at the time have been made to yield up their treasures,2 — until everything calculated to throw light upon what was done in the " secret conclave" has at last been made accessible to every inquirer. In the Feder alist papers we have a contemporaneous exposition little less remarkable for intellectual vigor than the constitution itself. Out of such a mass of material it would be easy to spin a volume. The difficult task is to so lift up out of the mass the great central facts and thoughts as to make them present vividly to the mind a clear and simple picture of what actually occurred. Through every great transaction there runs a logical order of thought, as well as a historical sequence of facts. And yet it often happens that a mere narration of the facts in the order in which they occurred will utterly fail to 1 The most important single source tion of congress," in 1830-45, and re- of information as to the proceedings of printed in Philadelphia in 1888. the federal convention is Elliot's De- 2 In the appendices to Bancroft's bates, in which is contained not only the Hist, of the Constitution, 1883, can be debates which took place in the state found a rare collection of letters and conventions on the adoption of the papers touching the making of the con- constitution, but also the Journal of stitution, and the causes which led to the Federal Convention, Yates' Min- the meeting of the convention, very utes of the Proceedings, Madison's few of which had ever before been pub- Journal of the Federal Convention, to- lished. See Mr. Bancroft's criticism gether with the official letters of many upon the manner in which the incom- of the leading members in explanation plete Journal of the convention has been of their conduct, and other documents interpolated by its editors. Preface, pp. of the highest historic value. These de- xiv., xv. bates were published " under the sane- 62 INTRODUCTION. reveal to the mind the full scope of the intellectual process moving behind them. This is eminently true of the proceed ings of the federal convention. From the mere record it is impossible to grasp the full significance of all that transpired. In attempting to read the mind of the convention, the fact must be recognized that " under the shell there is an animal, and behind the document there is a man." 1 In the light of this truth the effort will be made to explain within a narrow compass, first, the sources whence came the great thoughts that dominated the convention ; second, what those great thoughts were ; third, the forms which they finally assumed. Race-traits An assembly could hardly have been convened in the ,of_the fram- Tjnited Kingdom more English as to race and political train ing than that made up of the fifty-five delegates who com posed the federal convention. The Virginia delegation was simply a brilliant group of English country gentlemen who had been reared on the right side of the Atlantic. Alexander Hamilton and Robert Morris were born English subjects; the father of Franklin was an English emigrant from North amptonshire; Charles Cotesworth Pinckney had been edu cated at Oxford and the Middle Temple; Rutledge had studied law at the Temple; and James Wilson, the most far-sighted man perhaps in the whole convention, was born :Poiiticai near St. Andrews in Scotland. As to political training, they .training. na(j a|j been reare(j under the English system of local self- government which had grown up alongside of the English customary law in the several states which they represented. These states they had helped to transform from English provinces into independent commonwealths whose constitu tions were substantial reproductions of that of the English kingdom. In fine, the only practical conception of the state which they possessed was that embodied in the constitution . of the old land modified as it had been in the new by the abolition of nobility, feudality, and kingship. So far as 'Blackstone scientific knowledge was concerned, the oracles usually con- ; Monies- suited at that day were Blackstone and Montesquieu. The quieu. "Spirit of Laws " was studied by Washington as a part of his preparation for the work of the convention ; 2 and Madison 1 Taine, Hist, of Eng. Literature, 2 Washington drew the outlines of vol. i. p. i. three new constitutions, each one of ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 63 tells us in the "Federalist," that "The British constitution was to Montesquieu what Homer had been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged ; so this great political critic appears to have viewed the constitution of England as the standard, or, to use his own expression, as ^ the mirror of political liberty." 1 The first effort which American statesmen had made to causes construct a federal constitution had resulted in something polled the*" which was a radical departure from the whole course of making of ...... r tne second their political experience. They had sought a model for the constitu- new structure entirely outside of the political history of the mother country. The result was a fabric whose internal organization violated every political maxim with which they were familiar. It had no executive head; it had no judiciary; it vested and confused the legislative, executive, and judicial powers in one assembly instead of two ; it had no power to enforce its mandates. No scheme of government ever elab orated with so much care ever proved a more complete and hopeless failure than that embodied in the articles of con federation. During the war, when executive force and finan cial promptness were most essential, it had failed to supply either. At the end of the war it found itself burdened with Financial a great debt for which it had no ability to provide — a fact oi the con- which brought great discredit upon the new nationality. In federatl0n the hope of restoring the public credit an earnest effort was made in 1782 to give to congress the power to command a permanent revenue through the imposition and collection of a duty on imports.2 Two years after the refusal of the states to grant that power to congress, Robert Morris, the able financier, who had so long stood up against every difficulty, gave up his hopeless task ; and, after informing Marbois,3 the which aimed at the making of a stronger states had assented except Rhode Isl and more perfect union. See North and, whose refusal was followed by the Am. Review, xxv. p. 263; Bancroft, withdrawal of Virginia. Subsequently vol. i. p. 278. all the states agreed to grant the power 1 No. xlvi. p. 334, Dawson's ed. except New York, who defeated the 2 Such a power could only be be- last attempt by annexing to her assent, stowed through an amendment of the given in May, 1786, the proviso that articles which required unanimous con- she should appoint her own collectors. sent. At the close of 1782 all the 8 Dip!. Cor., vol. xii. p. 494. 64 INTRODUCTION. representative of France in America, that he could not even provide for the interest on the Dutch loan which France had guaranteed, on the first of November, 1 784, finally retired from the office of superintendent of the finances of the United States.1 In the midst of the weariness, inaction, and confusion which existed at this time Marbois wrote to Ray- neval : " The people, scarcely escaped from war, are already losing that public spirit which up to this time made good the want of energy in the government. There is neither congress, nor president, nor minister in any department. All matters, and especially those of finance, fall into a worse Root of the confusion than before."2 The rock upon which the confed- uIsitionreq eration had gone to wreck was the requisition system, under system. which the federal treasury was practically dependent upon the states for voluntary contributions. Out of ten million dollars, called for by congress for the four years ending in 1786, only one fourth was actually collected. Under the pressure of such circumstances congress lost both prestige and authority ; and by the time of the meeting of the federal convention the government of the confederation had practi cally disappeared. The country was beginning to be threat ened with anarchy,3 with dangers from within and dangers Four great from without. The pressure of these dangers brought into ",:,u !"r the foreground four great motives for union. The English order in council of the 2d of July, 1783, as to the carrying trade between America and the British West Indies made it imperatively necessary that the states should vest in a central government the power to regulate and protect their foreign commerce; while other motives of self-interest made it equally necessary that such central power should be armed with the authority to govern the national domain, to provide a revenue for the satisfaction of the public creditors, and to protect domestic trade by prohibiting the states from impair ing the obligation of contracts.4 As Madison expressed it in 1 See Bancroft, Hist, of the Const, 8 This is well brought out by Fiske vol. i. p. 165. M6rris tendered his in The Critical Period, etc., ch. iv., resignation to congress in January, " Drifting toward Anarchy." 1783, but did not actually give up his * For a full statement of the four post until November, 1784. See Ibid., great motives, see Bancroft, vol. i. p p. 80. 146. 2 November 20, 1784. Printed in Appendix to Bancroft, vol. i. p. 396. union. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 6$ a letter written to Lee in November, 1784: "The union of the states is essential to their safety against foreign dangers and internal contention ; the perpetuity and efficiency of the present system cannot be confided in ; the question, therefore, is, in what mode and at what moment the experiment for supplying the defects ought to be made."1 The utter worth- lessness of the confederation and the pressing necessity foi a new federal government were admitted on every hand. The difficulty was to find out how to construct something that would be adequate to the necessities of the new nation ality. Experience had shown that a league based upon the requisition system was a mere rope of sand, and yet every other federal commonwealth that had ever existed down to that time had rested upon that impotent expedient. At this point The new necessity became the mother of invention, — after a painful idea — the travail America gave birth to a novel and irresistible political *?*»*«- & r chende idea, — what the Germans would call a path-breaking idea, idee: (pahnbrechende Idee). In February, 1783, Pelatiah Webster Peiatiah published at Philadelphia a tract entitled " A Dissertation on e 5 er ' the Political Union and Constitution of the thirteen United States of North America," in which he not only advocated permanent courts of law and equity, and a stricter organiza tion of the executive power, but also a national assembly of two chambers instead of one, with power not only to enact laws, but to enforce them on individuals as well as on states? A year later this tract, which had been reprinted at Hartford, Noah Web was followed by another of the same tenor by Noah Webster, of that place, in which he proposed "a new system of govern ment which should act, not on the states, but directly on individuals, and vest in congress full power to carry its laws into effect." 3 This brand-new idea which the Websters seem to have been the first to express, — the idea of giving to the federal government the power to execute its laws not on states in their corporate capacity, but directly on individuals, — embodied the most important and far-reaching political principle to which our career as a nation has given birth. Of this new principle, after its incorporation into the present 1 Madison Papers, vol. ii. pp. 707, 708. * Madison Papers, vol. ii. p. 708. See 2 See P. Webster's Political Essays, Noah Webster's Sketches of American p. 228. Policy, pp. 32-38. 66 INTRODUCTION. Tocque ville. The new idea be comes the constitution, Tocqueville said : " This constitution, which may at first be confounded with federal constitutions which have preceded it, rests in truth upon a wholly novel theory which may be considered a great discovery in modern political science. In all the confederations which preceded the Amer ican Constitution of 1789, the allied states, for a common object, agreed to obey the injunctions of a federal govern ment ; but they reserved to themselves the right of ordaining and enforcing the execution of the laws of the Union. The American states, which combined in 1789, agreed that the federal government should not only dictate, but should exe cute its own enactments. In both cases the right is the same, but the exercise of the right is different; and this differ ence produced the most momentous consequences." x The "novel theory," the new self-sustaining principle which new^onti-6 Decame Tne basis of the more perfect union, and superseded tution. therein the impotent system of requisitions, having been pro pounded by two political thinkers from three to four years before the meeting of the convention, must have been made the subject of careful consideration beforehand by those who were to give to it its first practical application. That it was the dominant idea in the convention itself is proven by the result, — the framers made it the foundation of their immortal work. That it was so regarded at the time is proven by evi- Davie. dence both clear and abundant. Mr. Davie, of North Caro lina, in advocating the new constitution in the convention in which his own state finally ratified it, said : " Another radical vice in the old system, which was necessary to be corrected, and which will be understood without a long deduction of reasoning, was, that it legislated on states, instead of indi viduals. . . . Every member saw that the existing system would be ineffectual, unless its laws operated on individuals, as military coercion was neither eligible or practical." 2 In Hamilton, the New York convention Hamilton said : " We contend that 1 Democracy in America, vol. i. pp. 198, 199, Bowen's ed. A greater than Tocqueville has very recently restated the matter as follows : " Its central or national government is not a mere league, for it does not wholly depend on the component communities which we call the States. It is itself a common wealth as well as a union of common wealths, because it claims directly the obedience of every citizen and acts im mediately upon him through its courts and executive officers." — Bryce, Th American Commonwealth, vol. i. p. 13- 2 Elliot's Debates, vol. iv. pp. 21-23. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 67 the radical vice in the old confederation is, that the laws of the Union apply only to the states in their corporate capacity . . . the states have almost uniformly weighed the requisition by their own local interests ; and have only executed them so far as answered their particular convenience or advan tage." 1 In the light of their own painful experience the framers of the new constitution ventured upon the experi ment of constructing a federal government that would oper ate not on the states in their corporate capacity but directly upon individuals — an experiment which drew after it conse quences which tended directly to systematize and strengthen the whole fabric into which it entered as a component part. As soon as it was settled that the new idea was to be made The new the premise upon which the work of the convention was to the conr-c proceed, as soon as it was settled that the new government f^o'mpo^ was to be endowed with the power to execute its own laws ite state-" and decrees directly upon individuals, it became apparent that it must be strictly organized and equipped with ma chinery adequate to that end. The builders of the more perfect union were thus forced to give to it a completely organized constitution, " with the usual branches, legislative, executive, and judicial ; with the direct power of taxation, and the other usual powers of a government ; with its army, its navy, its civil service, and all the usual apparatus of a government, all bearing directly upon every citizen of the Union without any reference to the governments of the sev eral states." 2 When this point was reached, when it became manifest that the new federal commonwealth had to be or ganized as a "composite state," it was more than natural that the English constitutional system, in the form in which it had reappeared in the several states, should have been adopted as the standard for imitation.3 At this point the creative work of the framers ended, and the work of repro duction began. The first great step in the work of reproduc tion was taken when the proposition was made to divide the 1 Elliot's Debates, vol. ii. p. 231. pressed with great force by Professor 2 These are the attributes which Mr. Johnston, in an article in the New Freeman says a " composite state " Princeton Review for September, 1887, should possess. — Federal Govt, vol. i. — an article from which Mr. Bryce has p. 11. made a copious extract in his first vol- 8 What the federal constitution owes ume. See p. 666. to the state constitutions has been ex- 68 INT ROD UCTION. The divi sion of the federalhead into the three depart ments : Jefferson. Divisionmade ac cording to the maxim as under stood in England. sum of federal power — which under the articles of confed eration had been vested in a single assembly — into the three departments, legislative, executive, and judicial. The neces sity for such a division seems to have been first stated by Jefferson, who in a letter to Madison written from Paris, De cember 1 6, 1786, used this language: "To make us one nation, as to foreign concerns, and keep us distinct in domes tic ones, gives the outline of the proper division of powers between the general and particular governments. But to enable the federal head to exercise the powers given to best advantage, it should be organized as the particular ones are, into legislative, executive, and judiciary." x Jefferson thus made it clear that he had found the model for his division of the federal head into three departments in the constitutions of the states, each one of which had adopted the political maxim that the three departments of power shall forever remain separate and distinct in the same qualified sense in which that maxim was understood in the English system. Speaking of the constitution of the mother country, Madison said : " On the slightest view of the British constitution we must perceive that the legislative, executive, and judiciary de partments are by no means totally separate and distinct from each other." 2 Speaking of the constitutions of the states he said : " If we look into the constitutions of the several states, we find, that, notwithstanding the emphatical, and, in some instances, the unqualified terms in which the axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct." 3 After the federal head had been split into the three departments, legislative, executive, and judicial, in the qualified sense in which such division was understood in the state constitutions, each department was organized in accordance with English ideas, in so far as they could be 1 See Jefferson's Correspondence, by T. J. Randolph, vol. ii. pp. 64, 65. 2 Federalist, No. xlvi. p. 335. 3 Ibid., p. 337. I here repeat what was said in note 1, p. 46. The maxim as to the division of powers was ac cepted in the qualified sense in which it was understood by Montesquieu, who accepted it in the form in which it existed in the English system. As to Montesquieu's views of the English constitution, see Spirit of Laws, bt xi. ch. 6. Speaking of these views, so far as they relate to the division of powers, Madison says, "he did not mean that these departments ought to have no partial agency in, or no c ottfril over the acts of each other." Page 336. See, also, Paul Janet's Histoire de In Science Politique. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 69 applied to a " composite state " at once federal and republi can. The organization of the executive department of the new The execu- government was attended with great difficulty. In the teeth Sent1epart" of the prevailing prejudice against monarchy, it was no easy task to devise an acceptable scheme through which the fed eral chief magistrate could be clothed with the constitutional attributes of an English king. And yet that result was sub stantially accomplished.1 Although the president was sim ply a magistrate to be obeyed within the rctnge of his powers, and personally liable to impeachment if he overstepped them, still he was endowed with as much if not more real power than was possessed even then by the dreaded original. The elective principle, it is true, was substituted for hereditary right, a definite term of office was prescribed, and all the pomp and pageantry of power was sternly cut off, and yet the real resemblance which remained between the two na tional chiefs was too close to escape the enemies of the con stitution, who bitterly assailed it on that ground.2 And here let the fact be emphasized, that the kingship, whose constitu tional attributes the framers reproduced, was not the shad owy kingship of to-day which reigns but does not govern, — " the figure they had before them was not a generalized Eng- the presi- lish king nor an abstract constitutional monarch ; it was no Georg'e'ni. anticipation of Queen Victoria, but George III. himself, whom they took for their model. Fifty years earlier, or a hundred years later, the English king would have struck them in quite a different light." 3 1 " The president is, beyond doubt, sovereign " ( The Critical Period, etc., p. the EngUsh king modified by the ne- 289), loses sight of the fact that at the cessities of a state of things in which time the copy was made the real Eng- hereditary succession was out of the lish executive was the king and not the question, and in which even a life term prime minister. Maine's statement of office would have awakened the great- covers the whole matter. If any one est jealousy." — Freeman, The English fancies that George III., even during People in its Three Homes, p. 375. the ministry of Pitt, was a "fictitious 2 See Hamilton's brilliant reply to executive," let him read May's first this attack, in the Federalist, Nos. lxvii., chapter, entitled " Influence of the Ixviii., lxix. Crown during the Reign of George III." 8 Maine, Popular Govt., p. 212. Mr. Const. Hist, vol. i. pp. 15-104. Since Fiske, when he says that, " curiously the above was written I find that Mr. enough, what they copied in creating Bryce says : "In 1 787, when the con- the office of president was not the real stitutional convention met at Philadel- English executive or prime minister, phia, the cabinet system of government but the fictitious English executive, the was in England still immature. It was 7° INTRODUCTION. The legisia- In the organization of the legislative department, the fram- ment.epar ' ers of the constitution departed from the old idea of a federal assembly consisting of a single chamber, in order to adopt the English system of two chambers, in the form in which that system had reappeared in the several states. The adaptation of this dual system to the complicated interests of a federal republic gave rise to difficulties which at one time seemed to be insurmountable. The convention which framed the constitution was divided into two parties gener ally known as nationals and federals. At the head of the nationals stood the delegates from Virginia, who came to the . convention with a well-considered scheme known as "the "The vh- Virginia plan," which contemplated the abolition of the con- — "thegreat- federation and the substitution in its stead of a consolidated er against national government. This plan, constructed in the main by states. Madison, at the instance of Washington, was laid before the convention by Edmund Randolph,1 the governor of Virginia, in a weighty speech which emphasized the necessity of mak ing the new government operate directly upon individuals2 through the medium of laws enacted by a national assembly in which the American people instead of the American states should be represented, — an assembly whose members should be apportioned according to population, and elected by the people and their representatives. Such assembly was to be divided into two houses, — the members of the lower house to be elected directly by popular vote, while the mem bers of the upper house or senate were to be chosen by the lower out of persons nominated by the state legislatures. This plan which contemplated the creation of a national ex ecutive, and a national judiciary, and the vesting of the legis lative power in a national assembly which could be domi nated and controlled by a combination of a few of the greater states, and which was to be endowed not only with original powers of legislation in all cases in which the powers of the states were insufficient, but also with a negative on state laws, so immature that its true nature had 2 In the course of his speech Ran- not been perceived." — The American dolph said that " the confederation was Commonwealth, vol. i. p. 273. made in the infancy of the science of 1 Elliot's Debates, vol. i. pp. 180-182. constitutions, when the inefficiency of Randolph's resolutions were offered requisitions was unknown." — Elliot, on May 29th. pp. 126-128. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 71 naturally met with a storm of opposition from the smaller states who were to be denied corporate representation in both chambers. When the momentous issues thus presented were so divided that they could be considered in detail a reso lution, which originated with Virginia, was adopted without Adoption of debate which settled the fact as a starting-point, that how- „i system6." ever the respective branches of the national legislature should be constituted, it should consist of two houses instead of one.1 As to the composition of the houses themselves, the question which first arose was whether or no the lower house should be organized on a popular basis after the model of the English house of commons. After a debate in which such men as Gerry, Sherman, Martin, and the Pinckneys expressed grave distrust of the wisdom of the people, the convention was in duced by Madison,2 Hamilton, Wilson, and others to decide that the members of the lower house should be chosen di rectly by popular election. When this difficulty was removed the convention was free to grapple with the vital question before it, — the question whether or no the states as such were to be represented in the new assembly. If " the Vir ginia plan," which was supported by Pennsylvania, Massa chusetts, and North Carolina, was to prevail, the lesser states, which under the articles of confederation were entitled to an equal vote, would be placed at the mercy of their more powerful associates. At this stage of the proceedings, as a counter- blast to the Virginia scheme, the smaller states under the lead of William Patterson brought before the con vention "the New Jersey plan,"3 which proposed nothing « The New more than a reformation of the articles of confederation. £jj^ This plan contemplated the continuance of the old federal assembly consisting of a single chamber in which each state had an equal vote ; an executive in the form of a council ; and a federal judiciary with a limited and inadequate juris diction. When angry and protracted debate between the two opposing parties, who had now reduced their conflicting 1 This resolution was opposed only vented at an earlier day for the pur- by Pennsylvania. — Elliot, vol. i. p. 187'; pose of adjusting between the sections Gilpin, p. 753. the basis of taxation. 2 Madison adjusted the basis of rep- 8 Elliott's Debates, vol. i. pp. 208- resentation as between the north and 210. Patterson's propositions were of the south through his famous three fered June 15th. fifths compromise which he had in- 72 INTRODUCTION. views to definite propositions, had brought the convention to "the verge of dissolution," Roger Sherman and Oliver Ells- " The Con- worth suggested the famous "Connecticut compromise" Comoro- which proposed that the national principle contended for by Jnise-" the greater states should prevail in the organization of the lower house, and that the federal principle claimed by the smaller states should prevail in the organization of the upper house or senate. The new proposal, which at first met with but little favor, was referred to a committee with Elbridge Gerry as chairman, and on the 5th of July 1 the committee reported in favor of the compromise. After eleven days of debate the report was adopted on the 16th of July by a ma jority of only one vote.2 The supreme conflict between the two opposing' parties in the convention thus happily ended in an arrangement in which the theories of both were al- The senate lowed to prevail. It was finally agreed that the legislative '"ponded- department of the new government should be divided into housethupon tw0 chambers, one of which should be organized upon a fed- : ^national eTa]., the other upon a national basis. As a recognition of the federal principle each state was to be allowed an equal representation in the senate ; as a recognition of the national principle the representation of each state in the house of representatives was to be determined by the extent of its population.3 In the organization of the senate the elective principle of course took the place of hereditary right. Thus modified by republican and federal ideas the English bicame ral system, in the form which it had assumed in the several states, passed into the constitution of the United States. Thejudici- The most consummate and, with a single exception, the .ary^depart- most orjgjnai work accomplished by the framers of the con stitution was in the organization of the federal judiciary.4 ¦1 Elliot's Debates, vol. i. p. 226. composition of the house of represen- :2 Connecticut, Delaware, Maryland, tatives." — De Tocqueville, Democracy New Jersey, and North Carolina voted in Am., vol. i. p. 148. As to the re in the affirmative ; Georgia, Pennsyl- spective constitutions of the two cham- vania, Virginia, and South Carolina in bers, see Federalist, Nos. Iii. to lxvii. the negative. Massachusetts' vote was i " The work was chiefly done in divided, and New York was absent, committee by Ellsworth, Wilson, Ran- — Elliot, vol. i. p. 238. dolph, and Rutledge, and the result did 8 " The principle of the independ- not differ essentially from the scheme ence of the states triumphed in the laid down in the Virginia plan." — Thi formation of the senate, and that of Critical Period, etc., p. 300. the sovereignty of the nation in the . basis. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 73 Section one of article three of the constitution provides that, " The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the con gress may, from time to time, ordain and establish." The inferior courts contemplated in this section were established by the provisions of the Judiciary Act of 1789.1 The organi zation of the federal judicial system rests, therefore, in part upon the express provisions of the constitution, and in part upon congressional legislation. The most potent and unique element in the system is its head. The supreme court of Supreme the United States has no prototype in history.2 Judicial tri- thTunited bunals have existed as component parts of other federal sys- States has r r j n0 proto- tems, but the supreme court of the United States is the only type in his- court in history that has ever possessed the power to finally determine the validity of a national law. Such a jurisdiction necessarily arises out of the American system of constitu tional limitations upon the legislative power, — a system un der which all judges, both state and federal, possess the power in their respective spheres to pass upon the validity of every law that can emanate from a state or federal legisla ture.3 In the English system such a jurisdiction could not exist for the reason that the English constitution imposes no limitation upon its legislative assembly ; there is no " higher law " by which the English courts can test the validity of an act of parliament.4 The great federal court, thus endowed Theguar- with the very highest judicial functions, has from its birth COn"titu- e been the watchful guardian of the national constitution, and tion- its beneficent influence has been steadily displayed not only in checking the encroachments of the federal legislature,5 but in rendering more harmonious the relations of the states with 1 " That great act was penned by 8 See above, p. 46, note 3. See, also, Oliver Ellsworth, a member of the Bryce's chapter on " The Courts and convention which framed the consti- the Constitution," Am. Commonwealth, tution, and one of the early chief jus- vol. i. pp. 237-254. tices of this court. It may be said to * Austin holds that an act of parlia- reflect the views of the founders of the ment, which violates fundamental prin- republic as to the proper relations be- ciples, though legal and binding, may tween the federal and state courts." — still be unconstitutional. See Province Mr. Justice Field, in Ex parte Vir- of Jurisprudence, leet. vi. ginia, 100 U. S. p. 325. 6 In this connection I refer with 2 " The supreme court of the United pleasure to an able essay, entitled " The States ... is not only a most interest- Supreme Court in Politics," read by ing but a virtually unique creation of my distinguished friend, the Hon. H. the founders of the constitution." — A. Herbert, before the Alabama State Maine, Popular Govt, p. 217. Bar Association in August, 1883. 74 INTRODUCTION. each other. The jurisprudence which regulates the proced- ure and moulds the decrees of this high court is English jurisprudence, and in this way it has become a new fountain inferior not only of federal but of English law. The system of in- mererepro- ferior federal courts is a substantial reproduction of the Eng- theCE°n Ush ^s^ svstem 0I itinerant judicature. The national judge goes itinerant down into the districts and the circuits to try cases over which the federal jurisdiction extends, with or without juries, ac cording to their character. In law causes, both civil and criminal, the federal courts proceed according to the course of the English customary law, while in equity and admiralty causes they cling with equal tenacity to the general body of English jurisprudence. National 8. From a purely scientific point of view the constitution citizenship. Qj tng United States never reached its logical completion until after the adoption of the fourteenth amendment. As heretofore pointed out, the new principle which became the basis of the more perfect union, and which imparted to it its distinctive character, was that the sum of federal power vested in the new constitution should operate not upon states in their corporate capacity, but directly upon individuals. If that principle had been carried, at the time of its adoption, to its logical conclusion, it would then have been settled that the individuals upon whom the new government was to act should be primarily its own citizens.1 Even in such a federal system as the Achaian League, " Every Achaian citizen stood in a direct relation to the federal authority, and was in full strictness a citizen of the league itself, and not merely of one of the cities which composed it." 2 And yet at the time of the adoption of the present constitution the sense of nationality had not sufficiently developed to permit the state ment of the ultimate and inevitable conclusion, that every citizen of the Union is primarily a citizen of the United States, and not merely of one of the states which compose them. The one particular in which the first confederation rose above the older Teutonic leagues after which it had been patterned was embodied in the new principle of interstate citizenship l No greater logical anomaly can be 2 Freeman, Federal Government, vol imagined than a federal government i. p. 259. acting directly upon individuals, and yet a government without citizens. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 75 which it originated.1 Section one of article four of the arti- interstate cles of confederation provided that, " The better to secure CI lzer s p* and perpetuate mutual friendship and intercourse among the people of the different states in this Union, the free inhabit ants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states." The sub stance of that provision was reproduced in section two of arti cle four of the present constitution which provides that, " The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.'' Beyond that point the framers of the more perfect union were not prepared to go. They did not attempt to do more than es tablish an interstate citizenship to which they imparted the qualities of uniformity and equality by denying to every state the right to discriminate in favor of its own citizens as against those of any other state. There was no attempt whatever, either in the constitution itself or in any act of congress passed after its adoption, to establish or define citizenship of the United States as such, as a distinct and independent thing from state citizenship. " That the consti- Constitu- tution itself has defined citizenship of the United States by to°define declaring what persons, born within the several states, shall oft'theenship or shall not be citizens of the United States will not be pre- United tended. It contains no such declaration." 2 In the absence of any positive assertion by federal authority of any such thing as a primary citizenship of the United States as such, there was really no substantial basis upon which to maintain its existence. If any such thing as a federal or national citi zenship existed at all, it was nothing more than a secondary and dependent relation. The better view is that prior to the adoption of the fourteenth amendment a man was a citizen of the United States only by virtue of his citizenship in one of the states composing the Union. In the famous case of TheDred Dred Scott it was held that no state had the power to raise a co cas& man of African descent to the rank of a citizen so as to make him a citizen of a state or of the United States.3 While there 1 " The principle of inter-citizenship 2 Mr. Justice Curtis in Dred Scott v. infused itself neither into the constitu- Sandford, 19 Howard, p. 575. tion of the old German empire, nor of 8 See the opinion of the court in Switzerland, nor of Holland." — Ban- this case, p. 406. croft, Hist, of Const, vol. i. p. 118. 76 INTRODUCTION. can be no doubt that the leading motive which led to the adoption of the fourteenth amendment was to reverse the results of the Dred Scott case, and to secure the right of citizenship to the African race, — the fact remains that the first section of the amendment, without making any direct reference to the question of race at all, contains the first pos itive definition ever given of citizenship of the United States as a primary and substantive thing, independent of state First sec- citizenship.1 The first section of the amendment provides Fourteenth that> " A11 persons born or naturalized in the United States, Amend- ancj SUDject to the jurisdiction thereof, are citizens of the ment first ' • . defines na- United States and of the state wherein they reside. No state zenship. ' shall make or enforce any law which shall abridge the privi leges or immunities of citizens of the United States ; nor shall any state deprive any person of life, liberty, or property, with out due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws." When, in what " Slaughter- are commonly known as the " Slaughter-House Cases," this Cases6" new provision of the constitution came for the first time be fore the supreme court of the United States for construction, a far-reaching discussion arose which touched the very foun dations of the Union itself.2 After great deliberation the court announced through Mr. Justice Miller a weighty judg ment which, while it fully upheld the supremacy of the federal authority within its proper sphere, pointedly recognized the fact that neither the civil war, nor the three amendments in which its political results were embodied, had materially altered the constitutional relations of the state and federal governments to each other. While it was admitted that the amendments had imposed additional limitations upon them, it was held to be clear that there was no intention "to fetter and degrade the state governments by subjecting them to the control of congress, in the exercise of powers hereto fore universally conceded to them of the most ordinary and fundamental character." 3 In this judgment the fact was rec- 1 " No such definition was previously John A. Campbell for the plaintiffs in found in the constitution, nor had any error attracted scarcely less attention attempt been made to define it by act than the judgment of the court itself. of congress." — The Slaughter-House 8 The Slaughter-House Cases, 16 Cases, 16 Wallace, p. 72. Wallace, p. 78. 2 The profound argument of the Hon. ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. fj ognized, that the order of citizenship had been reversed ; that Under the under the fourteenth amendment the primary citizenship in Imend-Dth this country is to the United States ; and the secondary, to mf ' gj. the state of the citizen's residence.1 It was further held that zenship due the two citizenships were separate and distinct from each United other. In the words of the court, " It is quite clear, then, p*£cipi7a that there is a citizenship of the United States and a cit izenship of the state, which are distinct from each other, and which depend upon different characteristics or circum stances in the individual." 2 Only the privileges and im munities which belong to a citizen of the United States as such are placed by the fourteenth amendment under the protection of the federal constitution ; " those belonging to the citizen of the state as such, . . . must rest for their se curity and protection where they have heretofore rested ; for they are not embraced by this paragraph of the amendment." 3 Thus through the conservative and sagacious judgment of which com- the great federal court, over whose high threshold the waves fop'Si^ym- of passion have seldom broken, the logical symmetry of the ™etry ofu constitution was completed by the recognition of a primary tution. and independent federal citizenship whose privileges and im munities were wisely limited to those only " which owe their existence to the federal government, its national character, its constitution, or its laws." 4 While the legitimate results of the civil war were thus firmly upheld, the constitution was at the same time carefully guarded against the centralizing tendencies to which it had imparted a fresh and menacing force. 9. The attempt has now been made to put in a clear and Summary. positive light three propositions of the highest historic value. First, that the English colonies in America, which were finally transformed into independent commonwealths through their severance from the mother country, were in a legal and con stitutional sense involuntary and unconscious reproductions of the English kingdom, — inevitable products of a natural process of political evolution. The process of growth through which the typical English state in America passes before it takes on its final form is broken into three stages. It first 1 See dissenting opinion of Mr. Jus- 2 Same case. Opinion of the court, tice Bradley, The Slaughter-House Cases p. 74- p. 112. s Ibid., p. 75. * Ibid., p. 79- 78 INTRODUCTION. appears as a mere corporation created by royal authority with only such powers of local self-government as the crown sees fit to delegate. Out of the corporate body thus created emerges the colonial government with an executive head, a judiciary, and a legislative assembly which can do everything but violate the limitations imposed by the charter from which the dependent community derives its political existence. When the tie of dependence which binds the colony to the mother country is severed, the free community finally rises to the full stature of a sovereign state, wherein the people and not the crown are the source of all political authority. The royal charter is then either supplanted by or continued as the state constitution, wherein the people delegate to the three departments the right to exercise the sum of political power vested in them, subject to such restrictions only as are imposed by express constitutional limitations. Second, that when the sovereign commonwealths thus created were driven by the pressure of a common danger to unite in a confed eracy, their first experiment resulted in the formation of a league, based upon the requisition system, which represented no advance whatever in the science of federal government ; that this first departure from the entire course of their prior political experience soon ended in weariness, failure, and disappointment. Third, that when in the presence of the anarchy which the failure of the articles of confederation threatened, the English states in America were driven to make a fresh effort to construct a more efficient federal system, the exigencies of the occasion brought forth the most important and far-reaching political principle to which our career as a nation has so far given birth. That principle, which was that the federal head should operate directly on individuals and not on states, drew after it the most momen tous consequences by forcing the construction of a "com posite state," divided, as the individual states were divided, into three departments, legislative, executive, and judiciary. At this point the creative work of the framers ended and the work of reproduction began. In the organization of the three departments the framers of the present federal consti tution reproduced, as far as it was possible, the English constitutional system in the form in which it had reappeared in the constitutions of the several states. The analysis which ENGLISH ORIGIN OF THE FEDERAL REPUBLIC. 79 has been made therefore results at last in the conclusion that the typical English state in America was the fruit of a process of involuntary and unconscious growth, — that the federal republic of the United States was the fruit of a pro cess of voluntary and conscious reproduction. The second federal constitution was made, as far as it could be made, after the English model ; but it might have been made as the earlier and laxer union was made on an entirely different model. Such a contrary course might have been pursued, and yet it was more than natural that men of a highly conservative temper, who were intimately familiar with the English constitutional system in the form in which it had reappeared in the several states, should have applied it, so far as it could be applied, to the organization of the federal re public. "Although the framers of our constitution were without any grasp of the modern conception of the historical continuity of the race, they revered the ancient constitutional traditions of England. And thus it came to pass that Magna Carta, the Acts of the Long Parliament, the Declaration of Right, the Declaration of Independence, and the Constitu tion of 1787, constitute the record of an evolution."1 If that "Thegov- be true, then the Constitution of the United States was not a ^"unrted spontaneous creation ; it was the final product in a new soil St*<*jf is of a sturdy plant transplanted from an island world where, in suit of spe- comparative isolation, it had been slowly maturing for centu- tion'bS of ries. In the open sunlight of the new land the later growth has been both strong and rapid ; in the vast domain of the New World the old plant has found room for unlimited expan sion. The history of this later development cannot be sev ered from that of the earlier and more tedious process of growth which made it possible. The life of the plant is an indivisible whole, and unless it is studied as a whole its real history can never be fully mastered. That conviction has im parted to the weary task essayed in this work a definite an,d practical purpose. In attempting to unfold the history of the constitutional growth of the English kingdom in one un broken story the author has followed the only plan upon which, in his humble view, can ever be written an exhaustive commentary upon the constitution of his country. 1 W. T. Brantly's essay on the tion," in Southern Law Review, August, " Formation of the Federal Constitu- 1880, vol. vi. p. 352. evolution." 80 INTRODUCTION. [A psychological explanation of the tendency of a race to reproduce in a new land the institutions of the old (see page 15, note 1), may be found in Mr. Herbert Spencer's statement (Principles of Psychology, vol. 1, p. 422, Am. ed.) that " Hereditary transmission applies to psychical peculiari ties as well as to physical peculiarities ; while the modified bodily structure produced by new habits of life is bequeathed to future generations, the modified nervous tendencies produced by such new habits of life are also bequeathed ; and if the new habits of life become permanent the tenden cies become permanent." The same idea has been thus expressed in an other form in Crane and Moses' Politics, p. 70 : " The long continuance of a people under any given political order engenders a habit of political thought and action which ripens into a political instinct, and becomes powerful in determining the form of institutions and the direction of political progress. . . . And it is this political instinct that must be taken account of if we would fully understand later political progress ; it is in its force and persistence that we discern the main cause of that tendency displayed in kindred natures to preserve in their governments the essen tial features of the primitive political institutions of the race to which they belong."] [My friend, the Hon. Kemp P. Battle, President of the University of North Carolina, has lately written me in regard to the case of Bayards. Singleton (see p. 47, note 2), as follows : " North Carolina contests the honor with Rhode Island. The North Carolina judges who rode circuit, but who were also supreme court judges, refused, in May, 1786, to dis miss an ejectment writ on affidavit of the defendant that his title was de rived from confiscation sale, — the general assembly having enacted a law requiring such dismissal when such an affidavit should be made. Did Rhode Island decide earlier than May ? I have found no proof that she did." The Hon. A. M. Waddell, of North Carolina, in a recent pub lication, thus puts the matter : " While it is true that the Rhode Island case was the first one decided, it is equally true that before that decision was rendered Iredell had made a powerful and conclusive argument in the North Carolina case (which was pending before the Rhode Island case arose), and had followed it up by publishing in the New Berne papers of August 17, 1786, an address to the public on the subject." As New Berne was the author's birthplace, he may be pardoned for a special interest in the subject.] BOOK I. THE OLD-ENGLISH COMMONWEALTH. CHAPTER I. THE TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. I. During the fifth century, four of the Western provinces General of the Roman Empire — Britain, Gaul, Italy, and Spain — Teutonic01 were in turn overrun by successive hordes of Teutonic invad- conquest on ers who came to settle down permanently on the conquered nent. soil.1 Out of the fusion of the Teutonic settlements made in Britain between the middle of the fifth century and the end of the sixth has grown the English nation ; 2 out of the rude systems of social and political life which the settlers brought with them in their blood and bone from the father land has grown the English Constitution. With the found ing of the Teutonic settlements in Britain the history of English institutions really begins. In order fully to grasp the early history of these settlements, in order clearly to point out the several vital particulars in which they differed from all other Teutonic settlements made upon Roman soil, it will be necessary to resort to a contrast for the sake of illustration. Within the continental provinces of Italy, Gaul, and Spain, Rome had made a profound impression upon the whole fabric of social and political life. The language, the laws, the institutions, of the people were thoroughly Roman. Roman roads led to Roman cities, in which were contained 1 For a list of the monarchies estab- end of the sixth, see Guizot's Hist. lished by the Teutonic invaders during Rep. Government, p. 27. the interval which elapsed between the 2 Freeman, Origin of the English beginning of the fifth century and the Nation, part ii. 82 THE OLD-ENGLISH COMMONWEALTH. [Ch. Italy, Gaul, and Spain Latinized and Chris tianized by the end of the fourth century. Teutonicinvaderssettle down in the midst of the con tinental na tions. Conquestnowhere as sumed the form of ex termination. all the objects of Roman art, — cities which were governed by Roman municipal institutions.1 By the end of the fourth century the fabric of this society was not only Roman, — it was fast becoming Christian. The ancient paganism had al ready broken down before the aggressive force of the Chris tian Church. In the provincial cities were fixed the sees of Christian bishops, who formed a part of an ecclesiastical system based upon the dominant faith.2 The three great streams of Teutonic invasion, which spread in successive waves over these Latinized and Christianized provinces of the empire, were unequal both in force and effect. In Gaul the Teuton made his deepest impression, in Italy the least, while in Spain his influence occupies a middle place between the two. But the general character of his influence was every where the same ; it only varied in degree. Wherever we find the Teutonic invaders conquering and entering into posses sion of a continental province, we have an example of a new nation intruding itself into the midst of an older nation and settling down by its side upon the conquered soil.3 The invaders came as conquerors, it is true ; but they came rather as imitators than as mere destroyers. They had long been in contact with Roman civilization ; they had tested the power of the Roman arms ; they had felt the charm of the Roman name ; and they had nearly all become converts to the Chris tian religion before the invasions began.* And, besides, the invaders were nowhere opposed by any fierce or prolonged native resistance. The consequence was that conquest no where assumed the form of extermination.5 The land was generally divided between the conquerors and the conquered 1 As to the history of the Roman municipal system, see Guizot, Hist. Representative Gov., leet. xxii. part i. ; Savigny's Hist, of the Roman Law, vol. i. pp. 16-98 ; De Coulanges, The Ancient City, pp. 470-519. 2 " At the end of the fourth century and the beginning of the fifth, Christian ity was no longer a simple belief ; it was an institution, — it had formed itself into a corporate body. It had its gov ernment, a body of priests ; a settled ecclesiastical polity for the regulation of their different functions ; revenues ; independent means of influence." — Guizot, Hist, of Civilization, vol. i. p. 48. 8 A full treatment of this subject will be found in Freeman, Norm. Conq,, vol. i. ch. ii. ; Stubbs' Const. Hist., vol. i. ch. i. ; Origin of the English Nation, part ii. * The invaders first became ac quainted with Christianity in its Arian form ; in Italy, Africa, Spain, and Gaul, they were for a long time involved in that heresy. In the end, however, they everywhere embraced the orthodox faith. Gibbon, Decline and Fall, vol. iii pp 547, 573. 0 The Teutonic conquerors styled themselves guests of the conquered Ibid., vol. iii. p. 315. I.] TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. 83 according to certain fixed proportions.1 The Roman native was permitted to enjoy his own laws, while the conqueror retained for himself his own barbaric code.2 In this way Teutonic life and law settled down by the side of Roman life and law, and a struggle for the mastery was the natural consequence. By an analysis of the result must be deter mined the extent to which the different elements prevailed. So far as language is concerned the conquerors everywhere Conquerors adopted the tongue of the conquered. Out of the old Latin j^nfuVge3 speech the Romance languages — French, Spanish, Italian, j^"^ and the rest — were born.3 The Romance languages are quered. nothing but Latin, with a deep infusion of Teutonic words.4 So far as religion is concerned the conquerors everywhere adopted the creeds of the conquered. Only in the domain of polity and military organization can the Teutonic element claim in the new combination a position of dominant impor tance. The leading principles which are worked out in the constitutional histories of France and Spain are Teutonic, — an assertion which may be applied in a modified form to the states of Northern and Southern Italy.6 After making due allowance, however, for Teutonic influence upon polity and military organization, the predominant fact must be recog nized in the general result that the framework of the older society survived ; it remained in the end Roman and Chris- The older tian ; it did not become heathen and Teutonic. In the his- mamearRo. tory of the continental provinces there is no lack of historical man. and it7 1 r- i ?-. Christian: continuity. We do not find upon the Continent, as we shall it did not hereafter find in Britain, a century and a half of heathenism, heathenand darkness, and legend intervening between the overthrow of Teutonic- the Roman province and the beginning of the new Teutonic society.6 In Italy, Spain, and Gaul the older civilization, while taking to itself many elements of Teutonic life, not only 1 Hallam, Middle Ages, vol. i. p. 149. and the feudal system of the South, the 2 " The Frank was judged by the municipalities of Lombardy, and the Salic or Ripuary code; the Gaul fol- parliaments of Naples, are much more lowed that of Theodosius." — Ibid., vol. German than Roman." — Ibid., vol. i. i. p. 154. p. 7. 8 Max Muller, Science of Language, 6 " Concerning all the other prov- pp. 170, 195. inces of the Western Empire we have * Freeman, Norm. Conq., vol. i. p. continuous information. It is only in 1 1. Britain that one age of fable completely 6 Stubbs, Const. Hist., vol. i. p. 2. separates two ages of truth." — Ma- "The republican history of the North caulay, Hist, of Eng.,\o\. i. p. 6. 84 THE OLD-ENGLISH COMMONWEALTH. [Ch. continued to be Roman and Christian, but preserved through out its identity and continuity. General 2. In Britain the continental aspects of Teutonic conquest of Teutonic completely disappear ; such conquest there assumed a char- conquest in acter anrj form at once local and peculiar. This changed condition of things resulted, in the main, from two causes. In the first place, apart from its insular character, the very remoteness of Britain from the seat of empire necessarily weakened the tie which bound it to the life of Rome.1 It is, therefore, easy to understand why Roman civilization in Britain took such shallow root. In no other province did the language, the laws, the institutions of Rome rest upon such superficial foundations.2 And yet all the externals of Roman life were there. The municipia and colonics sprang up within the area which the legions had reduced to subjection,3 and a net-work of Roman roads by which the country was inter sected connected them with each other. The cities were, no doubt, thoroughly Romanized, but it is extremely doubtful whether Roman civilization ever made any serious impression upon the mass of the Celtic provincials. The language of Rome was doubtless spoken in the cities and towns, and by the wealthy classes outside of the towns, but it is hardly possible that it could ever have been spoken by the main Roman civ- body of the people.* Roman civilization in Britain was Nritain" m nothing but an exotic, with no real, self-sustaining hold upon ^'exotic"1' t^ie natlve Celtic race. Consequently, when the power and support of Rome were withdrawn, it collapsed from lack of power to maintain an independent existence. The Teutonic invaders of what had been Roman Britain never came in contact with the full force of Roman civilization ; they only encountered a set of superficial influences already in a state of disorganization and decay. In the second place, the in vaders came directly into Britain from their seats in the far 1 Green, Making of Eng., p. 6. 4 Green, Making of Eng., p. 12. 2 "No otherwise can we even plau- " Latin was undoubtedly the speech of sibly account for the instantaneous col- the cities, the speech of government, lit- lapse of the imperial authority : it fell, erature, and polite life. Welsh was with one vast and sudden ruin, the mo- under a cloud, just as English was, ages ment the artificial supports, upon which after, in the days of Norman rule."— it relied, were removed." — Kemble, Freeman, Origin of the Eng. Nation, Saxons in Eng., vol. ii. p. 284. p. 102. * Ibid., vol. ii. p. 265. I.] TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. 85 North, where they had lived completely removed from the power and influence of Rome. Excepting perhaps a single expedition, the legions had never been seen upon their shores ; with Roman standards and with Roman missionaries they were equally unfamiliar. They possessed no conceptions either of government or of law except such as were indigenous to the race; they knew no religion except the religion of Odin. In this state of pure barbaric heathenism the invaders entered, without intermediate probation, upon the conquest of Britain. Such conquest necessarily differed from every continental conquest in the manner in which it was under taken, and it also differed as to the native resistance which it encountered. The invaders were compelled to cross the sea The invad in ships, and their sea craft and war craft could only trans- the Sam port bodies of men, more or less formidable, and not great p™^scom armies of invasion by which the whole land could be suddenly overrun. All the evidence goes to show that the Teutonic invaders came into Britain in disconnected bands, each under its own leader, who singled out some special district of coun try for conquest and settlement.1 Such a leader, with the limited force at his command, necessarily circumscribed his efforts to a narrow area, from which, by dint of hard fighting, he was obliged to drive the Celtic masters of the soil. In this way, bit by bit, the land was won. Moving from the south, the east, and the northeast, the invaders drove the Britons slowly to the west. The struggle, from its very nature, was a bitter one; invasion no longer signified forci ble intrusion ; it became the equivalent of extermination, invasion Everything goes to show that the first stage of Teutonic equivalent conquest in Britain signified the utter annihilation of the °^^mv native race within the limits which the conquerors defined j"41™ c?f- ^ tain limits. with their swords.2 Before the invader settled down the Celt was either expelled or exterminated, and with him disappeared whatever he had acquired of the civilization, language, religion, or law of Rome.8 In the general wreck, even the Roman 1 " The story of the conquest con- land, p. 128 ; Freeman, Origin jf Eng. firms the English tradition that the in- Nation, p. 107. vaders of Britain landed in small parties, 2 This restatement of the " Teutonic and that they were only gradually rein- theory " must be taken with the quali- forced by after-comers. Nor was there fications put upon it in the Introduc any joint action among the assailants to tion. See above, p. 11. compensate for the smallness of their 8 " The proofs of such a displacement numbers." — Green, Making of Eng- he less in isolated passages from chron- 86 THE OLD-ENGLISH COMMONWEALTH. [Ch. municipalities perished.1 The Teuton came into Britain as a mere destroyer ; and of the Romanized natives of the land he learned absolutely nothing. Result of 3. Under these favorable circumstances the whole fabric of trast0011 Teutonic life was replanted, in its primitive purity, on a free and unincumbered soil. " While the Germans of Gaul, Italy, and Spain became Romans, the Saxons retained their lan guage, their genius, and manners, and created in Britain a "AGer- Germany outside of Germany."2 By this statement the dif- sMe^of011 ference between Teutonic conquest and settlement in Britain Germany." an{j Teutonic conquest and settlement upon the Continent is clearly defined. In the one case the invaders were absorbed in the mass of the conquered ; Teutonic life simply became an element in the older Roman society. In the other the invaders absolutely annihilated, within the limits which they made their own while they were still heathens, every vestige of the existing civilization, and established in its stead their whole scheme of barbaric life. The Teutonic polity thus established in Britain in its purity has been able to survive, and to preserve not only its identity but its primitive instinct in all the vicissitudes of change and of gro*wth through which it has passed. English na- 4. The invaders, who thus established a new nationality in tion Teu- T, . . . , . ,. tonic as to Britain, were ot the purest Teutonic type, and all spoke dia lects of the Low-German. From the earliest period in their insular history, these settlers knew themselves1 as " the Eng lish kin ; " 3 and out of their union has arisen the English nation, which, through all the vicissitudes of internal growth and external influence, has preserved both its national char acter and its identity. In the course of its history it has received many infusions, it is true, — for the most part, how ever, from other branches of the Teutonic stock. No nation can claim absolute purity of blood; foreign elements are present in the veins of every people. But the national character is never lost so long as the paternal element is strong enough to absorb all other elements and to impress icle or history than in the broad fea- 2 Taine, Hist, of Eng. Literature, tures of the conquest itself." — Green, vol. i. p. 50. Making of Eng., p. 132. 8 Freeman, Norm. Conq., vol. i. p. 15; 1 Kemble, Saxons m Eng., vol. ii. citing the entries in Chronicle under the p. 295 ; Stubbs, Const. Hist, vol. i. p. 61. years 443, 449, and 473. race I.] TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. 87 upon the nation, as a whole, its own image and instincts. The very fewness of Celtic words in the English language shows how small the admixture must have been from that source.1 When the Danes came to commingle their blood Ail after. with that of their advancing English brethren, it was simply ^Low- the blending together of men of the same Low-Dutch stock, ft^ the one heathen, the other Christian. With the coming of the Normans, the English nation entered upon its first real struggle for national existence. And yet the Norman himself was originally a Teuton ; " he was a Dane who had gone into Gaul to get covered with a French varnish, and who came into England to be washed clean again." 2 But the Norman struggled hard to maintain the peculiar type which he had assumed in France, and he left nothing undone to make it the predominant element in the national character. But he The Nor- failed ; the conquerors were absorbed into the mass of the j^f Eng. conquered ; the Normans became Englishmen.3 Bshmen. 5. Out of the fusion of the Teutonlc~settlemehts in Britain the English nation was born ; out of the fusion of the dialects English spoken in those settlements the English language was born, the result of English is not the dialect of Kent, Wessex, or Mercia ; it is gf^"^"11 the result of the union of all the Low-Dutch dialects spoken Low-Dutch in Britain in one composite whole,4 which has preserved, one whole. through a long period of change and of growth, its organic structure and its identity. The greatest period of trial through which the English language has ever passed began with the Norman Conquest. For a long time after that event the lordly foreign tongue reigned in the castle and the hall, while the humbled native speech reigned in the cottage and the hamlet. But, in the end, the lordly speech passed away, and the English tongue survived with a deep infusion 1 The Celtic words in our language pies at present. He found it already only number about thirty ; and by far exhibiting in, its laws, its language, its the larger part of these refer to some national character, the most essential of object or occupation peculiar to females, the features which it still retains. Into Cf. Fowler's English Grammar, ed. the English nation which he thus found 1881, pp. 76-78 ; Creasy, Eng. Con., p. already formed his own dynasty and his 29. own followers were gradually absorbed. 2 Freeman, Origin of the Eng. Na- The conquered did not become Nor- tion, p. 53. mans, but the conquerors did become 8 "The Norman found in the land Englishmen." — Freeman, Norm. Conq., substantially the same English nation vol. i. p. 6. which still exists, occupying substan- * Max Muller, Science of Language, tially the same territory which it occu- p. 67. 88 THE OLD-ENGLISH COMMONWEALTH. [Ch. of Romance words. The following epitome of the origin and history of our English tongue is from the graphic pen of one Max Mm- of its greatest living masters : " If we speak of the language "eEngiish: 0I England, we ought, no doubt, to know something of the is Teutonic, political history of the British Isles, in order to understand and nothing " r i i t i • i but Teu- the present state ot that language. Its history begins with the early Britons, who spoke a Celtic dialect ; it carries us on to the Saxon conquest, to the Danish invasions, to the Nor man Conquest ; and we see how each of these political events contributed to the formation of the character of the language. The language of England may be said to have been in suc cession Celtic, Saxon, Norman, and English. But, if we speak of the history of the English language, we enter on totally different ground. The English language was never Celtic, the Celtic never grew into Saxon, nor the Saxon into Norman, nor the Norman into English. The history of the Celtic language runs on to the present day. It matters not whether it be spoken by all the inhabitants of the British Isles, or only by a small minority in Wales, Ireland, and Scotland. A language, as long as it is spoken by anybody, lives and has its substantive existence. The last old woman that spoke Cornish, and to whose memory it is now intended to raise a monument, represented by herself alone the ancient language of Cornwall. A Celt may become an Englishman, Celtic and English blood may be mixed ; and who can tell at the present day the exact proportion of Celtic and Saxon blood in the population of England ? But languages are never mixed. It is indifferent by what name the language spoken in the British Islands be called, whether English or British or Saxon ; to the student of language English is Teu tonic, and nothing but Teutonic. ... In the English dic tionary the student of the science of language can detect, by his own tests, Celtic, Norman, Greek, and Latin ingredients, but not a single drop of foreign blood has entered into the organic system of the English language. The grammar, the blood and soul of the language, is as pure and unmixed in English as spoken in the British Isles, as it was when spoken on the shores of the German Ocean by the Angles, Saxons, and Jutes of the continent."1 1 Max Muller, Science of Language, p. 79. "Lan guages are never mixed." I.] TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. 89 6. The " English kin " transferred to Britain, as a whole, institu that rough yet vigorous system of political and military tIons" organization which everywhere prevailed among the Teutonic tribes of the fatherland. Wherever a district of country was won from the native race, the conquerors encamped upon the soil ; and then, after having divided the land upon the basis of that peculiar system which rested at once upon military and tribal divisions, they organized themselves into political communities.1 The unit in the system, as we shall see more fully hereafter, consisted of a narrow tribal division, originally united by the family tie, whose members possessed the power to regulate their own local and domestic concerns. A group of such units, or village communities, when bound together, constituted the next largest political division ; in this combi nation appears the earliest form of the representative prin ciple.2 By the union of these larger divisions were formed the numberless petty states into which the settlers were originally subdivided. The Teutonic political system as at General whole rested upon the collective weight of individual f reemery theTe" ° acting together in an expanding series of popular assemblies i^'s^tem. whose jurisdictions, beginning with the smallest local affairs! so widened as to embrace the gravest national concerns.V The foundations of this primitive system, composed of these local, self-governing communities, were so deeply laid in Britain, that the system itself has been able to survive all the mutations through which the English nation has passed. When the Norman came he seized the central powers of the state, but the "local Teutonic system remained unshaken by the assault. Upon this local system as a substructure the The sub- Norman built up his administrative system as a superstruc- ^English ture ; and out of the fusion between the two has grown the amstitu- modern constitution. Just as the Romance words which the Norman brought with him were woven into the woof and warp of the English tongue, so the Norman's ideas of law and of administration were woven into the primitive constitution. 1 " It was this military organization sions of the host supplied here, as in its of the tribe that gave from the first its older home, a rough groundwork of form to the civil organization. In each local distribution." — Green, Making of the little kingdoms which rose on the of Eng., p. 169. wreck of Britain, the host would camp 2 Green, Hist, of the Eng. People, on the land it had won, and the divi- vol. i. p. 14. 90 THE OLD-ENGLISH COMMONWEALTH. In the same sense in which the English language is Teutonic the English constitution is Teutonic.1 That strong local system, as originally established in Britain by the Teutonic invaders, has never ceased to exist. It has passed through a long process of change and of growth, it has taken on many new forms, it has borne great fruit, it has controlled the destinies of a nation, " which, while reforming in all direc tions, has destroyed nothing ; which has preserved both its trees and its constitution, which has lopped off the dead branches without levelling the trunk ; which alone, in our days, among all nations, is in the enjoyment not only of the present, but of the past." 2 The prob- 7. The problem, then, which the student of English political worked out. institutions is called upon to work out involves an examination of the entire process of historic development through which the primitive Teutonic constitution has passed under the com bined action of internal growth and external influence. The starting-point in the solution of the problem necessarily con sists of a close insight into the nature of the primitive system as originally established in Britain, — without that all attempts to work out the subsequent development will fail. But we cannot obtain that insight by relying entirely upon the insular history of the English nation ; we must look beyond to the homes of the " English kin " in the fatherland ; we must begin with the brief history of the childhood of the whole Teutonic race as contained in those terse sketches of the ancient free dom which have been drawn by the Roman historians. 1 "The German element is the pater- 2 Taine, Hist, of Eng. Literature, voL nal element in our system, natural and ii. p. 517. political." — Stubbs, Const. Hist., vol. i. p. 11. CHAPTER II. THE FOUNDERS IN THE FATHERLAND. I. The earliest account of the Teutonic tribes in general, Early his- and of the Suevi in particular, is contained in the military Teutonic16 memoirs of Caesar, who has condensed into a few passages of race : 9ffi" his Commentaries such information as he had been able to Tacitus. derive from his own observations, and from the reports of the Gallic provincials.1 But, as Caesar's sketch is vague and gen eral, and as it varies in at least one serious particular from the more extended account given, a century and a half later, by Tacitus, it cannot be safely followed wherever it departs from the later narrative. It is almost impossible to believe that the whole Teutonic people could have been in the purely nomad state described by Caesar, when we find them, only a century and a half later, dwelling in villages as permanent cultivators of the soil. The moving, restless tribes which hovered upon the Roman frontier, and with which Caesar was naturally most familiar, may have been, and likely were, in the unsettled state described by him.2 But the soundest critics refuse to accept his statement as true in this respect, even in his day, of the whole Teutonic race.3 One of the most striking fea tures in Caesar's sketch is the contrast which he draws be tween the abstemious, poverty-loving, and warlike Germans, and their more cultivated, yet less warlike, neighbors, the Gauls. It is somewhat such a contrast as Tacitus drew at a later day, between the barbaric virtues of the Germans and the voluptuous degeneracy of his own countrymen.* 1 Caesar, De Bello Gallico, vi. 21, 22, was true of some earlier period. — Die 23, 24. As to the Suevi, iv. 1, 3. Deutschen und die Nachbarstamme, von 3 Stubbs, Select Charters, etc., p. 52. Kaspar Zeuss (Miinchen, 1837), p. 52 et 8 " But so deeply does the posses- seq. sion of land enter into the principle of 4 The contrasts contained in the all the Teutonic institutions, that I can- Germania are so frequent and so not bring myself to believe in the ac- pointed that it was at one time re- curacy of Caesar's statement." — Kem- garded as a satire on Roman manners. ble, Saxons in England, vol. i. p. 39. " With regard to their moral hue, Taci- Zeuss maintains that Cssar's account tus has painted the Germans, as Mon- 92 THE OLD-ENGLISH COMMONWEALTH. [Ch. Caesar's 2. Caesar, after indulging in some inaccurate assertions sketch. concerning Teutonic mythology,1 begins by saying that the Germans pass their lives in hunting and in the pursuit of arms ; from childhood they are inured to labor and to a hardy Chastity of habit of life.2 And then, after speaking of their chastity and man?.er" its supposed effects upon physical development, he remarks that they do not apply themselves to agriculture, — milk, cheese, and flesh being their chief articles of food.3 No one has a fixed quantity of land, or boundaries that he can call Annual ai- his own, but the magistrates and chiefs annually set apart to iand.entS °f the several communities, united by the family tie or by com mon religious rites, for occupation during a single year, a portion of land whose amount and location is fixed according to circumstances. The next year they compel the group to remove to some other place.* Many reasons are then given for this peculiar habit of unrest, all of which go to show that such a system was perpetuated in order to preserve the mar tial spirit of the people from the enervating influences which flow from fixed habitations, and from the enjoyment of per sonal comfort ; and also from the discontent resulting from the unequal distribution of money and estates.5 Aversion to The greatest prestige which the several states or tribes can possess consists in the extent of the uninhabited lands sur rounding their territory, which they themselves have laid waste. They take it as a tribute to their courage that their old neighbors have abandoned their homes through fear of them, and that no one else will take their place. And this state of things adds to their safety, for the danger of sudden invasion is thereby taken away.6 Whenever a state engages in war, defensive or offensive, magistrates, with the power of life and death, are chosen for that particular emergency. In taigne and Rousseau the savages, in a * « Neque quisquam agri modum cer- ftt ot ill humor against his country; turn aut fines habet proprios; sed his book is a satire on Roman man- magistratus ac principes in annos sin ners. — Guizot, Hist of Civilization, gulos gentibus cognationibusque homi- vol. l. p. 418. This fancy has now num, qui una coierunt, quantum et quo passed away - Vfaitz, Deutsche Ver- loco visum est agri attribuunt atque fossungs-Gesckichte, 1.21; Stubbs, Const, anno post alio transire cogunt." — Dl 1 ¦&- m V7" ¦ „ , , • Bell° Ga^"> «. 22. See Laveleye, Kemble, Saxons m England, vol. 1. Primitive Property, pp. 102-105. V'a°n 71 D 77 ^ „¦ ¦ 6 C!Esar, De Bello Gallico, vi. 22. 2 Caesar, De Bello Gallico, vi. 21. « Ibid. vi. 22. 8 Ibid., vi. 22. neighbors. II.] THE FOUNDERS IN THE FATHERLAND. 93 time of peace there is no common magistracy, but the chiefs No com- of the several districts administer justice and discourage liti- ma°y hfsis" gation. Plundering expeditions beyond the borders of one's '™^ of own state are not considered dishonorable, but, on the con trary, they are commended as good schools in which to exer cise the young men, and to diminish idleness. When a chief Fidelity to offers himself in the public assembly as the leader of such I^ed™r" an enterprise, and calls upon all who so desire to follow him, those who approve the cause and the man promise their aid amid the applause of the multitude. If those who enter into such an engagement fail to perform it, they are regarded as deserters and traitors, and no faith is afterwards reposed in them. To violate the rights of hospitality is considered a sacri- Hospitai- lege ; strangers who come among them, from whatever cause, lty' are considered sacred, and are protected from injury ; the homes of all are open to them, and every one is ready to share his meal with them.1 There had been a time when the The Gauls. Gauls surpassed the Germans in valor ; they had even sent colonies across the Rhine and pressed war upon the Germans without provocation. But the Gauls were conquered in so many battles, and gradually became so accustomed to defeat, that they ceased even to compare themselves in prowess with the Germans.2 Such is the brief initial outline which the great Roman statesman has drawn of that mighty race of which the English is a part. For an enlargement of that outline we must look to the Germania of Tacitus, and to the subsequent researches by which its meaning has been illus trated. 3. During the century and a half which intervenes be- Germania tween the account of Caesar and that of Tacitus, knowledge ° Tacltus• of the German tribes must have greatly increased at Rome. Just before the beginning of the Christian era a determined The at- effort was made under the leadership of Drusus, the step-son make Ger- of Augustus, to make Germany a Roman province. The ef- £*_£?£ fort of Drusus, which his sudden death interrupted, was con- province. tinued, in turn, by Tiberius, Varus, and Germanicus, until the results which followed a battle, near Minden, a. d. 16, put an end to all attempts upon the part of the Romans to conquer 1 Caesar, De Bello Gallico, vi. 23. 2 Ibid., vi. 24. 94 THE OLD-ENGLISH COMMONWEALTH. [Ch. Germany.1 And, apart from the knowledge which must have been obtained during these frequent attempts at conquest, the contact upon the frontier was continuous. The precious accumulation of facts contained in the Germania is, how ever, the surest indication of just how far a knowledge of the Germans had advanced at Rome up to the time when the Germania narrative of Tacitus was written. Leaving out of view spe- of mannlrs cia-l notices of particular tribes, this invaluable summary con- customs, tains a brief abstract of the manners, customs, and institutions ;and institu- ;tions ; common to the German race as a whole. As Montesquieu has expressed it, it is the work of a man who has condensed everything because he knew everything.2 A narrative so broad and comprehensive in its character must necessarily : its rare his- be lacking in fulness of detail. But such evidence as the rtonc value. Germania r\ot% contain is of the rarest historic value, for it consists of the contemporary observations of a cultivated historian made upon the customs and institutions of a mighty race while yet in its childhood.3 If we will but picture to ourselves the historian Bancroft, in his library at Washington, making an abstract of the customs and institutions of the Indian tribes upon our frontier, we shall possess a reasonably correct idea of the relation which existed between Tacitus and the barbarians beyond the Rhine. Distinctive 4. According to the Germania the race which is now called Teutonic was pure and indigenous, unmixed by intermarriage with any foreign stock, of the same physical type, speaking the same language, possessing a common mythology, and a common system of social, political, and military institutions, — and yet, possessing no collective name in its own language by which to describe the race as a whole, nor any form of central political organization.4 The word German5 is prob- 1 Sime, Hist, of Germany, pp. 12- 6 Tacitus indicates that the name I^> c ¦ ¦ German was first applied by the Gauls » Z*t °f- -SJ bk' xxx- ch- z- to the Tungri, and finally to the whole As societies do not advance con- race. Germania, c. 2. See Waitz, currently, but at different rates of prog- D. V. G., i. 24. According to Grimm ress, there have been epochs at which (Geschichte der Deutschen Sprache, p. men trained to habits of methodical 787) the word signifies "good shout observation have really been in a posi- ers " ; according to some other author- tion to watch and describe the infancy ities, " East-men " or neighbors. When, of mankind. Tacitus made the most in after times, the German tribes had of such an opportunity. ' — Sir Henry realized their unity of tongue and de- Mame, Ancient Law, p. 116. scent, they spoke of their language Tac, Germania, cc. 2, 4. simply as the " Lingua Theotisca," the -race-traits. II.] THE FOUNDERS IN THE FATHERLAND. 95 ably of Celtic origin, and is supposed to have been first ap- The word plied by the Gauls to a particular Teutonic tribe, and finally probably of to the whole race. The great national virtue was chastity ^ltic on" and respect for the marriage tie. To be content with one wife and true to her was a part of the German instinct.1 The great national vices were drunkenness and gambling. To be drunk for days was a disgrace to no man, while the ruined gamester would, at last, put even his liberty at stake, and allow himself to be sold into slavery.2 The Germans Absence of had no cities, but dwelt in villages, or in homesteads near aties- villages.8 Their chief property consisted of flocks and herds, in which they felt the greatest pride.4 Their peculiar system of agriculture will be examined hereafter. 5. This homogeneous race, although possessed of a com- The state mon system of social and political institutions, was neverthe- dTvistons" less broken up into an endless number of states or political communities, which stood in relation to each other in a state of complete political isolation, except when united in tempo rary confederacies. In their general descriptions of the Ger man people, both Caesar and Tacitus had constantly in their minds the existence of these disconnected states into which the race, as a whole, was subdivided.6 In order, therefore, to grasp the full import of these descriptions, this fact must be kept constantly in view. Both writers attempted to convey a distinct idea of the form which Teutonic society assumed among a given number of the German people politically united in what each termed the civitas ; with the further ex- The civitat of C*3E^fir planation, that what was true of the race in one state, was and Tad- true of the race in all the states ; excepting, perhaps, the few tus- particulars in which the monarchical states differed from the non - monarchical. The attempt will therefore be made to render the picture of Tacitus less abstract, by applying what he says of the German race, as a whole, and of the states in general, to one particular portion of the race, bound together in such a distinct political organization as he called the language of the people (theod) ; whence 2 Tac, Germ., cc. 22, 23. the name "Deutsch." — Max Muller, 8 Ibid., c. 16. Lectures on the Science of Language, ii. * Ibid., c. 5. 330 ; Stubbs, Const. Hist, vol. i. pp. 17, 6 Caesar, De Bello Gallico, vi. 23 ; 38, and notes. Tac, Germ., cc. 8, 10, 12, 13, 14, 15, 19, 1 Tac, Germ., c 18. 25, 30, 41. g6 THE OLD-ENGLISH COMMONWEALTH. [Ch. civitas. A great many terms have been used by the English writers as equivalents of the civitas of Caesar and Tacitus. Political community, tribe, state are, however, the terms usu- ally employed to express the idea. But no word in our lan guage will express the exact idea unless it be attended by special qualifications indicating the precise sense in which it The state is used. The primary bond which united the people in what sonafor- will be called for convenience the state was a personal one ; ganization tne j^g 0f tne state was the first among the people, the head of the race ; and not the king of a particular area or region occupying a of territory. And yet, in the time of Tacitus, the states, into areTofter- which the German race was broken up, were permanently ,oc- • ritory. cupying districts of country which were defined by definite boundaries. And so the conception of the state, although resting upon the idea of personal connection, must also have been associated with the idea of territorial possession. As the distinction has been well expressed : " The idea of the state was not merely a personal but a geographical idea, if not in theory at least in fact." a Let us, therefore, present to our minds such a state, composed of a number of the German people, great or small, occupying a definite area of country, surrounded, perchance, by an uninhabited expanse, which the people of that particular state have themselves laid waste.8 This is the condition in which the primitive Teutonic state avfsic^of aPPears when written history begins. The largest division of the state— such a state has been designated by many terms. In Latin j£lfof"' the word usually employed is pagus ; in German, gau or gd; hundred. in Old-English, stir or shire.3 But all these terms finally gave way on the Continent to the word hundred, which will be employed whenever it is necessary to describe the largest division of the continental Teutonic state. These divisions or districts which will be called hundreds were, in their turn, Thes/riof subdivided into village-communities — the vicii of Tacitus — whose origin and structure will be specially considered hereafter. Having now defined the nature of the state and its sub- 1 Essays in Anglo-Saxon Law, p. 3 tudines habere." — Caesar, De Bello Gal- (Boston, 1876). uco< vj_ 23, . 2 " Civitatibus maxima laus est, quam 8 Kemble, Saxons in England, vol. i latissime circum se vastatis finibus soli- p. 72 j Essays in A. S. Law, p. 5. * Tac, Germ., cc 12, 16. II.] THE FOUNDERS IN THE FATHERLAND. 97 divisions, an examination will next be made of the account which Tacitus gives of the different ranks into which the people were divided ; and of the general structure of their social, military, and political institutions. 6. The whole fabric of Teutonic society rested upon two pistinc- fundamental conceptions : the possession of land, and dis- raTk^no- tinctions of rank. These two ideas are so interlaced that menfreed- they can hardly be severed from each other. As the man men, and . slaves. who was not free could, at first, hold no land within the lim its of the village-community ; so the man who held no land in the community was not entitled to the full measure of freedom, however high may have been his rank or station.1 According to Tacitus, Teutonic society was divided into four ranks or classes : the nobles, nobiles ; simple freemen, in- genui, freedmen, liberti ; and slaves, servi.2 The simple land-owning freeman, though not of the high- The simpb est order in the state in respect to privileges, may be justly reeman regarded as the base upon which rested the whole structure of social and political life.3 Such a freeman was certainly endowed with every political right which the state could be stow.4 As a fully qualified member of the local community shares in he was entitled to his due portion of land in the annual allot- allotment; ment, and to the enjoyment of all common rights incident thereto.5 As such land-owner he had also the right to be present and to participate in all public assemblies, great or small, where his own interests, and those of the community of which he was a part, were discussed and determined. He was endowed with the right to bear arms, and to wear them his right to on all occasions, public and private,6 and with them to de fend his life and his honor. He possessed the right of pri vate war, either alone or with the aid of his kindred. In the long hair which floated over his shoulders he wore the 1 Kemble, Saxons in England, vol. Northern Sea." — Green, Hist English i. p. 35. People, vol. i. p. 32. 2 Tac, Germ., cc. 7, 24, 25. 4 " The ingenuus or simple freeman 8 " The base of Roman society here is in every point, except descent, the as everywhere throughout the Roman equal of the noble." — Stubbs, Const. world was the slave, the peasant who History, vol. i. p. 22. had been crushed by tyranny, political 6 G. L. von Maurer, Dorfverfassung, and social, into serfdom. The base of i. pp. 61-65 ; Markenverfassung, pp. the new English society was the free- 59-62 ; Einleitung, pp. 93, 97. man whom we have seen tilling, judg- 6 Tac, Germ., cc. 11, 13. ing, or fighting for himself cry the 93 THE OLD-ENGLISH COMMONWEALTH. [fcn. Emancipa tion of youths. his wergild, badge of his freedom. By his wergild his social position was measured.1 In peace he had his place in the public assem blies : in war he was a member of the host, a defender of the The noble. State. The noble was simply a freeman with certain special priv ileges which accrued to him by virtue of his blood. His political status was in nowise superior to that of a simple freeman, but his personal status was certainly attended with great dignity and advantage.2 In the monarchical states the kings were chosen on account of their nobility of blood.3 In honor of illustrious birth the son of a famous father was often called to the dignity of prince or chief ; and even the comitatus was based in its arrangements upon different de grees of rank and station.4 Upon the life of . the noble, a higher price was set than upon that of an ordinary freeman. The youth upon attaining his majority, whether the son of a noble or of a simple freeman, did not pass into the full pos session of freedom until he had been first emancipated by the state. Until he reached the proper age he was considered simply as a member of the household. When the proper time arrived he was introduced in the state assembly, and there invested, either by a magistrate or by some near rela tive, with shield and spear.5 Thus endowed with the right to bear arms, he ceased to be a mere member of the family, — he became a member of the state. It is not likely, how ever, that such a youth, even after his emancipation, entered into the full enjoyment of all political rights until he had become the possessor of rights in land.6 The freedmen were not of much higher consideration than actual slaves. They obtained no rank in their master's fam ily ; and, if we except that part of Germany in which mon archy was established, they never participated in public af fairs.7 It is not to be presumed that this class enjoyed the possession of political rights. Among the Germans the unfree, the servi, were divided 1 Kemble, Saxons in England, vol. this ceremony, see Sohm, R.- und G. V., Beilage I. 6 Waitz, D. V. G., i. pp. 323, 324, bohm, Frankische Reichs- und Ge. richtsverfassung, pp. 545-558; Stubbs, Const. Hist, vol. i. p. 22. 7 Tac, Germ., c 25. Freedmen. The unfree: »• Pp. 133. 134- 2 Ibid., vol. i. p. 135, 8 Tac, Germ., c. 7. * Ibid., c. 13. In debate a noble was entitled to precedence. Ibid., c 11. 6 Ibid., c. 13. For a full account of II.] THE FOUNDERS IN THE FATHERLAND. 99 into two classes which represented two distinct grades of servitude.1 The higher class were mere agrarian dependents agrarian de- who were obliged to furnish their masters a certain quantity Pendents- of grain, cattle, or clothing. Such dependents, however, were allowed their own separate homes, and their manage ment. They obeyed their masters, but it was an unusual thing for them to be whipped or punished in any way. It sometimes happened that the master, in his rage, killed his dependent, and then it seems that the crime passed unpun ished, and without compensation to any one.2 This class, no doubt, resulted in the main from conquest, especially in those cases in which the conquerors occupied the land of the con quered, and reduced the original possessors of the soil to a condition of dependence, in which they might still maintain themselves while they toiled for their lords.3 The condition of the lowest class of the unfree repre- slaves. sented the full measure of abject servitude. This class seems to have been composed of those who had fallen vic tims to the national vice of gambling.4 When the German had lost his all at play, he would put even his person and his liberty at stake. If he lost, he yielded himself up to ¦ a slavery in which he could be chained and exposed for sale. To the victims of play may be added such prisoners of war as were reduced to a state of predial or menial servitude ; and to these may possibly be added slaves by reason of crime.5 7. The results of recent investigation into the early history ownership of institutions, and into the primitive forms of ancient law, °L' wiiage- have been fruitful indeed. By the light of the knowledge community. thus attained it is now possible to define the primary forms of political union and of land-ownership6 prevalent among 1 Tac, Germ., cc. 24, 25 ; G. L. von groups of men either in fact united by Maurer, Hofuerfassung, i. p. 5 sq. blood-relationship, or believing or as- 2 Tac, Germ., y.. 25. suming that they are so united, is now 8 Kemble, Saxons in England, vol. entitled to take rank as an ascertained i. ch. viii. ; Stubbs, Const. Hist., vol. i. primitive phenomenon, once universally p. 23. characterizing those communities of 4 Tac, Germ., c. 24. mankind between whose civilization 6 Kemble, Saxons in England, vol. and our own there is any distinct con- i. pp. 194, 200. nection or analogy." — Maine, Early 8 " We at length know something History of Institutions , p. 1. See, also, concerning the beginnings of the great Laveleye, Primitive Property, pp. 102- institution of Property m Land. The 1 10. collective ownership of the soil by 100 THE OLD-ENGLISH COMMONWEALTH. [Ch. those races with whose legal history we are at all concerned. It seems to be clear that the earliest tie which bound men together in communities was the tie of kinship, — the earliest form of social and political organization, that of the family,1 whose members were either actually united by blood relation- The patri- ship, or assumed to be so. The first form of authority which theory. existed in such a community was vested in its patriarchal head or chief.2 The first idea, therefore, of sovereignty which existed in the family, or in the clan into which the family widened, was a personal or tribal sovereignty as distinguished from a territorial one.3 It is assumed that this tribal consti tution of society first prevailed among nomad communities ; and it is probable that its original principles entered upon a gradual process of change so soon as the tribal community finally settled down upon a definite area of land. From that time the land begins to be the basis of society instead of the kinship.4 The theory seems to be well settled that this Collective archaic form of organization and of collective land-ownership ship °wner by groups of men, united by the family tie, was common to all the races which compose the Aryan family.5 The traces of such a system have been established from Ireland to Hindoostan.6 Such a type of organization could only con tinue to exist in its primitive form among a people whose yields to in- social condition was stationary. With the first advance in ownership, the path of civilization the principle of collective land-owner ship naturally gave way to the principle of individual owner ship. And such has been the transition through which the village-community in most countries has passed. The first step was taken when each man became the individual pos sessor of his homestead; the next, when the arable land ceased to be held in common subject to allotment ; the last, when the pasture lands were finally divided. In this way the ! Maine, Early History of Institu- times, " In fact, and in the view of the tions. See lecture iii., " Kinship as the men who composed it, was an aggrega- Basis of Society." tion of families. The contrast may be 2 As to the Patriarchal Theory, see most forcibly expressed by saying that Maine, Ancient Law, p. 118 sq. the unit of an ancient society was the 8 Ibid., p. 99. Family, of a modern society the In- * Maine, Early Hist, of Institutions, dividual." — Maine, Ancient Law, p. P- 72- 121. 6 But this form of organization is 3 See Maine, Village-Communities in not exclusively an Aryan possession, the East and West, pp. 13, 80. Ibid., p. 77. Society in primitive II.] THE FOUNDERS IN THE FATHERLAND. 101 waste lands alone remained the common property of the Waste community.1 From the evidence which has been recently State brought to light in the different countries in which this divided- system has been examined, it is now possible to study its history in every stage of development and decay. In those countries in which the progress of civilization has been most marked, its traces are the faintest; in those of which the contrary is true, its form is most distinct. In Russia 2 and The Rus- in India the structure of this system can still be viewed in sian ""' its integrity. Wherever the village-community has existed among the races of the Aryan family it is possible to trace the existence of the village council, the organ, which, in its The village archaic form, corresponds to what is now called the legisia- councih ture. To this embryo can be traced the origin of the most famous senates of the world.3 The history of the village council is closely interlaced with the early history of institu tions in Germany and in England. Tacitus tells us that the Germans did not dwell in cities. Teutonic Some dwelt in villages, vici, but not after the Roman fashion, themark with a series of connected buildings, for every homestead system. stood detached, with a vacant space of ground about it. Others dwelt apart from the villages in isolated homesteads, wherever a grove, meadow, or spring happened to attract them.4 In another and famous passage, which has given rise German to a vast amount of learned discussion, is described the German ^cuhura method of agriculture : " The fields are alternately occupied by the whole body of cultivators according to their number, and these they afterwards divide among themselves according to their individual dignity."5 The extent of the waste lands 1 Maine, Early Hist, of Institutions, the modern world, or, in other words, p. 81 ; Stubbs, Const. History, vol. i. p. of all governments in which sovereign 52. power is exercised by the people or 2 In a recent work, entitled Russia, shared between the people and the by Mr. D. Mackenzie Wallace, is con- king." — Maine, Early Hist, of Institu- tained a very interesting chapter (viii.) tions, p. 388. in which is described the present con- 4 Tac, Germ., t. 16 ; Waitz, D. V. dition of the Russian " mir " or village- G., i. p. 108. community. 6 There are two readings of this very 8 " From this embryo have sprung difficult passage, c. 26 : " Agri pro all the most famous legislatures of the numero cultorum ab universis in vices world, the Athenian Ekklesia, the Ro- [al. vicis] occupantur, quos mox inter man Comitia, Senate, and Prince, and se secundum dignationem [al. digni- our own Parliament, the type and par- tatem] partiuntur." As to the proper ent of all the 'collegiate sovereign- interpretation of this passage, see ties ' (as Austin would call them) of Waitz, D. V. G., i. pp. 132-137; G- L- 102 THE OLD-ENGLISH COMMONWEALTH. [Ch. The vicus identical with the mark. The mark in the time of Tacitus. Structureof the mark, rendered this method of partition easy : " They change the arable land, from year to year, and there is land to spare." x Thus the Germans dwelt together, either collectively in villages, or upon separate farms in the vicinity of villages. The vicus of Tacitus represents the Teutonic form of the village-community,2 and constitutes an important link in the chain of its history. If we could accept as of undoubted authority Caesar's statement in reference to the community of kindred, occupying, subject to allotment, a given area of land for one year which it abandoned the next,3 we would have a perfect picture of the Teutonic village-community, while its members were still in a purely nomad state. However this may be, it is quite certain, that at the time Tacitus wrote the annual migrations have ceased ; the village-communities have settled down upon definite areas of land, the arable part of which is cultivated according to the scheme of annual allot ment which Tacitus has described. But it is impossible to work out the history of the Teutonic cultivating community by relying exclusively upon the brief outline contained in the Germania, — its full history must be interpreted by the light of later facts, and by the aid of generalizations based upon the record of usages, and upon the general analogies of Scan dinavian law.4 The portion of territory occupied by the community of kin dred cultivators was termed in the German muniments the mark, — something, as the term denotes, marked out and de fined, and having settled boundaries.5 The absolute owner- von Maurer, Einleitung, pp. 5, 6 ; Stubbs, Const. History, vol. i. p. 19; Select Charters, p. 59. 1 " Arva per annos mutant, et super- est ager," c. 26. " It implies no more than this, that within the mark which was the property of all, what was this year one man's corn-land, might the next be another man's fallow." — Kemble, Saxons in England, vol. i. p. 40. 2 Maine, Village - Communities, p. 10. 8 Caesar, De Bello Gallico, vi. 22. 4 Stubbs, Const. History, vol. i. dd. 35.48. 5 See Kemble's chapter upon " The Mark," Saxons in England, vol. i. p. 35. But since Kemble's day this whole subject has been worked out in great detail by G. L. von Maurer, in a series of works of the highest authority.— Einleitung zur Geschichte der Mark; Hof-,Dorf, und Stadt-Verfassung und der offentlichen Gewalt : Miinchen. Geschichte der Dorfverfassung in Deutschland : Erlangen. Geschichte der Frohnhofe, der Bauernhofe und der Hofverfassung in Deutschland : Erlan gen. Geschichte der Markenverfassung in Deutschland : Erlangen. Geschichte der Stadteverfassung in Deutschland: Erlangen. See, also, Nasse, Agricultural Community, etc., Ouvry; Maine, Vil lage-Communities, lects. i., iii. ; Heam, The Aryan Household ; Seebohm, Thl English Village Community ; Laveleye, Primitive Property. II.] THE FOUNDERS IN THE FATHERLAND. IOJ ship of the territory embraced within the mark was vested either in the community itself or in the state within which the mark was embraced, while the right to its common en joyment and possession was vested in its qualified members. The mark might be located either in the forest or in the plain, according to the nature of the country in which the kindred chanced to fix their settlement ; and its border land, according to circumstances, consisted either of wood or waste.1 The mark was divided into three parts, — the vil lage, the arable lands, and the common or waste lands.2 In the centre of the mark was situated the village in which Thevillage. the mark -men dwelt in their homesteads, surrounded by their inclosures and outbuildings.3 Within the precinct of the family dwelling-place the head of the family was su preme. No one had the right to enter there except himself and those under his paternal authority. It could not be in- sacredness vaded even by officers of the law.4 The possession of such a nonhead. homestead was evidence of the fact that its possessor was a fully qualified member of the mark, and as such entitled to a full share in the enjoyment of the arable, the pasture, the meadow, and waste lands belonging to the community.5 The arable land embraced within the mark was usually divided The arable into three great fields ; and it was so arranged that, in the *" s' rotation of crops, each field could lie fallow once in three years.6 In the fields under cultivation in any given year, every householder had allotted to him his equal share, which he cultivated separately by his own labor, together with that of his sons and slaves. But he was required to cultivate according to fixed rules ; he was obliged to sow the same crop with the rest of the community and to allow his portion of the uncultivated field to lie fallow with the rest.7 The rules regulating this system of cultivation were both minute and complicated. The woods, pastures, and meadows which were The com- embraced within the mark were undivided, and employed in ^sVLnds 1 Konrad Maurer, Kritische Ueber- s G. L. v. Maurer, Einleitung, p. 21. schau, i. 65-72. * Village-Communities, p. 78. 2 Maine, Village-Communities, p. 78. 6 Dorfverfassung, vol. i. pp. 61-65. The author of Village-Communities has 6 See Laveleye, Primitive Proper- condensed into a few pages of that ty, p. no, as to the time of the intro- work a summary of Von Maurer's con- auction of this triennial rotation of elusions as to the structure of the crops. mark, pp. 77-82. 7 Village-Communities, pp. 79, 80. I04 THE OLD-ENGLISH COMMONWEALTH. [Ch. common, and, originally, without restriction.1 When this primitive condition of things ceased, however, the use of the common lands was regulated by strict proportion, and an elected or hereditary officer watched to see that the common domain was equitably enjoyed.2 The mark- Such was the mark in its agricultural aspect, and such were moot' the relations which the mark-men bore to each other as com mon cultivators of the soil. We must next consider the po litical aspect of the mark, and the character of the assembly in which its internal affairs were considered and determined. Every free mark-man had his place in the village council or mark-moot, which, if the assumption of Kemble be followed, must have had jurisdiction, in the early stages of social de velopment, over all causes which could in any way affect the interests of the individuals composing it.8 But in historic times the marks appear as members of larger communities, and in the assemblies of such communities was vested the judicial power. In the mark-moot was transacted all the busi ness which arose out of the system of common cultivation, and out of the enjoyment of common rights. The annual allot ment of the arable lands, the rotation of crops, the choice of the meadow, the admission of a new member into the mark, were all questions which were determined in the mark-moot.4 Theory of Within the limits of the mark are found dwelling together, 'tk>??sa in tne peculiar corporate relations which have just been de scribed, all grades of Teutonic life, — nobles, freemen, freed men, and slaves, — constituting a naturally organized, self- governing community. A group of families or households settled upon a given portion of land, and bound together in the organization of the mark, probably represented the orig- 1 G. L. v. Maurer, Markenverfas- . . . But the initiatory stage of legal sung, p. 142. proceedings may well have been gone 2 Village-Communities, p. 79. "Vii- through, complaints heard, and pre- lage cow-herds, swine-herds, and goose- sentments drawn up, in the village herds are still employed in many parts council." — Const. History, vol. i. p. 51, of Germany." See " The Germanic 4 G. L. von Maurer, Einleitung, pp. Origin of New England Towns," 141-150. " It is with a. reverence such Adams, f. H. Studies, ist series, II. as is stirred by the sight of the head- p. 1 5. waters of some mighty river that one 8 Kemble, Saxons in England, p. 55. looks back to these village-moots of Bishop Stubbs says that, " It is un- Friesland or Sleswick. It was here necessary to suppose that there was that England learned to be a ' mother a period when the village marks ad- of Parliaments.' " — Green, History of ministered justice among themselves, the English People, vol. i. p. 13. II.] THE FOUNDERS IN THE FATHERLAND. I OS inal basis upon which rested all Teutonic society.1 And if that theory be accepted which begins with the marks as the units of organization, it becomes easy to work out the process through which the larger divisions arose out of their aggrega tion. In the attempt heretofore made to describe the struc ture of the Teutonic state, as it first appears in the written history of the race, it was necessary to begin with the state as an existing political organization occuping definite geo graphical limits, without reference to the questions involved in the origin of its subdivisions, and in the process through which it was evolved out of their gradual coalescence. The i unwritten history of this process rests upon the theory of aggregation ; and as that theory depends, in a great measure, for authority, so far as English history is concerned, upon the great names of Kemble and Freeman, it may be well to state it in their own language. Tn the words of Kemble: " Next as stated by in the order of constitution, if not of time, is the union of two, three, or more marks in a federal bond for purposes of a religious, judicial, or even political character. The technical name for such a union is in Germany a gau or bant ; in England the ancient name ga has been almost universally superseded by that of scir or shire. . . . The ga is the second and final form of unsevered possession ; for every larger ag gregate is but the result of a gradual reduction of such dis tricts, under a higher political or administrative unity, different only in degree and not in kind from what prevailed individu ally in each. "2 In the words of Freeman : " We must re- as stated by member that the kingdom, like all our ancient divisions, from the shire, perhaps from the hundred upwards, was formed by the aggregation of smaller divisions. The unit is the mark, roughly represented by the modern parish or manor. The shire must not be looked on as a division of the king dom nor the hundred or the mark as a division of the shire. The hundred is in truth formed by an aggregation of marks, the shire by an aggregation of hundreds, and the kingdom by the aggregation of shires. The aggregation of marks into shires is indeed mainly to be inferred from local nomencla- 1 Kemble, Saxons in England, vol. i. 2 Kemble, Saxons in England, vol. i. p. 53. See, also, Seebohm, English p. 72. Village Community, preface, x. I06 THE OLD-ENGLISH COMMONWEALTH. [Ch. ture and from the analogy of other Teutonic countries, but the aggregation of shires into kingdoms is matter of recorded history." * If we accept, therefore, the primitive Teutonic community, represented by the mark, as the unit, and then apply to its union with other units of the same class the theory of aggregation, the making of the Teutonic state be comes at once obvious and easy. Thehun- 8. The mark has now been considered as an isolated, self- dred, and g0verning community, and also as the smallest subdivision court™ ri 0f the Teutonic state. In the ascending order it is necessary to examine the structure of the next largest division — the hundred. By the union of two or more marks was formed the pagus, gau, or shire, known in later times as the hundred, a word which, in some form, enters into all of the Ger manic constitutions. When the written history of the primi tive Teutonic state begins, the formative period has ended ; the state is an existing organization, occupying definite geo graphical limits, while the original units out of whose aggre gation it arose have descended to the status of mere divisions and subdivisions. Connected in this way with the occupa tion of definite areas of land, these divisions and subdivisions represent forms of organization not only personal but terri- their names torial.2 The name of the territorial district represented by ^7^ the hundred has varied in different countries, and the name countries. 0f jts court, composed of all the freemen residing within the district, has varied nearly as much as that of the district it self. That fact must not be allowed, however, to mislead us as to the true character of either ; for the hundred, and the hundred court, in respect to both judicial and administrative functions, were of all Teutonic institutions the most endur ing and the most important.3 The faithful investigations of 1 Freeman, Norm. Conq., vol. i. p. 66. of Clovis, the reforms of Charlemagne, 2 " At the time when German law the dissolution of the Frankish empire, and society were first brought within the dissolution of the county system, the view of history, the German popu- the dissolution of public authority by lar assembly consisted, and to all ap- feudalism, the complete beginning of a pearance had always consisted, of the wholly new development in the iso- free inhabitants of a fixed geographical lated territories. The hundred consti- district." — Essays in A. S. Law, p. 3. tution gave way at last only to a more 8 " The hundred, and the principle powerful enemy, — the awakening le- that the hundred community is a judi- gal science of the sixteenth century. cial body, outlived the storms of the — Sohm, Altd.R.-u. G. Verf, i. p. 541- folk wanderings, the political creations See Essays in A. S. Law, p. 20. IL] THE FOUNDERS IN THE FATHERLAND. 107 ihe German scholars into their own legal antiquities have Their im- finally established the fundamental principle, that the whole Initiations! Teutonic race, from the earliest period of its history, vested both the administration of law and political administration in the hands of popular assemblies. The smallest of these assemblies is represented by the mark-moot ; the circle then widens as we ascend to the assembly or court of the hun dred until, in the state assembly, appears the highest devel opment of jpopular power. The hundred court, like all other The hun- Teutonic courts, was a popular assembly, composed of all the a popular freemen resident within the district. In this court was ad- assembly- ministered regularly and frequently the customary law. It met perhaps once a month, and, in addition to its judicial duties, it discharged many administrative functions.1 Taci tus tells us that each hundred, pagus, sent a hundred war riors to the army, called hundreders ; and that this name, at first numerical only, became in time a title of honor.2 In President , 1 1 . • r- , ¦ °f the hun- the state assembly a chief was chosen to act as magistrate dred court in each hundred. He presided in the hundred court, and s^fassem- with him were associated a hundred companions or assist- b'y- ants, chosen from the body of the people, who attended to give their advice and to strengthen the hands of justice.3 Q. As by the union of two or more marks the hundred was The state formed, so by the union of two or more hundreds the state was formed. The supreme powers of the state were vested in a state assembly, in which every freeman had his place. The character of this assembly and the methods of its pro cedure are described in the Germania with some detail. In the assembly of the hundred the people met in council, mainly for the purpose of judicial administration ; in the state assembly they met together mainly for the purpose of political action.4 In the deliberation of the assembled peo- its func- . . . • • x.i tions chiefly pie every man had an equal voice ; and it was the custom political; for all to appear fully armed. The state assembly met at fixed and stated intervals, unless sooner called together by 1 Essays in Anglo-Saxon Law, p. 5. and were of universal application. — 2 Tac, Germ., c. 6. Sohm, Die frankische Reichs-und Ge- ' Ibid., c. 12. The duty of attend- richtsverfassung, vol. i. p. 333; Roth, ance upon the courts and the obliga- Geschichte des Benefcialwesens, p. 42. tion of military service resulted from 4 Sohm, Fr. R. G. V., pp. 1-8. the possession of personal freedom, io8 THE OLD-ENGLISH COMMONWEALTH. [Ca its business prepared beforehand by a perma nent coun cil, which settled all minorquestions. Criminallaw: AU offences, except trea son and effeminacy,could be atoned for by fines. some sudden emergency. When the people had assembled in sufficient numbers the business began after silence had first been proclaimed by the priests, who possessed the co ercive power to enforce it. The business presented to the consideration of the assembly was all prepared beforehand by a permanent council. This council was composed of the magistrates, principes, who decided all minor questions, re serving only the graver ones for the consideration of the whole people. When the proper time arrived, the debate was opened by the king, or a chief, and then the rest were heard in turn, according to age, nobility of descent, renown in war, or fame for eloquence. No one could dictate to the assembly, — all could persuade, no one could command. When a proposition was put forward to which the people were opposed they expressed their dissent in loud murmurs ; when it pleased them, they expressed their approval by the clash of arms.1 Here the magistrates, principes, were chosen to administer justice in the marks and hundreds, — pagos vicosque.2 10. In the state assembly, as a high court of justice, ac cusations were exhibited and capital offences prosecuted.8 Those guilty of treason and desertion were hanged, those guilty of cowardice and unnatural vices were suffocated in the mud. In the infliction of these penalties the spirit of the law was, that crimes against the state should be made notorious, while the infamous forms of vice should be buried out of sight. All other offences could be atoned for by fines, a part of which were paid to the king or state, and a part to the person injured, or to his family.4 The Germans felt bound to take up both the enmities and friendships of their parents and relatives. But in their enmities they were not implacable. Injuries were adjusted by a settled measure of compensation. Even homicide was atoned for by a fixed number of cattle ; and, in this way, the whole family received satisfaction, — a useful institution to the state, as it served to curb that spirit of revenge, which naturally results from too much liberty.5 And the value of this method of settling 1 Tac, Germ., c. II. 2 Ibid., c. 12. 8 Sohm, Fr. R. G. V., p. 5. 4 Tac, Germ., c 12. 6 Ibid., c. 21. II.] THE FOUNDERS IN THE FATHERLAND. 109 difficulties is increased when we reflect upon the fact that convivial meetings were frequent in which drunken brawls generally ended in a scene of blood.1 1 1. Tacitus makes it very clear that each state had its own Kingship: constitution and that these constitutions were substantially the same in every particular except one, — in some of the states kingship prevailed, in others it did not.2 In the mo narchical states. the kings were chosen from among those of noble blood, while the generals, duces, were chosen from among those who possessed the greatest military fame. The power of the king was neither arbitrary nor unlimited, while the general commanded more by exhibitions of valor than by positive authority.3 Although in war the sole command was not vested in the king, and although in peace his powers were very limited, yet he was certainly surrounded at all times with attributes of great dignity and privilege. He rep resented in his person the national unity, he was the noblest of the people, the head of the state.4 As a perquisite he re ceived a portion of the fines imposed in the courts of justice.6 But the most important consideration arising out of this primitive kingship is the principle of election involved in it. principle of The king was simply one of the people made eligible by no- electIon- ble blood to an office which the people only by election could bestow. Noble blood simply made the candidate eligible ; while the title to the office rested alone upon election. The operation of this complex principle pervades the whole his tory of English kingship. In the non-monarchical states the conception of national Sovereignty unity was embodied solely in the idea of the civitas, working nn0n!monar- through the state assembly, and through the magistrates chical- chosen by it for local administration. In such a state, in time of peace, all ordinary matters were determined by the permanent council composed of the magistrates ; in the event of war the great council was convened and generals chosen by it for its management. Under this form of gov ernment, that portion of the fines accrued to the state which in the monarchical states passed to the king.6 1 Tac, Germ., c. 22. * Kemble, Saxons in England, vol. i. 2 Ibid., cc. 7, 12, 25. p. 137. 8 Ibid., c. 7. 6 Tac, Germ., c. 12. 8 Ibid., c. 12. 110 THE OLD-ENGLISH COMMONWEALTH. [Ca Military or- 12. So closely did the scheme of military organization, ganization : common to %\\ of the Teutonic tribes, resemble the system of political organization upon which the state was constructed, its likeness that a comparison has been happily made between the state" orgPaniza-al in its territorial aspect and the army in permanent encamp- tion. ment.1 In the social and political order the narrowest form of local organization was represented by the kindred grouped together in village-communities. In one of .the elements of which the army was composed, the same principle of cohesion appeared. The mass of the people fought together in "fami lies and affinities ;" 2 in these groups of kindred appeared upon the battle-field the village-communities. The larger divisions of the state were also distinctly represented. ~Ea.ch. pagus ox hundred contributed its quota of a hundred warriors to the host. These warriors, chosen from the flower of the youth, constituted the infantry, which was looked upon as the basis of the national strength.8 Thecami- The third element of the army consisted of bands of pro fessional warriors, united to a leader of their choice in a close and peculiar personal relation which Tacitus has described with terse and graphic force. The leader of such a band was the princeps, his war-like followers, the, comites ; and it was no disgrace to any man to be seen among the followers of a its divisions chief. The clanship or comitatus thus formed had its divi- of rank ; . . sions of rank, which were fixed by the princeps. There was great emulation among the comites of every princeps as to who should hold the highest place in his esteem ; and among the principes as to who should have the most numerous and bravest following. To be always surrounded by a band of chosen young men — in peace an ornament — in war a bul wark — was the greatest dignity and power that a chief could Relative possess. Upon the battle-field it was a disgrace for the prin- jrinleps ceps to be surpassed by his comites, and it was a disgrace for zzicomites. tne comites not to equal their leader in valor. To survive a battle in which their chief had fallen was eternal infamy. To defend and protect the princeps, to make even their own re nown subservient to his, was the highest and holiest duty of the comites. The chieftains fought for victory, the comites l Stubbs, Const. Hist, vol. i. p. 31. 2 Tac, Germ., c. 7. 8 Ibid., c 6. II.] THE FOUNDERS IN THE FATHERLAND. Ill for their chief. The comitatus could only be kept together by violence and war, for the comites were entirely dependent upon the bounty of their chief. At one time they demanded from him that war-horse, at another, this bloody and victo rious lance. The table of the chief, though rude, had always to be bountiful, for it was the only pay of his followers. War and plunder supply the means of liberality.1 In the bonds of this strange military association, the chief and his follow ers were united by the closest ties of mutual interest and honor. Both in peace and war the comites were required to serve the princeps even to the death, and in return the prin ceps shared his spoils with them and gave them bread. In the structure of the comitatus was imbedded the germ origin of of a great after-growth. The relation of lord and vassal, the feuda"sm. first outcome of the comitatus, was purely a personal one. But in the process of time, when the lord makes a grant of land to his vassal in consideration of past services and upon the further consideration that the vassal will hold such land upon the tenure of military service, a new relation becomes involved with the old one. When the two relations become inseparably welded together the result is feudalism.2 But we are now only concerned with the comitatus as an element in the host, — its growth and influence belong to later times. The host was therefore composed of three distinct elements : The host the main body of the people fighting in groups united by the "Three6 tie of kinships ; the chosen infantry contributed by the hun- eIements- dreds ; and the bands of mounted warriors, each under the leadership of its own trusted chief. When the whole people were in arms we have "popular assembly, parliament, law court, and army in one."3 The close relationship thus exist ing between the systems of political and military organization is, in one respect, worthy of special attention. It is easy to understand how an army of invasion, composed either of the whole people of a state, or of a single subdivision, embodied in its very organization the primitive political system, which it would naturally reproduce wherever a settlement was made in the conquered territory. If the expedition happened to be - ^ 1 Tac, Germ., cc 13, 14. See Kem- 2 Freeman, Norm. Conq., vol. i. pp. ble's chapter (vii.) on " The Noble by 58-63. Service," Saxons in England, vol. 1. 8 Essays in A. S. Law, p. p. 162. I 12 THE OLD-ENGLISH COMMONWEALTH. [Ch. Divisionsof the host give form to civil or ganization. Teutonic heathen ism ; its in fluenceupon na tional char acter. composed of a single group of kindred, upon a settlement being made in a new land, its members would naturally draw together upon the old plan in a village-community.1 If the expedition happened to be composed of many groups, united under a common leadership, a cluster of village-communities would as naturally result. After the units of organization had thus been reproduced and brought into contact, through the ordinary law of federation, first the hundreds and last the state would reappear. When the attempt shall be made hereafter to reason out, upon scanty evidence, the probable form in which the earliest Teutonic settlements in Britain were made, the foregoing theory will constitute a serious factor in the argument. 13. No conception of the primitive Teutonic constitution can be at all rounded and complete that does not embrace some insight into the national character which pervaded everything, impressed itself upon everything.2 With the very warp and woof of that national character the forces of Teu tonic heathenism were subtly interlaced. In all the vicissi tudes of life, the fierce barbarians of the north felt impressed with a sense of reverence and of awe in the contemplation of the great forces of nature about them, — these they regarded as personal divinities.3 There can be no doubt about the fact that the true interpretation of every mythology depends, to a great extent, upon a correct observation of the physical phenomena out of which it arose.4 The light, sensuous as pects of nature about the shores of the Mediterranean Sea reappeared in the mythology of the versatile Greek, idealized but yet unaltered. And so the stern aspects of nature about the shores of the Northern Ocean reappeared in the mythology 1 " And as they fought side by side on the field, so they dwelled side by side on the soil. Harling abode by Harling, and Billing by Billing ; and each ' wick ' or ' ham ' or ' stead ' or ' tun ' took its name from the kinsmen who dwelled together in it." — Green, Hist, of the English People, vol. i. p. 10. 2 See Kemble's chapter (xii.) on "Heathendom," Saxons in England, vol. i. p. 327. 8 " The primary characteristic of this old Northland mythology I find to be impersonation of the visible workings of nature. . . . What we now lecture of as science, they wondered at, and fell down in awe before, as religion. The dark, hostile powers of nature they figured to themselves as Jotuns (giants), huge, shaggy beings, of a demoniac character. Frost, Fire, Sea-Tempest, these are Jotuns. The friendly powers,' again, as Summer-heat, the Sun, are gods. The empire of this universe is divided between these two ; they dwell apart in perennial internecine feud." — Carlyle's Heroes and Hero-Worship, p. 16. 4 Buckle, History of Civilization in England, vol. i. pp. 1 18-124. II.] THE FOUNDERS IN THE FATHERLAND. 1 13 of the Greek's Aryan brother, and impressed upon his serious character a deep sense of reverence, fidelity, and faith. From Tacitus we learn that the Teutonic race possessed a common mythology,1 but we can derive from the Germania no adequate conception of its character. Geographically this mythology Geograph- once extended over all Scandinavia, including Iceland, over ^Teutonic England, and over considerable portions of France and Ger- mythol°gy- many.2 When the Teutonic nations separated, the form of the original faith, which each horde of emigrants took with them, became modified, of course, by the local circumstances of the particular country in which it was finally replanted. The Niebelungen-Lied was its offspring in Germany, the song The song of of Beowulf its offspring in England.3 As Christianity ad- ^^the™" vanced, Teutonic heathenism retreated before it, step by moral tem- step, to the north, until the circle of its influence was at English. last narrowed down to the limits of Ultima Thule. Here it expired after recording its purest traditions in the literature of Iceland. In the Eddas is preserved the genuine record of the ancient faith. In the forms of the Norse gods who move through the mighty epic, all the great forces of nature were vividly personified. Each god impersonated some phys- Each Norse ical or moral force, and according as it was friendly or un- fonatedT friendly to man, it was adored as a divinity or dreaded as a ^Jrs^f0°^ demon. The roaring of the storm was to the Northman the coming of the angry Thor, whose chariot wheels shook the universe which the light of his eyes illumined. To his mind the whole life of the world consisted of a great struggle between the gods of good and light on the one side, and of evil and darkness on the other. Out of this struggle creation began ; through the results of the struggle everything in the end was to be destroyed. Everywhere the struggle was majestic, the powers terrible, the results profound, — every thing was huge, vast, terrific. Still, behind the sombre veil Thehope of grandeur and of gloom there was the hope of a resurrec- yon"d the tion, and of a life beyond the grave. The noble and heroic srave- were borne after death to Valhalla, the base and cowardly 1 Germ., cc. 2, 7, io. fathers ; and the secret of their moral 2 Anderson, Norse Mythology, p. 34. temper, of their conception of life, 8 " But the thin veil of Christianity breathes through every line." — Green, which he has flung over it fades away Hist, of the Eng. People, vol. i. pp. 17, as we follow the hero-legend of our 18. H4 THE OLD-ENGLISH COMMONWEALTH. [Ch. The primi tive religion as a source of princi ples and morals. A century and a half of English heathen- Engles, Saxons,and Jutes. Saxons : our earliest knowledgeof them de rived from Ptolemy. were dragged down to Nastrond. It has been said by a Danish poet1 that the Asa Faith unfolds in five acts the most glorious drama of victory ever composed by mortal bard. In the religion of the Northman there was nothing frivolous or sensuous, — everything was earnest, sincere, heroic. The greatest of the Norse gods was Odin, the progenitor of kings, the lord of battle and of victory. In this stern and high-thoughted system of mythology we see reflected as in a mirror the moral, social, and intellectual characteristics of that mighty race of which the English people is a part. In its traditions we possess a record of their earliest thoughts and feelings, and in these we discover the sources of their proud self-consciousness, their love of liberty and strife, their heroism, and their power. " In the old Gothic religion were embodied principles . . . and morals that in due course of time and under favorable circumstances evolved the Republic of Iceland, the Magna Carta of England, and the Decla ration of Independence." 2 The Teutonic invaders trans planted into Britain the primitive religion, and the history of the English race begins with a century and a half of un broken heathenism. The possession of Woden's blood was, among the first settlers, an indispensable prerequisite to kingship. Every royal house in every Old-English kingdom traced its descent from Woden,3 — his name is a part of the national epos. But in the names of the days of the week is perpetuated the most enduring memorial of the ancient faith. 14. Thus far only such matters have been considered as relate to the history of the Teutonic race as a whole. Let us now gather together the few existing fragments which relate to the individual histories of the three tribes — Engles, Saxons, and Jutes — by whom the whole fabric of Teutonic life was transplanted from the Continent into Britain. The Saxons are not mentioned by Tacitus, but of the three tribes their history is most complete. For our earliest knowledge of this tribe we are indebted to Ptolemy, from a passage in whose geography it appears that, about the middle of the second century, there was a people called Saxons dwelling at 1 Grundtvig. Anderson's Norse Mythology, p. 129. p. 335. Kemble, Saxons in England, vol. i II.] THE FOUNDERS IN THE FATHERLAND. IIS the north side of the Elbe on the neck of the Danish penin sula, and on three small islands at the mouth of that river.1 From this account it is plain that the Saxons had not then attained to any great importance. About a century and a half later we have the account of Eutropius, who describes Account of the Saxons as actively engaged in piratical warfare on the ur0I"us' coast of Gaul, a. d. 287.2 Sixty years afterwards we hear of Magnentius attempting to strengthen his precarious hold upon power by an alliance with the Franks and Saxons, whom, in return, he protected and encouraged.3 It seems to be probable that, by the fourth century, in the names of Frank and Saxon had been merged the names of many other tribes occupying the same seats, and better known in earlier times than either. The tendency seems to have been for the tribes on the Lower Rhine to become Franks, while those between the Rhine and the Oder were becoming Saxons. But the mere common name as yet implied no common organization, certainly nothing beyond an occasional union for temporary emergencies.4 Only a portion of the Saxons Only a por- i • i t. -^ ., , i, • • . ,i ¦ i . tion of the passed over into Britain, the bulk remaining in their old saxonspass homes to play an important part in the history of northern 'an^° Brit' Europe, upon which the great Saxon Confederation has made an abiding impression.6 The Angles or Engles are the only one of the three tribes Engles: mentioned by Tacitus, but only as one of a number of North a/three" German tribes, whose positions he does not define.6 Accord- **eesd™yn" ing to Ptolemy, the Engles and Saxons were situated in the Tacitus. second century between the Elbe, the Eyder, and the War- now.7 At the time of the migrations the Engles, or at least a portion of them, were residing in the district of Angeln or 1 Cf. Ptolemaeus, Georg. lib. ii. c. 2. number of German tribes had drawn A little after Ptolemy's account, Mar- together into the people of the Saxons, cianus of Heraclea assigns to the Sax- and it was to this people that ^the ons the same position on the neck of pirates of the Channel belonged." — the peninsula. See Turner's Hist, of Green, Making of England, p. 15. the Anglo-Saxons, vol. i. p. 76. 6 " Of all productions of the German 2 Eutropius, ix. 21 (Monum. Hist, mind within the domain of law, the Brit, p. lxxii.). Sachsenspiegel was the purest and the 8 Turner, Hist, of the Anglo-Saxons, greatest.' — Essays in Anglo-Saxon vol. i. p. 106. Law, p. 6. 4 Stubbs, Const. Hist., vol. i. pp. 38, 6 Tac, Germ., c 40. 39. " In their homeland between the 7 " In the modern duchies of Hol- Elbe and the Ems, as well as in a wide stein, Lauenburg, and Mecklenburg." — tract across the Ems to the Rhine, a Stubbs, Select Charters, p. 5. 116 THE OLD-ENGLISH COMMONWEALTH. Whole tribe probably passed into Britain. Jutes reap pear as Danes in later his tory. Engleland in Sleswick, while the main body lay probably in what is now Lower Hanover and Oldenburg.1 It would seem from the deserted state of the district of Angeln, as it appeared hundreds of years afterwards, that the whole tribe of the Engles passed over in a body into Britain, leaving but a slight trace upon continental history.2 And this idea is strengthened by the very wide extent of their British con quests. To the new nationality, born of the union of the three tribes by whom Britain was won, the Engles gave their name, — the conquered land became Engla-land or England. North of that portion of the Engle situated in Sleswick, were the seats of the Jutes, whose name is still preserved in the district of Jutland. Under the name of Danes the Jutes reappear in later history. The three tribes were of the purest Teutonic type, and all spoke dialects of the Low- German. 1 Green, Hist, of the English People, vol. i. p. 7. 2 Baeda, Hist. Eccl., i. 15. Note. — The fact should be borne in mind that the criticisms of the Ger man village community theory — more than once stated in the text — by Fus- tel de Coulanges, Enama - Stemegg, Ross, and others have had their in fluence upon the views of the English writers. In 1883 appeared Mr. See- bohm's work on the English village community, in which he finds the manor to be the direct outcome of the Ro man villa. His theory is that the rank and file of the people were from the first slaves, in a condition of servile de pendence upon an overlord, and that, therefore, their condition was one of progressive amelioration instead of pro gressive degeneration. The insuffi ciency of the evidence upon which See- bohm's assumption rests was first set forth in a critical manner by Professor Allen, of the University of Wisconsin, in a paper upon the Village Commu nity and Serfdom in England. Then Mr. T. E. Scrutton, in reviewing the Influence of Roman Law upon the Law of England, finds that the proof of a Roman parentage for the English manor is so incomplete as to leave the burden of proof still upon Mr. Seebohm. In the mean time a reviewer (Professor Kovalensky) of Mr. Paul Vinogradoff's untranslated Russian work, entitled In quiries into the Social History of Me dieval England, states it to be Mr. Vinogradoff's opinion, in which the re viewer concurs, that Mr. Seebohm's theory has failed. Last comes Mr. John Earle, who, in his Introduction to the land charters and other Saxonic documents, concludes that the English manor is of composite origin ; that the Roman villa supplied the dominical ele ment, while the free churls settled be side it, and received from the hand of the superior officer who occupied it the lands which they cultivated after the agricultural customs derived from the continent. CHAPTER III. THE TEUTONIC CONQUEST AND SETTLEMENT OF BRITAIN. i. About the middle of the fifth century the first perma- Roman nent Teutonic settlements in Britain were made, — with that Britain- event the history of English institutions really begins. With that part of the history of Britain which precedes the making of these settlements we have no direct concern, save so far as that history is necessary to a full comprehension of their character.1 In order the more clearly to explain the nature of these settlements, a brief review has already been made of the precedent history of the settlers themselves. Let us now glance for a moment at the precedent history of the land that they won. The great tide of Aryan migration never ceased to flow The westward until its Celtic wave, spreading over the British ^?^t Isles, reached at .last the western shores of Ireland. This whole island-world is found in the possession of Celtic peo ples when its history begins.2 The two incursions which casarj Caesar made into Britain resulted in nothing more than the bringing of this dim and distant realm within the domain of Roman history.3 During the distractions of the civil war which ensued, Britain for a long time passed out of view. Not until a century after Caesar's invasion, when the republic had become the empire, was the subjugation of Britain under taken in earnest by the emperor Claudius by the hand of his general Aulus Plautius.4 Nearly forty years then elapsed be- 1 "The English conquest of Brit- Gneist, Eng. Parliament, p. 2 (Shee's ain cannot be thoroughly understood trans.). without some knowledge of the earlier 4 Tac, Agric, c 13 ; Annals, bk. xii., history of the Celt and the Roman." — cc. xxxi.-xxxix. Dr. Guest says as Freeman, Norm. Conq., vol. i. p. 2. to the origin of London : " When in 2 It is more than probable, however, the autumn of 43 Aulus Plautius drew that the Celts were not the original in- the lines of circumvallation round his habitants of the British Isles. As to camp, I believe he founded the present the existence of a pre-Aryan people, metropolis of Britain." — " Aulus Plau- see W. W. Kinsley's Views on Vexed this," Archceol. Journal, vol. xxiii. p. Questions, p. 151. 18a. * Froude's Cesar, p. 237. See, also, comesprovince, Il8 THE OLD-ENGLISH COMMONWEALTH. [Ch. Aulus fore the work begun by Plautius was completed by Agricola, andAg- by whom Britain was really reduced to a state of subjection. rkoia. Before his recall by his jealous master the whole island had been overrun, and by far the greater part of it had passed under the rule of Rome. Although Tacitus states in his life Britain be- of Agricola that the southern part of Britain was reduced to the form of a province under the auspices of Plautius and Ostorius Scapula,1 yet it is not to be supposed that its organ ization was fully accomplished until the peaceful age of the Antonines, when all the provinces became the objects of spe cial care upon the part of the central administration.2 An attempt has heretofore been made to sketch the general as pects of Roman civilization in Britain for the purpose of pointing out the marked character of its influence upon the superficial life of the cities, and the superficial character of its influence Romandv^ upon the greater mass of the rural population. And the fact lization. was then observed how the whole adventitious fabric col lapsed and disappeared as soon as the foreign support, by which it had been nourished and sustained, was taken away. The very remoteness of Britain from the seat of empire, its insular position, the harshness of its climate to men of the a mere south,3 its border warfare, — all conspired to make it a mere partment6" military department. It was simply a place to be plundered and enslaved. " ' Levies, Corn, Tribute, Mortgages, Slaves,' — under these heads was Britain entered in the vast ledger of the empire." 4 And under these heads only could her con tributions be recorded, for to the intellectual resources of the Roman world she contributed absolutely nothing.5 Thede- And yet, oppressive as may have been Roman rule in fences of Ti . . / Britain. Britain, its masters were careful to guard it against its foes. In the north the walls of Hadrian, Antonine, and Severus were constructed to bridle the constant incursions of the Picts. fgaarinstrthe DfsPite these barriers, however, these marauders, about the Picts. middle of the fourth century, penetrated into the very heart of the province, and almost tore it from the empire ere the general Theodosius could drive them back to their fastnesses I JmC;' Airic-> c- M- l Kemble, Saxons in England, voL 1 Gibbon's Decline and Fall, vol. i. ii. p. 278. p. 42 ; Green's Making of England, » Macaulay's Hist, of England, vol. L P- }• „., p. 4- Kemble, Saxons in England, > See Ibid., p. 7. vol. ii. p. 280. III.] THE TEUTONIC CONQUEST OF BRITAIN. 1 19 in the Highlands.1 But the most formidable foes of Britain were destined to appear as pirates, and to make their attacks from the sea. While the Picts were repeating their incur sions from the north, ravages were being made upon the western coast by the Scots, — the name then applied to the people of Ireland.2 And about the time these attacks in the west began, a still fiercer race of pirates appeared upon the eastern coast, with whose origin and history we are somewhat familiar. The first recorded appearance of the Saxons as Saxonsap- pirates in the Channel is in a. d. 287, when they are found ptatram ravaging the coast of Gaul.3 It is not, however, until the year j^g??™181 364 that we hear of them as taking part in an attack upon do not at- Britain itself.4 How serious and incessant this new scourge until 364. ° upon the eastern coast proved itself to be, may be inferred from the measures of defence provided against it by the provincial administration. The most vulnerable part of the coast-line, extending from the Wash on the east to the Isle of Wight on the south, was guarded by a line of fortresses, and the de fence of the district so organized was committed to an officer who bore the title of " Count of the Maritime Tract," or " of the Saxon Shore."5 With the walls upon the north, and The"Sax- with this semicircle of fortresses along the southeastern01 coast-line, the legions were able to protect the province against both Picts and Saxons up to the moment of their final withdrawal to the centre of the empire.6 After the removal of the legions Britain was left to her own defence, and for a Britain left period of thirty years the abandoned province maintained an defence.™ equal struggle with her assailants. At last, weakened by in ternal dissensions, her power of resistance suddenly gave 1 Ammianus, lib. xxvii. cc 8, 9 ; Conquest. But the orthodox view now Gibbon's Decline and Fall, vol. il p. is that the " Saxon Shore " derived its 569. name from its use as a barrier against 2 Green's Making of England, p. 15. Saxon invasions. See Dr. Guest's 8 Eutropius, ix. 21. E. E. Settlements, p. 33 et seq. ; Stubbs, 4 Ammianus, lib. xxvi. c. 4. Const Hist., vol. i. p. 59, note ; Free- 6 Palgrave (English Com., p. 384), man, Norm. Conq., vol. i. p. 7, note 3; Lappenberg (Anglo-Saxon Kings, ed. Green's Making of England, p. 19, 1881, vol. i. pp. 57, 58), Kemble (Saxons note... in England, vol. 1. pp. 10-14), Skene 6 In 410 Honorius, in a letter ad- (Celtic Scotland, vol. i. p. 151), and dressed to the cities of Britain, acqui- others have maintained that the " Saxon esced in the independence of the prov- Shore " derived its name from Saxon ince, which he instructed to provide settlements made along it of an earlier for its own defence. — Zosimus, lib. vi. date than that assigned by the Chroni- c 10 ; Gibbon, Decline and Fall, vol. cles to the begining of the Teutonic iii p. 317. 120 THE OLD-ENGLISH COMMONWEALTH. [Ch. way; and at that moment, according to the traditional ac count,1 she appealed to the Teutonic pirates in the Channel to save her from her Celtic foes. importance 2. During the century and a half which intervened between riodof Teu- the middle of the fifth century and the end of the sixth, the tonic con- Teutonic settlements in Britain were made. Within that du™nessof period the whole of the island, south of the firths of Forth its history. ^^ Clyde, passed from the possession of the native race to that of the conquerors, with the serious exception of a broad and almost continuous strip of country extending along the entire western coast, and embracing North and West Wales, The Welsh Cumbria and Strathclyde. Within this area the entire native thewest or Welsh population withdrew, with whatever of civilization, religion, or law they had derived from Rome. In that part of the land which the conquerors had made their own, they planted the whole fabric of Teutonic life, — social, political, and heathen,2 — which they had brought with them in their Out of the blood and bone from the fatherland. Out of the fusion of the'TeS- the Teutonic settlements, made within the limits and during mentsSgrew ^e Peri°d to which we have referred, has grown the English the English nation ; out of the primitive political institutions embedded in nation. ,_,,., . . these settlements has grown the English constitution. It is, therefore, impossible to exaggerate the historic importance of this period of conquest and settlement, — it is the starting- point of everything. Its importance, however, is fully equalled Period of by its obscurity. A period of historic darkness and legend darkness intervenes between the overthrow of what had been the Ro- and legend. man province ancj the beginning of the new Teutonic society. And the difficulties which arise out of this fact are greatly increased by the further fact that such light as we do possess • concerning the period which follows is of the dimmest and most uncertain character. How to bridge this chasm which divides the old from the new is the most difficult problem in English history. The first step in the solution of this prob lem was taken when, in the last chapter, an examination was 1 As to the historic value of the tra- 2 " The proofs of such a displace- ditional account of the English conquest ment lie less in isolated passages from of Britain, as contained in the English chronicle or history than in the broad Chronicles, see Freeman, Norm. Conq., features of the conquest itself." — vol. i. p. 7, and Dr. Guest, E. E. Settle- Green, Making of Eng., p. 132. See ments, in Salisbury volume of Transac- above, p. 85. tions ofthe Archaeological Institute. III.] THE TEUTONIC CONQUEST OF BRITAIN. 121 made of the primitive Teutonic constitution as it appeared in the home land at the end of the first century. It was, however, three centuries and a half after that time before the migrations into Britain began. Just what amount of de velopment took place in the interval it is impossible to deter mine. In the light of the later evidence, there is no reason to suppose that any material advance took place in the direc tion of civilization. * As to the history of the conquest itself, the written evi- Fragment- dence consists of a few scanty and uncertain fragments. oHh^cor? Upon the part of the conquered we have only the Historia iuest- and Epistola of Gildas, really a single work, written probably Giidas; about the year 560.1 Upon the part of the conquerors we have, in the opening of that invaluable compilation generally known as the English Chronicle, much that is valuable in English regard to the conquests of Kent, Sussex, and Wessex, inter- Chromcle- mixed no doubt with much that is mythical. As to the con quest of Mid-Britain, or the eastern coast, there is no written account from either side ; while the fragment from the An nals of Northumbria, embodied in the later compilation which bears the name of Nennius, alone throws light upon the con- Nennius. quest of the north.2 There is neither record nor tratlition to guide us as to the manner in which the country was par celled out among the conquerors ; and only by the aid of local nomenclature, and by the surviving traces of the older life imbedded in the customary law, can be determined the forms in which the first settlements were made upon the conquered soil. But at the moment when the period of conquest ends, Christian- Christianity begins, and from its introduction the committing ea^fy" laws! of the customary law to writing appears to have begun.3 Of the existing laws, those of ^Ethelberht, Hlothere and Eadric, Wihtred, Ine, Eadward the Elder, ^Ethelstan, Eadmund, and Eadgar are mainly in the nature of amendments of custom ; while those of ^Elfred, ^Ethelred, Cnut, and those which bear 1 See Stubbs and Haddan, Councils 8 The promulgation of the laws of of Britain, vol. i. p. 44; Skene, Celtic iEthelberht took place at some time Scotland, vol. i. p. 116, note; Green, between the coming of Augustine, in Making of Eng., p. 24, note 3. 596, and his death, in 605. Baeda says 2 For a complete statement of the these laws were enacted " cum consilio authorities upon the early period, see sapientium." — Hist. Eccl., ii. 5. Cf. Green's Hist, of Eng. People, vol. i., Kemble, Saxons in England, vol. ii. p. " Authorities for Book I." 241 ; Essays in A. S. Law, p. 8. 122 THE OLD-ENGLISH COMMONWEALTH. [Ch. Baeda. Archaeological and geographical re search. Generalcharacter of the con quest, and nature of the early settlements. Form of the migration. Distribu tion of the /and. the name of Eadward the Confessor, aspire to the character of codes.1 Just before the middle of the eighth century we have the Ecclesiastical History of Baeda, from which is derived the only substantial account of the century and a half which fol lowed the coming of Augustine. To these imperfect records have been added the fruits of the most careful and exhaustive archaeological and geographical research. Even the physical conformation of the conquered territory has been minutely examined as one of the surest of documents bearing upon the history of the conquest itself.2 3. The period of piratical visitation — which began when the freebooters from the north appeared in the Channel as mere plunderers who simply came to harry the coast, and then to sail away again — gave way about the middle of the fifth century to a period of conquest and settlement. For a century and a half after that time the coming of the Teutonic tribes into Britain assumed the form of a migration.3 All the evidence tends to show that the emigrants came in discon nected bands, more or less numerous, each under its own leader or ealdorman,4 who singled out some particular section of country for conquest and settlement. The fact that the invaders were compelled to cross the sea in ships, capable of transporting only small bodies of men, precludes the idea of invading hordes by which the whole land could be suddenly overrun. The weakness of the attack, and the fierceness with which it was resisted, were the dominant causes which de termined the character of the conquest itself. By dint of hard fighting, bit by bit, district by district, the land was won. As we may happen to accept one or the other of two leading theories that exist as to the manner in which the land was orig inally distributed, the conclusion may be reached, either that the invaders divided the land according to fixed rules as they advanced, or, after the first period of struggle was over, that 1 Stubbs, Select Charters, etc., p. 60 ; Cf. Ancient Laws and Institutes of the Anglo-Saxons, Thorpe. 2 I refer chiefly to the works of Dr. Guest, contained in the volumes of Transactions of the Archceological In stitute ; and to Mr. Green's Making of England. 8 See Stubbs's chapter on " The Mi gration," Const. Hist, vol. i. p. 57. — Freeman, Origin of Eng. Nation, p. 65. 4 See entries in the.£. Chron., a. 449/ a. 495 ; Freeman, Norm. Conq., vol. i. p. 49, and Appendix K. The fact must, however, be borne in mind that each band of invaders constituted a part ot a general migration. — Stubbs, Const. Hist. vol. i. p. 65. III.] THE TEUTONIC CONQUEST OF BRITAIN. 123 a rearrangement took place according to established forms.1 No matter which theory be the true one, as to the broader aspects of the distribution the fact remains, that the invaders did settle down upon the land in marks or village-communi ties, and did possess it according to the principles of owner ship which that system represented.2 The Teutonic host not The host on'ly embodied within itself all the elements of political life, ™the de but its very organization presented the most natural scheme po^afor- of allotment upon which a division of the land could be made, ganization. The clans of kindred warriors represented the village-com munities ; the hundreds of warriors, the pagi or gds ; while the host as a whole was in fact the state assembly, not in council but in action, — the whole people in arms. When, therefore, the conquering host settled down upon a definite area of land, the state reappeared as a necessary consequence.3 Or it may have been that the invaders often came in num bers only sufficient to constitute a single group, or even one village-community. Out of the union of such communities arose gds or shires, which finally became organized into states or kingdoms. In Britain the village-community or mark is represented by the township ; 4 the pagus, ga, or shire, by a group of townships united in the district known in later times structure of as the hundred ;5 while a union of pagi or gds is the primi- ^ep^ot tive rice or kingdom. The political structure of the primitive kingdom. 1 Dr. Konrad Maurer, after discuss- 8 Stubbs, Const. Hist, vol. i. pp. 31, tag both theories, gives his adhesion to 71. the first. — Kritische Ueberschau, i. p. 4 "The township (I state the mat- 100 ; Essays in A. S. Law, p. 57. ter in my own way) was an organized, 2 To Kemble belongs the credit of self-acting group of Teutonic families, being the first to apply the results of exercising a common proprietorship German research into the mark system over a definite tract of land, its mark, to the history of English institutions, cultivating its domain on a common See ch. ii. on "The Mark," and ch. system, and sustaining itself by the iii. on "The Ga or Scir," Saxons in produce." — Maine, Village-Communi- England, vol. i. Cf. Freeman's Norm, ties, p. 10. Conq., vol. i. p. 66 ; Maine, Village- 6 " From the first, the township or Communities, lects. i., iii., v. Mr. Mo- village-community must have been re- rier's Essay on Land Tenure, published garded as forming a part of the larger by the Cobden Club (Macmillan, 1870) ; aggregate, the hundred." — Digby, Law Nasse's treatise On the Agricultural of Real Property, p. 7. This " aggre- Community of the Middle Ages, Colonel gate" was originally a shire, and it Ouvry's translation (Macmillan, 1871), never descended to the status of a hun- p. 28 ; Stubbs, Const. Hist., vol. i. pp. dred until the state of which it was the 49-52, 82-85 ; Digby, Law of Real largest division became itself a shire. Property, pp. 4-8 j Essays in Anglo- — Essays in Anglo-Saxon Law, p. 19. Saxon Law, p. 83 ; Seebohm, Eng. Vil lage Community, Preface, x. 124 THE OLD-ENGLISH COMMONWEALTH. [Ch. The heptar chic king dom an ag gregationof primi tive king doms. The primi tive king dom a re production of the civi tas of Cae sar and Tacitus. The new societypurely Teu tonic. state would therefore be the same, whether it arose out of the settlement of a single conquering host, or out of the grad ual coalescence of smaller settlements originally isolated and independent. Before the historic period begins, the petty states or king doms, into which the settlers originally grouped themselves, had ceased to exist as independent communities, — they had become bound up in the larger aggregates generally known as the heptarchic kingdoms.1 It is possible, however, from this condition of things to reason back, and to determine with reasonable certainty the structure of these early kingdoms before the process of aggregation began. The later evidence justifies the assumption, which will be adhered to throughout, that these early or primitive kingdoms were reproductions, in every material particular, of the continental Teutonic states, — the civitates of Caesar and Tacitus.2 In tun-moot as in mark-moot,3 the assembled villagers met together to regulate their own local and agricultural concerns ; in the gemot, or meeting of all the freemen resident within the pagus or early shire, we have in fact, if not in name, the hun dred court of the continent ; 4 while the primitive state as sembly is the folk-moot, the meeting of the whole people in arms. By adhering firmly to this conception of the structure of the petty states, or early kingdoms as they will be called, into which the conquerors originally grouped themselves, it will be possible hereafter the more clearly to explain the historical origin and structure of the various divisions and subdivisions which appear in the composition of the consoli dated kingdom of England after the work of aggregation has been finally accomplished. The whole fabric of the new society, which completely dis placed within certain limits the older Celtic Society, was purely Teutonic. Its language was made up of a set of dia lects of the Low-German ; the only religion which it pos sessed was the religion of Woden ; its only conception of law 1 Stubbs, Const. Hist., vol. i. p. 169. 2 "The civitas or populus of Tacitus, the union of several pagi, is in Anglo- Saxon history the rice, or kingdom," etc. — Stubbs, Const. Hist, vol. i. p. 119. 8 See Mr. Green's graphic descrip tion of the structure of the early king doms in which the conquerors origi. nally grouped themselves. — Making of England, pp. 169-171. 4 Essays in Anglo-Saxon Law, p. 2& Roman cities. III.] THE TEUTONIC CONQUEST OF BRITAIN. 1 25 and government was a purely Teutonic conception. The wit ness of language, of religion, and of law, all point to the one irresistible conclusion that, within the limits which the con querors made their own while they were still heathens, the . whole fabric of Romano-British life passed away.1 And this conclusion is greatly strengthened by the fate of the Roman Fate of th* cities. The German instinct was averse to dwelling within the confines of walled cities : in the woods and in the plain the German made his home ; his boundaries were the boun daries of the mark, his walls the mound and quick-set hedge by which his " tun " or village was surrounded. The aban doned Roman cities went to ruin and decay, and with them perished the system of municipal life which they embodied.2 In the course of time, it is true, the sites of many of these deserted cities were reoccupied by the conquerors,3 but the new system of municipal life which they established had no The new connection with the old, — it was simply the "tun " or village municipal life in a higher state of organization. But it will not suffice Kfe- for us simply to examine the broader aspects of the new soci ety ; we must descend to details, and examine the specific forms in which the older life reappears when the work of con quest is done. 4. The political and social life of the founders in the fa- Distinc- therland rested upon two fundamental conceptions, — dis- ^f :° tinctions of rank and the possession of land,4 — two cardinal ideas which are fully developed in the life of the village-com munities when Teutonic history begins. The original basis of land-ownership was freedom;5 the freeman alone could possess family land 6 within the village ; and upon this pos session, the badge of his freedom, depended his right to par- 1 Freeman's Origin of the English could again cover the whole area of Nation, part ii. ; Four Oxford Lectures, their ruined predecessors. It was not pp. 72-85; Green's Making of Eng- till Cnut's time that York could cover Und, ch. iv. ; Stubbs, Const. Hist, vol. the area of Eburacum. It was not till i. p. 61. after Dunstan's day that Canterbury 2 No one can successfully maintain grew big enough to fill again the walls the continuity, in Britain, of Roman of Durovernum." — Making of Eng- municipal institutions. Cf. Kemble, land, p. 138. Saxons in England, vol. ii. ch. vii., 4 Kemble, Saxons in England, vol. " The Towns ; " Stubbs, Const. Hist, i. p. 35. vol. i. p. 92 ; Green, Making of Eng- * Ibid., vol. i. p. 132. land, p. 136. 6 For a definition of family land see 8 " And even when life returned to Essays in Anglo-Saxon Law, p. 68. them, it was long before the new towns 126 THE OLD-ENGLISH COMMONWEALTH. [Ch. ticipate in the enjoyment of the common lands, the property The free of the whole community.1 The free were divided into two unfree.6 classes, nobles and simple freemen; while the unfree con sisted of agrarian dependents, who occupied their masters' lands upon the basis of a fixed contribution, and of slaves, whose condition represented the full measure of servitude.2 In the settlements made by the kindred warriors in Britain, the primitive divisions of rank distinctly reappear. In Old-English phrase the noble is the eorl, the simple freeman the ceorl ; 3 while beneath eorl and ceorl stand the unfree, representing different degrees of servitude.4 'The free ; The ceorl in the new society is the basis of the village life, ;the ceorl. just ag tne simple freeman was the basis in the older society.6 He is the "wagpned man," the "free -necked man," whose neck has never been bent by a master.6 Within the village- community he possesses the "ethel"7 or "alod," which en titles him to the enjoyment of all rights to which any other free member of the community is entitled. But in the host and in the assembly he is simply a unit with no distinction of birth to lift him above his fellows.8 The eorl. In the new life as in the old the eolas or aethelings are the highest order of freemen, distinguished above the rest of their class by reason of their noble blood, and by the posses sion of large estates.9 The eolas, the nobles of the first set tlements, and their descendants, represent the ancient nobil ity of immemorial descent, as distinguished from the later nobility by service. The un- The unfree among the settlers in Britain may be grouped in two broad divisions, — laets and slaves.10 The lset was a 1 G. L. von Maurer, Markenverfas- Konrad Maurer, Kritische Ueberschau, sung, pp. 59-62 ; Dorfverfassung, pp. vol. i. p. 97 ; Kemble, Saxons in Eng- 61-65 ; Einleitung, p. 71 et seq. land, vol. i. p. 88. " The ethel, hid, 01 I Tac., 6Vrm., cc. 7, 24, 25. alod: " Stubbs, Const. Hist, vol. i. p. 7* _ » Kemble, Saxons m England, vol. See Sir F. Pollock's criticism upon the 1. 131-136; Freeman, Norm. Conq., use of ethel and alod in an article " On V0'vJ;P-S5- Early German and English Land * Kemble, Saxons in England, vol. i. Laws," contained in Law Magazine ch. vin., " The Unfree ; The Serf." and Review, London, February 1882, p. 6 Green, Making of 'England, p. 173. 127. 6 Kemble, Saxons in England, vol. i. 8 Freeman, Norm. Conq., vol. i. p. P-I3I- 55. 7 The terms ethel and alod are usu- ' Green, Making of England, p. 174. ally employed by the best writers to de- 10 Kemble, Saxons in England, voL scribe the land held in full ownership, i. ch. viii., " The Unfree ; The Serf." rfree: laets. III.] THE TEUTONIC CONQUEST OF BRITAIN. 12/ dependent cultivator, whose dependence resulted from the fact that he was a landless man : he had no share in the land of the community; he was the cultivator of the land of another. As to the lord whose land he tilled he was unfree, but, save as against him, his life and limb were as secure as the ceorl's. He had his own house and home, and the lord could not take from him the land he tilled so long as he paid his rent in labor or in kind, and performed such other ser vices as were due to his lord. But he could leave neither land nor lord at his will ; and, as he owned no land in the village-community, he had originally no part or place in its political life.1 Below the lasts were the slaves, whose condition repre- Slaves. sented the full measure of servitude, — a servitude as abject as the slavery described in the Germania. Slavery might re sult from one of many causes, and was either casu or natural The lowest condition of slavery was represented by the TheM«w. theow, who was either wealh — that is, of British extraction — or of the-Teutonic stock, and a descendant of the slaves of the first settlers.3 The wite-theow was the man who could not pay his debts, or who had lost his freedom through crime, and whose kindred would not make up the fine for him.4 The esne served either for hire or for land, and may have been a The«««. little better off than the theow.5 Then there were the men who, compelled by famine, " bowed their heads for meat in the evil days." 6 But no matter what the cause from which the slavery may have resulted, in contemplation of law the slave was the mere chattel of his lord, a part of his stock, for The slave whose wrong-doing he answered as for the mischief done by ctatteTof his cattle. The slave had no legal rights, no wergild, no Jj^JJjjJ' credibility as a witness, and a wrong done to him was only an legal rights offence as against his master.7 At his death his status de scended to his children ; and even the children of a freeman 1 Green, Making of England, p. 185 ; 8 Stubbs, Const. Hist, vol. i. p. 78. Essays in Anglo-Saxon Law, p. 86. 4 Ibid., vol. i. p. 78, and note 4. 2 " The serfs casu comprise serfs by 6 Kemble, Saxons in England, vol. i. the fortune of war, by marriage, by p. 215. settlement, by voluntary surrender, by 6 This form of involuntary servitude crime, by superior legal power, and was sanctioned by the church. Cf. by illegal power or injustice. The re- Theodore's Pentiential ; Stubbs and maining class are serfs natura, or by Haddan, Councils, vol. iii. p. 202. birth." — Kemble, Saxons in England, 7 Stubbs, Const. Hist, vol. i. p. 79; vol. i. p. 194. Green, Making of England, p. 186. 128 THE OLD-ENGLISH COMMONWEALTH. [Ch. Practice kinder than theory. The primi tive village- communityin Britain ; a miniature democracy. Growth of the new kingship. Invading tribes non- monarchical. by a slave mother were slaves according to the old English proverb, " Mine is the calf that is born of my cow." But the dictates of humanity secured to the slave some rights which the theory of the law denied him. His two loaves a day and his holidays were secured to him, and out of his savings, which in theory at least belonged to his master, he was al lowed to purchase his own freedom and that of his children.1 The primitive Teutonic village-community in Britain rep resented, therefore, a settlement made up of eorls and ceorls, with their unfree dependents, who stood, in relation to their lords, in different degrees of servitude. The political power of such a community was embodied in the village-moot ; in which the land-owning freemen met together, and passed all laws, or rather by-laws, necessary for the ordering of their village and agricultural life. The title to the territory of the free community, as a whole, was vested in the community itself ; while within it each villager possessed his homestead and the right to a definite portion of arable land, which enti tled him to the enjoyment of all common rights.2 With this conception of the primitive free community clearly before us, it will be possible to trace with more distinctness the devel opment of an institution which grew up alongside of and at last overshadowed the miniature democracy. But in order fully to grasp the nature of this institution and its devel opment, an examination must be made into the nature of the new kingship to which the migration and conquest gave birth. From the Germania we learn that in the fatherland king ship prevailed in some of the states, while in others it did not.3 That kingship did not prevail among the Saxons is affirma- tively stated by Baeda ; 4 and the highest authorities agree in the inference that the other tribes that joined in the migra tion did not differ from the Saxons in that respect.5 Every band of invaders, great or small, that came to engage in the 1 Kemble, Codex Diplomaticus, mcccli., and dccccxxxiv. 2 As to the character of the inde pendent village-community in Britain, see Freeman, Norm. Conq., vol. i. p. 57 ; Essays in Anglo-Saxon Law, p. 82 ; Maine, Village-Communities, p. 10 ; Green, Making of Eng,, pp. 175, 176. 8 Tac, Germ., cc. 7, 12, 25. 4 "Non enim habent regem iidem Antiqui Saxones, sed satrapas pluri- mos suae genti praepositos." — Hist. Eecl., v. 10. 6 Royalty among the conquerors of Britain was one of the results of the migration. — Freeman, Norm. Conq., III.] THE TEUTONIC CONQUEST OF BRITAIN. 129 work of. conquest, was necessarily obliged to intrust its for tunes to some leader or chieftain of its choice. According to the Chronicle, the chieftains who led the first expeditions The here- into Britain bore no higher title than heretoga or ealdorman. doraian. In a. d. 449 the Jutish war-bands landed under the com mand of two heretogas, Hengist and Horsa, and in a. d. 455 Horsa was slain, and Hengist and iEsc his son obtained the kingdom. In a. d. 495 two ealdormen came to Britain, Cerdic and Cynric his son; and in a. d. 519 they became the kings of the West Saxons. The evidence justifies the conclusion that each expedition was led by a chosen chief tain, who might bear as a civil ruler the title of ealdorman, while as war leader he might bear the title of heretoga.1 But as the conquest advanced, and as definite districts of country were permanently secured, and as the various groups of conquerors within such districts felt the need of drawing together under a permanent instead of a temporary leader ship, the ealdorman was advanced to the dignity of a king Eaidorman who could represent in his person the unity of a new national ^omes life. In this wise a brood of petty kings grew up that con tinued to survive for centuries. In order to attach the idea of permanency to the new kingship, the name of the son was often associated with that of the father as a recognition of the hereditary principle ; while, in order to impart sanctity to the person of the new king, fable at once traced his descent in an unbroken line from Woden.2 This recognition of the Blending hereditary principle was attended and modified, however, hereditary by the older principle of election.3 The right to the throne ™* *e might be vested by the original choice in one royal house, but principle. the question as to which member of that house should receive the succession when a vacancy occurred was one which the national assembly alone could determine. For centuries the right to reject the immediate heir of the last king, in favor of vol. i. p. 51. See, also, Appendix K, ' Freeman, Norm. Conq., vol. i. p. 51 ; " On the Change from Ealdormen or Kemble, Saxons in Eng., vol. ii. p. Heretogan to Kings," Stubbs, Const. 125. Hist, vol. i. p. 66. Upon this subject 2 Stubbs, Const. Hist, vol. i. p. 67. Kemble says, " Kingship, in a certain 8 " The elective principle is the safe- sense, seems to me rooted in the Ger- guard of their freedom ; the monar- man mind and institutions, and univer- chical principle is the condition of their sal among some particular tribes and nationality." — Kemble, Saxons in Eng., confederacies." — Saxons in Eng., vol. voL i. p. 137. L p. 137. 130 THE OLD-ENGLISH COMMONWEALTH. [Ch. some other member of the same house more competent to govern, was freely exercised. How far the power and dignity of a king exceeded that of an ealdorman it is difficult to de termine, but it is quite clear that the title of king did carry with it an advance in both respects. It is probable that the king was not chosen until a group of war-bands, each under its own ealdorman, had united in the formation of a kingdom. In this way the king was advanced to the supreme command The eaidor- and to national authority, while the ealdorman, descended to the'headof the status of a subordinate, although still possessing the highest command in his own district.1 his district. The fact must be constantly borne in mind, that the new Tribal sov- .. ii- c i r i • ereignty. king was the king of a nation, the leader of his people, the head of the race, — and not the king of a country and lord of the soil. The idea of territorial as distinguished from tribal The king's sovereignty was the growth of later times.2 In war the king, duties!* a" as leader of the host, possessed supreme command, while in peace his powers were coordinate with the national assembly, with whose concurrence he performed all important acts. He maintained, not his own peace, but the national peace, and executed justice on the breakers of it: but justice was not yet the king's justice ; it was the justice of the village, the hundred, and the folk, in whose moots was vested juris- ofwngfhip7 dictlon;3 As the process of aggregation advanced, as the grows as early kingdoms became bound up in the seven or eight hep- ofw, tarchic kingdoms, which finally united under the rule of one lancet' r°yal. house> the institution of kingship grew with each ex pansion of territory. As an heptarchic king rose in power and importance above the petty royal head of a primitive state, so did the king of all the English rise in power and «1fifireeman' Norm' Conq'' vo1, '¦ pp- kinss> Kins J°hn was the first who a1- 5 i ,?• „ ways called himself King of England .bome years ago I pointed out (Freeman, Norm. Conq., vol. i. pp. 82, (Ancient Law, pp. 103 et seq.) the evi- 84). His predecessors commonly or dence furnished by the history of in- always called themselves kings of the ternational law that the notion of English." - Maine, Early Hist, of territorial sovereignty, which is the Insts., p. 73. " Territorial sovereignty basis of the international system, and —the view which connects sovereignty which is inseparably connected with with a limited portion of the earth's dominion over a definite area of land, surface — was distinctly an offshoot, very slowly substituted itself for the though a tardy one, of feudalism." notion of tribal sovereignty. Clear — Ancient Law, p. 102. traces of the change are to be seen in 8 Stubbs, Const. Hist, vol. i. p. 68 ; the official style of kings. Of our own Green, Making of Eng., p. 172. ill.] THE TEUTONIC CONQUEST OF BRITAIN. 131 importance above an heptarchic king.1 In the process of aggregation was thus involved the growth of kingship, and in the growth of kingship were involved all the elements of constitutional life. Reference has heretofore been made to the structure of The«mi- the comitatus, the personal following of professional warriors tatus' who grouped themselves around a king or chief in a strange relation of fidelity and dependence which rendered them a class apart from the body of the people.2 Each chieftain by whom a war-band was led to the conquest of Britain came attended by his comites, and their fortunes advanced together. In return for their fidelity and service the comites expected to receive from their chief whatever of bounty lay in his power to bestow ; but it was a part of his absolute duty to supply them from his own board with their daily bread. The chief therefore becomes in Old-English the hlaford, the loaf- Thehiaford giver, a term which, by an entire departure from its original ^^f' meaning, finally softened down into the modern form of lord ; while the comes, the hlafaeta, the loaf-eater, becomes the Thegesith gesitS, gesith or companion.3 Under these names the old ton!ompan' relations at first reappear. The right upon the part of the king to maintain a body of gesiths or household retainers has been called a very jewel in the crown : but this right was not confined to kings alone ; it was enjoyed alike by all the great men of the nation.4 As kingship advanced in power and privilege, kings were able, of course, to confer upon their dependents a status and emoluments such as no one else could bestow. Arid as the king grew in power and impor tance the companion or gesith soon changed his original title for a new one that more clearly expressed his somewhat The thegn- changed relation. He became the thegn or servant instead n°° ~^ of the companion of his lord. In this way originated a new ty^ nobility by service, which grew and widened until it at last 1 Freeman, Norm. Conq., vol i. p. 53. 4 " The difference between the comi- 2 Above, p. no. tes of the princeps and the household 8 Kemble, Saxons in England, vol. i. of the private man depends funda- p. 169. For an elaboration of the whole mentally only on the public and politi- subject see Kemble's chapter, " The cal position of the master. Now, the Noble by Service," in the first, and king, the perpetual princeps represen- " The King's Court and Household," tative of the race, conveys to his per- in the second, volume of Saxons in sonal following public dignity and im- England. And also Freeman's Norm, portance." — Stubbs, Const. Hist, voL Conq., vol. i. p. 58. i. pp. 149, 1 50. ser vice. 132 THE OLD-ENGLISH COMMONWEALTH. [Ch. absorbed and superseded the older nobility of blood.1 The ancient eorl passed away and the thegn took his place. The status of the thegn materially depended upon the status of his lord. As a king stood above ealdorman or bishop, so stood the king's thegns above their thegns.2 The king, as Benefits de- the representative of the race, conferred upon his following, thVeed bfrome at once body-guard and council, not only dignity and impor- hisiord. tance, but substantial benefits. As no one could judge a king's thegn but his lord, the royal following became exempt from the jurisdiction of the popular tribunals.3 The greatest boon, however, which such a thegn expected his lord to be stow was a grant of land out of the public domain, which the king had the power to make with the consent of the witan.4 Upon estates created in this way the thegns began to dwell, and thus ceased to be members of their master's household. The thegn- And so the thegnhood grew into a territorial nobility,5 into comts'Tter- the central institution of the state. And so heavily did this ritonai institution, involving the relation of lord and man, press upon the whole social and political fabric, that it finally became a settled principle that every man should have a lord to act as his protector and surety, — the lordless man became almost an outlaw.6 But depressing as the institution of thegnhood may have been to the simple freemen as a class, it led in the end to the firm establishment of a liberal principle of advancement that has ever abided at the root of English society. The ceorl could not become an eorl for the simple reason that " a man cannot change his forefathers." The 1 Kemble, Saxons in England, vol. i. 6 " The development of the comita- pp. 168, 176. tus into a territorial nobility seems to 2 " The word thegn became equiva- be a feature peculiar to EngUsh his- lent to noble or gentle. The king's tory." — Stubbs, Const. Hist, vol. I p. thegns formed the highest rank of 152. "The dependent might be con- gentry ; the thegns of ealdormen and nected with the king, (1) by service, (2) bishops formed a lower class." — Free- by comitatus, (3) by commendation, man, Norm. Conq., vol. i. p. 60. (4) by reception of land as a benefice. 3 Kemble, Saxons in Eng., vol. i. p. Frank feudalism grew out of the two 176; Green, Making of Eng., p. 174. latter, the English nobility of service * Baeda complains that, in his day, from the two first." Ibid,, p. 153, note so much of the folkland was bestowed 1. On the growth of Frank feudalism, upon pseudo-monasteries that there was see Waitz, D. V. G., ii. 262. no place where the sons of nobles or » On the relation of lord and man, veteran warriors could receive a grant, which developed into the relation of — Epist. ad Ecgbirhtum Archiepisco- lord and tenant, see Kenelm Digby, pum; § 11. Saxons in Eng., vol. i. p. Law of Real Property, p. 20. Fre& 29i- man, Norm. Conq., vol. i. p. 61. III.] THE TEUTONIC CONQUEST OF BRITAIN. 133 thegnhood, however, rested upon more elastic principles ; it its ranks was not an hereditary caste, but an aristocratic class, whose toThe class ranks were ever open to members from the class beneath it. beneath "• The ceorl who had so thriven as to acquire five hides of land, or who had been sufficiently successful as a merchant, could become a thegn.1 The most important outcome of the comitatus, from which The reia- arose this new nobility by service, was the relation of lord andman°; and man ; a relation at first purely personal, and not neces sarily connected with the holding of land.2 This relation, therefore, represented but one element of feudalism, which represents implied not only the mutual relation of trust and fidelity be- ment°o! tween lord and vassal, but along with it the holding of land by feudalism- the tenure of military service, — which service was due from the vassal or tenant to the lord as lord of the fief.3 From the earliest times in England, — as soon, no doubt, as the idea of a nation as an organized political community had become fully developed, — the obligation of military service for the protec tion of the state was imposed upon the holding of all land by freemen as a necessary burden.4 This obligation, which no The trino- landholder could escape, was embodied in the inevitable tas^m" trinoda necessitas, which consisted of service in the field, and ""jf^™ in the repair of bridges and fortresses.5 But this service was j^ze£^° due from the citizen to the state, or from the subject to the sovereign, and not from a vassal to his lord.6 The two great elements of feudalism — the relation of lord and man, and the holding of land by military service — were thus embedded in an embryonic form in English institutions from the very Feudalism beginning. But these elements never became inseparably in embrya welded together into a definite and harmonious system until after the Norman Conquest.7 Not until after that event did 1 Creasy, The English Const., p. 42 ; 3 Freeman, Norm. Conq., vol. i. pp. Stubbs, Const. Hist., vol. i. p. 162. 62, 63. 2 " In our own early records this re- * Digby, Law of Real Property, p. 22. lation of princeps and comes has devel- 6 " This common burden was the oped into the relation of lord and man. trinoda necessitas, in its origin required . . . But this relation is not at first of all people, not resting on land, and necessarily connected with the holding therefore not the subject of immun- of land; the relation is that ot prin- ity" — Essays in A. S. Law, p. 61. ceps and comes, of king and his thegns, 6 Freeman, Norm. Conq., vol. i. p. 63. of lord and man, not of lord and ten- 7 " The relation of lord and vassal ant." — Digby, Law of Real Property, existed, and the relation of military p. 2i. tenure existed; but vassalage and mill- 134 THE OLD-ENGLISH COMMONWEALTH. [Ch. Ownershipof land, and the growth of great estates. Family land. Common land. Folkland. The ethel or alod. The mark, the relation of lord and man fully develop into the technical relation of lord and tenant.1 5. A definite conclusion has now been reached as to the general nature of Teutonic conquest in Britain, and also as to the manner in which the invaders settled down upon the conquered soil. There can no longer be any doubt of the fact that the "English kin" brought with them, and re planted, at some stage of its development, the primitive sys tem of land-ownership represented in the fatherland by the village-community of kindred cultivators, called in the Ger man muniments the mark, which developed in Britain into the " tun " or township. The process has already been explained through which these village-communities, or townships, be came united in pagi, gds or shires, out of whose union grew the early states or kingdoms. The territory of a state, thus constituted, originally embraced three kinds of land, each one of which represented a fundamentally distinct conception. Within the village-community or township is found the home stead of the family, and the portion of arable land to which the family is entitled ; and these, together with the common rights appurtenant thereto, constitute the family estate. The lands that belong to the corporations, that is to the townships, to the buhrs, and to the hundreds, — as the early shires are called in later times — constituted the common lands. All lands that remained belonged to the people or folk in their collective capa city. The folklands were, therefore, the public domain, the lands of the state.2 Family land, common land, and folkland all have their origin in the customary law, from which must be ascertained their character and attributes.3 The history of family land cannot be severed from the history of the mark, into whose structure it entered as a component part. The primitive Teutonic mark consisted, as heretofore explained, of three parts, — the village, in which the mark-men dwelt ; the arable lands, which were almost invariably divided into tary tenure had not yet been insepa- 1 See Kenelm Digby on the " Devel- rably welded together. . . . The Norman opment of the Idea of Tenure," Law of Conquest no doubt strongly tended to Real Property, p. 37. promote the further development of 2 See the invaluable essay upon An- the feudal element; but, as in every glo-Saxon Land-Law, by Mr. H. Cabot other case, it only opened and prepared Lodge, Essays in A. S. Law, p. 57- the way for further changes." — Free- 8 Ibid., p. 70. man, Norm. Conq., vol. i. p. 63. III.] THE TEUTONIC CONQUEST OF BRITAIN. 135 three great fields; and the waste lands. The cardinal ele ment in the family estate was the homestead and its cur tilage, situated in the mark village ; " Suam quisque domum spatio circumdat" 1 as Tacitus has expressed it. In the house The home lands, thus set apart from the rest of the communal territory, earues*6 appears the first form of individual ownership in land ;2 a con- ^u°af,in" ception which the invaders transported into Britain intact.3 ownership; The possession of the homestead in the village entitled the family to an equal allotment in the arable fields, while the al lotment in the arable was the basis upon which depended the enjoyment of common rights. The house lands in the village, the allotment in the arable, together with the common rights appurtenant thereto, constituted the family estate, generally called by the best writers the ethel or alod} As agriculture improved and population increased, the principle of individual ownership, at first represented by the house lands, broke through the communal system by extending itself to the ara- a principle ble lands. After the arable fields had been allotted in per- tend'e^to manent instead of temporary ownership to the several house- gj*^ holds in the village, only the waste lands remained as the common property of the community. From the general history Decay of of village-communities it may be safely inferred that through 0feCommon this process the system of common cultivation represented cuItivation' by it fell into decay.5 Whether the mark-men among the first settlers in Britain cultivated the arable lands in common as a general rule, is a question which cannot now be positively determined. But the fact that the system of common culti vation did exist in certain localities has been too firmly estab lished by recent investigations to admit of serious contro- 1 Tac, Germ., c. 16. K. Maurer, Kritische Ueberschau, i. p. 2 G. L. v. Maurer, Einleitung, p. 10; 97 ; Stubbs, Const. Hist., vol. i. pp. 75, Konrad Maurer, Kritische Ueberschau, 76. Mr. Lodge says that he prefers the i. p. 99; Digby, Law of Real Property, term "family land" to ethel or alod, p. 5 ; Essays in A. S. Law, p. 69. for the reason that " in the family alone 8 " If a ceorl and his wife have a can be found the characteristics which child together, and the ceorl dies, let the define and separate it from all other mother nave her child and feed it; let estates." — Essays in A. S. Law, p. them give her six shillings for support, 68. Mr. F. Pollock, in reviewing Mr. — a cow in summer, an ox in winter. Lodge, says that he prefers the term Let the kin hold the homestead until it "heir land" to "family land." — Law (the child) be grown up." — Ine, c 38; Magazine and Review, London, Feb., K. Maurer, Kritische Ueberschau, i. p. 1882, p. 127. 99 ; Essays in A. S. Law, p. 70. B Maine, Early Hist, of Institutions, 4 See Kemble, Saxons in Eng., ch. p. 81 ; Stubbs, Const. Hist., vol. i. p. W. vol. i., " The Ethel, Hid, or Alod j " 52. 136 THE OLD-ENGLISH COMMONWEALTH. [Ch, Survivalsof the sys tem. Lammas .lands. The word ¦ " mark " in .England. The mark ; as the . township. Family ' land an es- - tate of in- jheritance. versy. Lands representing the arable portion of the ancient village-community are still found in many parts of England,1 and when the soil is arable they are usually called " com mon," "commonable," or "open" fields, or simply "inter mixed " land ; when the lands are in grass they are known as " lot meadows," or Lammas land, — Lammas-day being the time at which the common rights begin.2 " One of the lar gest of the common fields was found in the immediate neigh borhood of Oxford ; and the grassy baulks which anciently separated the three fields are still conspicuous from the branch of the Great Northern Railway which leads to Cam bridge." 3 The word " mark," march (mearc), occurs much less frequently in Old-English than in the German muniments, a circumstance which Kemble attributes to the fact that "the system, founded upon what it represents, yielded in England earlier than in Germany to extraneous influences." 4 And when the word does occur, it more frequently bears the sig nification of a mere boundary than its full original meaning.6 The mark really appears in English history as the township, a word derived from the " tun " or quick-set hedge by which the cluster of homesteads in the midst of the mark was en circled and protected.6 By the time the historic period is reached, the system of common cultivation, as a general rule, has ceased ; the arable lands have been divided ; and each individual owns separately, as his "alod," not only his home stead, but the field which he cultivates ; the common or waste lands alone remain the common property of the community.7 Family land was essentially an estate of inheritance.8 Tacitus tells us, that among the Germans, although wills 1 Maine, Village-Communities, p. 85. 2 Ibid., pp. 85-89, containing extracts i'from Marshall's Elementary and Prac tical Treatise on Landed Property, .London, 1804. See the late case of IWarrick v. Queen's College, Oxford, • Law Reports, 6 Chancery Appeals, p. •723, by Lord Chancellor Hatherley; Maine, Early Hist, of Insts., p. 4; Digby, Law of Real Property, p. 8. 8 Village-Communities, p. 89. 4 Kemble, Saxons in England, vol. i. p. 36. _ 6 The term "mark " occurs in its full signification only in certain charters ; e. g., Cod. Dip., dcxxxiii. For other instances of its use, see Schmid, Gesetze, p. 631. Professor Stubbs says that it is not found in its full sense in the laws. — Const. Hist., vol. i. p. 83, and note 2. 6 Village-Communities, p. 10 ; Digby, Law of Real Property, p. 7; Green, Making of England, p. 175; Stubbs, Const. Hist, vol. i. p. 83. 7 " Finally, whatever land a man can call his own is his 'ethel' or 'alod,' as distinguished from the common lands, and from the folklands or public domain." — Digby, Law of Real Prop' erty, p. 1 1. 8 Essays in A. S. Law, p. 73. III.] THE TEUTONIC CONQUEST OF BRITAIN. 137 were unknown, the law of inheritance was a fixed institution.1 But long before the period when laws and charters begin, the family as such had ceased to hold land. When in the course of historical development the household was supplanted by the individual, the family estate was probably held and ad ministered either by individuals in that capacity alone, or as the heads of households.2 The influence of the family in historic times survived, however, in the exercise of certain rights, and in the inalienability of family land, — a principle inaiienabu- which first yielded to the doctrine that lands were alienable luj Lid" within the limits and with the consent of the family.3 When wills were introduced by the church, family land became sub- wills at ject to devise, the validity of the will originally depending foTvaSuty upon family consent. The force of family influence gradu- "£°snen!tmily ally gave way, however, as the idea of individual ownership, and the use of written instruments in the alienation of land, became firmly established. In some cases the consent of the king and -the witan was substituted for the consent of the family, as a confirmation of the alienation ; in other cases the alienation was made without the consent or confirmation of either.4 As the family tie weakened, and as the communal system common fell into decay, the ethel or alod of the free townsman, an '— embracing both house-land and arable in severalty, arose out of the primitive family estate. The common lands of the marks or townships,5 and of the other corporations, then remained as the only pure representatives of the communal principle. The history of these common or waste lands is their Ws- coextensive with the history of the law of real property, and teSivewith the system of common rights by which their enjoyment is uwofre^i regulated is an elementary part of the common law. In property. 1 Tac, Germ., c. 20. comments thereon, in Essays on A. S. . s Essays in A. S. Law, pp. 69, 74; Law, p. 76. Maine, Ancient Law, p. 261. * Cod. Dip., ccxxv ; Essays in A. S. 8 Essays in A. S. Law, pp. 75, 76. Law, p. 77. As to the " ancient difficulties of alien- 6 " The historical township is the ation," and as to "the expedients by body of alodial owners who have ad- which advancing communities endeav- vanced beyond the stage of Iand-com- ored to overcome them," see Maine, munity, retaining many vestiges of that Ancient Law, pp. 263, 264. See the will organization ; or the body of tenants of of a certain Mli red (Cod. Dip., cccxvii.) a lord who regulates them or allows in which is defined " which of my kin them to regulate themselves on princi- and friends are the men to whom I will pies derived from the same." — Stubbs, my yrfe-land and my boc-land," and Const Hist, vol. i. p. 85. 138 THE OLD-ENGLISH COMMONWEALTH. [Ca. Folkland. Growth of greatestates ; probabilities as to their origin. regard to the possession and enjoyment of these lands arose the long controversy concerning inclosures, which has ex tended down to the present century.1 All the land embraced within a state which belonged neither to individuals nor to corporations was the property of the people in their collective capacity, — the folkland, the public domain.2 The folkland rested upon the principle that royal and public are not the same.3 Out of the folkland estates were given to the king as a private individual, and estates were given to the crown ; but the residue was the public property, the property of all, subject only to the dispo sition of the witan acting conjointly with the king.4 A special class of alodial estates now remain to be consid ered, — a class which probably originated, in the main, outside of and apart from the village-communities. When documen tary history begins great inequality exists in the distribution of land; great proprietors are found in the possession of great estates. Nothing more substantial than conjecture can explain the origin of such estates.5 The probabilities are, however, either that at the time the original .conquests were made, large allotments of land were set apart to the king or chief and to his principal followers, to be held by them in severalty; or that as soon as states were organized large allotments were made to the king and to his followers out of the public domain. In some cases it may have been that the extinction of families and the transfer of small estates brought about an accumulation of land in the hands of certain individuals.6 Another great factor that entered into the formation of large estates was the right of redemption from the waste, the bringing of the common lands into cultivation, 1 " The history of inclosures and of inclosure acts is now recognized as of great importance to our general his tory." — Maine, Village-Communities, p. 85 ; Essays in A. S. Law, p. 91 ; Bentham's Works, vol. i. p. 342. 2 Allen and Kemble were the first to ascertain the true nature of folkland and bookland. See Royal Prerogative, p. 129 ; Saxons in England, vol. i. ch. xi. 8 " The folc-land rests on the princi ple in the constitution that royal and public are not the same thing ; that the king, not alone, but only at the head of the whole body of the people, repre sents the public power ; that, therefore, the public objects are the objects of all, and the public property the property of all." — Sohm, Verfassungsgeschichte, vol. i. p. 34. See Essays in A. S. Law, p. 91. 4 Digby, Law of Real Property, pp. 9, 10, 14 ; Essays in A. S. Law, pp. 61, 92 6 Stubbs, Const. Hist, vol. i. p*73> Digby, Law of Real Property, p. 9* Freeman, Norm. Conq., vol. i. p. 57- 8 Stubbs, Const. Hist, vol. i. p. 73. III.] THE TEUTONIC CONQUEST OF BRITAIN. 139 a process which the great man with many slaves could carry on much more rapidly than his poorer neighbors.1 The greater land-owners were the king and the crown, the great nobles and the church, — the greatest being the state, possessed of the public domain. The large estate of the great man, like the small estate of the free townsman, was his ethel or alod.2 As population increased, and as the primitive com- Thede- munal system became inadequate to its necessities, landless township; men settled down upon the estates of all the great proprietors and organized thereon village-communities, whose general character was identical with that of the free communities,3 with one vital exception. In the one case the title to the land occupied by the cultivating community was vested in the community itself, the free townsmen looked up to no superior lord ; in the other the title was vested in the lord, and the title to its dependent townsmen were his men, or, in the language of vested in later times, his tenants.4 The distinction is therefore appar- thelord' ent between the primitive system represented by the inde pendent Teutonic community and the new order of things brought about by the growth of great men and great estates. The growth of the principle of lord and man drew after it a conflict between these two systems, which finally resulted in a loss upon the part of the free communities of their primitive independence.5 Through various processes the house-lands The free and the arable of the free townsmen became vested in a tieTiose1" single lord, and then the waste or common land passed as an tl^™de" incident. In this way the waste of the once free townsmen became the lord's waste, while the townsmen became his The de- tenants.6 After the Conquest the dependent township appears township ,, /• ,, i j becomes the as the manor ot the lord. manor. The attempt has now been made to define the general na- Bookiand. ture of alodial estates, of common lands, and of folkland, — in a word, of all such lands as originated in custom, and took 1 G. L. von Maurer, Einleitung, pp. tion ; '' Freeman, Norm. Conq., vol. i. 158-186 ; Essays in A. S. Law, p. 84. pp. 57-62 ; Stubbs, Const. Hist, vol. i. 2 " Whatever land a man could call p. 85 ; Digby, Law of Real Property, his own, whether it was the house and pp. 8, 13, 43, " Growth of Manors." inclosure of the free townsman or the 4 Essays in A. S. Law, p. 89. domain of the king or great man, was 6 As to the growth of the manor out his 'ethel' or 'alod.'" — Digby, Law of the mark, see Maine, Village-Com- of Real Properly, p. II. munities, p. 143; Digby, Law of Real 8 Maine, Village-Communities,- lee- Property, pp. 20-26, 43. ture v., " The Process of Feudaliza- 6 Essays in A. S. Law, p. 90. 140 THE OLD-ENGLISH COMMONWEALTH. [Ch. The witness of the com munity. The new method of conveyancing. Estate con veyed by book usu ally a fee- simple. The alod disappearsin the book- land. their character and attributes from the customary law. With a clear conception of the nature of the three kinds of owner ship thus originating in one common source, it will be easier to define the nature of such estates as did not originate in custom but in written instruments, upon whose terms their character depended. Before the introduction of written in struments by the church,1 whenever a transfer of land was to be made, the parties in interest went to the land with chosen witnesses, and there, in their presence, the actual pos session was delivered by the grantor to the grantee.2 But with the advent of the church a new method of conveyancing was introduced ; written instruments were substituted for the witness of the community. These instruments, which were called books,3 were designed with a twofold object, — first, to put in the most solemn and enduring form evidence of the fact that the claims of the nation, of the community, and of the family to the land conveyed were effectually barred ; second, to establish evidence of title that would be more potent in litigation than mere oral testimony.4 This new method of transfer was employed in the conveyance of lands both public and private, and the estate usually conveyed was the largest possible, corresponding very nearly to our fee- simple.5 As the primitive method of transfer by actual de livery gave way to the new method of transfer by book, by which absolute estates were generally created, the term " bookland " became nearly if not quite coextensive in mean ing with " alodial," which simply meant land held in absolute ownership.6 In this way the alod disappeared in the book- land.7 In the alienation of folkland the new method by book found a wide field for its operation. The king, with the A. S. Law, pp. 1 " Proof of its (the book's) intro duction by church influence would be superfluous. Mr. Kemble accepted the fact long since, and it has not been dis puted." — Essays in A. S. Law, p. 101. 2 As to the ancient mode of convey ancing, see A. Heusler, Die Gewere, pp. 7-20 ; Von Bethmann - Hollweg, Civil Process, p. 493 ; Essays in A. S. Law, p. 101 ; Kemble, Saxons in Eng., vol. i. p. 299. 8 The book was divided into the Invocation, the Proem, the Grant, the Sanction, the Date, and the Teste. — Cod. Dip., Introduction, p. ix. 4 Essays in A. S. Law, pp. 102, m. 6 E.g., "quam in semper possideat et post se cui voluerit heredum relin- quat." — Cod. Dip., cxvii. Cf. Essays in A. S. Law, p. 104. 6 Digby, Law of Real Property, p. 13- 7 " As the primitive allotments grad ually lost their historical character, as the primitive modes of transfer became obsolete, and the use of written rec ords took their place, the ethel is lost sight of in the bookland." — Stubbs, Const. Hist, vol. L p. 76. III.] THE TEUTONIC CONQUEST OF BRITAIN. I41 consent of the witan, could carve estates out of the folkland and bestow them either upon individuals or religious corpo rations, and the land so granted was said to be " booked " to the grantee. In this way the king's thegns and the religious houses were enriched without stint out of the public domain.1 Family land, the alod, was primarily a " full, free, and un- Rights of burdened estate," 2 subject only to the inevitable trinoda ne- \fi^ cessitas, which consisted of the duty of rendering military land.— service (expeditio), and of repairing bridges and fortresses (pontis arcisve constructio)? To this burden all lands were subject. As a general rule, when a grant was made out of the folkland by book, it was provided that the grantee should hold the land free from all rent or service of any kind, ex cepting only the trinoda necessitas.1^ It was also generally expressed in the book that the grantee could dispose of the land as he pleased in his lifetime, or dispose of it by will at his death, or, if he died intestate, that it should descend to his heirs.6 These powers, however, depended upon the terms of the grant, by which the right of alienation could be re stricted to the kindred, or the course of descent limited to lineal descendants or to heirs male or female.6 It thus be- they de- came established in the customary law that the rights of the Spon^the grantee of bookland depended upon the terms of the grant; tnrems°„t and in some of the charters it was expressly provided that any breach of the conditions of the grant should, ipso facto, work a forfeiture of the estate.7 No special reference has so far been made to such inter- Laeniand: ests in land as were held by those who possessed less than andTttrf an absolute estate. The general character of estates held butes- absolutely by the great proprietors — the king, the church, and the greater nobles — has already been defined. In ad dition, however, to their own estates, certain great individuals 1 Digby, Law of Real Property, pp. 6 " The capacity of selling the land 12,13. is often mentioned in Domesday as a 2 K. Maurer, Kritische Ueberschau, characteristic of absolute ownership." i. p. 98. Cf. Essays in A. S. Law, pp. Digby, Law of Real Property, p. 14, 78-80. and note 3, citing Freeman, vol. iv. p. 8 Digby, Law of Real Property, p. 732 ; Allen, On the Royal Prerogative, 13. p. 145. 4 Kemble, Saxons in Eng., vol. i. p. * Laws of jElfrcd, c. 41 ; Kemble, 301. " Hence a free hide, hida libera, Saxons in Eng., vol. i. p. 308 ; Digby, is properly called ' an hiwisc segefaeles Law of Real Property, p. 14. landes,' a hide of land that pays no 7 Cod. Dip., xlvi., ccccvi., dcxli; Et gafol or tax. — Cod. Dip., No. 1070." tayt in A. S. Law, p. 109. 142 THE OLD-ENGLISH COMMONWEALTH. [Ch- A " laen " generally an estate for life. Occupancy at the will of the lord — an " un bookedlaen." were allowed to take possession of folkland and to hold and use it upon sufferance, subject to the will of the state or of the king as its representative.1 A person who held a loan or "laen" of a portion of the folkland in this way, held it purely upon sufferance and according to custom, and not under the terms of a book or charter.2 Any individual or corporation possessed of proprietary rights over land could grant to another the beneficial enjoyment of the same, to be held either under the terms of a book or subject only to the terms of the customary law.3 Land so let or loaned was called laeniand. The estate or laen thus created was not a leasehold ; it was not an estate for a term of years, or for a fixed and limited time : it was generally an estate for life or lives. That is to say, if a man was in possession of land, although he might hold only upon sufferance, his possession was prima facie a possession for life.4 If the laen was held by book, upon its terms its character and extent depended ; if there was no book, the laen was held at the will of the lord, subject to the rights and limitations imposed upon that will by the customary law.6 Reference has already been made to the dependent communities that grew up, not only upon the folkland, but upon the estates of all the great pro prietors. Each group organized itself into a township, whose internal arrangements were identical with those of the free community. The title to the land so occupied by the depend ent community remained in the lord ; while the dependent townsmen, the lord's tenants, acquired by long occupancy, and by the payment of certain dues in services or in kind, a prescriptive right to continue in possession. A case of this kind presents a distinct illustration of what has been called an " unbooked laen," that is, of a laen or occupancy depend ing upon the will of the lord, as modified by the customary law. The system of letting land for fixed rent and services 1 " A large proprietor, like Duke Al fred, already referred to, held extensive estates of folc-land, which he let out to poor freemen, his tenants." — Essays in A. S. Law, p. 59, citing Cod. Dip., cccxvii. 2 Essays in A. S. Law, pp. 59, 95. 8 Digby, Law of Real Property, p. 16. "Such being the definition of laens, there are two classes of them, — those which are held by book and those which are not. To the latter class belong the unbooked laens of a lord's utland, already discussed, and all estates of folc-land." — Essays in A. S. Law, p. 95. 4 Ibid., p. 95 ; Digby, Law of Red Property, pp. 16, 17. 6 Essays in A. S. Law, p. 86. III.] THE TEUTONIC CONQUEST OF BRITAIN. 143 had become sufficiently general by the end of the seventh century to be made the subject of special legislation.1 6. The growth of the township out of the mark, and the The town- character of the estates which the townsmen possessed, were tt£moothe subjects necessarily involved in the preceding examination of the ownership of land. But the township, like the mark, possessed a political as well as an agricultural aspect. In the states or kingdoms which arose as the conquest advanced, the township was the narrowest form of local government, and it has ever remained the "unit of the constitutional ma chinery." 2 In the qualified members of this corporate unity resided the power of ordering their own village and agricul tural life.3 This power was vested in the village assembly or tun-moot, which, in an independent township, consisted of all the alodial owners residing within it ; in a dependent one, of the body of tenants who had united in the formation of a village-community upon the land of a lord. In the tun-moot, Tun-moot which could hardly have possessed more than quasi-]udicia.\ Jhf internal functions, resided the power to regulate all the internal affairs ^to3™- of the township by the making of by-laws, — a term which is shiP. said to mean laws enacted by a " by," as the township was called in the northern4 shires. The tun-moot elected its and elected own officers and also provided for the representation of its CeSr°and° interests in the courts of the hundred and the shire, where {jv5(£isenta" the gerefa and four selectmen appeared for the township.5 In this arrangement appears the earliest form of the repre sentative principle. With the advent of Christianity the township became in- The town. volved in new relations. The limits of the political divisions parish^—6 of the country were adopted as the boundaries of ecclesias tical jurisdictions. The diocese of a bishop was usually made coextensive with a shire or kingdom, while the limits of the township were used to define the jurisdiction of a single priest.6 In this way the township became so involved with 1 " If a man agree for a virgate of 2 Stubbs, Const. Hist, vol. i. p. 82. land or more, at a fixed rent, and shall 8 Green, Making of Eng., p. 187. plough it, if the lord wish to yield him 4 Palgrave, Commonwealth, p. 80. the land for rent and service, it is not 6 Hen. I., vii. § 8. Stubbs, Const. necessary for him to take it if he will Hist., vol. i. p. 95. give him no house, nor shall he lose 6 Kemble, Saxons in Eng., vol. ii. p. the land." — Ine, v.. 67. Cf. Essays in 359 ; Stubbs, Const. Hist., vol. i. p. 227 ; A. S. Law, p. 85. Green, Making of Eng., pp. 332, 333. T44 THE OLD-ENGLISH 'COMMONWEALTH. [Ch. the parish, and the meeting of the township for church pur poses became so involved with the meeting of the vestry, that in small parishes the idea and even the name of the township is frequently lost in that of the parish.1 asthe As the process of feudalization advanced, as the principle manor. 0f iorcj an(j man became dominant, the free townships lost their independence, and became subject to a superior lord.2 After the Norman conquest the dependent township appears jurisdiction as the manor of the lord, and the ancient jurisdiction of the tunmoot village moot survives to this day in the parish vestry and in divided tne manorial courts. The land-holding inhabitants of the thTparish township, considered as members of the parish, still assemble vestry and in vestry_meeting for the purpose of electing the parish offi cers, and for the ordering of other local interests not involved themano- in the manorial jurisdiction;3 while in the court baron and rial courts. customary court tne land-holding inhabitants, considered as tenants of a lord, still meet together and regulate many things pertaining to husbandry and pasturage which originally belonged to the mark-moot.4 The very existence of a manor depends upon the continuance within it of a sufficient number of freehold tenants to compose a court baron ; for, as Coke has expressed it, " a court baron is the chief prop and pillar of a manor, which no sooner faileth, but the manor falleth to the ground." 6 The hun- 7. Having considered the origin and growth of the town- thedhun^ ship and its court, it next becomes necessary in the ascend- dred-moot. ing or(}er t0 examine the origin and history of the district which represented a union of townships,6 — known in later times as the hundred. It has heretofore been maintained 1 " The parish, then, is the ancient be admitted to the township exists in vicus or tun-scipe regarded ecclesiasti- the form of admitting a tenant at the cally. As many townships were too court baron and customary court of small to require or to support a sepa- every manor ; the right of the mark- rate church and priest, many parishes men to determine the by-laws, the local contain several townships." — Stubbs, arrangements for the common hus- Const. Hist, vol. i. p. 227. See, also, bandry, or the fencing of the hay-fields, Ibid., p. 85. or the proportion of cattle to be 2 On the " Development of the Ma- turned into the common pasture, exists norial System," see Digby, Law of still in the manorial courts and in the Real Property, p. 43; Maine, Village- meetings of the townships." — Stubbs, Communities, lecture v., " The Process Const. Hist., vol. i. p. 84. See, also, of Feudalization." Maine, Village-Communities, p. 139. 8 Digby, Law of Real Property, p. 6 Coke's Copyholder, xxxi. ; Digby, 8 ; Stubbs, Const. Hist., vol. i. p. 91. Law of Real Property, p. 53. 4 "The right of the markmen to 6 "The technical name for such a determine whether a new settler should union is in Germany a gau or bant; III.] THE TEUTONIC CONQUEST OF BRITAIN. 145 that the early English kingdoms or petty states, in which the settlers originally grouped themselves, were aggregations of Pagh gds, or shires, each one of which represented an ag gregation of townships. It follows, therefore, that the dis- Modem trict in which the townships were embraced was originally a hu.ndred pagus, or shire ; and, as such, a division and not a subdivi- sSfe"* y * sion of a state. This district, usually described in the earlier documents as regio, pagus, or provincial probably repre sented either the pagus or district in which the hundred warriors originally settled themselves, or a union of town ships originally isolated and independent.2 These districts were not at all uniform in size, — their boundaries generally depending upon- the physical conformation of the country in which the settlements were made. In the process of aggre gation, out of which the united kingdom finally arose, and which will be more fully explained hereafter, the early king doms descended in status one degree : they themselves be came divisions of a greater whole ; that is to say, scirs or shires. And as a necessary consequence, the shires of which they were composed descended to the status of subdivisions known in later times as hundreds. In this way the conclusion is attained, which may be accepted as a general law, that " the state of the seventh century became the shire of the tenth, while the shire of the seventh century became the hundred of the tenth.' '3 The word "hundred," as applied to the territorial district, first occurs in the laws of Eadgar.4 The hundred- moot was composed of all the freeholders resident within the district, together with the representatives from the town ships, and was a court of both civil and criminal jurisdiction.5 It met frequently, and no suit could be carried to a higher in England the ancient name gd has 2 Stubbs, Const. Hist, vol. i. pp. 71, been almost universally superseded by 72, 98. that of scir or shire." — Saxons in 8 This is the conclusion reached by Eng., vol. i. p. 72. "The union of a Mr. Henry Adams, in his admirable number of townships for the purpose essay upon "Anglo-Saxon Courts of of judicial administration, peace, and Law," after a very exhaustive examina- defence, formed what is known as the tion into the original authorities. — Es- hundred or wapentake; a district an- says in A. S. Law, p. 19. swering to the pagus of Tacitus, the 4 Eadgar, i. Constitutio de hundre- harred of Scandinavia, the huntari or dis. For a comparison of Eadgar's gau of Germany." — Stubbs, Const. Ordinance of the Hundred with those Hist, vol. i. p. 96, note 2 ; Grimm, R. of Childebert and Clothaire, see Select A., p. 532. Charters, pp. 68-70. 1 Terms used as equivalents for 6 " The judges of the court were the shire. — Essays in A. S. Law, p. 16. whole body of suitors, the freeholders 146 THE OLD-ENGLISH COMMONWEALTH. [Ch.- The early kingdom and the folk-moot. Earlykingdoms preserve their folk- moot, and for a long time their tribal kings. court until it had first been heard in the court of the hun dred.1 8. While the development of Germany advanced in the path of political consolidation, that of England advanced in the path of political confederation.2 The course of this de velopment is broken into two distinct and well defined epochs : the first, embracing the drawing together of the early kingdoms into the seven or eight aggregates generally known as the heptarchic states ; the second, the drawing together of the heptarchic states into the one united king dom of all the English under the house of Cerdic. It will not be necessary for the present to look beyond the first period, during which the early kingdoms coalesced in the for mation of the heptarchic states. In the structure of these larger aggregates one fact of paramount importance stands prominently forth, and that is that the early kingdoms de scend in status without a sacrifice of their autonomy ; they preserve their ancient boundaries, their national assemblies or folk-moots, and their tribal kings. The kingdom of the Mercians in Mid-Britain seems to have been a mere confed eracy, which resulted from the gradual union of smaller states, whose kings, during the early days, still continued to exist.3 In the same way Wessex consisted of a union of kindred states, each having its own ealdorman or under- king. From the Chronicle we learn that five West Saxon kings appeared at one time in a single battle.4 East Anglia was made up of two settlements, the North and South Folk, whose names are still preserved in the shires of Norfolk and Suffolk, into which the kingdom was finally divided. Kent, like East Anglia, was probably composed of two tribal divi sions originally distinct ; and in the eighth century it broke up into the kingdoms of the East and West Kentings, prob ably upon the lines of the earlier states.5 And only after a answering to the ' rachimburgii ' of the Franks." — Stubbs, Const. Hist, vol. i. pp. 103, 104. 1 jEthelstan, iii. § 3 ; Eadgar, iii. 2. 2 Essays in A. S. Law, p. 21. The " confederation " here referred to must be understood to mean no more than the coalescence of the local communi ties into one whole, without the loss of their autonomous character. 8 Freeman, Norm. Conq., vol. i. pp. 18, 19. " In the early days of Mercia, kings of Hwiccia, Hecana, Middle Anglia, and Lindsey still subsisted." — Stubbs, Const. Hist.,vol. i. p. 171. 4 E. Chron., a. 626. 6 " It is probable that from the ear liest times Kent had at least two kings, whose capitals were respectively Can terbury and Rochester, the seat of two III.] THE TEUTONIC CONQUEST OF BRITAIN. 147 long period of struggle did Bernicia and Deira finally unite in the kingdom of Northumbria.1 Such being the principle upon which the early kingdoms Theheptar- coalesced in the formation of the heptarchic states, the ques- domsTnd tion naturally arises as to the form and structure of the na- the w*tena' , . r gemot. tional assemblies of these aggregated states. The primitive The r. . Teutonic conception of an assembly, whether local or na- tive nation- tional, rested upon one simple idea, and that was that every purdydeJ freeman resident within a state or district had the right to ocrati- appear and represent himself in the assembly or court of such state or district. In the composition of the assemblies of the early kingdoms there was no departure from primitive tradi tions. The townsmen met in tun-moot, the freemen of the shire in shire-moot, while the whole people composed the state- assembly or folk-moot. And even after the early kingdoms had become bound up in larger aggregates they still firmly adhered to the original principle, so far as the composition of their own assemblies was concerned, without extending it to the national assemblies of the aggregated states. That is to say, if the right of all the people to attend in the assemblies of the aggregated or heptarchic states continued to exist in the ory, it was not exercised in fact. The national assembly of inthehep- an heptarchic state was not a folk-moot, but a witenagemot ; statesCthe it was not a great tumultuary assembly composed of the "as'g™y whole bodv of the people, but a small assembly composed of shrinks up , . r , , , , . -n into a body the great and wise men of the land, who met as councillors purely aris- of the king. The only consistent theory upon which this tocratlc- changed condition of things can be explained is, that, as the process of aggregation advanced, the limits of the greater kingdoms so widened as to render a general attendance both irksome and difficult, and for this reason the mass of the peo ple simply ceased to attend.2 In this way assemblies purely democratic in theory, without the formal exclusion of any class, shrank up into assemblies purely aristocratic. The representative principle existed, it is true, in the lower ranges bishoprics." — Kemble, Saxons in developed in his chapter (vi.) on the Eng., vol. i. p. 148. Witenagemot, Saxons in England, vol. 1 For the history of Northumbria, ii. ; and as restated by Mr. Freeman, see Green's Making of England, chap- Norman Conq., vol. i. pp. 67-71, and ter vi. Appendix Q ; Comparative Politics, p. 2 This is the theory of Kemble as 232. 148 THE OLD-ENGLISH COMMONWEALTH. The repre sentativeprinciple not yet ex tended to nationalassemblies. of organization,1 but the idea had not yet sufficiently devel. oped to be employed in national concerns. The time had not yet come for the early kingdoms which afterwards be came shires to send representatives to a national parliament ; that principle was destined to be the growth of later times. Such was the origin and history of the witenagemot, whether considered as the national assembly of an heptarchic state, or as the national assembly of all the English when finally united under the house of Cerdic. 1 In the representation of the townships in the courts of the hundred and the shire. CHAPTER IV. THE GROWTH OF NATIONAL UNITY. I. During the century and a half that intervened between Thelrmits the middle of the fifth century and the end of the sixth, the of Teutonic Teutonic invaders possessed themselves of all that part of Britain which had been embraced within the limits of the Roman Empire.1 The same physical obstacles which had shaped the advance of the Roman invader, shaped the ad vance of his Teutonic successor, and thus the limits of the one became the limits of the other. The disconnected war- bands, each under its own personal leader, unconsciously united in the common design of driving the Celtic nation slowly to the west. Those of the native race who did not withdraw from the conquered soil were either absorbed or exterminated.2 In this way the eastern portion of Britain became thoroughly heathen and Teutonic, while the western still remained jn the possession of the Romanized and Chris tianized Celts. Britain as a country never ceased to exist, Britam as , however, until the invaders, through the results of two mem- country orable battles, were able to dismember the British nation, and ceased to to dissolve it into distinct groups of isolated peoples. By the after the5 battle of Deorham (577), the West Saxons under Ceawlin battleso| won the Severn valley, and in this way cut off the Britons Deorham in the southwestern peninsula from the main body of their race.8 By the battle of Chester (613) the Northumbrians, andcher under ^Ethelfrith, divided the district of country now known ter- as Wales from the northern provinces of Cumbria and Strath clyde.4 With the battle of Deorham the first period of con- 1 " It was not the island of Britain 8 E. Chron., a. 577 ; Guest, " Con- which Engle and Saxon had mastered; quest of Severn Valley," Archaol.four- it was the portion of it which lay within nal, xix. p. 194 ; Green, Making of Eng., the bounds of the Roman Empire." — p. 124. Green, Making of England, p. 141. * Baeda, Hitt. Eccl., ii. 2 ; Making of 2 This statement is repeated with the Eng., p. 235. qualifications heretofore put upon it. See above, pp. 11, 85. 150 THE OLD-ENGLISH COMMONWEALTH. [Ch. Conquestassumed a more hu mane form. Nature of the early settlements. Distribution of the conquered territory.Settlements of the Jutes, oftheSaxons, oftheEngles. quest came to a close ; with that event the period of pitiless war and extermination gave way to a period of settlement. The conquest was far from complete, it is true, but from that time forth it assumed a new and more humane form ; the conquered Welsh were suffered to remain upon the soil, not as equals, but as men and citizens whose rights, to a limited extent, were recognized by law.1 The weakness of the Teu tonic attack upon Britain, the absence of a common' design among the invaders beyond that of winning the same land, the stubbornness with which the invasion was resisted, the difficult nature of the country itself, sufficiently explain the slowness with which the land was won. As each separate war- band or folk expelled or exterminated the native race within a given area, the kindred warriors settled down upon the soil with their wives, children, cattle, and slaves.2 In this way the very slowness and thoroughness of the conquest made possi ble the character of the settlements that followed in its train. The three invading tribes of Engles, Saxons, and Jutes divided the conquered area among themselves in very unequal proportions. The Jutes, who were the first to establish a permanent Teutonic settlement in Britain, founded only the kingdom of Kent, and a small principality embracing the Isle of Wight and a part of Hampshire.3 All the remaining English territory south of the Thames, together with some districts to the north of that river, was occupied by the three kingdoms of the South, East, and West Saxons. North of the Thames lay the three great kingdoms of the Engles.4 In the eastern peninsula, between the fens and the German Ocean, the Engles settled down thickly upon the soil ; there the Northfolk and the Southfolk united in founding the king dom of East Anglia.5 Between the Humber and the Forth lay the realm of the Northumbrians, which arose out of the union of Bernicia and Deira.6 In Central Britain the West 1 " The Welshman was acknowledged as a man and a citizen ; he was put under the protection of the law ; he could hold landed property ; his blood had its price, and his oath had its as certained value." — Freeman, Norm. Conq., vol. i. p. 23, citing Laws of Ine, 23» 24. 32> 33. 46, 54, 74, in Thorpe's Laws and Inst, vol. i. pp. 1 19-149. 2 Stubbs, Const. Hist, vol. i. p. 64. 8 E. Chron., a. 449; Baeda, Hist. EccU lib. i. c. 15 ; Guest, E. E. Settlements in South Britain, p. 43 ; Making of Eng land, pp. 26, 149. 4 Freeman, Norm. Conq., vol. i. pp. 16, 17. 6 Kemble, Saxons in Eng., vol. ii. p. J 6 Finally united by Oswiu, 651. IV.] THE GROWTH OF NATIONAL UNITY. IS I Engle, whose limits became a march or border-land against the Welsh, established the kingdoms of the Mercians, or men of the March.1 The disunited Teutonic settlers in Britain, who are spoken Formation of in the very earliest records as belonging to " the English tucbic ep^ kin," must have been conscious, from an early period, of k^™15- the possession of common blood, common speech, common faith, and common social and political institutions. The only differences which can be discovered among the various peo ples who joined in the conquest "are differences of dialect, or distinctions in the form of a buckle or the shape of a grave mound.2 And yet it is quite certain, in the light of the later evidence, that there was a perfect absence of anything like cohesion or national unity in the mass of separate war-bands or folks that encamped upon the conquered soil. As the conquest advanced, as definite districts of country were permanently secured, and as the groups of warriors within such districts felt the need of drawing together under a per manent instead of a temporary leadership, the heretoga or The war- war-leader was advanced to the dignity of a king. From comes king. the military organization of the host were derived the first forms of civil organization. In this way were formed the numberless early kingdoms or petty states into which the settlers were originally subdivided.3 For centuries one of the greatest obstacles to a union of the incoherent mass arose out of the tenacity with which the German instinct preserved the identity of these early settlements, and out of the faith fulness of each group to its ancient boundaries and to its tribal king.4 But before the historic period begins, these Earry Kng- early settlements or petty states have ceased to exist as inde- bound to- , pendent communities, — they have taken one step in the f^*J™ direction of union, they have become bound up in the seven eight larger or eight larger aggregates generally known as the heptarchic kingdoms. These kingdoms are distinctly developed by the time of the conversion, when, for the first time, we are able 1 Green, Making of Eng., p. 82 and 8 See above, p. 89. note. 4 " Whilst the kin of the kings sub- 2 Green, Making of Eng., p. 154, cit- sisted, and the original landmarks were ing Wright (The Celt, the Roman, and preserved, neither religion, nor common the Saxon, pp. 481, 482), who " considers law, nor even common subjection, suf- the round buckles as peculiar to the ficed to weld the incoherent mass. — Jutes, the cross-shaped to the Engle." Stubbs, Const. Hist, vol. i. p. 170. 152 THE OLD-ENGLISH COMMONWEALTH. [Ch. Survival of ancient boundaries and tribal kings. Relation of the heptar chic king doms to each other. The bret waldas, — Palgrave's view of their char acter. Ba;da. to grasp a definite idea of the form which English society in Britain had assumed.1 The internal structure of each hep tarchic kingdom clearly reveals the history of its formation. The prolonged existence of petty kings in each under-king- dom or principality, the distinctness of the ancient tribal boundaries, disclose the fact that each heptarchic kingdom represented, in some form, a union or confederacy of older states.2 2. By reason of certain errors and misconceptions upon the part of the older historians, the relations really existing between the heptarchic kingdoms have been, until very modern times, seriously misunderstood. According to the old theory, these kingdoms were bound together in a regu lar confederacy, whose affairs were regulated by an organ ized and systematic central authority, at whose head was placed, by election or otherwise, a recognized national chief. This chief or bretwalda has been presented to us by the ingenuity of Sir Francis Palgrave as an emperor of Brit ain, and as the bearer of the imperial titles of the Roman state.3 But this whole fabric of error has at last broken down under the brilliant and incisive criticism of Kemble, who was the first to perceive how the original authori ties had been misconceived and misunderstood. The whole theory of the bretwaldadom rests upon a passage in Baeda, and upon one founded upon it in the Chronicle under the year 827. Bseda4 tells us that ^Ethelberht of Kent "was indeed but the third among the kings of the Angle race who ruled over all the southern provinces, which are separated from those of the north by the river Humber and its contig uous boundaries ; but the first of all who ascended to the kingdom of heaven. For the first of all who obtained this supremacy (imperium) was ^Ella, king of the South Saxons ; the second was Caelin, king of the West Saxons, who in their tongue was called Ceawlin ; the third, as I have said, was iEthelbert, king of the men of Kent ; the fourth was Raed- 1 " When written history first shows 2 Kemble, Saxons in Eng., vol. ii. us the new Britain in the pages of pp. 2-5. Baeda, we find the original mass of 8 Palgrave, Eng. Commonw., vol. i folks and war-bands already gathered p. 562 seq. together in some eight or nine distinct 4 Hist. Ecci., ii., v. peoples," etc. — Green, Making of Eng., p. 153 ; Baeda, Hist. Eccl., i. 15. IV.] THE GROWTH OF NATIONAL UNITY. 153 wald, king of the East Anglians, who even during the life of iEthelbert obtained leadership (ducatum) for his nation," etc. First imperium and then ducatum are the words that Baeda uses to describe the supremacy, predominance, or leadership which he was striving to explain. The Chronicler, when he The chron- reached his entry for the year 827, wrote : " In this year king Ecgberht conquered the Mercian kingdom and all that was south of H umber ; and he was the eighth king that was bretwalda." Then, after copying Baeda' s list of seven, from . who had thrown off Christianity ¦ ons. in the days of Mellitus, received the faith anew through the 1 Adamnan, Life of Columba, ed. * Baeda, Hist. Eccl., iii. 3. Reeves, p. 434. As to the nature of « Green, Making of Eng., p. 269. these communities see Sir Henry 8 Bzeda, Hist. Eccl., iii. 7. Maine, Early Hist, of Inst, p. 226. 1 Ibid., iii. 14. 2 Baeda, Hist. Eccl., iii. 3. 8 ibid., iii. 21. 8 E. Chron., a. 633; Baeda, Hist. Eccl., ii. 20. IV.] THE GROWTH OF NATIONAL UNITY. 1 59 preaching of Cedd, a missionary sent among them from Oswiu at the request of their king Sigeberht.1 At the battle of the Battle of Winwaed in 655, between the forces of Mercia and Northum- ^^655) bria, Penda was slain,2 and his kingdom for a time broken up. pr0e^rs*f e By the result of that battle Oswiu became supreme in Brit- English ain as no English king had been since the days of Eadwine ; and with that event the broken power of English heathenism passed forever away.8 The worship of Woden and Thunder was now everywhere extinct, except in the petty and isolated kingdom of the South Saxons, who accepted the faith some years afterwards at the hands of Wilfrid.4 With the completion of the work of the conversion, the Synod of serious question at once arose whether the English nation, as 664.' y' a whole, should accept Christianity in its Celtic or its Latin form. Should the infant church throw itself into a state of isolation by an alliance with the Celtic communions, which in certain particulars were considered heretical, or should it bring itself into relations with the rest of Western Christen dom by an acceptance of the thoughts and forms of Rome ? In the Synod of Whitby called by Oswiu in 664 for the set- English tlement of this controversy, it was determined that the nas- cepts cm* cent English church should not attempt by opposing Rome SiSthi to fight against the world.5 £orm- Although each one of the heptarchic kingdoms was Chris- Organiza- tianized from a distinct source, the general aspects of the English e missionary work were everywhere the same. The conver- Theodore sion of the king generally preceded the acceptance of the faith upon the part of his people, whereupon the missionary bishop became the royal chaplain and the kingdom itself his diocese.6 In this way the heptarchic divisions of the coun try reappeared in the earliest forms of organization which the church assumed.7 But it was no part of the plan of Rome to 1 Baeda, Hist. Eccl., iii. 22. 6 " Accordingly the conversion of 2 Ibid., ii. 24; E. Chron., a. 655. a king was generally followed by the 8 " The battle of the Winwaed had establishment of a see, the princes be- proved a delusive triumph for North- ing apparently desirous of attaching a umbria ; but it was a decisive victory Christian prelate to their comitatus, for the cross. With it all active re- in place of the Pagan high-priest who sistance on the part of the older hea- had probably occupied a similar posi- thendom came to an end." — Green, tion. — Saxons in England, vol. ii. p. Making of Eng., p. 301. 360. 4 Baeda, Hist. Eccl., iv. 13. 7 " It might have seemed by the 6 Ibid., iii. 25, 26 j Green, Making of middle of the century that the hep- Eng., p. 313. " tarchic divisions were to be reproduced i6o THE OLD-ENGLISH COMMONWEALTH. [Ch. He arrives in Kent in 669. " He was the first of the archbishops whom the whole Eng lish church consented to obey." Annual councils at Clovesho.Theodore breaks up the great dioceses. permit the bishoprics thus established to remain long in a state of isolation. In 669 Theodore of Tarsus, appointed by Pope Vitalian to the vacant see of Canterbury, arrived in Kent x with the specific purpose of organizing the English church so that it could be brought into definite relations with the see of Rome. At the coming of Augustine, seventy-two years before, the division of the heathen English into the three kingdoms of Northern, Central, and Southern Britain was al ready clearly defined. Theodore upon his arrival found the political condition of the country substantially unchanged. But spiritually a great change had taken place,. — the heathen English had become Christian. It was possible, therefore, for Theodore, as primate, to deal with the English nation as a whole. The first three years which followed his coming he passed in visiting all parts of the island, and he was every where received with welcome and reverence. " He was the first of the archbishops whom the whole English church con sented to obey." 2 After settling all personal disputes among the bishops, Theodore assembled them, together with their leading clergy, in a council which was held at Hertford in 673. 3 By the decrees of this council each bishop with his clergy was restricted to his own diocese, and, what was far more important, it was ordained that the episcopate should meet annually in council at Clovesho.4 Soon after the meet ing of the council of Hertford, Theodore entered upon the execution of his plans for the permanent organization of the church, which involved an increase in the episcopate, and a breaking up of the great dioceses into smaller sees.5 The last part of the work was carried out by a falling back upon the older tribal boundaries which the English settlers were so careful to preserve. The see of East Anglia was broken up into the dioceses of the North-folk and the South-folk,6 while Mercia and Northumbria were divided in the same in the ecclesiastical ones." — Stubbs, Const. Hist, vol. i. p. 217. 1 Baeda, Hist. Eccl., iv. I. 2 "Isque primus erat in archiepis- copis, cui omnis Anglorum Ecclesia manus dare consentiret." — Baeda, Hist. Eccl., iv. 2. Kemble, Saxons in Eng land, vol. ii. p. 364. 8 Baeda, Hist. Eccl., iv. 5. 4 Haddan and Stubbs, Councils, vol. iii. pp. 1 18-122; Stubbs, Const. Hist*, vol. i. p. 218. 6 " It was characteristic of the care with which Theodore sought an his torical foundation for his work that even in their division he only fell back on the tribal demarcations which lay within the limits of each kingdom." — Green, Making of England, p. 332. 8 Baeda, Hist. Eccl, iv. 5. IV.] THE GROWTH OF NATIONAL UNITY. l6l way.1 Wessex alone of the larger kingdoms resisted ; but a few years after Theodore's death it yielded, and the whole nation was then grouped in sixteen sees subject to the met- Primacy of ropolitan primacy of Canterbury. Within a short time af- an r ury' terwards, this arrangement was so modified as to allow to York the position of an archbishopric, with three suffragan York sees. By the final subdivision of Wessex, under Eadward Theodore's the Elder, the plan of Theodore was at last carried out, v'[^om' and the territorial organization of the dioceses as then fixed under Ead- has remained, with a few minor changes, to the present Eider. day.2 Through the results of the work of Theodore the disunited The unity English people found it possible, for the first time, to draw church fore- together in obedience to a recognized central authority. A thewntV people who had never yet been able to realize a sense of po- °[a^e litical unity under the sway of a single overlord were now able to realize a sense of ecclesiastical unity under the met ropolitan primacy of a truly national church. Representa tive men from every part of the English nation had never yet assembled in a single witenagemot for the purpose of political legislation. But the existence of such an assembly was now clearly foreshadowed in the annual meetings of the episcopate for the purpose of ecclesiastical legislation. The early councils of the church were the first national gather- The church ings in which the English nation was ever represented as a the first whole. The infant church thus became the nursery of a na- ^therTngs. tional spirit which finally ripened into a complete sense of national consciousness. The unity of the church led the way to the unity of the state, as the national councils of the church led the way to national witenagemotes.3 5. After the heptarchic states had grouped themselves in the three great kingdoms of Northern, Central, and South ern Britain, each kingdom attempted in turn to work out the problem of national unity by so extending its supremacy 1 As to the division of Mercia, see 8 " The unity of the church in Eng- Haddan and Stubbs, Councils, vol. iii. land was the pattern of the unity of pp. 127-130. As to the work in North- the state; the cohesion of the church umbria, see Eddi, Life of Wilfrid, c. was for ages the substitute for the co- 24 ; Green, Making of England, pp. hesion which the divided nation was 333, 347, 366. unable otherwise to realize." — Stubbs, 2 Stubbs, Const. Hist., vol. i. p. 218, Const. Hist, vol. i. p. 245. See, also, 219. Green, Making of England, p. 371. l62 THE OLD-ENGLISH COMMONWEALTH [Ch. The strug gle for po litical su premacy between Northumbria, Mer cia, and Wessex. Eadwinethe first Northum brian bret walda. Over thrown at Hatfield in 633. Oswald re establishes Northum brian su premacy. over all the rest as to bring the whole English nation under the sway of its own royal house. The history of this strug gle for supremacy occupies a period of more than two hun dred years. The first effort in the struggle was made by Northumbria, a realm which arose at the end of the sixth century out of the union of Bernicia and Deira.1 Upon the fall of ^Ethelfrith at the battle of the Idle in 617, the Ber- nician house of Ida gave way for a time to the Deiran house of ^Ella, whose representative, Eadwine, at that time as cended the Northumbrian throne.2 In the nine years which followed his accession, Eadwine, the first Northumbrian bret walda, extended his supremacy over all the English king doms except Kent, to whose royal house he became allied in 625 by a marriage with the Christian princess ^Ethelburh.3 During the overlordship of Eadwine the power of Northum bria reached its height ; and through the efforts of Paulinus and ^Ethelburh, Deira became Christian.4 But the fabric which Eadwine had built up broke down in 633 at the battle of Hatfield, where Eadwine was defeated and slain by Penda, the heathen king of the Mercians.5 Upon Eadwine's fall Northumbria was broken up, and so remained until Oswald, the second son of ^Ethelfrith, returned from Hii to reestab lish the kingdom under the line of Ida. During the short reign of Oswald the Northumbian supremacy was reestab lished, and the whole realm became permanently Christian under the teaching of missionaries from the Celtic church.6 The power of the Christian Oswald went down at the Maserfeld in 642 before the heathen Penda, as the power of Eadwine had gone down at Hatfield nine years before.7 After this overthrow Northumbria was again broken up, and for a time Penda's power in Britain was supreme. Upon the fall of Oswald his brother Oswiu succeeded him as king of the Bernicians, over whom he ruled for the first nine years of his reign.8 But in due time, by an alliance between king." — Green, Making of Eng., p. 257-. 1 Green, Making of Eng., p. 211. 2 E. Chron., a. 617. 8 Baeda, Hist. Eccl., ii. 9. J6 Baeda, Hist. Eccl., ii. 20 ; E. Chron., 4 " Though Paulinus baptized among a. 633. the Cheviots as on the Swale, it was 6 Baeda, Hist. Eccl., iii. 1, 3. only in Deira that the Northumbrians ' E. Chron., a. 642 ; Bseda. Hist. really followed the bidding of their Eccl., iii. 9. 1 Green, Making of Eng., p. 288. IV.] THE GROWTH OF NATIONAL UNITY. 163 Oswiu and the daughter of Eadwine, Deira and Bernicia were Oswiu joined in a union never henceforth to be dissolved.1 At the Un?tes head of the united people of Northumbria, Oswiu at last grew ^ndDeira. strong enough to break the power of Penda, who was de feated and slain at the battle of the Winwaed in 65s.2 With the fall of Penda, English heathenism came to an end, and Oswiu became one of the greatest of the bretwaldas. Under Oswiu and his son Ecgfrith, Northumbria continued to be a great state, but its claim to predominance really ends in 659 Northum; with the revival of the Mercian power under the leadership bra gives of Wulfhere. After that event Northumbria abandoned the Mercia. struggle for supremacy to Mercia and Wessex.3 6. Just a century after the beginning of the overlordship supremacy of Northumbria, the Christian Mercians appear as a great of Mercia- power in Mid-Britain under the leadership of their aggres sive king ^Ethelbald, who ascended the Mercian throne in .Etheibaid. 718.4 As long as the victorious Ine remained king of the West Saxons, his realm remained free from Mercian aggres sion ; but, in the confusion which followed Ine's voluntary abandonment of the crown, ^Ethelbald overran the whole of Wessex during a war which seems to have terminated in 733.6 For twenty years after that event, the overlordship of Mercia was recognized by all the English south of the Humber. But the Mercian supremacy was broken at last by Mercian the West Saxons in 754,6 upon the field of Burford, where broken^ iEthelbald and his subject hosts were put to flight. In 758 w^sexin ^Ethelbald was succeeded by his great kinsman Offa, who entered with zeal upon the task of rebuilding the Mercian offa re- power. He more than once invaded Wessex; and Kent, Mercian East Anglia, Essex, and Sussex were brought more or less power- under his sway.7 Although the power of Offa, as king of 1 Green, Making of England, p. 289. 6 E. Chron., a. 752. From 752 to 2 Baeda, Hist. Eccl., iii. 24. "The 849 (from the death of Bxda to the strife between the creeds of Christ and reign of Ethelwulf), the entries of the Woden was there finally decided ; the English Chronicle are wrong by two Mercians embraced the religion of their years. See Stubbs, Roger of Hoveden, neighbors, and Northumberland again preface to vol. i. p. lxxxix. ; Freeman, became the leading power of Britain." Norm. Conq., vol. i. p. 76, note 3 ; Freeman, Norm. Conq., vol. i. p. 25. Green, Making of England, p. 384, 8 Green, Making of England, p. 298. note 4; Huntington, Hist. Angl. (Ar- » Cf. Freeman, Norm. Conq., vol. i. nold), p. 121. p, 2r 7 Freeman, Norm. Conq., vol. 1 p. 6 E. Chron., a, 733; Green, Making 26. of Eng., p. 384. 164 THE OLD-ENGLISH COMMONWEALTH. [Ch. the Mercians, rose high enough to tempt him to aspire to a correspondence upon equal terms with Charles the Great, he was never able to establish an overlordship over either of the rival kingdoms of Northumbria and Wessex. Upon Cenwuif. Offa's death in 796,1 he was succeeded by Cenwulf, who during a reign of twenty-five years managed to hold the Mercian realm together, without being able to extend its supremacy.2 Final 7. The kingdom of the Gewissas, who became more widely ofPWessex. known as the West Saxons, grew by degrees out of a small settlement established on the coast of Hampshire by an invading host led by the ealdormen, Cerdic and Cynric. We learn from the Chronicle, which records every step in the conquest of Wessex, that the first attack upon the coast was made in 495, and that this was followed by what seem to have been mere plundering raids in 501 and. 508. Not until 5 14 was a landing made for the purpose of permanent conquest.3 After five years of successful warfare, political organization took place, whereupon the ealdormen, Cerdic and Cerdic and Cynric, were advanced to the dignity of kings of ' kmgsiCofrst the West Saxons-4 A !ong pause then followed in the ad- thewest vance of the invaders; for thirty years (520-552) they re mained within the limits of Hampshire. At the end of that period the work of invasion was vigorously renewed, and within the next twenty years the Gewissas overran an area which roughly corresponds with that now embraced within the shires of Wilts, Berks, Surrey, Oxford, Bedford, and Bucks.5 Wheeling then to the west, the invaders advanced from the Wiltshire Downs to the conquest of the lower Battle of Severn valley, which was won by the battle of Deorham in °77)hsem S77-6 The conquerors, who then settled down on either side cures the 0f the Severn in what is now Gloucestershire and Worcester- bevern , . valley. shire, took to themselves the local name of Hwiccas. But the West Saxon advance soon received a terrible check 1 E. Chron., a 794 (6). i E. Chron., a. 519. 2 Green, Making of Eng., pp. 413- 6 Freeman, Norm. Conq., vol. i. p. 4X8. 17 ; Green, Making of Eng., p. 120. 8 E. Chron., a. 495, a. 501, a. 508, a. 8 E. Chron., a. 577; Guest, "Con- 514; Green, Making of Eng., p. 84; quest of Severn Valley," Archceological Guest, E. E. Settlements in Britain Journal, xix. 194 ; Green, Making 4 (Salisbury volume of Archaeological In- Eng., p. 124.. stitute). their rear remain un- IV.] THE GROWTH OF NATIONAL UNITY. 165 upon the upper Severn at a spot called Faddiley, where Defeated Ceawlin must have suffered a crushing defeat at the hands of welsh in the Welsh.1 This defeat, which was most disastrous to the 584- power of Wessex, was followed in a few years by a still greater misfortune in the form of a violent dissension in the royal house. Not long after the defeat at Faddiley the Hwiccas rose in revolt and took as their king Ceol or Ceolric, the son of Ceawlin' s dead brother Cutha. The struggle internal for the throne which now arose between these rival lines w||ken0nS continued to divide and weaken the power of Wessex for ^"^ more than two hundred years.2 And during this whole period centuries, of internal dissension, the advance of Wessex to a position of supremacy was further embarrassed by a constant dread of attack in the rear from the Welsh, who still remained uncon- welsh i quered in the southwestern peninsula.3 Not until early in the ninth century did the last of the Britons in, Cornwall conquered J ' . until 815. bend to the West Saxon supremacy.4 During this long interval of internal distraction, and war against the Welsh, the real power of Wessex only asserted itself at intervals, when some great king like Ine arose strong enough to gather for a time all the Gewissas under his sway. Near the close of the eighth century Ecgberht, a descendant of Ceawlin, Ecgberht, made an unsuccessful attempt to wrest the West Saxon anaTalt' crown from the rival branch of the house of Cerdic, and, ^twa'da; when driven into exile, found shelter for a time at Offa's court.5 Expelled at last through West Saxon intrigue from the Mercian realm, Ecgberht sought a refuge (787) at the court of Charles the Great, where he witnessed the momen- visits tne tous events which transpired during the thirteen years that chariefthe preceded the elevation of the mighty Frank to the throne of Great ; the Caesars.6 Two years after Charles had been crowned Emperor of the Romans, Ecgberht returned to Wessex (802) ascends the to mount the throne made vacant by the death of his rival, $Ssex°in Beorhtric.7 The first serious enterprise to which Ecgberht 802. 1 E. Chron., a. 584; Guest, "Con- of Britain." — Freeman, Norm. Conq., quest of Severn Valley," pp. 196-199 ; vol. i. p. 25. Green, Making of Eng., p. 200. 4 Ibid., vol. i. p. 28. 2 Making of Eng., p. 201. B E. Chron., a. 784 (6), a. 787 (9) ; 8 " Wessex was still engaged in its Green, Making of Eng., p. 409. long struggle with the Welsh, and was 6 Freeman, Norm. Conq., vol. i. pp. in no position to aspire to the dominion 26, 27 ; Green, Making of Eng., p. 415. 1 E. Chron., 800 (802). 1 66 THE OLD-ENGLISH COMMONWEALTH. [CH. Final con quest of Cornwall,8i5. Overthrow of Mercia and North umbria. Ecgberht unites all the king doms under the sway of the house of Cerdic. From Ecgberhtto Eadgar (829-958). devoted himself after his accession was the final subjugation of the West Welsh. In 815 he marched into the heart of Cornwall, and after a struggle of eight years the power of the Cornish Britons was finally broken and the supremacy of Wessex extended to the Land's End.1 With all internal dissensions crushed beneath the power of Ecgberht, and with all fear of attack from the Welsh finally dispelled, the West Saxons, whose unity as a people had never been broken, were now ready to assume the leadership of the English nation. The first great conflict naturally arose with Mercia, whose king, Beornwulf, invaded Wessex in 825. After the battle at Ellandun, in which Beornwulf was overthrown, the Mercian realm was deprived of all external dominion, and all of the English south of the Thames submitted to Ecgberht.2 Four years later (829) Mercia herself was forced to yield to the victor of Ellandun, and in the same year the once great kingdom of Northumbria, now weakened by civil divisions, voluntarily accepted the West Saxon supremacy.3 Thus, after two centuries of struggle, in which the greatest kings of Northumbria and Mercia had failed, Ecgberht, the eighth and last in the list of bretwaldas, brought about a forced union of all the English kingdoms under the sway of the house of Cerdic. In the hour of victory the king of the West Saxons ventured, for once at least, to style himself king of the English.4 8. Through the conquests of Ecgberht all the Teutonic states in Britain became mere dependencies of Wessex, as under-kingdoms, ruled either by their own royal lines or by some prince of the house of Cerdic. Each conquered state as it was annexed entered into dependent relations with Wessex, without a sacrifice of its autonomy.5 But a century and a half had yet to pass by before these loosely united states be came incorporated as integral parts of one consolidated king- 1 E. Chron., a. 813 (815), 823 (825) ; Freeman, Norm. Conq., vol. i. p. 28. 2 E. Chron., a. 823 (825). 8 E. Chron., a. 827 (829). 4 "Ecgberhtus gratia Dei Rex Anglo- rum." — Cod. Dip., i. 287 ; Freeman, Norm. Conq., vol. i. p. 26, note 4. 5 "In his reign of thirty-six years (802-837) he reduced all the English kingdoms to a greater or less degree of subjection. The smaller states seem to have willingly submitted to him as a deliverer from the power of Mercia. East Anglia became a dependent ally; Kent and the smaller Saxon kingdoms were more closely incorporated with the ruling state (825)." —Freeman, Norm. Conq., vol. i. p. 27. IV.] THE GROWTH OF NATIONAL UNITY. 167 dom. The history of this process of consolidation is insepa rably connected with the history of the Danish invasions, whose pressure had begun to be felt, even before the work of union had been finally accomplished. The Northmen from The Dan- the isles of the Baltic and from either side of the Scandina- Son™ a vian peninsula, who began about the end of the eighth cen tury to harry and plunder the coasts of Britain and of north ern Gaul, were men of the purest Teutonic blood and speech, genuine kinsmen of the founders of the English kingdoms, — . kinsmen who had not yet emerged from the barbaric life and from the primitive heathenism of their forefathers. For more than half a century after the keels of these marauders first at first touched the shores of Britain (789-855), they confined them- derfng un selves to mere plundering raids in which they would secure rads- their booty and then sail away again.1 The Chronicler tells us that in 855 the heathen men wintered for the first time in the isle of Sheppy.2 From that time to the end of the ninth Period of century, the Danes, who now came in larger bodies, seriously and'plrma- engaged in the work of conquest and permanent settlement. J^56"'6" In the reign of ^Ethelred the First (866-871) the full force of Danish invasion broke upon the loosely united realm which his grandfather Ecgberht had built up. Northumbria, still rent by internal divisions, was the first to yield to the invad ers,3 who soon completely conquered East Anglia and a part of Mercia.4 The national cause now depended alone upon Alfred the hosts of Wessex, led by king iEthelred and by his brother Danes' Alfred. In the midst of the conflict ^Ethelred died, and the defence of the realm passed into the hands of one who divides with Washington alone the honor of being the most perfect outcome of the English nation. In 878 so over whelming was the force of the invasion that Alfred was obliged to hide as a fugitive in the marshes of Somerset; and for a time it seemed as if the standard of Woden had triumphed alike over the Dragon of Wessex and over the standard of Christ. But, after a great victory won by Alfred *^,°fre in the same year, the invaders entered into a solemn peace at in 878. 1 Freeman, Norm. Conq., vol. i. p. Early Kings, vol. ii. p. 430 ; Freeman's 29. Norm. Conq., Apendix KK, vol. i. p. 2 E. Chron., a. 855. 436- 8 As to the conquest of Northum- * Green, Hist, of the English People, bria, see Robertson's Scotland under vol. i. pp. 72, 73. 168 THE OLD-ENGLISH COMMONWEALTH. [Ch. Wedmore, whereby "all Northumbria, all East Anglia, all Central England east of a line which stretched from Thames' mouth along the Lea to Bedford, thence along the Ouse to Watling Street, and by Watling Street to Chester, was left The Dane- subject to the Northmen."1 Within this Danelagh, which lagh' embraced more than one half of the empire of Ecgberht, the Danes settled down among the conquered English as lords of the soil. The customary law which grew up within the Danelagh, the name applied to the region in which Danish law prevailed, varied only in small particulars from English customary law; new names rather than new customs date from the Danish occupation.2 The settlement of a foreign foe in the land inevitably tended to consolidate, for the pur pose of common defence, all that part of the English nation that remained within the limits of West Saxon dominion. ah Eng- Under the pressure of this influence, all England southwest :side of the of Watling Street fast grew into a compact and homogeneous grewlnfo a kingdom. Alfred, at his death in 901,3 left the Danes in quiet WrTdom possession of the whole district ceded to them by the Peace of Wedmore ; the task of reconquering the Danelagh he Eadward transmitted to his children. Eadward the Elder, who suc- begins and ceeded Alfred, did not enter, however, upon the execution of this task, until driven into war by a great rising of the North men in the tenth year after his father's death.4 Before the end of his reign Eadward had recovered from the Danes the whole of Mercia, Essex, and East Anglia ; and, by their an nexation to his own kingdom, he became the immediate sov ereign of all the English south of the Humber.6 After the ./Ethektan death of Eadward, his son ^Ethelstan completed the conquest completes r , , -p. , , , r ^ the con- or tne .Danelagh by incorporating Northumbria as an integral '.DaneiaX6 Part of the realm- But the reigns of ^thelstan's successors, Eadmund and Eadred (940-955), continued to be disturbed by revolts in the north, until the final extinction of the North umbrian kings.6 Not until the death of the last Danish 1 See Alfred and Guthrum's Peace, 8 Eadward also extended the su- lnorpes Laws and Institutes, vol. i. p. premacy of Wessex over the whole 152 ; Oreen, Hist of English People, island of Britain. The princes of vo'-i;P-7S- Wales, Northumbria, Scotland, and Ci. freeman, Norm. Conq., vol. i. Strathclyde " chose him to father and p. 32 and Appendix E. . to lord." — E. Chron., a. 924. 4 "£" C\ron-> a- 9°i- 8 " Dogged as his fight had been, the E. Chron., a. 910. Northman at last owned himself beaten. IV.] THE GROWTH OF NATIONAL UNITY. 169 king of Northumbria in 954 did the phantom of provincial royalty pass forever away. From that time forth the great realm of the north was governed by an earl or ealdorman appointed by the national king.1 For a time after the death of Eadred (955) the kingdom was divided between his nephews, Eadwig and Edgar. Eadwig died in 95 8,2 and the realm was then reunited under Eadgar the Peaceful, whose Eadgar the tranquil reign of seventeen years constitutes the most glori- unites'1 ous period in the history of the West Saxon Empire. The f "^n' death of Eadwig and the final extinction of all provincial roy- and Dane alty paved the way for Eadgar's accession to the threefold sway. sovereignty of the West Saxons, Mercians, and Northum brians.3 Engle, Saxon, and Dane were united under his sway ; he became the sole and immediate king of all the Eng lish ; and in his time the name of Britain passed into that Britain of Englaland, the land of Englishmen.4 The growth of a real Englaland. national unity was now complete ; the consolidated kingdom of England was made not only in fact but in name. " Wes sex has grown into England, England into Great Britain, Great Britain into the United Kingdom, the United King dom into the British Empire. Every prince who has ruled England before and since the eleventh century has had the blood of Cerdic the West Saxon in his veins." 6 From the moment of Eadred's final p. 173, note 4. See, also, Robertson's triumph, all resistance came to an end." Hist. Essays, pp. 203-216. — Green, Hist, of the English People, i "It was not till Eadgar's day that vol. i. p. 86. the name of Britain passed into the 1 Freeman, Norm. Conq., vol. i. p. name of Engla-land, the land of Eng- 41. lishmen, England." — Green, Hist, of 2 E. Chron., a. 958. the Eng. People, vol. i. p. 96. Upon 8 " The last Danish king of North- the use of the word " English," see umbria was killed in 954. In 959 Ed- Freeman, Norm. Conq., voL i., Appen- gar succeeded to the kingdom of the dix A. West Saxons, Mercians, and Northum- 6 Freeman, Norm. Conq., vol. i. p. brians." — Stubbs, Const. Hist., vol. i. 16. CHAPTER V. THE CONSTITUTION OF THE CONSOLIDATED KINGDOM. The shire system, — its growth a vital ele ment in process of nationaldevelopment. The early shire formed by a union of townships. The mod ern shire identical with the primitivestate. I. The growth of the consolidated kingdom, outlined in the preceding chapter, embraces three distinct periods of de velopment: the union of the early settlements or primitive states in heptarchic kingdoms ; the forced union of the hep tarchic kingdoms under the supremacy of Wessex ; the pe riod of consolidation which, beginning with Ecgberht, ends with Eadgar. With the history of this process of national development the growth of the shire system is inseparably interlaced. It has been heretofore maintained that the primi tive states in which the settlers originally grouped them selves in Britain were reproductions in every material partic ular of the continental Teutonic states as described by Caesar and Tacitus. The unit of organization in the primitive state was the village-community, which appears in Britain as the tun or township.1 By a union of townships was formed the district generally known in Germany as agau or gd, a name which yielded in England to that of stir or shire. By a union of gds or shires was formed the primitive state.2 The scir or shire was simply what the word itself implies, a divi sion of a larger whole ; and it is now maintained, with greater or less emphasis, by the highest authorities, that scir or shire was the term originally employed in Britain to describe the district which arose out of a union of townships.3 But the early shire, which thus represented the largest division of the primitive state, must not be confounded with the modern shire, which represents the largest division of the consoli dated kingdom. The primitive states, advancing in the path of political confederation, united in forming the seven, or eight aggregates generally known as the heptarchic king doms. Mercia seems to have grown up through the joining 1 See above, p. 143. 2 See above, pp. 119, 123. 8 Essays in A. S.Law, p. 18 ; Stubbs, Const. Hist, vol. i.*pp. 96-101. CONSTITUTION OF CONSOLIDATED KINGDOM. 171 together of a number of smaller states in which the prevailing blood was Anglian. Wessex simply represented a union of kindred principalities, each one of which retained its own under-king. Out of the union of the North and South Folk arose East Anglia ; Kent was probably formed by a double settlement in the same way ; while Northumbria arose out of the union of Bernicia and Deira.1 By the final triumph of Ecgberht the several heptarchic unions were forced to unite in a single comprehensive union under the sway of the house of Cerdic. In this new union the conquered states preserved their existence as such, during a long period of time, to the greatest practicable extent. Each state, while still retaining its ancient boundaries and its tribal king, simply entered, at first, into more or less dependent relations with Wessex. But with the triumph of Ecgberht begins the work of con- with the solidation which occupies nearly a century and a half in its EcgbePrht°f completion.2 In the process of consolidation local kingship ^Xia-0' becomes extinct, and the primitive states are finally incor- tion begins. porated with Wessex, — they cease to exist as states and be come shires. And as the primitive states thus descend in status, their own shires necessarily descend in the same way, — they cease to be shires and become hundreds. Thus it may be assumed, as a general principle, "that the state of" The state the seventh century became the shire of the tenth, while the seventh shire of the seventh century became the hundred of the b|"ame the tenth' '3 The use of the word "shire "in its enlarged and shireoftne modern sense seems to have been introduced during or shortly while' the after the reign of Ecgberht ; 4 but the name of the hundred seventh does not occur until the laws of Eadgar,5 in whose time the ^^^ arrangement of the whole kingdom in shires was probably hundred completed.6 The map of the England of to-day clearly dis- tenth." closes the origin of the modern shire in what has been called the primitive state. Out of the principalities founded by the Somerssetas, the Dorssetas, the Wilssetas, the Middle Sax- 1 See above, pp. 146, 147. kingdom in shires is of course a work 2 See above, p. 154. which could not be completed until it " See Essay upon the " Anglo-Saxon was permanently united under Edgar ; Courts of Law," by Mr. Henry Adams, and the existing subdivisions of South- in Essays in A. S. Law, p. 19. ern England are traceable back to his 4 Ibid., p. 20. day at the latest." — Stubbs, Const. 6 Eadgar, i. Constitutio de hundredis. Hist, vol. i. p. no. 6 "The arrangement of the whole 172 THE OLD-ENGLISH COMMONWEALTH. [Ch. Historical ons, the East Saxons, the South Folk, and the North Folk, certSn°of have grown the shires of Somerset, Dorset, Wilts, Middle- th!rem°dem sex> Essex, Suffolk, and Norfolk. Hampshire, Berkshire, and Devonshire are equally ancient, being mentioned in the Chronicle as shires as far back as the reign of ^Ethelwulf.1 Kent and Sussex are two of the heptarchic kingdoms, whose original shires are perhaps represented by their lathes and rapes.2 In Wessex the shire system attained its earliest and purest devolopment. The West Saxon shires retain to this day the names and boundaries of the early settlements founded by the successors of Cerdic. It is more than likely, however, from the evidence of local nomenclature, that Mer cia was artificially divided into shires by the English kings after its reconquest from the Danish invaders.3 An outline 2. As the history of the Old-English commonwealth is in- stitutionhi complete and fragmentary, it is impossible to do more than the tenth define with approximate correctness the broader outlines of century. rr the several stages of growth through which it passed in the course of its constitutional development. By the end of the sixth century, the primitive states have become bound up in the seven or eight aggregates generally known as the hep tarchic kingdoms. After two centuries of struggle (600-829), the heptarchic kingdoms are united under the supremacy oi Wessex. A period of a century and a quarter (829-958) then ensues, during which the united kingdom of Ecgberht becomes finally consolidated under Eadgar. During the tenth century three facts stand out prominently in the gen eral result : the incorporation of the primitive states in a single consolidated kingdom ; the transformation of the prim- ''owerfof lt:*ve state mto ^e modern shire ; the progressive consolida te state tion and growth of the kingly power. The central and na- the king tional powers of the consolidated kingdom are vested in the ?octTad-n; witenagemot and the king, while the whole system of local ministra- administration is vested in the shires. The consolidated tion, in the shires. kingdom is, in fact, a mere aggregation of shires, whose gdv- 1 E. Chron., a. 851, 860. 8 "In short, the local divisions of 2 " Kent, however, appears as ' Cante- Wessex were not made but grew. scyre ' as early as the reign of Athel- Mercia, on the other hand, has every stan. Essex, Middlesex, and Surrey appearance of having been artificially are also ancient kingdoms." — Stubbs, mapped out." — Freeman, Norm. Conq., Const. Hist, vol. i. p. 109. vol. i. p. 32, and Appendix, note E. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 173 ernments represent the entire local machinery of the consti tution.1 Or, to state the matter in another form, " now the kingdom forms a new whole, of which the shires have sunk to be mere administrative divisions." 2 The primitive state, in descending to the status of a shire, preserves substantially all of its powers as a local self-governing community. The tribal king has passed away, it is true, and his place has been filled by the ealdorman, who stands in the government of the shire as the . deputy of the national king ; 3 but the popular assemblies of the primitive state all survive as parts of the shire system. The primitive state assembly is the folk-moot, The the highest popular court of the shire, and as such it retains survives" as some traces of the ancient nationality.4 The primitive shire ^f^ court survives as the hundred-court of the consolidated king- early shire- dom ; the ordinary law court in which all causes are heard in hundred- the first instance. Beneath the hundred-courts stand the moot- tun-moots, the governing bodies of the village-communities or townships. In the organization of these local courts, the fundamental Teutonic principle is preserved intact ; the ad ministration of law, as well as local political administration, is vested in an expanding series of popular assemblies com posed of the qualified freemen whose interests are directly involved. If the constitutional powers of the consolidated ciassifica- kingdom be classified in accordance with modern ideas, the central executive power was vested in the king ; the legislative, in en'accord- the king and the witan : the judicial, in the witan and the >ng to mod- cm idcss local courts. In accordance with this classification the at tempt will be made to present an approximately correct idea of the form in which the constitution appeared in the tenth and eleventh centuries, after the work of consolidation had been finally accomplished. 1 Speaking of the local institutions thegns, eorl and ceorl, of Kentshire, of the Old -English commonwealth, declare to jEthelstan in their gemot at Guizot says : " Vigorous institutions Faversham their acceptance of meas- were they, which feudalism could not ures taken in the recent witenagemot overthrow, and which produced, at a of Greatley. For the document con- later period, representative govern- taining this popular acceptance of a ment in England."— Hist. Rep. Gov., law, see Thorpe, vol. i. p. 216: for p. 45. comments upon it, see Kemble, Sax- 2 Freeman, Norm. Conq., vol. i. p. ons in England, vol. ii. p. 233, 234; 67. Hallam, M. A., vol. ii. p. 376; Pal- 8 Sohm, Altd. R.- u. G. Verf. i. 25, grave, Commonwealth, p. 637 ; Stubbs, 26. Const. Hist, vol. i. p. 115. 4 The bishops of Kent and all the 174 THE OLD-ENGLISH COMMONWEALTH. [Ch. The execu tive power the king. Saxons non- monar chical, — as were all the other tribes that the con quest. 3. The early history of Teutonic kingship has already been briefly reviewed. The fact was then ascertained that, in the home-land, kingship prevailed in some of the tribes, and in others it did not.1 From Caesar's sketch the conclusion has been drawn that kingship was the exception and not the rule.2 Tacitus clearly distinguishes the monarchical tribes from the non-monarchical, without intimating the extent to which roy alty prevailed.3 Baeda affirmatively states the fact that king ship did not prevail among the Saxons, who were governed by many satraps, from whom one was chosen by lot as a leader whenever war was imminent. When the war ended, the satraps resumed their coequal powers.4 The satrap of Baeda, who corresponds in every material particular with the princeps of Caesar and Tacitus, is recognized by the great Alfred, in his translation of Baeda, as the ealdorman.5 The highest authorities agree in the conclusion that the chiefs who led the war-bands to the conquest of Britain bore no higher title than that of ealdorman or heretoga? In a. d. 449 the Jutish war-bands landed under the command of two hereto- gans, Hengest and Horsa,7 and in 45 5 Horsa was slain, and Hengest and ^Esc, his son, obtained the kingdom.8 In a. d. 495 two ealdormen came to Britain, Cerdic and Cynric his son;9 and in 519 they became kings of the West Saxons.10 As the conquest advanced, and as definite districts of country were permanently secured, and as the various groups of con querors within such districts felt the need of drawing to gether under a permanent instead of a temporary leadership, the ealdorman or heretoga was advanced to the dignity of a 1 See above, pp. 128, 129. 2 " In pace, nullus est communis magistratus; sed principes regionum atque pagorum inter suos jus dicunt." — Bell. Gall., vi. 23. 8 Tac, Germ., cc. 25, 44. 1 " Non enim habent regem iidem An- tiqui Saxones, sed satrapas plurimos suae genti praspositos, qui ingruente belli articulo mittunt aequaliter sortes, et quemcunque sors ostenderit, hunc tempore belli ducem omnes sequuntur, huic obtemperant ; peracto autem bello rursum aequalis potential omnes fiunt satrapae." — Hist. Eccl., v. 10. 6 Smith's Baeda, p. 674 ; Stubbs, Const. Hist., vol. i. p. 42. 6 Kemble, Saxons in Eng., vol. ii. pp. 2, 125 ; Freeman, Norm. Conq., vol. i. p. 51, and Appendix K ; Stubbs, Const. Hist, vol. i. p. 66 ; Green, Making of Eng., p. 171. ' "Heora heretogan waeron twegen gebroora, Hengest and Horsa." — E. Chron., a. 449. 8 E. Chron., a. 455. 9 " Her comen twegen ealdormen on Brytene Cerdic and Cynric his siinu." — E. Chron., a. 495. 10 " Her Cerdic and Cynric West- seaxena rice onf engon." — E. Chron., 519- V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 1 75 king,1 who could represent in his person the unity of a new Kingship in national life. In order to attach the idea of permanency to outgrowth the new kingship, the name of the son was associated with that ° coniuest of the father as a recognition of the hereditary principle ; 2 and, in order to impart sanctity to the person of the new king, fable at once traced his descent in an unbroken line from Woden.3 But the recognition of the hereditary principle was Hereditary attended and modified by the older principle of election.4 lotted by The right to the throne might be vested by the original ekcSon* °f choice in a single royal house, but the question as to which member of that house should receive the succession when a vacancy occurred was one which the national assembly alone could determine. Just how far the power and dignity of a king exceeded that of an ealdorman it is difficult to as certain, but it is quite clear that the title of king did imply an advance in both respects. It is probable that the king was not chosen until a group of war-bands, each under its own ealdorman, had united in the formation of a kingdom. In that way the king was advanced to the supreme command, and to national authority, while the ealdorman descended to the status of a subordinate who still possessed the highest command in his own district.5 Out of the Teutonic conquest of Britain thus arose a brood of petty tribal kings whose pres ence in every principality retarded the growth of national unity for centuries. The new king who thus arose out of the conquest was the Growth of king of a nation, the leader of his people, the head of the race, ku?g°rup. and not the king of a country and lord of the soil. The idea of a territorial as distinguished from a tribal sovereignty was the growth of later times.6 In war the king, as leader of the host, possessed supreme command, while in peace his powers were coordinate with the national assembly, with whose con currence he performed all important acts. He maintained, 1 " The word rice I take to mark the 4 " The elective principle is the safe- change from ealdormanship to king- guard of their freedom; the monar- ship. ' Freeman, Norm. Conq., vol. i. chical principle is the condition of their p. 392, Appendix K. nationality." — Ibid., p. 137. 2 Stubbs, Const. Hist, vol. i. p. 67. 6 Upon the change from ealdormen 8 "And the possession of Woden's to kings, see Freeman, Norm. Conq., blood was the indispensable condi- vol. i. pp. 51, 52; Green, Making of tion of kingship." — Kemble, Saxons Eng., p. 171. in Eng., vol. i. p. 329. 6 See above, p. 130. 1 76 THE OLD-ENGLISH COMMONWEALTH. [Ch, Peace and justice be long at first not to the king, but to the folk. In the growth of kingship is involved all the ele ments of constitutional life. The comi tatus. not his own peace, but the national peace, and executed jus tice on the breakers of it : but justice was not yet the king's justice; it was the justice of thevillage, the shire, and the folk, in whose moots was vested jurisdiction.1 As the process of aggregation advanced, as the primitive states became bound up in the seven or eight heptarchic kingdoms which were finally united under the rule of a single royal house, the institution of kingship grew with each extension of territory. As an heptarchic king rose in power and importance above the petty royal head of a primitive state, so did the king of all the English rise in power and importance above the heptar chic king. In the process of aggregation was thus involved the growth of kingship, and in the growth of kingship were involved all the elements of constitutional life.2 At the time Ecgberht united the heptarchic kingdoms under the suprem acy of Wessex, local kingship was far from extinct. But in the process of consolidation which then set in, the smaller royalties gradually died out. Provincial royalty lingered, however, in Northumbria until the death of the last Danish king in 954. A few years after that event, Eadgar succeeded to the threefold sovereignty of the West Saxons, Mercians and Northumbrians, and thus became the first sole and imme diate king of all the English. Every royal house to which conquest had given birth was now extinct except the West Saxon house of Cerdic : as the fittest it survived.3 The chieftains, ealdormen or heretogan, who led the war- bands to the conquest of Britain, came attended with their comites, and their fortunes advanced together. In return for their fidelity and service the comites expected to receive from their chief whatever of bounty lay in his power to bestow, but it was a part of his absolute duty to supply them from his own board with their daily bread. The princeps, therefore, becomes in Old-English the hlaford, the loaf-giver, a term which, by an entire departure from its original meaning, finally softened down into the modern form of lord. As 1 Stubbs, Const. Hist, vol. i. p. 68 ; Green, Making of England, p. 172. 2 Upon the growth of kingship see Kemble's chapter i. (vol. ii.) on the " Growth of the Kingly Power ; " Free man, Norm. Conq., vol. i. p. 53. 8 "At last Edgar, having outlived the Northumbrian royalty and made up his mind to consolidate Dane, Angle, and Saxon, receives the crown as King of all England and transmits it to his son." — Stubbs, Const. Hist, vol. i. p. 173. See, also, Robertson's Hist. Es says, pp. 203-216. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 1 77 heretofore explained, the most important outcome of the comitatus was the relation of lord and man, a relation at first purely personal, and not necessarily connected with the holding of land. As the smaller kingdoms grew into a sin- The king gle kingdom, and as the king of the one united kingdom XH1 mfehl's e became the king of the whole nation, the relation of lord and PeoPle» — man widened into the principle that the king was the lord or patron of his people.1 In the legislation of ^Elfred the rela- so recog- tion existing between the king and his subjects is distinctly Sie^ariy recognized as that between lord and man : " If any one plot laws- against the king's life, of himself or by harboring of exiles, or of his men, let him be liable in his life and in all that he has. If he desire to prove himself true, let him do so according to the king's wergild. So also we ordain for all degrees, whether eorl or ceorl. He who plots against his lord's life, let him be liable in his life to him and in all that he has, or let him prove himself true according to his lord's wer." 2 The same prin ciple is restated in the laws of Eadward the Elder,3 and with greater emphasis in those of his son Eadmund.4 These enactments fix the time of the transition from the old to the new relation.5 And as the king of the nation becomes the The nation- lord and patron of his people, the national peace, which from becomes the beginning was under his protection, becomes the king's Ph^ckemg'3 peace, enforcible by his personal servants.6 By impercep tible degrees the nation is merged in the person of the king, who is finally regarded as the source of all peace and law, which are supposed to die with him, and to rise again with the advent of his successor. " The sovereign was the foun- The king tain of justice ; therefore the stream ceased to flow when the the's'ource well-spring was covered by the tomb. The judicial bench of Justice. vacant, all tribunals closed. Such was the ancient doctrine, — a doctrine still recognized in Anglo-Norman England." 7 1 Stubbs, Const. Hist, vol. i. p. 176. peace became king's peace, without See, also, on the " Relation of Lord and materially changing its meaning." — Man," Kenelm Digby, Law of Real Essays in A. S. Law, p. 271. Property, pp. 20-26. 7 Palgrave, Normandy and England, 2 ./Elf red, § 4. vol. iii. p. 193 ; Stubbs, Const. Hist, 8 Eadward, ii. 1, § 1. vol. i. p. 182. There is, however, an- * Eadmund, iii. § 1. other view of this question : " Neither 6 Stubbs, Const. Hist, vol. i. p. 176. at the beginning nor at the end of the 6 " The old folk-eommunity, as aeon- Anglo-Saxon time was the king con federacy bound to peace, was among sidered in law as the fountain of jus- the Anglo-Saxons held together by the tice. The law was administered in the king; and what was originally folk- popular courts, theoretically, as the act 178 THE OLD-ENGLISH COMMONWEALTH. [Ch. And as the idea gained ground that the king of the whole nation was the lord of the whole people, the correlative idea developed that the folkland, which originally belonged to the people in their collective capacity, was the property of the The folk- king.1 It has been said by a great German writer that "folc- comestora land rests on tne principle in the constitution that royal and regis. public are not the same thing ; that the king, not alone, but only at the head of the whole body of the people, represents the public power; that, therefore, the public objects are the objects of all, and the public property the property of all." 2 In primitive times the distinction was plainly drawn between the lands which the king owned as a private individual — the lands which were annexed to the crown, the royal demesne — and the f olklands, the land of the people.3 The king was first permitted to make grants out of the folkland to his followers and friends, with the counsel and consent of the witan.4 But after the time of ^Elfred the charters contain less and less frequently the clause expressing the consent of the witan, who gradually sink into the position of mere witnesses of the grant.5 In this way the people's land begins to be spoken of as the king's folkland;6 and it finally be comes virtually the land of the king, undistinguishable from the royal demesne. In this way the actual ownership of the folkland, and a sort of suzerainty over the rest of the land of the country, becomes vested in the king.7 Growth of By the force of the same principle through which the king lordships- changed his relation to the folkland, the king's thegns and the great ecclesiastical persons and bodies changed their relations to the waste lands which had origininally belonged to the cultivating groups composing the village-communities of the freemen."— Essays in A. S. bocland, and vice versd." — Kemble, Law^p.26. Saxons in Eng., vol. ii. p. 225. Digby, Law of Real Property, pp. 6 « It would seem to follow £rom 18,25,59; Allen, On the Royal Prerog- this that the folkland was becoming ail»% pi J 5?' , virtually king's land, from the moment bonm, in the Verfassungsgeschichte, that the West Saxon monarch became vol. 1. p. 34 ; Essays in A. S. Law, p. sole ruler of the English," etc. — ^\ tv v * Stubbs, Const. Hist, vol. i. p. 193. Digby, Law of Real Property, pp. 8 See Nasse, On the Agricultural '1'l\EsJays m A- S- Law< P- 92- Community of the Middle Ages (Ouvry's The witan possessed the power of translation), p. 28. recommending, assenting to, and guar- ' Digby, Law of Real Property, p. anteemg, grants of lands, and of permit- 19. ting the conversion of folcland into V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 179 or townships.1 The history of this "process of feudalization" has already been drawn out.2 As population increased, and as the primitive communal system became inadequate to its necessities, landless men settled down upon the estates of all the great proprietors, and organized thereon village-commu nities, whose general character was identical with that of the free communities, with one serious exception, — the title to the land occupied by the dependent community was vested not in itself, but in the lord.3 As the principle of lord and The de- man grew and widened, the free communities were gradually va?age the kinS and the thegnhood gain the mastery and daUzation11" Decome the dominant powers in the constitution. The primitive conception of sovereign power, as originally em bodied in the nation, in a great measure passes out of view, — the sovereignty of the nation becomes merged in its chief. 1 Digby, Law of Real Property, p.' 6 " No wonder then if at a very early 23- period the mark-organization, which Freeman, Norm. Conq., vol. i. p. contained within itself the seeds of its °3- own decay, had begun to give way, and 8 Palgrave, English Commonwealth, that a systematic commendation, as it p\ „^-, , was called, to the adjacent lords, was 4 "The Angel-cynn of Alfred be- beginning to take place." —Kemble, comes the Engla-lande of Canute."— Saxons in Eng., vol. ii. p. 24; Freeman, Stubbs, Const. Hist, vol. i. p. 166. Norm. Conq., vol. i. p. 54. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. l8l The king becomes the lord and patron of his people ; the folkland becomes virtually the king's land ; the national peace becomes the king's peace ; the justice of the hundred and the folk becomes the king's justice ; the national officers become the king's officers ; and the national assembly — the witan — becomes more and more the king's council.1 Every stage in the transition from the old to the new system is marked by an advance in the kingly power, and by a decrease of inde pendence upon the part of local communities.2 It is now possible to estimate, in a general way, the nature Nature and and extent of the advance made by the royal power during ^eToyai the centuries in which the primitive tribal settlements were authority. gradually consolidated in a single state. The growth of Old- English royalty reached its highest point in the person of Eadgar, who was not only the sole and immediate king of all Eadgar. the English, but also the suzerain lord of all the neighboring Celtic princes, the emperor of the whole isle of Britain.3 A king of the consolidated kingdom, although hedged in by many constitutional restrictions, certainly occupied a position of great power and privilege. Although he could perform no important act of government without the consent of the na tional assembly, still he was no mere puppet in their hands, for the assembly was equally powerless to perform any act without his concurrence.4 Although in strict theory the king was only one of the people, and as his title implied their child and not their father,6 and dependent upon their election for his royalty, still he was the noblest of the people, and at the head of the state. The person of the king was guarded The king's not only by the high price set upon his life as a person of werg royal blood, the wergild payable to his family in the event of his violent death, but it was also guarded by an equal amount, which was the price of his royalty, the cynebot, the fine due at the same time to his people.6 The king's revenues which 1 See above, p. 147. king in everything that is done, and 2 " Each stage of amalgamation in- the unspeakable difference between a creased the kingly power ; each stage good and a bad king." — Norm. Conq., lessened the independence of local vol. i. p. 77. communities, and lessened the impor- 6 On the origin of the word king, tance of their individual members." — see Norm. Conq., vol. i. p. 53, and Ap- Freeman, Norm. Conq., vol. i. p. 67. pendix L; Max Miiller's Lectures on 8 Ibid., vol. i. pp. 44, 89. the Science of Language, vol. ii. pp. 282, 4 "Nothing is clearer in our early 284; Grimm, R. A., p. 230. history than the personal agency of the • Kemble, Saxons in Eng., vol. n. p. 182 THE OLD-ENGLISH COMMONWEALTH. [Ch. Royal rev enues not contingent upon legis lativegrants. Dues in the form of rents. Receipts from fines, treasure-trove, and the like. The legisla tive power : the kingand the witan. were not contingent upon legislative grants,1 must have been amply sufficient to maintain the royal state and dignity. In addition to the private estates which he possessed as an indi vidual, and which he could dispose of by will, the king en joyed the use of the royal demesne, which belonged to him as king, and which he could neither burden nor alienate without the consent of the witan.2 The king also received certain dues (cyninges-gafol) in the nature of rents, which were in their origin voluntary contributions,3 but which finally became compulsory charges certainly upon all holders of folkland.4 And in addition to the sums which thus accrued to the king from his private estates, the royal demesne, and the folkland, he received revenue from the following sources : from the fines which were levied in the courts of law to the king's use, as conservator of the public peace;5 from treasure-trove, wreck, mines, salt-works, and the mint ; 6 from tolls, from markets and ports, and from transport by roads and navigable streams;7 from the heriots which were as sessed upon the estates of the king's special dependents ac cording to their rank ; 8 and from escheats and forfeitures.9 The king had the right of maintenance for himself and suite when in public progress ; and he had also the right to license the building of bridges and fortresses.10 Thus supported and maintained by an independent revenue, the king was able to deal upon equal terms with the witan, with whose advice and consent he performed all important acts. 4. The supreme powers of the continental Teutonic state, whether monarchical or non-monarchical, were vested in a national assembly in which every freeman had his place. 29 ; Allen, On the Prerogative, pp. 36, 40. 1 Essays in A. S. Law, p. 64. 2 In a grant made about 980 by /Ethelred to Abingdon he draws the distinction between his propria heredi- tas which he could alienate, and the terrce regales el ad regios fUios perti- nentes, whose alienation the witan had refused to sanction. — Cod. Dipt, No. 131 2; Kemble, Saxons in England, vol. ii. p. 30. 8 Tac, Germ., c. 15. 4 Essays in A. S. Law, 64. See, also, Robertson, Hist Essays, pp. 102, 112; Kemble, Saxons in Eng., vol. ii. pp. 30, 223, 224. Kemble considers it a tax levied by the king and the witan, — a view which can hardly be correct. 6 Kemble, Saxons in Eng., vol. i. p. 'Si; vol. ii. pp. 54, 55. 0 Ibid., vol. 11. pp. 55-73. 7 Kemble, Saxons in Eng., vol. ii. PP- 73-78, 94- 8 Ibid., vol. ii. pp. 98-102. 9 Ibid., vol. ii. p. 50; Essays in A. S. Law, p. 64 seq. 10 Kemble, Saxons in Eng., vol. ii. pp. 58, 91. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 1 83 While all ordinary business was disposed of by a council composed of the principes, great matters were submitted by the principes to the general assembly of the people.1 In the primitive kingdoms, in which the Teutonic settlers originally grouped themselves in Britain, the state assembly appears as the folk-moot, the meeting of the whole people in arms. In the structure of the folk-moot there is no departure from The folk- primitive traditions. By the time of the conversion, however, mo° ' when for the first time it is possible to ascertain the form which Teutonic society in Britain had assumed, the primitive states have ceased to exist as independent communities, — they have become bound up in the seven or eight aggregates generally known as the heptarchic kingdoms. The national Thewiten- assemblies of these heptarchic kingdoms are not folk-moots but witenagemots ; they are not great popular assemblies of an entire nation, but small, aristocratic assemblies composed only of the great and wise men of the land.2 In the absence of the principle of representation, it is quite possible to un derstand how an originally democratic assembly, into which the magnates of the land entered as the great factors, would naturally shrink up into a narrow aristocratic body composed of the magnates only, wherever the extent of territory to be traversed rendered it difficult for the mass of the people to attend. The results of this principle are practically the same, Likeness „ , , . , . Q T ,. between whether worked out in England or Achaia.1* In the narrow English districts of country occupied by the primitive states, it was fannda^em- possible for the folk-moots to preserve a continuous existence, bUes- for the reason that it was not inconvenient for the people to attend the meetings of a local assembly in which their interests were directly involved.4 But as the process of aggregation 1 " De minoribus rebus principes con- Those citizens came together who were sultant, de majoribus omnes ; ita tamen at once wealthy enough to bear the ut ea quoque quorum penes plebem ar- cost of the journey and zealous enough bitrium est apud principes pertracten- to bear the trouble of it. . . . The tur."— Tac, Germ., c. 11. congress, democratic in theory, was 2 See Kemble's chapter on the Wi- aristocratic in practice." — Freeman, tenagemot, Saxons in England, vol. ii. Hist, of Federal Government, pp. 266, pp. 182-240 ; Freeman, Norm. Conq., lifj. vol. i. p. 67, and Appendix Q ; Stubbs, * " While the district whose mem- Const Hist, vol. i. p. 119. bers attend the folk-moot is still small, 8 "The Achaian assembly practically there is no great inconvenience in this consisted of those among the inhab- method of proceeding." — Saxons til itants of each city who were at once Eng., vol. ii. p. 191. wealthy men and eager politicians. 1 84 THE OLD-ENGLISH COMMONWEALTH. [Ch. The folk- moot shrinks up into the witenage mot. Composition of the witan. Every free man re tained the abstractright to be present in the national assembly. advanced, the extent of territory to be traversed widened ; and it thus became more and more difficult for each individ ual freeman to attend the meetings of a national assembly in whose proceedings he was only remotely concerned.1 Fur thermore, each advance in the process of aggregation was attended by a corresponding increase in the power of the king and thegnhood, and with a consequent depression of the popu lar power. By the combined force of these causes the mass of the people, without the formal exclusion of any class, simply ceased to attend assemblies in whose deliberations they could take but a subordinate part. Thus, through a perfectly natu ral process, the folk-moot, the meeting of the people, was con verted into a witenagemot, the meeting of the wise, in which were considered all matters involving the general good.2 Such is the history of the witenagemot, whether considered as the supreme council of an heptarchic state, or as the su preme council of the whole English nation when finally united in a single consolidated kingdom.3 It is impossible to ascertain at what exact period the change was brought about through which the primary Teutonic as sembly was converted into a narrow aristocratic body. The change was no doubt a gradual one, which probably advanced, pari passu, with the aggregation of the local communities.4 That such a change did take place, and that the whole body of the people did retain for a long period of time the abstract right to be present in the national gemot, may be implied from a series of vestiges which, beginning with the Dooms of ^Ethelberht, extend beyond the Norman conquest.5 If it be true, then, that every freeman did possess the abstract right to be present in the national assembly, there is no reason for the attempt to explain the presence of the great men who did 1 Kemble, Saxons in England, vol. ii. p. 193. 2 "The idea of representation had not yet arisen ; those who did not ap pear , in person had no means of ap pearing by deputy. ... By this pro cess an originally democratic assem bly, without any formal exclusion of any class of its members, gradually shrank up into an aristocratic assem bly." — Norm. Conq., vol. i. p. 68. 8 Stubbs, Const. Hist., vol. i. p. 119. 4 " At what exact period the change I have attempted to describe was ef fected is neither very easy to determine nor very material. It was probably very gradual and very partial ; indeed, it may never have been formally recog nized, for here and there we find evi dent traces of the people's being present at, and ratifying the decisions of, the witan." — Saxons in England, vol. ii. p. 195. 6 For a collection of these vestiges see Freeman's Norm. Conq., vol. i. Appendix Q. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 185 in fact attend upon the theory of representation. The com position of the witenagemot is a subject which is involved in the greatest obscurity ; in no one of the ancient laws can be found any positive enactment defining its constitution. From the documents attested by the witan — the name by which the members of the assembly are usually described — it ap pears that the great council was attended by the king, who witans was sometimes accompanied by his wife and princes of the 0°X°king blood ; by the archbishops, and all or some of the bishops and and the abbots, and sometimes by priests and deacons ; by all or some of the ealdormen ; and by a large number of ministri or king's thegns, amongst whom were no doubt embraced the chief officers of the royal household, as well as the most consider able of the king's personal dependents.1 As the work of consolidation advanced, the magnates of the conquered king doms became entitled to seats in the Witan of Wessex, which witan of finally became the Great Council of the Empire.2 The num- came^the ber of the witan thus increased with the expansion of the council of realm. In a witenagemot held at Winchester in 934, in the theEmph-e, reign of ^Ethelstan, there were present the king, four Welsh princes, two archbishops, seventeen bishops, four abbots, twelve ealdormen, and fifty-two king's thegns, in all ninety- two persons.3 In another, held in 966, in the reign of Eadgar, were present the king's mother, two archbishops, seven bish ops, five ealdormen, and fifteen thegns, which is considered a fair specimen of the usual proportion.4 The highest number and usually given is one hundred and six ; and it seems that from ninety 0f about! to a hundred was not an unusual attendance, after the consoi- hunQredmembers. idation of the monarchy.6 The great council thus constituted was generally known as the witenagemot, literally the meet ing of the wise ; but it was also called mycel gemot, the great meeting, and sometimes mycel getheaht, the great thought.6 1 Kemble, Saxons in England, vol. tions of the central body." — Ibid., p. ii. p. 195 ; Stubbs, Const. Hist, vol. i. 70. p. 124. 8 Cod. Dipt, No. 364. An act of 2 Freeman, Norm. Conq., vol. i. p. this witan is described as having been 70. "But just as in the case of the executed " tota populi generalitate." — assemblies of the mark and the shire, Saxons in England, vol. ii. p. 200. so the gemots of the other kingdoms 4 Cod. Dipl., No. 518; Stubbs, Const. seem to have gone on as local bodies, Hist, vol. i. p. 126. dealing with local affairs, and perhaps 6 Cod. Dipl., Nos. 353, 364, 1 107; giving a formal assent to the resolu- Saxons in England, vol. ii. p. 200. 6 Norm. Conq., vol. i. p. 70. 1 86 THE OLD-ENGLISH COMMONWEALTH. [Ch. The meeting of the witan was generally proclaimed in ad vance, at some one of the royal residences.1 Powers of The supreme powers of the consolidated kingdom were the witan. vested jn the king and the witan, who possessed the right to consider all public acts which the king could authorize,2 in cluding many acts which, according to modern theories, would be considered as purely executive.3 In every act of legisla tion the right of the witan to advise and consent was invari ably recognized.4 The earliest of the old English enactments conform to this principle, which pervades all Teutonic legisla- King legis- tion.6 The king enacts all laws, which are added to the exist- theeScounsei ing customary law, with the counsel and consent of the witan, rfthe0nsent by whose concurrent authority they are promulgated. The witan. ]aws 0f tne Wihtraed are decreed " by the great men with the suffrages of all, as an addition to the lawful customs of the Kentish peoples." 6 Hlothaere and Eadric, kings of the men of Kent, augmented the laws which their forefathers had made before them, by these dooms.7 The laws of Ine are enacted " with the counsel and teaching of the bishops, with all the ealdormen and the most distinguished witan of the nation, and with a large gathering of God's servants."8 ^Elfred promulgated his code with the counsel and consent of his witan,9 and Eadgar ordains with the counsel of his witan in praise of God, and in honor of himself and for the character behoof of all the people.10 Of the old English laws, those of rithe early ^thelDernt) HlothEere and Eadric, Wihtrsed, Ine, Eadward the Elder, .ZEthelstan, Eadmund, and Eadgar, are mainly in the nature of amendments of custom. Those of Alfred, ^Ethelred, Cnut, and those described as Eadward the Confes- Taxation. sor's, aspire to the character of codes.11 Taxation, in the modern sense of the term, can hardly be said to exist until a very late period in the history of the Old-English common- 1 E. Chron., a. ioio. own and the king's authority." — Sax- 2 " First, and in general, they pos- ons in England, vol. ii. p. 205. sessed a consultative voice, and a right 6 Ibid., vol. ii. p. 206, note I. to consider every public act which could 6 Schmid, Gesetze,p. 15. be authorized by the king." — Saxons 7 Thorpe, vol. i. p. 26. in England, vol. ii. p. 204. 8 Schmid, Gesetze, p. 21. 3 Norm. Conq., vol. i. p. 74. 9 Ibid., p. 69. 4 " The witan deliberated upon the 10 Ibid., pp. 184 187 ; Stubbs, Const. making of new laws which were to be Hist., 127; Saxons in England, vol. ii. added to the existing folcright, and pp. 206-213. which were then promulgated by their u Select Charters, pp. 60, 61. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 1 87 wealth. As the king's revenue from the public or demesne lands, from his private estates, and from other sources, was sufficient to maintain the royal state, it was not necessary to provide a royal revenue by taxation. Not until the period of the last Danish invasion did circumstances arise which re quired the imposition of a general tax for the public service, — with the imposition of the Danegeld the history of English Danegeld. taxation really begins. This extraordinary tax, which was levied by the king and the witan,1 was imposed not only for the purpose of buying off the invaders, but for the raising of fleets.2 The legislative powers of the king and the witan were not confined, however, to secular matters only ; they embraced such subjects of ecclesiastical legislation as the ap- Ecciesjasti- pointment of fasts and festivals, and the levy and expenditure tfon.es'S a of ecclesiastical revenue. The laws abound in articles regu lating the keeping of Sunday and festival holidays, the pay ment of tithes and other church imposts, the marrying of persons within the prohibited degrees, and the life and con versation of the clergy.3 The great influence of the spiritual witan seems to have prevented any jealousy as to that kind of legislative interference with the government of the church. The king and the witan even possessed the power to elect bishops to vacant sees.4 The witan, by virtue of their general Treaties power to consider every act which the king could authorize, ances. had the right, conjointly with the king, of making alliances and treaties of peace, and of settling their terms ; 5 and 1 "The king and the witan had 439, Appendix LL. "It may be in- power to levy taxes for the public ser- ferred then that every three hundreds vice." — Saxons in England, vol. ii. p. were liable to be called on to furnish 223. For the imposition of Danegeld one ship, whilst every ten hides were ac- see E. Chron., a. 991, 1002, 1007, and countable for a boat, and every eight ion. hides for a helm and breastplate." 2 The assessment of 1008, in which Stubbs, Const Hist, vol. i. p. 106. we find the origin of ship-money, is thus 8 Saxons in England, vol. ii. p. 222. recorded in the Abingdon and Peter- 4 "The king and the witan had borough Chronicles for 1808 : " Her power to appoint prelates to vacant bebead se Cyng faet man sceolde ofer sees." — Saxons in England, vol. ii. p. eall Angelcyn scypu faestlice wyrcan; 221. This was the thtory; as to the })aet is Sonne ; of prim hund hidum and practice see Stubbs, Const. Hist., vol. i. of tynum aenne scegS, and of viii hi- p. 134. dum helm and byman." " The govern- 6 " The witan had the power of mak- ment did not levy ship-money, but re- ing alliances and treaties of peace, and quired each county to find its quota of of settling their terms." — Saxons in ships. This would apply as well to England, vol. ii. p. 213. See jElfred the inland districts as to those on the and Guthrum's Peace, Thorpe's Laws seaboard." — Mr. Earle's note, quoted and Institutes, vol. i. p. 152. in Freeman's Norm. Conq., vol. i. p. t88 THE OLD-ENGLISH COMMONWEALTH. [Ch. also of raising land and sea forces, whenever extraordinary circumstances required that the authority of the great coun- Aiienation cil should be added to that of the king.1 The folkland, the of folkland. nati0nal fund, was administered and conveyed conjointly by the king and the witan. Nearly every grant professes to have been made by the king cum consilio, consensu et licentia procerum, or in some like formula expressing the same idea.2 With the consent of the witan the king could carve an estate out of the folkland and vest it in a private individual or corpo ration, and thus convert the portion severed from the public domain into an alodial estate, heritable forever.3 When such a grant was made, it was usual for the land to be freed by the terms of the book or charter from all burdens except the trinoda necessitas, to which all lands were subject.4 In the same way an estate could be carved out of the folkland and vested in the king as an individual, to be held by him as a Bookland private estate of inheritance.6 The king and the witan could ?°?vY\?d also convert bookland into folkland, and impose upon it all into ioIk- . r a i ia°d. the burdens to which that kind of land was subject." And before the influence of the principle, which rendered family land inalienable without family consent, had fallen into decay, the king and the witan were sometimes called upon to con firm and guarantee grants of large private estates, so as to effectually bar the right of any heirs that might be cut off by the alienation.7 As the royal power grew, and as the mon archy became more and more consolidated, the folkland passed The folk- un^er tne contr01 0I the king alone ; the witan finally became land be- mere witnesses of the royal grants. In William's time the terra regis, folkland had become terra regis? That the inherent power of the witan was, in the last re- 1 " The king and his witan had times, tended " more and more to be- power to raise land and sea forces come duties attaching to the posses- when occasion demanded." — Saxons sion of the land owed to, and capable in England, vol. ii. p. 224 ; E. Chron., of being enforced by, the king or the a. 999, 1047, I048- great man of the district." — Digby, 2 Saxons in England, vol. ii. p. 226. Law of Real Property, p. 14 i ^od. 8 " The witan possessed the power Dipl., No. 52. of recommending, assenting to, and ° Cod. Dipt, No. 260. guaranteeing grants of lands, and of 6 Cod. Dipl., No. 281 ; Saxons in permitting the conversion of folcland England, vol. ii. pp. 226-227. into b6cland, and vice versd." — Saxons ' See grant made by Abbot Ceol- in England, vol. ii. p. 225. frith, Cod. Dipl., No. 127; Essays in 4 The three duties which arose out A. S. Law, pp. 75—77. of the trinoda necessitas, although dis- 8 Essays in A. S. Law, pp. 99-loOi tinct from the feudal services of later Stubbs, Const Hist., vol. i. p. 193- V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 189 sort, higher than that of the king is demonstrated by the fact The witan that the witan had the power not only to elect1 but to de- the king! pose the king. Teutonic kingship was elective from the earliest period in its history, but the right of election was attended and modified from the very beginning by the he reditary principle. In the home-land, the king was chosen by the state assembly, but the choice was limited to those who possessed the indispensable prerequisite of noble blood.2 In the character of the new kingship which grew out of the Teutonic conquest of Britain, there was no departure from the primitive tradition. In every kingdom there was some one royal house whose members were considered, under all ordinary circumstances, entitled to the succession ; but within the limits of that house the witan possessed the power to elect the person most competent to govern.3 It was usual oldest son to give the preference to the oldest son of the last king, if klng^u-' he were not too young or otherwise incompetent to rule ; in afiy^hosen that event, the witan generally elected the brother of the king, or some other kindred prince more capable of ruling.4 But no matter who succeeded to the throne, the theory was that he succeeded by virtue of an election ; he was " gecoren and dhafen t6 cyninge," — elected and raised to be king.6 Ex press mention is made of the act of election in the chronicles and memorials touching the accessions of the following kings : Alfred, Eadward the Elder, ^Ethelstan, Eadred, Ead gar, Eadward, ^Ethelred, Eadmund, Cnut, Harol I., Eadward the Confessor, and Harold.6 The witan, who possessed the power to elect the king, pos- The witan , ¦ .11 i. • i_ i_ • could de- sessed also the correlative right to depose him whenever his pose the government was not conducted for the good of his people.7 g- 1 " The witan had the power of elect- 4 Norm. Conq., vol. i. pp. 72, 73, and ing the king." — Saxons in England, Appendix S. vol. ii. p. 214. ' Saxons in Eng., vol. u. p. 215. 2 " Reges ex nobilitate, duces ex vir- 8 These instances in which express tute sumunt." — Tac, Germ., c. 7. mention is made of the act of election 8 " The kingly dignity among the have been collected by Kemble (Sax- Anglo-Saxons was partly hereditary, ons in Eng., vol. ii. pp. 215-219), Free- partly elective ; that is to say, the man (Norm. Conq., vol. 1. p. 591), and kings were usually taken from certain Stubbs (Const. Hist, vol. 1. p. 136, qualified families, but the witan claimed note 1 ). the right of choosing the person whom 7 "The witan had the power to de- they would have to reign." — Saxons pose the king, if his government was in England, vol. ii. p. 214 ; Stubbs, not conducted for the good of his peo- Const Hist., vol. i. p. 135. pie-" — Saxons in England, vol. ii. p. 219. 190 THE OLD-ENGLISH COMMONWEALTH. [Ch. Deposi tions of JUchred ; • of Sige- 1 berht; - of Eadwig ¦ of jEthel- 1 red. The judi- ¦ rial power : the witan and the local courts. All primi tive Teu tonic courts popular : assemblies. The greater number of cases in which this power was exer cised by the witan belong to the period which precedes the union of the heptarchic kingdoms under the house of Cerdic. In the eighth century, out of fifteen kings duly elected in Northumbria, at least thirteen are said to have ended their reigns by extraordinary means.1 In this confused history, at least one case, that of Alchred, stands out as a regular and formal act of deposition.2 In 755 the witan of Wessex de posed Sigeberht from the royal dignity and elected his rela tive Cynewulf in his stead. The Chronicle says : " This year, Cynewulf and the West Saxon witan deprived his kins man Sigeberht of his kingdom, except Hampshire, for his unjust doings."3 Among the descendants of Ecgberht, at least two cases of deposition appear to have occurred. The Mercians reject Eadwig, sever their kingdom from his, and then elect Eadgar as their king.4 ^Ethelred the Second was deposed in favor of his conqueror, and afterwards restored by the action of the witan.5 In many of the cases it is difficult to determine whether the throne was made vacant by a legal act of deposition, or through the results of conspiracy and civil war. 5. The German scholars have firmly established the funda mental historical principle, that the Teutonic race, in the earliest known period of its development, vested not only the political administration, but the administration of law, in an expanding series of popular assemblies, composed of the free men whose interests were directly involved.6 In the conti nental Teutonic state, the narrowest form of organization was represented by the mark, in whose assembly or mark- moot the markmen met together to regulate all matters aris ing out of their peculiar system of village and agricultural life. If the markmen ever administered justice among them- 1 Stubbs, Const. Hist, vol. i. p. 137. 2 " Eodem tempore, Alcredus rex, > consilio et consensu omnium suorum, regiae familiae principum destitutus so- cietate, exilio imperii mutavit majesta- tem." — Sim. Dun., a. 774. 8 E. Chron., a. 755 ; Flor. Wig., a. 735. The fullest account of this trans action is given by Henry of Hunting don, Hist. Ang., lib. iv. 4 Flor. Wig., a. 957 ; Saxons in Eng., vol. ii. p. 221. 5 Freeman, Norm. Conq., vol. i. pp. 242-247. The action of the witan re lates more clearly to iEthelred's res toration than to his expulsion. — V.S. Dunstani, p. 35; Flor. Wig., a. 1014; Stubbs, Const. Hist, vol. i. p. 139. 6 Cf. Essay on "The Anglo-Saxon Courts of Law," in Essays in A. S. Law, p. 1. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. I91 selves it was in some period preceding the union of the vil lage-communities in larger aggregates.1 In historical times the marks appear as members of the pagi or gds, the dis tricts known in later times as hundreds.2 The hundred court of the Continent consisted of the regular and frequent meet ing of all the freemen resident in the district ; it was the court of law in which justice was ordinarily administered.3 The state assembly possessed the judicial power to hear and determine grave public offences.4 In the home-land, the or- in the home dinary administration of law was vested in the court of the 4" admin- pagus, gd, or hundred, — the extraordinary, in the state as- j^^h sembly. The numberless petty states, in which the Teutonic dred court settlers originally grouped themselves in Britain, were exact assembly. reproductions, in every material particular, of the civitas of Caesar and Tacitus.5 The mark appears in English history as the tun or town- The tun- ship, a corporate unity in whose members were vested the mo° power of ordering their own local and domestic concerns. This power was exercised by the village assembly or tun- moot, which, in an independent township, consisted of all the alodial owners residing within it, — in a dependent one, of the body of tenants who had united in the formation of a village- community upon the land of a lord. In the village assembly, possessed which could not have possessed more than quasi judicial judicSi3" functions, resided the power to regulate all the internal affairs functions' of the township by the making of by-laws, a term which is said to mean laws enacted by a " by," as the township was called in the northern shires. The tun-moot elected its own officers, and also provided for the representation of its inter ests in the courts of the hundred and the shire, where the gerefa and four selectmen appeared for the township.6 In the " process of feudalization " the township finally becomes the manor of the lord ; and the ancient jurisdiction of the tun-moot survives to. this day in the parish vestry 'and in the manorial courts.7 1 See above, p. 104. 6 See above, p. 124. 2 Essays in A. S. Law, p. 5. 6 See above, p. 143. 8 Sohm, Altd. R.- u. G. Verf, i. 7 Maine, Village - Communities, lec- 541. ture v. ; Digby, Law of Real Property, 4 " Licet apud concilium accusare p. 43. quoque et discrimen capitis intendere." — Tac, Germ., c. 12. 192 THE OLD-ENGLISH COMMONWEALTH. [Ch. The burg- gemot identical with the hundred court. The Old-English burg or borough was nothing but a town ship, or a group of townships, in a higher state of organiza tion, and with defences of a more formidable character than those of the ordinary township.1 " It was not like an ancient Greek or Roman, like a mediaeval Italian or Provencal city, the centre of the whole civil life of its district. It was sim ply one part of the district in which men lived closer together than elsewhere ; it was simply several townships packed tightly together, a hundred smaller in extent and thicker in population than other hundreds." 2 The " burg " like the " tun " possessed its common lands, its own court or burg- gemot, and its head officer or gerefa, who was known as the tun or wic-gerefa, and in commercial places like London, Bath, and Canterbury, as port gerefa : 3 the burg-gerefa does not occur.4 The early history of the borough constitution is very obscure, but in it was undoubtedly embodied the system originally represented by the free township, which system survived as the basis of municipal authority.5 As the greater burgs generally represented a group of townships that had coalesced, their organization naturally resembled the constitu tion of the hundred more closely than that of the township. The burg-gemot, hustings 6 or law court of the Old-English city, was nothing but the hundred court in a slightly differ ent form ; its origin was the same and its procedure sub stantially the same.7 The pagus, or hundred of the continental Teutonic state 1 Stubbs, Const. Hist, vol. i. pp. 92, 403- 2 Freeman, Norm. Conq., vol. v. p. 312. " The collection of geographically continuous parishes covered with build ings, in the counties of Middlesex, Sur rey, and Kent, which is called London in popular language, would have been a hopelessly bewildering object to an old Greek; but of one thing he would have been sure, and rightly, — that noth ing could well be less like a polis." — Sir Fredrick Pollock's Hist, of the Science of Politics, p. 11 (Humboldt Li brary). 8 Kemble, Saxons in England, vol. ii. pp. 174-176; Stubbs, Const. Hist, vol. i. p. 93. 4 Schmid, Gesetze, p. 598. 6 It is now perfectly well understood that the origin of English municipali ties cannot be traced to a Roman source. For authorities upon this sub ject see above, pp. 124, 125. 6 " This name is still preserved in the United States in the Court of Hust ings of Richmond, Virginia." — Bige- low, Hist, of Procedure in Eng., p. 141, note 2. 7 Essays in A. S. Law, p. 22. " Of the influence of guilds, as a subsidiary part of town organization, there are some traces which at a later period assume great historical importance ; but there is nothing to justify the notion that they were the basis on which the cor porate constitution of the burh was founded." — Stubbs, Const. Hist, vol. i. p. 94. " Th e various guilds were also without authority as courts of the com mon law." — Essays in A. S.Law,p. 22. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 193 is reproduced in Britain by a unioii of townships in the dis- The hun- trict originally known as the gd or shire, a term of various dred court- application. This district, which is usually described in the earlier documents as regio, pagus, or provincia, represents, no doubt, either the pagus or district in which the hundred warriors originally grouped themselves, or a union of town ships originally isolated and independent. The early gds or shires were not at all uniform in size, their boundaries depending upon the physical conformation of the country in which the settlements were made. By a union of early shires was formed the primitive state, whose national assem bly was the folk-moot, the meeting of the whole people in arms.1 In the process of consolidation the primitive state descends in status one degree ; it becomes a mere division of the greater whole, — that is to say, a scir or shire. And as a identity of necessary consequence the early shires 2 of which the primi- hundred6"1 tive state was composed descend to the status of subdivisions, |"rdt ^ known in later times as hundreds. In this way the conclu sion is attained, which may be accepted as a general law, that "the state of the seventh century became the shire of the tenth, while the shire of the seventh century became the hun dred of the tenth. " 3 The name of hundred, which first occurs The name in Old-English law in a police regulation of Eadgar's,4 seems fi^Mcurs to have been definitely applied, during the ninth or tenth ™ *.h-w,oi century, to the territorial district representing a union of townships, which may have been originally known as a shire. The hundred court of the consolidated kingdom and the hundred court of the Continent were, therefore, identical in fact and in name ; they were the ordinary courts of law in which justice was administered in the first instance.6 The constitu- English hundred-moot consisted of the regular assembly of all nundredhe the freemen resident within the district, together with the court- parish priest, the reeve, and four best men, who came as 1 See above, pp. 123, 124. statement has been repeated in the 2 That scir or shire was the term hope of emphasizing the vitally im- originally employed in Britain to de- portant conclusion which it embodies. scribe the district, which arose out of a 4 Eadgar i. Constitutio de nun- union of townships, is maintained by dredis. very high authority. See Essays in A. 6 As to the importance of this fact S. Law, p. 18; Stubbs, Const. Hist, in establishing the historical connec- vol. i. pp. 96-101 ; Select Charters, p. tion between English and German in- 68. stitutions, see Essays in A. S. Law, pp. 8 Essays in A. S. Law, p. 19. This 6, 7. 194 THE OLD-ENGLISH COMMONWEALTH. [Ch. It met . monthly. Head offi cers of the hundred. Police or ganizationthe frith borh, or peace-pledge. Self-help. Right of feud. representatives from every township embraced within the hundred.1 The judges were the whole body of suitors,2 who, while on their way to and from the court, were under the special protection of the law. The hundred court, which met every month,3 could declare folk-right in every suit; its jurisdiction was both civil and criminal ; it witnessed the transfers of land ; and no suit could be carried to a higher court until it had first been heard in the court of the hun dred.4 The headship of the hundred seems to have been divided between two officers, — the one the representative of the people, the other of the king. The hundred-man or hundreds-ealdor, who was the elected officer of the freemen of the hundred, convened the hundred court and probably presided over it. This officer survives the Conquest, and in the thirteenth century appears as the elected representative of the hundred in the shire-moot.5 The representative of the king was the gerefa, who becomes after the Conquest the bailiff of the hundred.6 Having now arrived at a definite conclusion as to the ori gin and structure of the township, the burg, and the hundred, it will be possible to indicate, in general terms, the relation which existed between these territorial districts and the sys tem of police organization with which they became closely interlaced. In the most primitive periods of Teutonic soci ety, the doctrine of self-help, the right of the individual free man to redress his own wrongs without the aid of the judicial ppwer, was the basis of all archaic procedure. "The Ger man was himself judge and warrior ; he levied execution and exacted blood for blood by the sovereign powers vested in himself by that most democratic of all constitutions." ' The right of feud, or private war, was a right which every Teu- 1 " It was attended by the lords of lands within the hundred, or their stewards representing them, and by the parish priest, the reeve, and four best men of each township." — Stubbs, Const. Hist, vol. i. p. 103, and note 1, in which is cited Hen. I., vii. §§ 4, 7 ; li. § 2. See, also, Select Charters, pp. 104, 105 ; Bigelow, Hist of Pro cedure, p. 141. 2 Stubbs, Const. Hist, vol. i. pp. 103, 104, 114, note 6; Essays in A. S. Law, p. 5. 3 " I will that each reeve have a ' gemot ' always once in four weeks, and so do that every man be worthy of folk -right," etc. — Eadward, ii. § 8; Eadgar, i. § 1 ; iii. § 5. 4 ^Ethelstan, iii. § 3 ; Eadgar, 111. 2 ; Cnut, ii. 17, 19. 6 Hen. I., viii. § 1 ; Palgrave, Com monwealth, pp. 635, cccli. 6 Stubbs, Const. Hist, vol. i. pp. 101, 102. 7 Essays in A. S. Law, p. 262. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 1 95 tonic freeman considered inalienable, — a right which entered with him into every political or social organization of which he was a part. The first duty then which presented itself to every organized society that aspired to preserve the public peace was, to devise some means through which the right of every man to redress his wrongs, according to his own esti mate of his injuries, might be modified and restrained.1 As the family in all branches of the Aryan race represented the Agency of strongest form of organization through which the individual InMT^l could be governed, the state naturally invoked its aid for the v™tion o£ . J crime. maintenance of the peace and for the prevention of crime.2 Tacitus explains the earliest attempt made by the Teutonic states to mitigate the evils of private warfare, through the agency of the family, when he says : " They are bound to take up both the enmities and the friendships of a father or relative. Nor are their enmities implacable ; for even homi cide is atoned for by a fixed number of flocks or cattle, and the whole house receives satisfaction, — a useful thing for the state, for feuds are dangerous in exact proportion to free dom." 3 Treason and effeminacy were punished capitally ; all other offences (including homicide) could be atoned for by fines.4 " A portion of the fine went to the king or state, ah fines a part to the injured person or his relations."5 The state fwe^thT thus acted as mediator by guaranteeing to the person in- *'atf and jured, or to his household, satisfaction for the injury received, person or and to the person paying the fine immunity from the conse- tives6 * quences of the feud. In this way the individual received indemnity, and the state compensation for the breach of the public peace. As the right of feud was too deeply rooted to be eradicated by legislation, the Teutonic nations only 1 " The Teutonic nations set them- 2 " Saxon England formed no excep- selves the task of regulating the Right tion to the rule. The family was not of Feud. They could not entirely ab- only the most important institution of rogate it, . . . but they defined, and as private law : it stood also at the bot- far as possible limited, its sphere and torn of the whole police and criminal the extent of its action." — Kemble, system." — Essay upon " The Anglo- Saxons in England, vol. i. p. 269. Saxon Family Law," Essays in A. S. Kemble's tenth chapter, from which Law, p. 122. this extract is taken, has been criti- 8 Tac:, Germ., c. 21 ; Saxons in Eng., cised by Konrad Maurer, Kritische vol. i. p. 271. Ueberschau, iii. pp. 26-62, 1858. For 4 Tac, Germ., c. 12. a full and authoritative view of the 6 " Pars multae regi vel civitati, pars whole subject, see Wilda's Das Stra- ipsi qui vindicatur vel propinquis ejus frechtder Germanen, 1842. exsolvitur." — Ibid., c. 12. 196 THE OLD-ENGLISH COMMONWEALTH. [Ch. Wergild or life-price, unit in the system of compensation. The family or maegth as a police organiza tion; decline of its influ ence. attempted to modify its exercise by prescribing a graduated system of compensation which embraced nearly every offence that could be committed against a man's person, honor, or domestic peace. The unit in this system was the wergild,1 or price set upon the life of every freeman according to his rank, his birth, or his office. Every freeman had his wergild, from the humblest peasant to the king : its varying amount was the principal distinction between the classes ; it defined the value of each man's oath, his mund or protection, and the amount of his fines or exactions. And after the princi ple was settled that the life-price could be fixed at a definite sum, the compensations for all less offences were adjusted in a corresponding ratio. In the earliest forms of Old-English law we find every injury that a man could suffer in his per son, his property, or his honor minutely assessed;2 and we also find the right of feud limited to the single case of guilty homicide.3 In the event of a man's violent death the obliga tion devolved upon his kindred to prosecute the blood-feud, and his wer, or life-price, was payable to them,4 — his maegth or maegburh. In addition, however, to the prosecution of the blood-feud, a man's maegth were bound to defend their kinsman before the courts, and to become responsible for him to the state.6 In this way the family association or maegth naturally supplied a system of mutual guaranty, which the state was able to employ in early times as a police organization through which it could hold lawless men to right. In the earliest of the Old-English laws this system appears in its purity ; in the legislation of ^Ethelberht, Wiht- rsed, and Hlotha^re the maegth is still wholly responsible.6 But the primitive system becomes greatly weakened, under the later kings, by the increasing force of public law, and by the growth of the quasi feudal relation of lord and 1 'The wergyld, then, or life-price, was the basis upon which all peaceful settlement of feud was established." — Saxons in Eng., vol. i. pp. 276, and 277-288. 2 See the Laws of jEthelbert and Alfred, Thorpe's Laws and Institutes. 8 "Unlike some of the continental tribes, the Anglo-Saxons did not per mit the exercise of the right of feud for simply corporeal injuries, but limited it to the single case of guilty homicide. When a man was slain, his kindred must avenge the murder by slaying an enemy or enemies of equal value."— Essays in A. S. Law, p. 143. See ^Ethelred, ii. 6; Cnut, ii. 56; Schmid, Gesetze, viii. c. I. 4 Schmid, Gesetze, vii. 3, § 4. 6 Essays in A. S. Law, p. 146. 6 Kemble, Saxons in England, vol. i. p. 259. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 197 man.1 By the time of ^Elfred the right of feud had been so far modified that a man could not fight, except in a certain serious case, until he had first appealed to all the recognized authorities for redress.2 But if the offender failed to make lawful amends after demand upon him, then the injured par ties could make war upon him with the aid of the state ; whence the Old-English proverb, " Bicge spere of sfde 6Ser bere," — buy off the spear or bear it.3 This primitive sys- * tem of police, based alone upon the family tie, which origi nally implied the fact of neighborhood, contained within it self the seeds of its own dissolution. As the force of family association weakened, and as the family itself became dis persed, a time came when neighbors were not necessarily kinsmen. When that point was reached, the deficiencies in the old system had to be supplied by a more definite form of organization, in which the power of the family survived as a potent influence. In the new arrangement neighbors, New police whether related or not, were bound together in tens and hun- bodied inm" dreds, — a tithing-man for each tithing, a hundred-man for h'u^fdsnd each hundred.4 The frithborh 5 (peace-pledge) was the mu- as numeri- cal divi- tual guaranty by which every member of a tithing as well as sions. of a maegth became a pledge or surety (borh) to the other members, as well as to the state, for the maintenance of the public peace. From the time of Eadgar 6 the maegth, as a police organization, no longer existed. The primitive family system had become merged in an artificial one which was purely political ; the police duties which at first devolved upon the kindred passed to the members of the tithings and hundreds. But the most difficult question yet remains : When and in what way did these numerical and personal l Essays in A. S. Law, p. 142. 6 Forsyth, Trial by Jury, p. 50. 2 Saxons in England, vol. i. p. 271; 6 "From the time of Eadgjar, the Essays in A. S. Law, p. 268. maegth, as a police organization, no 8 This right is thus expressed in a longer existed. It had been super- formula contained in the law of Ead- seded by a system of police organiza- ward the Confessor : " Emendationem tions of a purely politcial nature ; and faciat parentibus, aut guerram patiatur, the police duties hitherto exercised by unde Angli proverbium habebant : the kindred had passed to the mem- Bicge spere of side other bere, quod bers of these political organizations." est dicere, lanceam erne de latere aut — Essays in A. S. Law, p. 147, citing fer earn." — Leg. Eadw. Conf., xii., Eadg. iii. 6, iv. 3 ; ^Ethelr. i. 1, Pr. ; § 6; Thorpe, vol. i. p. 447- Cnut> '¦• 20> Pr- >' wil- '• 25- 4 Kemble, Saxons in England, vol. i. pp. 237, 238. 198 THE OLD-ENGLISH COMMONWEALTH. [Ch. Numericaldivisionsmerge their functions in townshipsand territo rial hun dreds. Frithborh(peace-pledge)incorrectly translated by the Normanlawyers. The shire- moot. divisions merge their functions in the already existing terri torial districts, which have been described as townships and hundreds ? That such a merger did take place is clearly in dicated by the later laws.1 The functions of the tithing sink into those of the township ; and, except in some of the west ern counties, even the name of the tithing is lost in that of the township.2 The name of " hundred " may have extended itself, by a perfectly natural process, to the territorial district which the peace association protected.3 It is more than probable that the development which took place in the police system was but a part of the general process of change through which the primitive constitution passed in the tran sition from the personal to the territorial system. After the Conquest the name frithborh was incorrectly translated by the Norman lawyers into liberum plegium (frank - pledge) instead of pacis plegium.* The "view of frank-pledge," the right to see that these peace associations were kept in perfect order, ultimately became a part of the petty criminal juris diction of the courts leet, where it still survives. In the process of consolidation the ancient shire becomes the modern hundred, and the primitive state becomes the modern shire. The folk-moot, the national assembly of the ancient kingdom, survives as the shire-moot, an institution distinctly peculiar to England as compared with Germany.6 In descending to the rank of a shire the primitive state pre serves its autonomy to the greatest practicable extent ; even as late as the time of ^Ethelstan a trace of the ancient legis lative authority lingers in the proceedings of the shire-moot.6 The government of the shire is divided between the ealdor- 1 " It is well known that in the later Anglo-Saxon law, and even to this day, the tithing and hundred appear as lo cal and territorial, not as numerical, divisions. ... I do not deny that in process of time these divisions had be come territorial," etc. — Saxons in Eng land, vol. i. p. 240. 2 " Tithings at present exist in Som ersetshire and Wiltshire, and accord ing to Pearson (maps, 52) in Glouces tershire and Worcestershire, and in all counties south of the Thames (except Kent and Cornwall), where they an swer to the townships of other coun ties." — Stubbs, Const. Hist, vol. i. p. 86, note 2. 8 Select Charters, p. 68. 4 " An early confusion gave rise to the reading of Freoborh, liberum ple gium, free-pledge, frank-pledge, for FritSborh, the pledge or guaranty of peace, pacis plegium. The distinction is essential to the comprehension of this institution." — Saxons in England, vol. i. p. 249, note 1 ; Forsyth, Trial by Jury, p. 50. 6 Essays in A. S. Law, p. 21 ; Waitz, D. V. G., ii. p. 494; Stubbs, Const. Hist., vol. i. p. 116. 8 See above, p. 173. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 1 99 man and the scir-gerefa or sheriff, — the one the representa- Headship tive of the nation, the other of the king. As the work of %£&£** consolidation advances, and as the tribal kings pass away, between their places are filled in the subject kingdoms by ealdormen , ,, • j. i i ^i i ¦ , , . . , , theealdor- or viceroys, appointed by the king and his witan, by whom man and they are removable, and to whom they are responsible for the exercise of their authority.1 In some instances the under- kings continue to rule as ealdormen by virtue of a delegated authority.2 *' The ealdorman is a vice-king, with an independ ent power as opposed to the king. Not the king's pleasure, but a principle of the public constitution, determines the completeness of the ealdorman's authority. Not the king's pleasure, but only a lawful judgment, can strip the ealdorman of his office. The ealdorman excludes the king from the im mediate government of the shire. The shire government is not royal but ducal." 3 The ealdorman was the leader of the military force of the shire, and, as such, he is sometimes called in the charters heretoga* He sat in the shire-moot with the sheriff and the bishop, and received a part of the profits of jurisdiction.5 The direct representative of the the sheriff. king in the government of the shire was the scir-man, scir- gerefa,6 or sheriff, who was the administrator of the royal demesne, the judicial president of the shire-moot, and the ex ecutor of the law.7 The most general name for every fiscal, administrative, and executive officer among the English in early times was gerefa, a term which was usually limited by The term a prefix which indicated in each case the scope of the offi- 'serea" cer's jurisdiction ; as tun-gerefa, wic-gerefa, port-gerefa, and scir-gerefa. The gerefa or reeve always appears, however, in connection with judicial functions, — he is always the holder of a court of justice.8 The scir-gerefa, who, as a judicial 1 Freeman, Norm. Conq., vol. i. p. iv. 9. The word generally used in 52. the laws is gerefa ; scir-gerefa is found 2 "The under-kings of Hwiccia thus however, in charters. — Cod. Dipl., iv. continued to act as ealdormen under 10, 54, 201 ; Saxons in England, Mercia for a century," etc. — Stubbs, vol. ii. p. 158. Const. Hist, vol. i. p. 112. 7 Stubbs, Const. Hist., vol. i. p. 8 Sohm, Altd. R.-u. G. Verf, i. pp. 113. 25, 26; Essays in A. S. Law, p. 21. 8 See Saxons in England, vol. ii. ch. 4 Cod. Dipl., ii. 383; iii. pp. 5, 49, 159, v., "The Gerefa." " I will that each 259,260,262; Freeman, Norm. Conq., reeve have a ' gemot ' always once in vol. i., Appendix K. four weeks, and so do that every man 6 Stubbs, Const. Hist, vol. i. p. 113. be worthy of folk-right," etc. — Leg. 8 Scir-man, Ine, § 8 ; Cod. Dipl., Eadw., i. § 2. » 200 THE OLD-ENGLISH COMMONWEALTH. [Ch. Sheriff the nominee and steward .of the king. 'The consti- " tution of the shire- ; moot. The bishop sat in the ¦ shire-moot. Ancient : system of ; appeal. officer, was the executor of the law and president of the shire- moot, may have been originally its elected chief. But in his torical times he is the nominee and steward of the king.1 As a fiscal officer the scir-gerefa was the administrator of the royal demesne within his shire, and the collector of all fines that accrued to the king ; and, like the ealdorman, he par ticipated in the profits of jurisdiction. While the authority of the ealdorman might extend to several shires, the author ity of a sheriff was distinctly limited to a single shire. The shire-moot was simply the ancient folk-moot, the assembly of all the freemen resident within the shire ; and, like the hun dred-moot, it was attended by all lords of lands (called in this aspect scir-thegns),2 by the parish priest, the reeve, and four selectmen from each township,3 and by the twelve senior thegns from each hundred.4 The shire-moot was, therefore, not only a popular but a representative assembly, each town ship and each hundred within the shire being present in the persons of its representatives. The presiding officer of the shire-moot was the scir-gerefa, and with him sat the ealdor man and the bishop ; the one to declare the law temporal, the other the law spiritual.5 The shire-moot could declare folk- right in every suit ; and as no cause could be carried to the shire until it had first been heard in the hundred, so no cause could be carried to the king until it had first been heard in the shire.6 It must not be supposed, however, that this ar rangement embodied a system of appeal in the modern sense of that term. The decision of each court was final. It was 1 The right of election was asserted, however, by the constitutionalists of the thirteenth century, and it was for a few years conceded by the crown. — Stubbs, Const. Hist, vol. i. p. 113. 2 Saxons in England, vol. ii. pp. 2"u, 235; Cod. Dipt, vi. 198. s This fact, " left questionable in the laws, is proved by the later practice." — Stubbs, Const. Hist, vol. i. p. 115; citing Henry I., vii. §§ 4, 7 ; li. § 2. See, also, Bigelow, Hist, of Procedure, P- '33- 4 Cod. Diplfvr. 137 ; Select Charters, :pp. 137, 251. 6 By the laws of Eadgar and Cnut the shire-moot was to be held twice in the year. " And let the hundred gemot be attended as it was before fixed; and thrice in the year let a burg-gemot be held; and twice, a shire-gemot; and let there be present the bishop of the shire and the ealdorman, and there both expound as well the law of God as the secular law." — Eadg., ii. 5; Cnut, ii. 18. " It may, then, be con cluded that the presence of the sheriff was necessary in any case, while that of the ealdorman might be dispensed with." — Saxons in England, vol. ii. p. 1 59 ; Hallam, Middle Ages, vol. ii. p. 283. 6 " And let no one apply to the king in any suit unless he at home may not be worthy of law, or cannot obtain law." — Eadg. ii. 2; Cnut, ii. 17, 19; Hallam, M. A., vol. ii. p. 269. nal causes. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 201 only in the event that a court failed to decide within the prescribed time that the cause could be taken to a higher tribunal.1 In the last resort, the witenagemot acted as a supreme witana court of justice both in civil and criminal causes.2 Numer- comTo? ous illustrations of the exercise of civil jurisdiction upon the justice in i , ... both civil part ot the witan can be found in the charters contained in and crimi- the Codex Diplomaticus, in which the proceedings in many important trials are set forth in great detail.3 From the same kind of evidence it is equally certain that the witan often adjudged lands of offenders, intestates, and suicides to be forfeit to the king.4 The criminal jurisdiction of the witan extended to all such grave public offences as were originally punishable in the national assembly of the primitive Teutonic state. This jurisdiction in the time of Eadward the Con fessor was substantially what it had been in the days of Tacitus.5 By a decree of the Northumbrian witan, Wilfred was condemned to imprisonment and exile ; 6 by decrees of the witan of the consolidated kingdom ^Elfric, ^Ethelweard, ^Elfgar, and Godwine were outlawed.7 Although in theory the jurisdiction of the king and the witan might be said to extend over all persons and over all causes, yet in prac tice the tendency was to discourage its exercise, in order to confine litigation as strictly as possible to the local tri bunals.8 6. As the judicial powers of the witan were exercised only at long intervals and upon extraordinary occasions, and as the 1 Essays in A. S. Law, pp. 25, 26; and bearing date in the time of Ead- Stubbs, Const. Hist, vol. i. p. 115, gar. note 3. 6 Stubbs, Const. Hist, vol. 1. p 2 " Lastly, the witan acted as a su- 132. preme court of justice, both in civil 6 Eddius, V. Wilfr. and criminal causes." — Saxons in Eng- 7 Cod. Dipt, No. 1312; E. Chron., land, vol. ii. p. 229. ' 1020, 1051, 1055 > Saxons in England, 8 As illustrations see Cod. Dipt, vol. ii. pp. 230-232. Nos. 143, 156, 164, 220, 245, 1034, 8 " Instead of enlarging their own 1258. powers by encouraging suitors to seek 4 "The witan possessed the power justice directly from the crown, the of adjudging the lands of offenders king and the witan frowned upon every and intestates to be forfeit to the king." symptom of popular discontent with Saxons in England, vol. ii. p. 228. See the clumsy justice of popular tribunals, Cod. Dipl., Nos. 1 1 12, 1295, 374, 1035. and forced suitors back upon the local Kemble also refers to a case of forfeit- courts." — Essays in A. S. Law, p. 25. ure for suicide, contained in a charter As to the judicial powers of the witan in the archives of Westminster Abbey, in the Norman period, see Bigelow's Hist, of Procedure, pp. 20-25. 202 THE OLD-ENGLISH COMMONWEALTH. [Ch. Germs of jury and representa tive sys tems im bedded in the local courts. Local courts sur vive the Conquest. Embryonicforms of representa tive princi ple. courts of the townships did not possess contentious jurisdic tion,1 it follows that the ordinary administration of law was confined to the courts of the shire and hundred. The busi ness of these courts was not limited, however, to the exercise of judicial functions only. In the Old-English common wealth, as in all other infant societies, the line of demarcation between the different powers in the state was not at all well defined ; the courts of the shire and hundred were not only the judicial but the administrative workshops of the constitu tion. In addition to the administration of justice, these courts transacted such business as the levying of military forces, the adjustment of local assessments, and the regula tion of the system of police ; 2 and in their presence were performed all acts that required special publicity, such as the making of sales and the execution of important documents.3 These local courts, in which were discussed and settled nearly every question in which the body of the people were directly concerned,4 survived the shock of the Norman conquest, pre serving in their organization and procedure the germs out of which the greatest of English institutions were to spring. Out of the representative principle imbedded in the courts of the shire and hundred were developed, under the influence of Norman administrative ideas, the jury system,5 and the system of representative government.6 In order fully to grasp the history of this development, — which involves the question of questions for students of English institutions, — it will be necessary to begin with an examination of the germs of the representative principle as they appear in the primitive constitution. Such an examination can only be 1 See above, pp. 104, 191. 2 Guizot, Hist. Rep. Gov., pp. 44, 49. As to the obligation of each shire to furnish its quota of ships, see the as sessment of 1008 (E. Chron., a. 1008), which is explained by Mr. Freeman, Norm. Conq., vol. i. p. 228, and Ap pendix LL. 8 Wills were often attested by the shire-moot. See Cod. Dipl., vi. 198. For other acts done before the shire, see ibid., iv. 117, 137, 138, 234. 4 " The courts of those days sup plied the means by which every kind of business was transacted, and had prob ably a greater resemblance to a public meeting than to a court of justice in the modern sense of the term. This was true of all courts whatever, but es pecially of the county court, ... in which were transacted all the more im portant branches of public business, judicial, financial, and military." — Sir James Fitz-James Stephen, Hist. Crim. Law, vol. i. p. 77. 6 Stubbs, Const. Hist, vol. i. p. 608. " It is in the new system of recognition, assizes, and presentments by jury that we find the most distinct traces of the growth of the principle of representa tion ; and this in three ways." 6 Guizot, Hist. Rep. Gov., p. 45. ces." V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 203 made through an analysis of the organization of the local courts, and of the methods of their procedure. The court of the hundred, like that of the shire, consisted of the meeting of all the qualified freemen resident within the district over which its jurisdiction extended. In the hundred court ap peared the reeve and four selectmen from each township embraced within the hundred ; in the shire court, like repre sentatives appeared from each township embraced within the shire.1 Both courts were, therefore, not only popular but shireand representative assemblies. In both courts the whole body of courts6 both " suitors " (attendants) were the judges, and in theory what- j?Presen^ ever judgment was rendered was the judgment of the whole blies. assembly.2 But in practice it became impossible for the whole body to exercise judicial functions. The inconven iences which arose out of this state of things indicated the obvious and natural remedy. Each assembly delegated its powers to a judicial committee composed of its own members, who acted in behalf of the whole court.3 The representa- The "iudr tives, or "judices," so chosen, whose number seems to have been always twelve or some multiple of twelve, probably acted under the advice of the presiding officer, who was pre sumed to be familiar with all the old customs.4 Illustrations of this principle of delegation may be found in the twelve judges elected in the shire court of Cambridge to confirm with their oaths a decision previously rendered in the same court in a case between the Bishop of Rochester and the Sheriff of Cambridge ; 5 in the twelve senior thegns who ap pear as a representative body in the courts of both the shire and hundred;6 and in the twenty-four "judices"7 or the 1 See above, pp. 194, 200. 213; Savigny, vol. i. pp. 192, 217, 239; 2 " Apart from the presiding officer Brunner, Die Entstehung der Schwur- of the court, the judgment was theo- gerichte, pp. 20, 21. retically given by the whole assembly ; 4 Essays in A. S. Law, p. 289, note 4. but practically, and for convenience, 6 " Sed cum eis Bajocensis episco- oftenby a chosen number of 'judices.'" pus qui placito illi praeerat, non bene — Essays in A. S. Law, p. 288. crederet, prascepit ut si verum esse, 8 " These twelve may have been in quod dicebant, scirent, ex seipsis duode- some cases like the scabini or schof- cim eligerent, qui quod omnes dixerant fen, a fixed body holding their appoint- jurejurando confirmarent." — Hickes, ment for life ; or like the lawmen of Dissertatio Epistolaris, etc., p. 33. Lincoln, the hereditary owners of sac 6 iEthelred, iii. § 3; Cod. Dipt, iv. and soc in the territory; or chosen 137. merely for the occasion." — Stubbs, 7 " Tandem veniens jEgelwinus Al- Const. Hist, vol. i. p. 103. As to the derman ad Granteburge habuit ibi scabini, see Hallam, M. A., vol. i. p. grande placitum civium et hundretano- 204 THE OLD-ENGLISH COMMONWEALTH. [Ch. Probable origin of jury of pre sentment. Origin of the trial jury. Archaic legal pro cedure. thirty-six " barons " 1 who were chosen in the East Anglian county courts to determine the suits of Ramsey and Ely. The twelve senior thegns seem, however, to have repre sented the hundred or wapentake for a special purpose. ^Ethelred's law provides "that a gemot be held in every wapentake ; and the XII senior thegns go out, and the reeve with them, and swear on the relic that is given them in hand that they will accuse no innocent man, nor conceal any guilty one." The most competent critics seem to regard the twelve thegns, not as "judices," but as inquisitors of all crimes com mitted within the hundred to which they belong ; and, as such, they probably represent the earliest form of the crimi nal jury of presentment.2 But it must not be for one moment supposed that, in the representative body of " judices " to whom the judicial powers of the popular courts were sometimes delegated, there can be discovered the beginning of the trial jury, which has its ori gin in an entirely different source. What that source is, can not be discovered without a brief examination of the archaic forms of Old-English legal procedure. The modern, suit represents a syllogism in which the body of judicial rules are the major, and the declaration of facts the minor, premise: the primitive Teutonic suit was a simple demand made by the actor on the defendant for compensation.3 To such a demand, which was made in a solemn traditional form, the defendant opposed an equally solemn contradiction.4 The demand and denial, which made up the issue, were uuattended by any allegations of fact in support of either.5 The vitally rum coram XXIV judicibus." — Hist. Ely, Gale, p. 471. 1 "XXXVI barones de amicis utri- usque partis pari numero electos ipsi judices constituerunt." — Ibid., p. 471. See Stubbs, Const. Hist, vol. i. p. 103, and note 5 ; Forsyth, Trial by Jury, pp. 58. 59- 2 Forsyth ( Trial by Jury, p. 57 ) holds this view, and cites in support of it Pal grave, English Commonwealth, vol. i. p. 213. Bishop Stubbs assents with his usual caution. Const Hist., vol. i. pp. 103, 115, 396, 611, 618. This prob able view is also adopted by Sir James Fitz-James Stephen, Hist of Crim. Law (London, 1883), vol. i. pp. 68, 69. Konrad Maurer holds that ./Ethelred's law only related to the Danelagh, and that it is in full accord with Scandinavian law. Krit. Ueber schau, v. p. 389, note 2. This inter pretation of the passage is disputed, however, by Brunner, Die Entstehung der Schwurgerichte, pp. 402, 404. 8 Essays in A. S. Law, p. 183. 4 Brunner, Schwurg., p. 44. 6 "He (defendant) did not oppose the facts on which the plaintiff rested his claim, since the plaintiff brought forward no such facts ; he only attacked the assertion that he was indebted." — Essays in A. S. Law, p. 194. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 205 important point in the procedure, which was conducted throughout with an iron rigorism of form,1 was the question of proof. How the proof should be given, and who should give it, were matters settled by the judgment, which was not only rendered before the taking of the proof, but in it was declared what would happen after its completion.2 The strange inversion of ideas involved in the rendition of the judgment before the taking of the proof can be explained, however, by the fact that proof, as understood by the Teu- Teutonic tonic barbarian, was not a judicial means of bringing convic- of pfoof.011 tion to the mind of the court ; it was simply a satisfaction due and given by the party to his adversary in the form prescribed by custom.3 It was no part of the business of the court to weigh the proof ; it simply declared who should give it, and in what manner, and then what the judgment would be after its completion.4 Three independent means of proof were Three inde- allowable, — oath, ordeal, and documents.5 The oath, which mee"nsnof the party having the right! of proof swore in his own behalf, H°^'~ could be accompanied or supported, (1) by the oaths of com- deal,' and purgators, or oath-helpers; (2) by the oaths of witnesses. ocumi " After the party making the proof had sworn to his demand, his oath-helpers swore to their belief, not in their chief's as sertion, but in his credibility.6 The witness-proof by which a party could support his assertion was drawn either from transaction or community witnesses. Transaction witnesses, Transac- which existed in Old-English law as in all the folk laws, were ££££ ' official persons appointed to witness such business transac tions as sales, gifts, exchanges, and the like.7 By Eadgar's 1 Brunner, Entstehung der Schwur- 4 " The proof was regarded as a gerichte, p. 44. satisfaction to the claimant, and there- 2 Ibid., pp. 45, 46; Siegel, Gerichts- fore was not directed to the court, but verfahren, p. 148. to the opponent," etc. — Essays in A. S. 8 " It follows that in the barbarian Law, p. 188. form of proof by witnesses, which was * K. Maurer, Krit Uebersch., v. p. merely one particular kind of proof, as 185. ordeal was another, the producer of 6 Essays in A. S. Law, p. 186; the witnesses proposed not in the least Brunner, Schwurg., p. 49. to convince the tribunal of his own 7 ^Ethelstan, v. 1, § 5. "And let good right, but simply to produce the there be named in every reeve's ' ma- fixed number of witnesses according to nung ' as many men as are known to be the customary form, and these wit- unlying, that they may be for witness nesses were to corroborate by oath the in every suit. And be the oaths of these theme or statement prescribed for them unlying men according to the worth of in the previous judgment which had the property, without election." — Se- ordered the proof." — North American leet Charters, p. 66. Review, July, 1874, PP- z'9. 22°- 206 THE OLD-ENGLISH COMMONWEALTH. [Ch. law, a given number of such witnesses were appointed in each burg and hundred.1 Community Community witnesses were such persons as could testify witnesses. concernjng circumstances, long-continued relations, and oc currences known to them as neighbors, or members of the community. This class of witnesses, who were chiefly em. ployed in actions relating to real estate and status, acted in a representative capacity ; they declared the witness of the community in support of the assertion of the party by whom inquest of they were produced.2 After the system of inquest by proof duced byr°~ (inquisitio per testes), which the Normans introduced into Eng- the Nor- ianc[ under the name of assizes, became employed in legal con tests between private individuals as to the possession of land, the community witnesses appear as the sworn recognitors of the assize.3 But they appear in a somewhat changed rela tion : they no longer depose to the single assertion of their chief to which they were confined by the customary law ; they declare the witness of the community as to the whole truth within their knowledge, in response to questions pro pounded to them by the judge charged with the execution of the inquiry. The conclusion is now firmly established, that out of the inquest of proof, which was chiefly employed in judicial matters in suits relating to rights in land, was devel oped by the lawyers of the Plantagenet period the jury of judgment, the trial jury of modern times.4 1 Eadgar, iv. §§ 4, 5, 6 ; Forsyth, that the idea of the latter was derived Trial by Jury, pp. 70-73. from the former. In both cases the 2 Brunner, Schwurg., pp. 50-53 ; verdict was the testimony of witnesses Essays in A. S. Law, pp. 186, 187. cognizant of the matter in dispute ; and "From this class of proof arose the if we substitute a determinate number 'inquisitio per testes' in the Norman of knights for the probi homines of an period, and the jury of English law," ordinary inquest, we have at once the etc. — Essays in A. S. Law, pp. 187, assize." — Forsyth, Trial by Jury, p. 232, and note 4. 112. 3 " Soweit nach alterem Rechte ein 4 " Henry II. expanded and consoli- Gemeindezeugniss, sei es in den Formen dated the system so much that he was des frankish-normannischen oder des not unnaturally regarded as the founder angelsachsischen Verfahrens in An- of it in its English character."— Stubbs, wendung war, hat dasselbe unter dem Const Hist., vol. i. p. 614. The system Einflusse der Recognitionen und der Ko- of inquests by sworn recognitors has nigsgerichtlichen Praxis allmahlich den been directly traced to the Frankish Charakter einer Inquisitio ex jure ange- Capitularies, into which it may have nommen." — Brunner, Schwurg., p. 382. been adopted from the fiscal regula- " There was no difference whatever in tions of the Theodosian Code. — Ibid., principle between those inquests ['Inqui- p. 613; Spence, The Equitable Juris- sitioexjure'] and the recognitions by the diction, vol. i. p. 178; Palgrave, Eng- knights of assize ; and it seems to me lish Commonw., p. 271 ; Brunner, to be almost as clear as demonstration Schwurg., p. 87. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 207 After the church had introduced the use of documents, Documents they were employed as a means of proof of the same charac- d^i.the or" ter as the proof of witnesses.1 When no decision could be reached by the use of ordinary means, a final appeal was made through the ordeal to the judgment of God. The law which was administered according to these clumsy Absence of forms of procedure was strict law, whose severity went un- weej^isdic- tempered by any kind of equitable jurisdiction whatsoever. tion' The only way in which the strictness of the common law could be avoided was by compromise, which seems to have been effected wherever it was possible.2 Beyond these ar chaic forms legal procedure did not advance during the period which precedes the Norman conquest. In this procedure, and in the organization of the local courts, the representative principle clearly appears. By the reeve and four selectmen Promi- each township was distinctly represented in the courts of the "hrrepre- shire and hundred ; by the judicial committees of twelve or sentative 1 • 1 r 1 1 principle. some multiple ot that number were represented the whole body of the popular court whose powers they for the time represented ; the twelve senior thegns appeared as a repre sentative body in the courts of both the shire and hundred ; the community witnesses spake as the representatives of the neighborhood as to the particular fact in question. Beyond these embryonic forms the representative principle did not advance until it developed and widened, under the influence of Norman administrative ideas, first, into the jury system, and then into the system of representative government. The several stages in the history of this development will be indicated hereafter. 7. In the preceding examination of the origin and struc- private ju- ture of the courts of the shire and hundred, no reference has r^^^^' been made to the growth of a feudal innovation through sScn- which large sections of jurisdiction which had been national or royal were withdrawn from the king or state and vested in the hands of private individuals. Originally all jurisdiction 1 Essays in A. S. Law, p. 188. The ence on the fate of the whole judicial document could be drawn up by a system. ... A compromise was always notary, or before the court. — K. Mau- effected where compromise was possi- rer, Krit. Uebersch., v. p. 196. ble. Arbitration was, perhaps, the 2 " One result followed from this ab- habitual mode of settling disputes sence of equitable powers, which was, among the Anglo-Saxons." — Essays in perhaps, not without an ultimate influ- A. S. Law, p. 26. 208 THE OLD-ENGLISH COMMONWEALTH. [Ch. Private law courts certainly existed be fore the Conquest ; product of the <( pro cess of feu dalization.' The profits of jurisdic tion (socn) firstgranted ; belonged to the people in their collective capacity ; the peace was the national peace, and justice was the justice of the shire and the folk in whose courts it was administered.1 Such was the condition of things before the archaic judicial constitution was torn in pieces by the growth of the aristo cratic and feudal element represented by the thegnhood, at whose head stood the king. It is admitted on all hands that, certainly before the Norman conquest, jurisdiction was granted to private individuals without stint ; that private law courts did exist by virtue of royal grants made with or with out the consent of the witan ; and that by virtue of such grants jurisdiction ceased to be exclusively a public trust, and often became a private right accompanying the possession of land. In some instances these private jurisdictions em braced large districts, but usually only the jurisdiction of a hundred.2 As a general rule the law court created by royal grant was simply a hundred court in private hands. How this radical departure from primitive constitutional ideas was brought about can only be explained by reference to that "process of feudalization" through which the king becomes the lord and patron of his people, through which the national peace becomes the king's peace, the folkland the king's land, the justice of the shire and the folk the king's justice, the national officers the king's officers, and the national assem bly — the witan — more and more the king's council.3 As this process advanced, the conception of sovereignty as orig inally embodied in the people passed out of view, — the sovereignty of the nation becomes merged in the king. The theory that the justice of the shire and the hundred was the king's justice must have preceded any attempt on the part of the crown to bestow its administration upon private indi viduals. The earliest royal grants touching the adminis tration of justice seem to have been of a fiscal character only, and were confined to the granting of such interest in the profits of justice as were immemorially due to the 1 See above, p. 130. 2 "Some of these territories were complete states themselves, like the counties palatine of Durham and of Chester. Some were completely or ganized as counties. Far the larger number, however, had only the jurisdic tion of a hundred court" — Essays in A. S. Law, p. 54. "In all these the machinery of the hundred or wapentake was strictly preserved, and the law was administered on the same principle." — Stubbs, Const. Hist, vol. i. p. 107. 8 See above, p. 177. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 209 crown.1 The effect of such grants was to transfer from the king to the landlord all the fines and profits of jurisdiction which accrued to the royal fisc, or to the ealdorman, from per sons embraced within the exempted territory, without remov ing such persons from the jurisdiction of the hundred court. The position of offenders within the immunity thus created remained unchanged ; the amount of their fines remained the same ; but that portion of the fine now passed to the lord which had previously accrued to the king.2 The word used in the charters to convey fiscal rights of this character was sdcn, a term which in its early technical meaning seems to have expressed the right only to the profits of jurisdiction, and not to jurisdiction itself.3 The technical word which next.juris- expressed the idea of jurisdiction was sacu or saca, meaning f*l™ lawsuit, litigation.4 When these terms sacu and sdcn (abbre- itself- viated into sac and soc) were used together in a royal grant, the intention to convey to the grantee, not only the profits of jurisdiction but jurisdiction itself, was clearly expressed.* At what period private law courts were first established in England is a matter difficult to determine from the existing evidence. It is maintained by some very eminent authori- Contro- ties that these private jurisdictions existed in law from a very th?timeo°f early period, — earlier in fact than that to which they can be jje J^fj1 traced in laws and charters ; " that they were so inherent in jurisdic- the land as not to require particularization " 6 in legal docu- 1 As examples, see Cod. Dipl., Nos. 2. But Mr. Henry Adams, after an 116, 227, 236, 250, 313, 1084. "The exhaustive examination of the original royal grants, so far as they affected the authorities, concludes that, as used in ordinary course of justice, seem to the Old-English period, "there is no have been double in their nature. They reason for supposing that jurisdiction were, in the first place, grants of the is implied in the word sbcn. The idea fines and pecuniary profits of jurisdic- expressed is always that of the charters. tion, which, by the old system, fell to It is the profits of justice, and not the the crown. This is entirely a fiscal justice itself. ... In point of fact, no arrangement, which only indirectly con- instance can be found, before Norman cerns the subject of jurisdiction." — times, in which sbcn means jurisdic- Essays in A. S. Law, p. 29. Professor tion." — Essays in A. S. Law, pp. 43, Stubbs seems to think that in early 44. times the proprietor would " as a rule 4 " Sac, or sacu, seems to mean litiga- satisfy himself with the profits of juris- tion." — Stubbs, Const. Hist, vol. i. p. diction, and transact the business of it 184, note 2. through the ordinary courts." — Const. 6 " When joined with sdcn in a royal Hist., vol. i. p. 185. grant, the intention is to convey to the 2 Essays in A. S. Law, p. 31. grantee placita et forisfacturas, — pleas 8 " S6cn " has generally been held to and forfeitures, justice and the profits of mean "jurisdiction." See Schmid, justice." — Essays in A. S. Law, p. 44. Gesetze, p. 654 ; Ellis, Introd., p. 273 ; 6 These are Kemble's words. Cod Stubbs, Const. Hist, vol. i. p. 184, note Dipl., i. Introd. xliv. 2io THE OLD-ENGLISH COMMONWEALTH. [Ch. ments. It has generally been conceded, however, that theSre is no conclusive evidence of their existence before the reign of Cnut.1 But this conclusion has been assailed by a brilliant critic, who maintains that the earliest positive evidence of the existence of a private law court is contained in the char ters of Eadward the Confessor, by whose sweeping grants of jurisdiction to the church they became a recognized and potent element in English judicature.2 However revolution ary the existence of these private jurisdictions, which could hardly have been established before the latter part of the Old-English period, may appear to be, it seems to be certain that they did not represent any serious departure from primi tive ideas in respect either to their organization or procedure. A grant of The usual effect of a grant of sac and soc was to confer upon uSycon- the lord the right to hold a private hundred court within his ferred own territory, in which hundred law was administered accord- right to J , ,,.,., hoidapri- ing to the usual forms of archaic procedure, and subject, like dred court, all other hundred courts, to the controlling jurisdiction of the shire.3 The leading difference in practice between a royal or national and a private hundred court was, that in the one the freemen met together to declare the law under the presi dency of a royal official ; in the other, under the presidency of the lord or his representative.4 In either event justice was administered according to the custom of the manor, and not according to the arbitrary will of the presiding officer.5 Origin of All the elements have now been examined which enter the mano- . . . ..... rial system, into the constitution of the manorial system which originates 1 This is the view of Kemble and exemptions from the hundred courts Maurer. Saxons inEng.,vol. ii. p. 397. only, and not from those of the shire, Dr. K. Maurer says : " But all the and that thus they are the basis of the more certain is it that, from the reign manorial court leet, as the mark system of Cnut, the manorial jurisdiction ap- is that of the court baron." — Stubbs, pears in its most complete develop- Const. Hist, vol. i. p. 185. ment ; innumerable charters, from his i " The machinery of the hundred and his successors' hands, grant or con- court would, however, be preserved, ex- firm the same," etc. — Krit. Ueber., ii. cept that the territorial court would be p. 58. by the great man or his representa- 2 This is the conclusion reached by tive." — Digby, Law of Real Property, Mr. Henry Adams in his invaluable p. 15. essays upon " Anglo-Saxon Courts of 6 " It mattered not so much to them Law," to which reference has so often whether the king's, the abbot's, or the been made already. Essays in A. S. lord's reeve presided over their court, Law, pp. 27-54. as it did that whoever presided should 3 " It is probable that, except in a not abuse his power." — Essays in A. very few special cases, the sac and soc S. Law, p. 54. thus granted were before the Conquest V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 211 in Old-English and not in Norman law. The word " manor " 1 is of Norman introduction, but the relation of the lord of a manor and his tenants substantially existed from the time the title to the lands of the once free community passed from the community itself and became vested in a lord.2 The tie which bound the manorial group together was the manorial court (a general name which embraced the court baron and customary court) and the court leet, which in legal theory are separate and distinct.3 In these courts of the manor were blended two kinds of jurisdiction. As the manor was only a dependent township under a new name, the court baron, which was the principal court of the manor, court inherited from the old tun-moot all of its functions, with the baro11, exception of those that had passed to the parish vestry.4 To the administrative functions, thus inherited by the manorial court from the tun-moot, was added the jurisdiction of a private hundred court, received by the lord of the manor through the usual royal grant of sac and soc.6 The civil hun dred-jurisdiction passed to the court baron, — the criminal hundred-jurisdiction to the court leet.6 After the copyhold Court leet. or customary tenure had become established, the court baron assumes a new form in dealing with tenants of that class, and in this new relation is called the customary court baron, customary or customary court.7 1 The word manerium, or manor, hundred comes to be exercised in the first appears in England in the reign of manorial courts." — Digby, Real Prop- Eadward the Confessor. — Ellis, Gen- erty, p. 53. Mr. Digby has thus ex- eral Introd. to Domesday, p. 225. pressed with admirable clearness the 2 " It has already been seen that, al- important fact that not only the crimi- though the word 'manor' is of Nor- nal but the civil jurisdiction of the man introduction, substantially the rela- manorial court was derived from the tion of lord of a manor and his tenants hundred. Bishop Stubbs has been existed before the Conquest." — Digby, criticised for his vagueness on this Real Property, p. 45. See also as to point. See North Am. Review, July, the substitution of the lord for the 1874, p. 242. The critic concludes community, Essays in A. S. Law, pp. that " undoubtedly both civil and 88-91 and 54. criminal jurisdiction came from the 8 Maine, Village-Communities. hundred, for the simple reason that 4 " The court baron is primarily the there was no other source from which successor of the ancient assembly of it could have come." the village or township." — Digby, Real 6 "The court baron exercised civil Property, p. 53 ; Stubbs, Const Hist., jurisdiction especially in matters re- vol. i. p. 91. lating to the freehold lands within 6 " Thus, either by the creation of a the manor. Criminal jurisdiction was franchise exempt from the jurisdiction amongst the functions of the court of the hundred court, or by the amal- leet, and depended on a real or sup- gamation of the hundred with the ma- posed grant from the crown." — Digby, norial courts, the jurisdiction civil and pp. 53, 54. criminal exercised by the court of the 7 Digby, Real Property, p. 256. 212 THE OLD-ENGLISH COMMONWEALTH. [Ch. From Ead gar to Wil liam (958- 1066). National unity and the feudal tendency to destroy it. Royal authority,prematurely de veloped, weakened by the counter- force of the provincialspirit. 8. The attempt has now been made to define with approxi mate correctness the form which the constitution of the con- solidated kingdom assumed during the century that inter venes between the accession of Eadgar the Peaceful and the beginning of the Norman conquest. With the accession of Eadgar, and with the final extinction of the provincial kings,1 it seemed as if the work of consolidating the incoherent mass of petty states, which the victories of Ecgberht had but loosely united, had been fully and finally accomplished. As the work of consolidation advanced, the royal power grew until it reached its highest point in the person of Eadgar.2 Each step in this advance was attended by a corresponding de crease in the power and independence of the local communi ties.3 The ancient states were reduced to the rank of shires, — the ancient shires to the rank of hundreds. But the local organizations, which thus descended in status, preserved their autonomy to the greatest practicable extent ; their ancient boundaries remained unchanged ; in their local assemblies was still carried on all forms of administrative and judicial busi ness in which the mass of the people were directly concerned.4 The national unity which thus grew up through a premature and imperfect concentration of powers around a single throne was constantly strained and weakened by the counter-force of the provincial spirit.5 The greatest defect in the system arose out of the weakness of the tie which bound the central powers of the state to the local machinery of the constitu tion. There was a want of strong organic connection be tween the king and the witan, as the representatives of the nation, and the system of provincial organization embodied in the shires, — a want which was never to be supplied until representatives from the local communities finally drew to gether in an assembly which became coordinate with the 6 "The national unity was weak: ened by the sense of provincial unity, and individual liberty was strengthened against the time when the national unity should be, not the centralization of powers, but the concentration of all organization ; a period long distant and to be reached through strange vicissi tudes. In the maintenance of provin cial courts and armies was inherent the maintenance of ancient liberty!' — * Stubbs, Const. Hist, vol. i. p. 209. 1 See above, p. 169. 2 "But with Eadgar the glory of England sank. The reign of his elder son Eadward (975-979) was short and troubled, and the young prince him self died by violence, most probably through the intrigues of an ambitious step-mother." — Freeman, Norm. Conq., vol. i. p. 45 ; Stubbs, Const. Hist, vol. i. p. 207. 8 Norm. Conq., vol. i. p. 67. 4 See above, p. 171. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 213 king's council. While this want of organic connection con tinued to exist, the cohesive power of national unity, which influence of the crown embodied, necessarily depended in a great degree sonaTchar- upon the personal character of the national chief. Under j^0' the such rulers as ^Elfred, ^Ethelstan, Eadred, and Eadgar the royal power was strong and effective ; under such a ruler as ^Ethelred it became in a moment nerveless and inefficient.1 Whenever the moment of weakness came, whenever the throne was filled by an irresolute ruler or a child, the pro vincial spirit asserted itself through the revolts of the ealdor men, the viceroys who were ever ready to win back from the king a part of the sovereign power which the local communi ties bad lost. In this form appeared in England that feudal movement which was everywhere dissolving the continental nations into a mass of loosely united states with nobles at their head, who owned but little more than a nominal alle giance to their sovereign.2 The political history of the cen- struggle tury that intervenes between Eadgar and William is the thrown history of the struggle between the power of the nation as j^'^ embodied in the crown, and the provincial power asserted by nates, the great ealdormen, who were ever striving in the direction of feudal isolation. But the ealdorman never succeeded in becoming completely independent, and his office never be came hereditary. The weakest of the successors of Alfred were strong enough to drive the greatest ealdorman into exile, and to supply his place with another.3 In England the crown proved mighty enough to preserve the national unity which it embodied against the feudal and provincial ten dency to destroy it. But in the struggle the defensive power in which of the nation was broken ; the spirit of disunion and disorder ^Vp^ which was ever assailing the foundations of the throne was of *he 0 nation was equally ready to paralyze the national arm in the presence of broken. the invader.4 At the death of Eadred in 955 the tendency 1 Norm. Conq., vol. i. p. 78. English ealdorman never succeeded in 2 "The feudal movement, which in becoming really hereditary, or inde- other lands was breaking up every na- pendent of the crown." — Green, Hist. tion into a mass of loosely-knit states Eng. People, vol. i. p. 94 ; Freeman, with nobles at their head who owned Norm. Conq., vol. i. p. 52. little save a nominal allegiance to their 4 " In the witan the king and the king, threatened to break up England church alone represented the principle itself." Green, Hist, of the English of national unity and the tendency to People, vol. i. p. 94- centralization. The ealdormen repre- 8 " Powerful as he might be, the sented an antagonistic force, the an- 214 THE OLD-ENGLISH COMMONWEALTH. [Ch. towards national disintegration proved strong enough to di- vide the realm for a time between his young nephews, Ead wig and Eadgar. And upon the death of Eadgar the struggle between the great nobles, which his firm and peaceful reign had for a time suspended, broke out afresh over the succes sion of his son Eadward, whom he had designated as his suc cessor. Eadward, whose claims were disputed by his younger brother ^Ethelred, was elected by the witan, but in the fourth year of his reign he was removed by a cruel murder from the path of his opponent.1 The last In the unhappy reign of ^thelred — whose indifference to vasbm"1' tne "rede" or counsel of the great nobles by whom he was overshadowed obtained for him the name of the "rede- less " 2 — the full force of the last and fiercest of the Danish invasions burst upon the realm which a line of hero kings had built up. Under the persistent blows of Olaf, Swegen, and Cnut, the unity of the nation was for a time dissolved ; every thing like organized national resistance came completely to an end ; the concern of each district became confined at last to its own safety. So hopeless had the condition of the Swegen. kingdom 3 become, about the time Swegen returned for his final attack in 1013, that there was "no headman who would gather forces, but each fled as best he might, and next no shire would so much as help other." 4 Driven out by Swe gen, ^Ethelred sought a refuge at the court of Duke Richard of Normandy, where he was preceded by the ^Ethelings Ead ward and Alfred, and their mother Emma, the sister of Richard, to whom ^Ethelred had been married eleven years before.5 The triumph of Swegen was, however, only momen tary. Upon his sudden death in 10 14 the witan recalled " their own born lord," who drove Cnut, the son of Swegen, to his ships, in which he sailed away to Denmark. Upon cient constitutional rights of local in- 2 Green, Hist. Eng. People, vol. i. p. dependence. How strong this principle 97. was, can best be seen in the lives of 8 The very best account of the iElfric and Eadric Streona. It made Danish conquest of England, and of the kingdom a prey to internal treach- the Danish kings in England, can be ery and foreign conquest." See re- found in Freeman's Norm. Conq., vol view of Stubbs's Const. Hist in North i. pp. 175-356. Am. Review, July, 1870, p. 238. 4 E. Chron., a. IOIO. 1 For the details of these struggles, 8 Freeman, Norm. Conq., vol. i. pp. see Freeman, Norm. Conq., vol. i. pp. 204-207, 243, 244 42, 177, 179. V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 215 Cnut's return in the following year to complete the work which Cnut. his father had begun, he found the ^Etheling Eadmund levy ing an army to resist him. But the power of the realm was still broken by internal dissensions. By the side of Eadmund stood the arch-traitor Eadric, Ealdorman of Mercia, whose desertion at a critical moment opened the way to the invader. After Wessex and Mercia had been overrun, Cnut sailed towards London, the last stronghold of the national cause. The death of ^Ethelred, which now occurred (1016), was fol lowed by a double election. All the witan outside of the faithful city joined in the election of Cnut to the vacant throne, while the citizens of London, with such of the witan as were within the walls, united in the election of Eadmund.1 The brilliant fight which the English king now waged for a few months against Cnut was terminated by his overthrow at the battle of Assandun, which was followed by a treaty partitioning the kingdom. Upon the death of Eadmund, which soon followed the making of this treaty, Cnut was Hiseiec- elected king of all England by the witan of the whole realm. 0f°au Eng-8 After the first period of cruelty which naturally attended the land- conquest had passed by, Cnut suddenly rose in moderation and wisdom to the height of the greatest of the native kings.2 His first important act of administration was the Divides the division of the kingdom into the four great governments of In'trffo™ Wessex, Mercia, Northumbria, and East Anglia, over each of earldoms- which he appointed a great earl, with the exception of Wes sex, which he retained under his own supervision.3 As soon as the work of organization was done, Cnut sent home most of his ships, retaining only a handful of household troops or "hus-carls " as a body-guard, — it being his purpose to reign, 1 "We now meet with, what is so men's minds the foreign character of common in German and so rare in his rule, and the bloodshed in which it English history, a double election to had begun." — Green, Hist. Eng. Peo- the crown. Cnut was chosen at South- pie , vol. i. p. 100. ampton, but the citizens of London, 8 " Even the great mark of his with such of the other witan as were policy, the division of England into within the city, held a counter-gem6t four great earldoms or duchies, may be — no doubt the earlier of the two in paralleled with the state of things un- date — and with one voice elected der Eadgar and his sons." — Stubbs, the ^Etheling Eadmund." — Freeman, Const. Hist, vol. i. p. 201. The four- Norm. Conq.,vol. i. p. 256, and Appen- fold division may be traced in a char- dix TT. ter of ^Ethelred, Cod. Dipt, iii. 314. 2 " His aim during twenty years See Norm. Conq., vol. i. p. 273, and seems to have been to obliterate from note 1. 2l6 THE OLD-ENGLISH COMMONWEALTH. [Ch. The cry for " Eadgar's law." Harold and Harthacnut: last divi sion of the realm be tween two acknowl- kings. Eadward the Confes sor. Godwine. not as a conqueror but as an English king, according, to the forms of the ancient constitution. He was therefore ready to hearken to the cry, which soon arose from Dane and Eng lishman alike, for " Eadgar's law," — not for a code of Ead gar's making, but for the law as it was administered in the peaceful days of one of the greatest of the native kings.1 Cnut had no new ideas of government to introduce ; his laws are nothing more than reproductions of those of Eadgar and ^Ethelred ; and his division of the kingdom into four great earldoms simply represented the old ducal system under a more definite form of organization. Upon the death of the great Dane the vast empire which he had built up, and of which England was only a part, fell to pieces, and the fragments were divided amongst his children. In England his death was followed by a disputed succession. For the settlement of the contest which arose between his sons, Harold and Harthacnut, the witan of the whole realm met at Oxford, and after great debate the national assembly decreed the division of the kingdom between the contestants. Thus for the last time was England divided between two acknowl edged kings.2 Upon the death of Harold the crown passed to Harthacnut, and upon his death the nation, wearied with the brutality and misgovernment of Cnut's worthless sons, reestablished the ancient line by the election of Eadward, the son of yEthelred and Emma, to the kingdom of his fathers. The history of the reign of Eadward the Confessor is simply a continuation of the struggles of the great nobles, whose authority completely overshadows that of the king. The feudal tendency to disruption does not prevail, simply because the great Earl Godwine, who is striving to win the crown for his own house, is strong enough to counteract it. 1 " The cry is really, as an ancient writer explains it, not for the laws which such a king enacted, but for the laws which such a king observed. It is in fact a demand for good govern ment in a. time of past or expected oppression or maladministration." — Freeman, Norm. Conq., vol. i. p. 281. The "ancient writer" referred to is William of Malmesbury, who thus con cludes his explanation : " In quarum custodiam etiam Regis Edwardi jura- tur, non quod ille statuerit, sed quod observant." — ii. § 183. 2 " Once more, but now for the last time in English history, the land had two acknowledged kings. Harold reigned to the north of the Thames and Harthacnut to the south." — Free man, Norm. Conq., vol. i. p. 326. 8 " Policy led the earl, as it led his son, rather to aim at winning England V.] CONSTITUTION OF CONSOLIDATED KINGDOM. 2lf Upon his death (1053) the earldom of the West Saxons passed to his son Harold, who for twelve years stood forth as the real master of the realm. When the death of the childless Ead ward had removed the last obstacle from his path, the mighty Harold son of Godwine was elected by the witan to the vacant throne. king.6** But it was impossible even for Harold to bind together the broken power of the kingdom with the great earldoms of Mercia and Northumbria in the hands of his two jealous riyals, Eadwine and Morkere, whose treacherous policy really opened the way to the Norman conquest.1 With the fall of Harold and with the triumph of William the royal power passed into the hands of one of the wisest and sternest of statesmen. By his inflexible policy the tendency to disrup- National tion was checked,2 the four great earldoms were abolished, tSrfcon? and a real national unity at last grew up as the old provincial gj^dh the jealousies were gradually crushed out beneath the yoke of the Norman foreign kings. Under the heel of the stranger the English conques nation finally awoke to a full sense of its oneness. itself than at breaking up England to the right arm of Harold." — Stubbs, win a mere fief in it." — Green, Hist. Const. Hist., vol. i. p. 203. Eng. People, vol. i. p. 105 ; Stubbs, 2 " When Harold, imitating the Ca- Const. Hist, vol. i. pp. 202, 203. Mr. petians, raised himself to the throne, Freeman opposes this view (see Norm, the natural consequence would seem to Conq., vol. ii. p. 32) as to the tendency have been that England should share to separation. the fate of France. To have prevented 1 " But the policy of Leofric, fol- this was the one great service which lowed out by the lukewarm patriotism William rendered to mankind." — North of Edwin and Morcar, opened the way American Review for July, 1874, p. to the Norman conquest by disabling 238. BOOK II. THE NORMAN CONQUEST. CHAPTER I. THE NORMAN DUCHY AND ITS DUKES. The king- i. The imperial realm which Charles the Great had built up, west° e and whose division he had more than once in contemplation, Franks. passed unbroken at his death into the nerveless hands of Lewis the Pious, the only son who survived him. During the irresolute reign of Lewis the dismemberment of the em pire really began ; but it was not until the third year after his death that the work of partition was finally accomplished. The death of Lewis in 840 was the signal for the final strug gle between his three sons, Lothar, Lewis, and Charles. Lo- thar at once assumed the imperial title, and Lewis and Partition of Charles combined against him. The war which ensued was of caries6 terminated in 843 by the famous Treaty of Verdun,1 by whose the Great. terms the empjre was divided into three kingdoms,— the eastern, the western, and a narrow debatable land be tween the two, known as Lotharingia. In the partition Charles received all of Gaul west of the Scheldt, the Meuse, the Saone, and Rhone, — an area of territory which roughly corresponds in geographical extent with that now embraced thr°Nds h within the llmits 0I modern France.2 The kingdom of the men. °r West Franks which thus passed to Charles, afterwards called the Bald, had been for a long time subject to the ravages of Scandinavian pirates, who had dared, even in the days of the great Charles himself, to scourge the coasts of the empire. As the awe inspired by his great name passed away, and as the divided realm grew more and more incapable of united 1 Sime, Hist of Germany, pp. 37, 2 See G. W. Kitchin's article on 3°- France, Enc. Brit, 9th ed. vol. ix. p. 534 THE NORMAN DUCHY AND ITS DUKES. 219 resistance, the inroads of the Northmen grew more serious and more frequent. As early as 841 Rouen had fallen into the hands of the pirates, and thus the whole Seine valley as far up as Paris was laid open to their assaults. In 861 Charles the Bald invested a brave adventurer, Robert the Strong, with a large district of country between Paris and the sea, which was intended to stand as the bulwark of Gaul The bui- against the invader.1 Of this march or border territory Paris SaS °f became the heart, and the descendants of Robert, as dukes ?g^st the of the French, grew famous as its defenders. In the ter rible siege which the pirates in 885-886 laid to Paris, Odo (or Eudes), the son of Robert, maintained such a heroic and successful defence that, upon the deposition of Charles the Fat in 887, he was elected king of the French, — "Rex Francorum." 2 With this event began that prolonged strug- Hundred gle between the descendants of Robert at Paris and the de- £teraurs' le b6. scendants of Charles at La6n, which, at the end of a hun- tw«m Paru dred years, terminated in the final overthrow of the Caroling an kings. Through the results of that struggle the Duke of the French grew into a king, and his duchy into a king dom.3 2. Early in the tenth century, while the great struggle be- TheDan- tween Paris and La6n was still in its infancy, the inroads of menTat6" the Northmen passed from a stage of mere piratical incur- Roueni sion to one of conquest and settlement. But of the many Scandinavian colonies which were then planted in Gaul, one only was destined to preserve a distinctive character, and to leave its impress upon the history of Europe. This was the planted by Danish colony planted in 911 by Rolf or Rollo at Rouen.4 Rolfin911 At this moment, when the history of Rolf clearly emerges from the legends which surround it, Duke Robert of Paris stands as the vassal of Charles the Simple, who then repre- 1 " At last a new power was formed struggle, see Sir Francis Palgrave's (861), chiefly with the object of defend- History of Normandy and England, ing Gaul from their attack. A large vol. ii. district was granted in fief by Charles * " This settlement, the kernel of the the Bald to Robert the Strong, as a great Norman duchy, had, I need march or border territory, to be de- hardly say, results of its own and an fended against the invading Northmen importance of its own which distin- and the rebellious Breton." — Free- guish it from every other Danish col- man, Norm. Conq., vol. i. p. 106. ony in Gaul." — Freeman, Norm. 2 Ibid., p. 106. Conq., vol. i. p. no. 8 For the history of this period of 22o THE NORMAN CONQUEST. [Ch. sented the royal house at La6n. It was with King Charles that Rolf made the Peace of Clair-on-Epte in 912; and it was from King Charles that Rolf received the grant of the district of country on both sides of the Seine which he held already by the sword.1 Rolf was admitted to baptism to gether with his followers ; and he became the vassal of King Charles, whose natural daughter was given him in marriage. Thus the history of the Norman duchy begins. The orig- Origin of inal grant to Rolf did not embrace, however, all of the later duchy°rman Normandy. The Teutonic district of Bayeux2 was not won until a few years before Rolf's death ; and it was not until the reign of his successor, William Longsword (927-943), that the limits of the duchy were extended by the acquisi tion of the districts of Avranches, and Coutances.3 The troubled reign of William, which is involved in great confu sion, and which ended with his murder on an island in the Somme in 943, was followed by that of his son Richard First coi- the Fearless, in whose time we hear of the first direct col- twee" Nor- lision between Normandy and England.4 At the end of the Ennhndnd important reign of Richard the Fearless, which lasted for more than fifty years (943-996) the duchy passed to his son, Richard the Good, who, as uncle of Eadward the Confessor and as grandfather of William the Conqueror, is closely, con nected with the causes which led directly to the Norman conquest. Richard the Good, before his death in 1026, set tled the duchy upon his eldest son Richard, and the county of Hiesmes on his second son Robert.6 Upon the death of Richard in 1028 the duchy itself passed to his brother, S*01,. Robert the Devil, the father of William the Bastard, who William the ' , Bastard in first saw the light in 1027 or 1028 at Falaise, m Teutonic 1027 or „ 1028. Bayeux." 1 But "the grant to Rolf was made liam of Malmesbury, ii. 165, 166; Wil- at the cost, not of the Frankish king at liam of Jumieges, v. 4 ; Palgrave, Nor- La6n, but of the French duke at mandy and England, vol. iii. p. 103 ! Paris." — Freeman, Norm. Conq., vol. Freeman, Norm. Conq., vol. i. p. 193, i. p. 1 1 2. and Appendix EE. 2 As to the history of the Saxons of 6 Will. Gem., v. 17 ; Norm. Conq., Bayeux, see Lappenberg, Anglo-Nor- vol. i. p. 312. man Kings, p. 2. 6 In the Mlmoires de la Sociitl des 8 Freeman, Norm. Conq., vol. i. pp. Antiquaires de Normandie (1837, vol. 1 18-123. xi. p. 179) M. Deville has attempted * As to the disputes between .Ethel- to fix the exact date in June or July, red and the Norman dukes, see Wil- 1027. I.] THE NORMAN DUCHY AND ITS DUKES. 221 3. During the centuries of Roman dominion in Gaul which Origin and precede the conquest of Clovis, the subject nation thoroughly fe!?daUsm°£ assimilated the language, the laws, the political institutions, in Gau1, of the conquering race. That wonderful system of law whose history has been so long, so unbroken, and so authen tic, and which next to the Christian religion has been the most fruitful source of the rules which have governed actual conduct throughout Western Europe,1 Rome imposed with a stern hand upon all the subjects of her empire.2 Even the Christian church, which firmly established itself in Gaul in the early days of Roman dominion, moulded its whole eccle siastical organization on the political divisions of the civil power.3 Upon the social and political substructure which thus The Ro- grew up in Gaul, and which by the end of the fifth century christi!?!! had become thoroughly Roman and Christian, was superim- ^truo" posed, as a whole, the scheme of Teutonic life which the Frank conquerors of Gaul brought with them in their blood and bone from the fatherland. The old theory that the Frankish conquests in Gaul were accomplished by independent prin cipes each fighting with a powerful comitatus at his back, and that the lands so conquered were immediately parcelled out among the comites upon terms of military service and special fidelity, seems to have passed out of view.4 The sounder conclusion now is, that such "conquests were the work of Reaichar- the nations moving in entire order ; the comitatus was not Frank con" the bond of cohesion ; the leudes were not comites; all the iuests- people were bound to be faithful to the king ; the gift of an estate by the king involved no defined obligation of service; all the nation was alike bound to military service ; the only comites were the antrustions, and these were few in number ; the basis of the Merovingian polity was not the relation of lord and vassal, but that of the subject to the sovereign." 6 1 Sir Henry Maine, Early Hist, of rest upon the authority of Montes- Inst, p. 9. quieu, is generally followed by the 2 "The barbarous conquerors of French writers. See Guizot, Civilis. Gaul and Italy were guided by notions France, vol. i. p. 311, etc. very different from those of Rome, 8 This is the view of Waitz (Deutsche who had imposed her own laws upon Verfassungsgeschichte, ii. pp. 226-262) all subjects of her empire." — Hallam, as restated by Bishop Stubbs, Const. M. A., vol. i. p. 153. Hist., vol. i. p. 251, n. 2. "The work 8 Cf. Kitchin's " France " in Enc. of Sohm (Altdeutsche Reichs- und Ge- Brit, 9th ed. vol. ix. p. 528. richtsverfassung) completes the over- 4 This old theory, which seems to throw of the old theory by reconstruct 222 THE NORMAN CONQUEST. [Ch. Frank po litical or ganization. The vilL The ; hundred. The province. The king. The nationalassembly. Feudalism par excel lence of . Frank , origin. From the " Pactus Legis Salicae," a collection of the customs of Frank law in the fifth century, can be obtained a reason ably clear idea of the system of political organization which prevailed among the Franks when the conquest of Gaul be gan.1 The unit of organization in the Frank system is the vill, the successor of the mark, which is capable of holding assemblies and making by-laws.2 The next largest division, and around which the whole system revolves, is that most im portant and enduring of all Teutonic institutions the hundred, in whose court justice is administered with the right of ap peal to the king alone.3 An aggregation of hundreds consti tutes a district or province, whose government is intrusted to a graf, an administrative officer appointed by royal authority.4 The kingly office, which • is distinctly recognized, is elective, with the right of election limited to a single royal house.5 The king, who is surrounded by a comitatus of personal fol lowers, appoints not only the grafs to rule the provinces, but the magistrates in the vills : he is the ruler of the nation, the supreme judge of appeal. The supreme council of the na tion is the whole people in arms.6 This simple system of political life and law, which the Franks brought with them into Gaul, settled down by the side of Roman life and law, and a struggle for the mastery was the natural consequence. Under these circumstances that peculiar system of legal and political ideas which is generally known as feudalism, and which is distinctly of Frank origin, finds its historical development upon the soil of Gaul, where it matures, not unaffected by Roman influ ences.7 This system can only be clearly understood when it ing in a very remarkable manner the old German system in Salian and Mero vingian times." — Const. Hist, vol. i. p. 252. 1 In this law can be found no trace of a feudal nobility or a " feudal sys tem " of any kind. Cf. Waitz (Das alte Recht der Salischen Franken, p. 103), who says, "Das Salische Gesetz keunt keinen Adel ; auch nicht die lei- seste Spur desselben findet sich." 2 Waitz, D. V. G., ii. pp. 314, 353, 354; Das Alte Recht, pp. 124, 210, 228, 253; Stubbs, Const. Hist, vol. i. p. 54- 8 " The court consists of all the fully qualified landowners, who bear, in their name of Rachimburgi, a title that shows their capacity for legal func tions." — Stubbs, Const. Hist., vol. i. p. 54. Cf. Waitz, D. V. G., i. p. 334! 11. pp. 493-495. * Savigny, R. R., i. pp. 256, 265; Sohm, Fr. R. G. Verfi, i. p. 83. 6 Waitz, Das Alte Recht, pp. 203- 214. 6 Stubbs, Const. Hist, vol. i. p. 55. 7 " The feudal system par excellence is always understood to mean that special form of feudalism which was developed on the soil of Gaul by the conquering Franks." — Sir J. H. Ram- I.] THE NORMAN DUCHY AND ITS DUKES. 223 is viewed in the two aspects in which it naturally presents itself, — as a system of land tenure, and as a system of government. Feudalism was the result of the union of two Feudalism great elements ; the feudal relation implied the union of two "{anT'™ other relations. One element consisted of the personal *enrre''r ..... r lord and relation whicji grew up between lord and vassal, lord and man; man, — a relation which involved mutual service, responsi bility, and protection,1 but which at first was not necessarily connected with the holding of land.2 By the practice of commenda- commendation the inferior put himself under the personal tion ; care of a lord, without altering his title or divesting himself of his right to his estate.3 Another element was represented the benefi- by the beneficium, which was partly of Roman, partly of "um' German, origin. A practice had arisen in the empire of granting out frontier lands to soldiers upon condition of their rendering military service in border warfare.4 But the holders of such lands stood in no personal relation to the emperor : they were not his men ; their service was only due to him as the representative of the commonwealth. This Roman custom naturally suggested to the Teutonic kings the plan of rewarding their followers out of their own estates with grants of land, — benefices or fiefs, — with a special undertaking to be faithful in consideration of the gift.6 The Frank beneficiary system6 originated in gifts of this char acter, and in the surrender of allodial estates 7 made by the owners to lay or ecclesiastical potentates, to be received back and held by them as tenants by rent or service. Through the union or interpenetration of the beneficiary system and say's "Feudalism," in Enc. Brit., 9th — Digby, Law of Real Property, p. 30. ed. vol. ix. p. 120. "Emphyteusis (i/jupirtvo-is, literally an 1 " There is, in short, the old Teu- ' implanting '), is a perpetual right in a tonic relation of the comitatus, the re- piece of land that is the property of lation of the hlaford and his thegn." another," etc. — Smith's Dictionary of — Freeman, Norm. Conq., vol. i. p. Greek and Roman Antiquities, p. 400. 62. See, also, Inst. 3, 25, 3, Cooper's 2 Digby, Hist. Law of Real Property, notes. p. 21. 6 Freeman, Norm. Conq., vol. i. p. 8 Stubbs, Const History, vol. i. p. 62. " Not a promise of definite ser- 253. vice, but a pledge to continue faithful * Palgrave, English Commonwealth, , in the conduct in consideration of vol. i. p. 354. " Probably the concep- which the reward is given." — Stubbs, tion of the tenure under which such Const. Hist, vol. i. p. 253, note 1. soldiers held their lands was borrowed 6 Waitz, D. V. G., ii. pp. 226-258. to some extent from the attributes of ' Maine, Ancient Law, p. 224, " Al- the interest in lands called emphyteusis." lods and Fiefs." 224 THE NORMAN CONQUEST. [Ch Feudalism the system of commendation, the idea of feudal obligation ofth^union became complete, — both being fostered by the growth of eficiarben immunities.1 The system which thus originated spread system with rapidly, and all other tenures were soon assimilated to it. The mendation. benefitia finally receive the name of feuda, a word which does not appear earlier than the close of the ninth century.2 As Benefices early as 877 Charles the Bald, by a clause in the Capitulary hereditary. 0I Kiersi, recognized the hereditary character of all bene fices.3 The hereditary usage, which for a long time had been growing up, had by that time no doubt become general, but by no means universal. With the Capitulary of Kiersi the growth of strictly feudal jurisprudence really begins.4 Feudalism The principle that benefices were hereditary was soon ex- of govern-"1 tended to the framework of government itself. The provin- ment. cjai magistracies, originally received by the dukes and counts through the king's appointment, and which tended from the Provincial first to become hereditary, actually became so, as soon as the defbecome hereditary character of benefices was firmly established.6 hereditary. -pne iocai sovereignty of the official magistrate, who thus grew into a ruler by hereditary right, was greatly enhanced by grants of immunity, which were nothing less than sections of the national or royal right of judicature bestowed upon Growth of the receiver of a fief. Through grants of immunity the dwellers upon feudal estates were withdrawn from the juris diction of the national or royal tribunals, and placed under that of the lord upon whose land they dwelt.6 To the right of judicature the hereditary provincial ruler gradually added all the other attributes of actual sovereignty. Each lord not only judged, taxed, and commanded the class next below him, but he exercised also the rights of private war and private coinage.7 So intense did the idea of sovereignty in the pro- 1 Waitz, D. V. G., ii. pp. 634-645; 8 See Baluze, ii. p. 179; Wo^Bene- iv. pp. 243-273. The general state- ficialwesen, p. 420. ments in the text as to the origin of the * Stubbs, Const. Hist, vol. i. p. 254, feudal system embody the conclusions and note 1. of Waitz, which are accepted both by » " The official magistracy had in Bishop Stubbs and Mr. Freeman. itself the tendency to become hered- 2 Digby, Law of Real Property, p. 32. itary, and when the benefice was recog- " Oddly enough, in modern use the nized as heritable the provincial gov- word benefice has come to be used only ernorship became so, too." — Stubbs, of ecclesiastical benefices." — Freeman, Const. Hist, vol. i. p. 255. Norm. Conq., vol. v. p. 87, note 3. See, « Waitz, D. V. G., ii. pp. 634-645- also, Maine, Ancient Law, pp. 223, » Stubbs, Const. Hist., vol. i. p. 224. 256, I.] THE NORMAN DUCHY AND ITS DUKES. 225 vincial lord become, that the doctrine was finally asserted, Sovereignty that a man who pledged his faith to a lord, who was the man ciai lords! of the king, was the man of that lord only, and not the man of the king himself.1 The process through which the pro vincial potentates gradually drew to themselves all of the real attributes of sovereignty ended at last in the only result possible, — the complete attenuation of the central power. In theory the king remains the supreme lord, mediate or immediate, of every landowner, and to him great duties are due ; but the royal power is reduced in fact to a mere The central shadow.2 With the destructive effects of Frank feudalism reduced7 upon all central or national authority, William, as Duke of to a mere Normans, became thoroughly familiar.3 And as we shall see hereafter, he turned such knowledge to a good account. As king of the English, William was careful to devise such anti- feudal legislation as would render the disruptive tendencies of feudalism in England impossible. 4. If any records ever existed touching the details of the internal or- settlement made by Rolf and his followers at Rouen, or o^teNo"- touching the legal and political institutions which they man duchy- planted in Gaul, they have utterly perished. There are no chronicles, no charters, to guide us ; of the internal organi zation of the Norman duchy in the early days of its history we know absolutely nothing. It seems, however, to be clear that the express condition upon which the grant to Rolf was made was, that the new settlers should become members of the Christian and Frankish commonwealth of which Charles Dukes was overlord.4 And it also seems to be clear that the Nor- probably man dukes from the very beginning ruled, not as absolute ^advice sovereigns, but with the advice of some kind of an assembly °[ or council of great men.6 There is no reason to believe that nates.' 1 Cf. Freeman, Norm. Conq., vol. iv. duchy. As to the battle of Val-es- p. 472, and note 1, in which reference dunes, see Freeman, Norm. Conq., vol. is made to the refusal, at a somewhat ii. pp. 165, 166. later time, of John of Joinville, as the * "The Peace of Clair-on-Epte (912) man of the Count of Champagne, to was the duplicate of the Peace of Wed- take any oath to St. Lewis ; citing Mi- more. ... A definite district was ceded moires, p. 37, ed. Michel, Paris, 1858. to Rolf, fpr which he became the king's 2 For a summing up of the results of vassal ; he was admitted to baptism, feudalism in France, see Stubbs, Const, and received the king's natural daugh- Hist, vol. i. pp. 3, 4. ter in marriage. — Freeman, Norm. 8 Not until William had crushed a Conq., vol. i. p. 112. great revolt of his barons could he 6 Stubbs, Const. Hist, vol. i. p. 249, consider himself master in his own citing Norm. Conq., vol. iii. p. 289 seq. a council mag- 226 THE NORMAN CONQUEST. [Ch. Duchy becomes French, Christian, and feudal. Relationsbetween the duke and baronage. Normandy and Eng land. there was any such systematic extermination or expulsion of the native race as attended the English conquest of Britain. Upon the contrary, it appears that the original Gallic popula tion, which was no doubt deeply intermixed with Roman and Frankish elements, gradually sank down into a dependent yet spirited peasantry, which sometimes dared to revolt against their Norman masters.1 In the reign of the third- duke, Richard the Fearless, the duchy, after fluctuating in its allegiance between the king at Ladn and the duke at Paris, permanently attached itself to the latter ; and from that time the duchy rapidly grew more French, more Chris tian, and more feudal.2 It is in the reign of Richard that we can first trace the beginnings of the Norman nobility whose members derive their status as nobles either from ancient Norse descent from the companions of Rolf, or through con nections, legitimate or illegitimate, with the ducal house.3 The baronage which thus grew up held their lands of the duke upon terms of feudal obligation, and by his strong hand alone were they held in subjection.4 Over this turbulent baronage William the Bastard, while yet a minor, was called to rule ; and his first important victory was won in crushing a widespread revolt headed by some of the greatest nobles in his own dukedom. 5. The first direct intercourse between Normandy and England occurred in the reign of ^Ethelred, who became in volved in a quarrel with the third Norman duke, Richard the Fearless, on account of the friendly reception given in Nor- ,man ports to the Danish pirates who were then plundering the coasts of England.5 Through the mediation of the pope the quarrel was amicably adjusted, and an agreement entered Palgrave holds a contrary view ; he re gards William, the son of Rollo, as absolute. " His was the law, his was the state, his was the church." "He spake the law, he gave the law, he made the law, he executed the law." — Nor mandy and England, vol. ii. pp. 258, 259. 1 As to the peasant revolt (997), see Freeman, Norm. Conq., vol. i. pp. 115, 172, 173- 2 Ibid., pp. 149, 169. _ 8 " The Norman counts were at the time of the Conquest, in most cases, younger branches of the ducal house, or closely connected with it by affinity. — Stubbs, Const. Hist, vol. i. p. 249, note 3. * Richard the Fearless is regarded as the founder of Norman feudalism. — Normandy and England, vol. ii. p. 534' See, also, Waitz, GSttingische Gelehrte Anzeigen, Nachrichten, February 14, 1866, pp. 95, 96. 6 Freeman, Norman Conq., vol. i. p. 192, and Appendix EE, in which is cited William of Malmesbury, ii. 165, 166. Cf. Palgrave, Normandy and England, vol. iii. p. 103 ; Lappenberg, vol. ii. p. 154, Thorpe. I.] THE NORMAN DUCHY AND ITS DUKES. 227' into between the two princes that neither should receive the enemies of the other.1 Nine years later ^Ethelred became involved in a dispute, probably in open war, with Richard the Good, the successor of Richard the Fearless, and again the quarrel ended in a friendly settlement. The peace which was then made was confirmed by a marriage between ^Ethelred Marriage of and Emma,2 the duke's sister ; and out of that marriage grew ^Emma. the fatal kinship between the royal house of Alfred and the ducal house of Rolf which led directly to the Norman con quest. " With that marriage began the settlement of Nor mans in England, their admission to English offices and estates, their general influence in English affairs, everything in short that paved the way for the actual Conquest."3 When, in 1013-14, ^Ethelred was driven from the throne by Swegen, he sought a refuge at the court of his Norman brother-in-law, where he was preceded by Emma, who had gone thither with the young ^Ethelings, ^Elfred and Ead ward.4 After the death of ^Ethelred, Emma, at the solicita- After mth- tation of the youthful king Cnut, returned to England and death* became his wife,5 and thus quietly resumed her old place as riTdc™?*' Lady of the English. The issue of the marriage of Emma Harthacnut with Cnut was Harthacnut, the last of the Danish kings of ^| j„sa™f of England. After the marriage of Emma with Cnut, her two riase- sons by ^Ethelred still found an asylum at the court of their Norman kinsman. ^Elfred perished miserably in an attempt upon the English "crown in 1036 ; while Eadward remained in Normandy until 1041, when he was recalled to England by his Danish half-brother Harthacnut.6 Upon his death in Election of the following year, the nation, wearied with the misgovern- ^corfes- ment of Cnut's worthless sons, resolved to restore the line of ™r> t Cerdic in the person of Eadward : " Before the king buried son by were, all folk chose Eadward to king at London." 7 With the election of Eadward the Norman 1 invasion really began. The new king was a man of mature years ; he was the son 1 Will. Malmes., ii. 166. tion is distinctly asserted by the Enco- 2 E. Chron., a. 1002. miast, p. 39. William of Malmesbury, 8 Freeman, Norm. Conq., vol. i. p. however (ii. 188), seems to imply that 204. Eadward came uninvited." — Norm. 4 E. Chron., a. 1013. Conq., vol. i. p. 349, note 5. 6 Will. Malmes., ii. 180 ; Norm. 7 The coronation of Eadward is not Conq., vol. i. p. 275, Appendix BBB. recorded until the next year. See E. 6 E. Chron., a. 1041. "The invita- Chron.,*.. 1043; Flor. Wig., 1043. iEthelred. 228 THE NORMAN CONQUEST. [Ch. of a Norman mother ; he had passed nearly his whole life in Normandy ; his speech was French, and his heart was far Growth of more French than English. Into his English realm Ead- influTnce in ward was followed by a host of friends from the land of his England. exlie . tnev swarmed about his person ; they became domi nant in his councils ; and they were enriched with English estates, upon which they soon began to rear frowning castles.1 In the government of the church the strangers soon became as dominant as in the government of the state ; bishopric after bishopric passed into foreign hands, until at last a Nor man prelate was elevated to the primatial see of Augustine.2 The alarming influence of the Norman party, which had now reached its height, aroused a great national revolt, which was led by Godwine, the mighty earl of the West Saxons. But in the very midst of the struggle the national party dropped away from Godwine, and he and his sons were declared out laws and banished from the kingdom. At this moment, William's while the realm lay at the feet of the strangers, William the England. *" Bastard first set foot upon the shores of England.3 He now came (1052) with great pomp to visit his cousin Eadward, and he went away loaded with gifts and honors. It is more than likely that it was during this visit that Eadward made to William the famous promise touching the succession. If Eadward's such a promise was ever made, if Eadward ever pledged him- promise to self to make William his heir, such a promise could not have its'consti--" been °f anv great constitutional value. The right to dispose tutionai 0f the English crown was vested alone in the national assem- bly.4 Any recommendation which Eadward might undertake to make in favor of William, the witan were only bound to consider ; they were then at perfect liberty either to accept or reject it. But slight as the value of such a promise may have been, it was sufficient, in connection with his kinship with Eadward, to enable William to construct out of it at least a plausible claim to the succession. He was ingenious 1 "In all this the seeds of the Con- 2 In 1051 Robert of Jumie'ges was quest were sowing, or rather, as I once appointed archbishop of Canterbury. — before put it, it is now that the Con- E. Chron., a. 1051. quest actually begins. The reign of 8 Chron. Wig., 1052 ; Norman Con- Eadward is a period of struggle be- quest, vol. ii. p. 105. tween natives and foreigners for do- * As to the constitutional value of minion in England." — Norm. Conq., the alleged promise, see Freeman, vol. ii. p. 19. Norm. Conq., vol. ii. pp. 195-198. I.] THE NORMAN DUCHY AND ITS DUKES. 229 enough to persuade a large part of Europe that he was the true heir of Eadward, and, what was more to the purpose, he proved himself strong enough to maintain his argument upon the field of battle. William's visit was followed by a great National national reaction ; the next year witnessed the complete against1 overthrow of the Norman party, and the return of Godwine mfl™n"e. and his sons to power.1 The king became reconciled to God wine, and his house was fully restored to its former rank and influence.2 In the midst of his triumph (1053) Godwine died, and the earldom of the West Saxons passed to his great son Harold, who, for the next thirteen years, became the ac tual ruler of the English nation.3 Upon the death of the Election of childless Eadward, Harold became a candidate for the royal w^Ch ' office, to which he was hurriedly but unanimously elected by refusecTto the witan of the whole realm.4 This solemn and valid elec- recognize. tion William refused to recognize ; he denounced it as hasty and illegal. William did not claim that he had an absolute right to the crown, but he did claim the sole right to present himself as a candidate to the witan as the chosen heir of the Confessor.5 And he further claimed that Harold had bound himself by a solemn oath not to oppose but to uphold his title.6 To win for himself the right of presentation to the witan, and to execute his vengeance on Harold for his per jury, were the ostensible objects of William's invasion. 6. Eadward the Confessor died on the 5th January, 1066, ™n^™|sof and on the same day the witan elected Harold to be king. England. On the next day 7 Eadward was entombed in the West Min ster, the freshly hallowed church of his own rearing; and on the same day and in the same place the king-elect was crowned and anointed, not by Stigand, the primate of all England, but by Ealdred, primate of Northumberland. The 1 E. Chron., a. 1052. regale culmen electus." — Flor. Wig, 2 "To Godwine was his earldom 1066. clean given back, as full and free as he B Freeman, Norm. Conq., vol. iii. p. first possessed it ; and in like manner 350. to his sons all that they had before 6 See Lectures on the Hist, of Eng., possessed, and to his wife and daughter Guest (London, 1879), p. 132. all as full and as free as they had be- 7 " On that day began that long se- fore possessed." — E. Chron., a. 1052. ries of national ceremonies which has 3 Upon the accession of Harold to gone on uninterruptedly to our own the earldom of the West Saxons, see time, and which has made the Abbey Freeman, Norm. Conq., vol. ii. pp. 235, of Saint Peter the hearth and Pryta- 2,5# neion of the English nation." — Norm. 4 '• A totius Angliae primatibus ad Conq., vol. iii. p. 17. 230 THE NORMAN CONQUEST. [Ch. Harold retains the West Saxon earldom. Eadwine and Mor kere ; the earldoms of Mercia and Northumberland. Norwegian invasion. The fight at Stam- fordbridge. Williamlands at Pevensey. Treachery of Eadwine and Mor kere dis ables Har old. elevation of Harold to the kingdom made no vacancy, how ever, in the great earldom of the West Saxons. Harold still retained in his own hands the immediate control of the south of England, while he continued to intrust to Eadwine and Morkere, sons of the rival house of Leofric, the great north ern earldoms of Mercia and Northumberland. In the gov ernment of the latter Morkere had been preceded by Harold's brother, Tostig, whose administration had been so oppressive that, in the year preceding Eadward's death, he was deposed and outlawed, and Morkere, the younger brother of Eadwine of Mercia, elected in his stead.1 When in the ninth month of Harold's reign the storm of the Norman conquest burst upon the south of England, Harold was absent in the north ern earldoms aiding Eadwine and Morkere to repel a great Norwegian invasion led by Harold Hardrada, who had been solicited to make the attack by the exiled traitor Tostig.2 Harold's presence in the north was at once followed by the great fight at Stamfordbridge, in which the Norwegians were routed, and Harold Hardrada and Tostig left dead upon the field. In the midst of his triumph Harold was startled by the announcement that William had landed at Pevensey,3 on the coast of Sussex. After a council had been held, Harold at once marched towards London, after having bidden Ead wine and Morkere to follow him with the whole force of their earldoms. But the treacherous sons of ./Elfgar held back from their duty ; the " main forces of Northumberland and northwestern Mercia came not to King Harold's muster."4 In the midst of the great crisis the cohesive power of na tional unity was weakened as usual by the counter-force of the provincial spirit. The treacherous policy of Eadwine and Morkere, by disabling the right arm of Harold, opened the way to the Norman conquest.5 Harold might not have lost the great fight on Senlac had he been heartily sustained by the united power of the whole realm of England. Wil- 1 " All the thegns in Yorkshire and in Northumberland gathered them selves together and outlawed their earl, Tostig, . . . and sent after Mor kere, the son of ^Elfgar the earl, and chose him to be their earl." — Chron. Wig. Petrib., 1065; Norm. Conq., vol. ii. p. 322. 2 Guest, Lectures on the Hist, of Eng., P- »37- 8 "Venit ad PevenesK." — Bayeux Tapestry, pi. 9. * Freeman, Norman Conq., vol. iii. p. 282. 6 Stubbs, Const. History, vol. i. p. 203. I.] THE NORMAN DUCHY AND ITS DUKES. 231 liam's victory, crushing as it was, did not put him in actual possession, however, of more than a fraction of the kingdom ; neither did it bring to an end all organized national resist ance. But by the death of Harold the English nation had been deprived of the only leader under whom victory was possible. For the want of a more available candidate, the Election of witan assembled in London now chose the almost imbecile ^tergHar- young ^Etheling Eadgar — the grandson of Eadmund Ironside °ld'sfa11- and the only survivor of the old line — to be king.1 This hope less expedient imparted no strength, of course, to the national cause, and with the Norman duke's advance on London the spirit of further resistance came to an end. When William Crown ,,_.,, ,, , , . offered to reached Berkhampstead he was met by a great deputation, William; headed by Eadgar, and composed of the chief men of Eng land, temporal and spiritual, who came to offer him the crown.2 So far William had not claimed to be king ; he only claimed the sole right to become king. And even when the crown was offered him by the deputation of great men, who certainly had the right to represent the south of Eng land, he pretended to hesitate ; and not until he had dis cussed the matter in a council of his own followers did he express to the English embassy a decided willingness to ac cept it..8 As soon as that conclusion was reached, the corona tion of the king-elect was fixed to take place at London, in his election the West Minster, on the Feast of the Nativity, which was tion.c°r °"'' fast approaching. In the church of Eadward, on Christmas Day, amid the shouts of " Yea, yea," from his new English subjects,4 William, after taking the oaths usually administered to an English king, was crowned and anointed by the hands of the Northumbrian prelate who, less than a year before, had poured the consecrating oil upon the head of the mighty chief of the house of Godwine. Thus with every outward The duke show of legality William, duke of the Normans, was elected, mans be- crowned, and anointed king of the English. ofX En| 1 Flor. Wig., 1066; Ord. Vit, 502 D. * Green, Hist of the English People, 2 Chron. Wig., 1066. vol. i. p. 115. 8 Upon this whole subject, see Norm. Conq., vol. iii. pp. 366-369. CHAPTER II. THE NORMAN KINGS OF ENGLAND. The double t. The great outward show of legality under which Wil- William's liam endeavored to conceal the fact that he was a foreign * ings ip ' conqueror, " a king only by the edge of the sword," was but a part of a deliberate policy which has marked him as one of the foremost statesmen of the world. By claiming to be the heir of Eadward, he connected himself directly with the line of national kings that had gone before him ; by insisting upon his elevation to the royal office by the choice of the witan he obtained the highest confirmation of his title which could be drawn from the ancient constitution ; by seeking consecration at the hands of an English prelate, and by taking the usual coronation oaths, he complied at once with every prerequisite to full kingship prescribed by ancient cus tom and by the national church. By means of these outward forms William clearly proclaimed the fact, not only to the conquered English but to his Norman followers, that he its national would rule in his new realm, not as a mere feudal conqueror ^aspect ; . , ^ but as a national king.1 It was no part of William's plan to remain simply a military chieftain, wholly dependent upon the jealous and exacting host by whose aid the Conquest had been accomplished. With the prescience of a statesman, he claimed to be the ruler of a nation in which Normans and Englishmen were alike his subjects ; and as such a ruler he claimed the possession of every royal right which had ever belonged to any of the kings who had gone before him. The sum of royal power which thus accrued to William as a na tional king was augmented by the addition of every feudal right2 which tended to increase the royal revenue and to strengthen the royal authority, while every principle was 1 " In that claim he saw not only it. Accordingly, immediately after the the justification of the Conquest in the battle of Hastings he proceeded to seek eyes of the church, but his great safe- the national recognition." — Stubbs, guard against the jealous and aggres- vol. i. p. 258. sive host by whose aid he. had realized 2 " To his elective right he added -its feudal • aspect. THE NORMAN KINGS OF ENGLAND. 233 carefully eliminated which tended to promote the disruptive tendencies of feudal institutions. As king of the English, William was careful to preserve the law of the land as it stood in the days of King Eadward,1 and along with it those ancient assemblies of the shire and the hundred in which that law had been immemorially administered.2 Under the The authority of the old system, thus carefully preserved, the new revenre. king rigorously exacted every kind of revenue, ordinary and extraordinary, which had ever belonged to any of his English predecessors. As feudal lord, William firmly established the doctrine that the king was the supreme landowner, and that all land was held by grant from him. In his time the folk- land became terra regis? All landowners thus became ten- The feudal ants of the king, and under William's successors the feudal revenue- revenue which accrued to the crown from this source was enormous. It was the policy of William to introduce but one side of feudalism,4 — to accept it as a system of tenure, but not as a system of government. And in thus drawing William's to the crown all the available benefits of the system, he was, p^&y"dal careful to guard against its disruptive tendencies, first, by; preventing the accumulation in the hands of any of the great] feudatories of any considerable number of contiguous es-j tates ; 5 second, by requiring from all freeholders an oath \ which bound them directly to the king by the double tie of i homage and allegiance.6 To every landowner the Conqueror ¦ the right of conquest. It is the way in 8 " The reign of the Conqueror which William grasped and employed finally changed the ancient folkland this double power that marks the origi- into terra regis. The doctrine was nality of his political genius, for the established that the king was the su- system of government which he de- preme landlord, and that all land was vised was in fact the result of this held by his grant." — Freeman, vol. v. double origin of his rule. It repre- p. 256. sented neither the purely feudal system 4 Ibid., vol. v. pp. 255-257. of the Continent nor the system of 6 Thorpe's Lappenberg, vol. iii.- p. the older English royalty : more truly 201 ; Gneist, Self-government, vol. i. perhaps it may be said to have repre- pp. 66, 67. sented both. As the conqueror of Eng- 6 In the gem6t of Salisbury all the land, William developed the military landowners of England who were worth organization of feudalism so far as was summoning, "whose men soever they necessary for the secure possession of were, all bowed to him and were his his conquests." — Green, Hist. Eng. men, and swore to him faithful oaths People, vol. i. p. 127. that they would be faithful to him 1 With such additions as he himself against all other men." — E. Chron., made for the benefit of the English. 1086. As to the anti-feudal characters Statutes of William, § 7. of this oath, see Stubbs, vol. i. pp. 265, 1 2 " Requiratur hundredus et comita- 266, and notes ; Freeman, Norm. Conq., I tus, sicut antecessores nostri statue- vol. iv. p. 471 ; Gneist, Verwalt. vol. i. I runt." — Ibid., § 8. p. 116. 234 THE N0RMAN CONQUEST. [Ch. stood in the double relation of landlord and sovereign. "After the coming of William, a king of the English re mained all that he was before, and he became something else as well. He kept all his old powers, and he gained some new ones. He became universal landlord, but in so doing he did not cease to be universal ruler. At once king and lord, he had two strings to his bow at every Critical moment ; if one character failed him, he had the other to fall back he strength- upon." x During William's reign the royal power was greatly royaiau- strengthened and consolidated ; the tendency to provincial thority and isolation was crushed out ; the four great earldoms were conson- ° dates the abolished ; and the whole realm at last united in one consoli dated kingdom which was never afterwards to be divided. Gradual 2. It is a mistake to suppose that William's great victory the'con- near Hastings, crushing as it was, put him at once in pos- quest. session of the whole realm of England. As the immediate result of the battle he only gained the actual possession of a few of the southern shires ; but, during the month and a half that intervened between his victory and his crowning at Submission Westminster, he received the submission of all southeastern eastern England east of a line roughly extended from the Wash to England. tne Southampton2 Water. Although William was not now opposed by any rival king, the greater part of the realm held quietly aloof from him, and not until several campaigns had been fought and won was the conquest of northern and west- ofThe^vest ern England finally accomplished. The conquest of the west, and north. whicn was first undertaken, practically ended with the fall of Exeter in 1068 ; and the first conquest of the north, which was provoked by the risings of Eadwine and Morkere, ended with the submission of York before the end of the same year. But the final and terrible conquest of the north, which has left an indelible stain upon the name of William, did not be gin until 1069. The signal for the final struggle was the invasion of Swegen, king of Denmark, whose arrival in the Humber was followed by a general uprising not only in northern but in all western and southwestern England. After this revolt had been put down piecemeal, William, 1 Freeman, Norm. Conq., vol. v. p. military possession only of certain of 262. the southern and eastern shires." — 2 Green, Hist, of the English People, Norm. Conq., vol. iv. p. 1. vol. i. p. 116. "He had indeed direct II.] THE NORMAN KINGS OF ENGLAND. 235 who had sworn vengeance against the north, entered upon Devasta te deliberate and systematic harrying of the whole terri- trtthit* tory between the Tyne and the Humber. Seventeen vears ^corded in ,..,,_ J Domesday. afterwards, when the great Survey was taken, the record of the devastation was made by entries of "waste," "waste," " waste," which are attached through page after page to the Yorkshire lordships ; and sixty years afterwards William of Malmesbury wrote that the country was still lying waste, and "if any ancient inhabitant remains he knows it no longer."1 When this terrible work of policy and vengeance had been fully carried out William marched westward upon Chester, whose submission early in 1070 practically ended the Nor- conquest man conquest. William was now full king over all of Eng- ""^unta land in fact as well as in name. i°7°- 3. When the fact is borne in mind that the advance of The work the Conquest was gradual, it becomes more easy to under- tf0n°andCa" stand the manner in which William dealt with the land which, ^grant. district by district, became subject to his authority. The theory upon which the Conqueror claimed title to the lands of the conquered was, that he, the heir of Eadward, upon coming to take possession of his kingdom, had been opposed either actively or passively by the whole nation, who, by the customary laws of both England and Normandy, had thus become involved in the guilt of treason.2 Under the strict Theory letter of the law, the lands of all were forfeited to the king, JJ£fch Eng. but the application of this principle William undertook to lishlands A x A L were for- regulate according to the circumstances of individual cases, felted. While there can be no doubt that through the enforcement of this principle the bulk of all the great estates passed dur ing William's reign into Norman hands, it seems to be equally clear that the main body of the people, the actual occupants Main body of the soil, remained, as a general rule, undisturbed in their pieunauT possessions.3 The work of confiscation seems to have begun ^redo". immediately after the great fight at Hastings, and the evi- sessions. 1 For a full and graphic account of 8 " The actual amount of disposses- " The Conquest of Western and North- sion was no doubt greatest in the em England," see Freeman, Norm, higher ranks ; the smaller owners may Conq., vol. iv. ch. xviii. See, also, Green, to a large extent have remained in a Hist. Eng. People, vol. i. pp. no-118. mediatised position on their estates," 2 Freeman, Norm. Conq., vol. iv. p. etc. — Stubbs, Const. Hist., vol. i. p. 14, vol. v. p. 12 ; Digby, Law of Real 260. Property, pp. 34, 35- 236 THE NORMAN CONQUEST. [Ch. Folkland becomesterra regis. Estates of great men generallyforfeited. No new kind of ten ure syste matically introduced. dence tends to show that the lands of all who actually took part in the battle were held to be forfeited. In this way a great fund was at once placed at the Conqueror's disposal out of which to enrich his followers. William was himself en riched by becoming the possessor of the private estates of his royal predecessors, and by all of the folkland becoming terra regis} In some instances express mention is made of men's buying back their lands from the king, and from the joint witness of the Chronicle and Domesday it appears that at some time soon after the coronation of William the Eng lish as a body redeemed their lands from him.2 Thus as the Conquest advanced William persistently enforced with greater or less strictness his scheme of confiscation. In dealing with the estates of the great men, living or dead, who had actually opposed him, or who held out against him, the rule seems to have been to strictly enforce the forfeiture ; but in the case of those who were willing to acknowledge him the rule seems to have been for the king to receive a surrender, and then to make a regrant upon the payment of a moneyed compensa tion. There is no evidence, however, going to show that William directly or systematically introduced any new kind of tenure ; the grantee of William, whether an old owner or a new one, held his land as it had been held in the days of King Eadward.3 There is nothing in Domesday which estab lishes the existence of military tenures as they were after wards understood.4 The powerful followers of the Conqueror who received grants of large estates received them no doubt as his tenants, bound to render military service to him. And other landholders who received their lands back from the king probably stood to him in substantially the same relation. It is not likely, however, that William's grants were made upon a definite pledge to provide a certain contingent of knights 1 Digby, Law of Real Property, p. 34- 2 " And he came to Westminster, and Archbishop Ealdred consecrated him king, and men paid him tribute, and delivered him hostages, and after wards bought their land'' — E. Chron., 1066. Domesday (ii. 360) tells of a time when the English as a body re deemed their lands. See Freeman, Norm. Conq., vol. iv. p. 16; Stubbs, Const. Hist, vol. i. p. 259. " Freeman, Norm. Conq., vol. v. p. 249. " Domesday bears abundant traces of the growth of the idea of tenure, though we still hear of the men (homi nes) of a lord rather than of his ten ants. The land is everywhere spoken of as having been held of King Ed ward or some other lord." — Digby, Law of Real Property, p. 38. 4 This fact is clearly pointed out by Sir Francis Palgrave in his Normandy and England, vol. iii. p. 609 etseq. II.] THE NORMAN KINGS OF ENGLAND. 237 for the king's service. The military service due from the ten- No immedi- ant was probably measured at first by the old custom which j^e^6 required the equipment of one fully armed man for every five tu.r? o£ hides of land.1 Under William as under Eadward, military service. service is due, not to the lord as lord, but to the state and to the king as its head.2 4. The origin and growth of the feudal elements contained Elements in the Old-English system have been already explained. In ^im?1 that system the relation of lord and man — a relation at first £ed the clergy as a spiritual organization, when assembled in convocation, possessed the power to legislate for the general government of the church, subject to such restrictions/limita tions, or warnings as the king or the parliament might from time to time impose. Through the vicissitudes of the Refor mation the English church passed with its legislative power Mr. Glad- substantially unimpaired. In the words of Mr. Gladstone: stone's « -j^e Reformation statutes did not leave the convocation in view. the same condition relatively to the crown as the parliament. It was under more control, but its inherent and independent power was thereby more directly recognized. The king was not head of convocation ; it was not merely his council. The archbishop was its head, and summoned and prorogued it. It was not power, but leave, that this body had to seek from the crown to make canons. A canon without the royal assent was already a canon, though without the force of law ; but a bill which has passed the two houses is without a force of any kind until that assent is given. Again, the royal assent is given to canons in the gross, to bills one by one, which well illustrates the difference between the control in the one case and the actuating and moving power in the other." 3 Election of As the administration of the vast powers which were vested bishops. jn tne separate courts and councils of the mediaeval church was substantially controlled by the bishops themselves, who also possessed no inconsiderable weight in the councils of the king, it is by no means strange that the right of appointment to the episcopal office should have become the subject of ear nest contention between the crown, the papacy, and the clergy of the national church. In the early days of Christianity 1 Com., bk. i. p. 279. integral part of the system of convoca- 2 As early as 1255 proctors of the tion." He considers that the rule for parochial clergy appear in parliament representation in convocation was first at Westminster. — Ann. Burton, p. 360. definitely fixed by the action of Arch- See Hody's Hist, of Convocations, p. bishop Peckham in 1283. — Const. Hist, 345; Hallam, M. A., vol. iii. p. 126. vol. ii. p. 197. Bishop Stubbs does not think it clear, 8 See Gladstone on the Royal Su- however, that the representative prin- premacy, p. 31. ciple was at that time regarded " as an IV.] THE WINNING OF THE CHARTERS. 345 the right to elect a bishop was, as a general rule, jointly vested in the clergy and people belonging to the city or dio cese over which he was called to rule. By degrees the laity were excluded from any real participation, first in the Greek and finally in the Western church.1 The right to join in the Origin of election which was thus withdrawn from the people was not c apei vested in the general body of the diocesan clergy, but in the council of priests and deacons, which originally stood in the closest relation to the bishop, constituting what came to be known as the chapter of the cathedral church.2 By the twelfth century these little senates or councils annexed to the cathedral churches had succeeded in winning for themselves throughout Christendom a monopoly of the right to make episcopal appointments.3 In the English kingdom during the Election of entire pre-Norman period the bishops were elected by the bishops in clergy and the laity acting conjointly in the national assembly, ,heearIy — it being the joint right of the king and the witan to ap point prelates to vacant sees.4 During the latter part of this period, however, instances occur of the assertion of the right of capitular election. In the case of ^Elfric and Robert in 1050 it is clear that the monks and canons of a cathedral church made an election in canonical form, and then peti tioned the king and his witan to confer the bishopric upon their nominee.5 Although at the time of the Conquest the tendency was in another direction, it suited the first two Nor man kings to cling to the earlier custom. Not until the reign of Henry I. did the right to elect the bishops finally pass from the king and the witan to the chapters of the cathedral churches.6 The right of election which thus passed to the 1 Marca, De Concordantia, etc., 1. vi. rule to be this : " The king and the wi- c. 2 ; Schmidt, t. iv. p. 173 ; Hallam, tan had power to appoint prelates to M. A., vol. ii. p. 172 and notes. The vacant sees." — Saxons in Eng., vol. ii. clergy no doubt took the leading part p. 221. As to the actual practice in in the election, but the ratification of particular cases, see Stubbs, Const. the people was necessary to render it Hist, vol. i. p. 134. valid. See Father Paul on Benefices, 6 As to the history of this case, see c. 7. Freeman, Norm. Conq., vol. ii. p. 386 2 As to the origin of chapters, see (Appendix I). In this appendix the Rev. Canon Venable's article on " Ca- - whole question of the appointment of thedrals," in Euc. Brit, vol. v. p. 227, bishops and abbots in the early days is 9th ed. fully discussed. 8 Fr. Paul's treatise on Benefices, 6 "The struggle between Henry I. u. 24; Middle Ages, vol. ii. p. 183 and and Anselm on the question of investi- note 2. ture terminated in a compromise which 4 Kemble's sixth canon states the placed the election in the hands of the 346 THE NORMAN CONQUEST. [Ch. Their elec tion after the Con quest. The ques tion of in vestiture. Concordatof Worms, 1 1 22. chapters was coupled with a serious limitation in favor of the royal authority. It was required that the choice of the chap ter should be preceded by the royal license, and that it should be followed by the presentment of the bishop-elect for the royal approval. The necessity for the royal license preserved in substance to the crown the right of nomination. Under the old system the crown possessed the right to press its nominee upon the witan ; under the new, to press its nominee upon the chapter. But the bishop-elect, even after his due appointment by the chapter, and after the giving of the royal assent to his consecration, could not enter into the possession of the temporalities attached to his office without the act of the king as his feudal lord and sovereign. As the process of feudalization advanced, the estates of a bishop or abbot came to be looked upon as a fief or benefice held of the king by the tenure of military service.1 It therefore became neces sary under feudal ideas that the bishop-elect should be in vested (from " vestire," to put in possession) by his lord with the feudal estates annexed to his office. Upon the death of a bishop the ring and staff, the symbols of episcopal jurisdic tion, were delivered to the king by a deputation from the chapter. When the vacancy was filled, these symbols were returned to the new incumbent as evidence of the fact that he had been fully invested by the king with his temporal pos sessions. Such was the general rule of investiture which prevailed throughout Christendom down to the famous con troversy between the pope and the emperor which was finally settled by the concordat of Worms (1122), wherein it was agreed, " on the one hand, that the emperor should surrender to the church the right of investiture by ring and staff, grant to the clergy throughout the empire the right to free election, and restore the possessions and feudal sovereignties which had been seized during the wars in his father's time and his own ; while on the other hand it was conceded by the pope that all elections of bishops and abbots should take place in the presence of the emperor or his commissioners, and that every bishop-elect in Germany should receive, by the touch of the sceptre, all the temporal rights, principalities, and posses- chapters of the cathedrals," etc. • Stubbs, Const. Hist, vol. iii. p. 295. 1 See above, p. 271. IV.] THE WINNING OF THE CHARTERS. 347 sions of the see, excepting those which were held immediately of Rome." 2 The continental quarrel upon the subject of inves titures which was thus settled by the concordat of Worms was fought out in England between Anselm and Henry I. Anseimand Under the influence of the decrees of the Lateran Council Henry L (1099) Anselm felt obliged to refuse to do homage to Henry, or to consecrate the bishops whom Henry had invested ac cording to the ancient custom. After years of serious con troversy a compromise was reached in 11 07 wherein it was agreed that the king should give up the right of investiture by the ring and staff , — symbols of spiritual jurisdiction, — and should accept in lieu thereof from the bishop a promise of fealty and homage before he should receive the temporalities of his office. It was further agreed that the election of bish ops should be vested in the chapters of the cathedral churches, subject to the royal right of license or nomination.2 This right of canonical election, which was confirmed by Stephen at his accession,3 was recognized in turn by Henry II. and Richard I., and finally by John in a charter issued to the church a short time before the granting of the Great Charter itself.4 An archbishop, even after his election by the cathedral Rome and chapter, and after the reception of the temporalities from thePalUuia the king as feudal lord, could not consider himself fully in ducted into office until his right had finally been confirmed by the see of Rome. The right of the papacy to a voice or influence in episcopal appointments was first asserted in the case of archbishops, who in early times were expected to make a journey to Rome for the purpose of being invested 'with the pallium, — the emblem of metropolitan power, — without which no archbishop could safely venture to perform the highest functions of his office.6 Upon the receipt of the pallium the metropolitan took an oath of obedience to the pope, with 1 See Enc. Brit, vol. xiii. p. 201, ar- 4 For John's charters, see ibid. p. 5. tide on " Investiture." 6 Lingard, Anglo-Saxon Church, p. 2 For the history of the quarrel be- 205. Gregory and his immediate suc- tween Henry and Anselm, see Free- cessor excused the English metropoli- man, Norm. Conq., vol. v. pp. 95, 127, tans from so long a journey, and sent 146, 237 ; Stubbs, Const. Hist, vol. iii. the pall by messengers. — Wilkins, pp. 295, 296. Concilia, pp. 32, 35. See, also, Stubbs, 8 For Stephen's charter see Statutes Registrum Sacrum Anglicanum, pp. of the Realm: Charters of Liberties, 140, 141. P-3- 348 THE NORMAN CONQUEST. [Ch. whom he entered into the closest relations. Not until the thirteenth century was the papal influence brought to bear directly upon appointments to suffragan sees. This influence Appeals to was chiefly asserted through the medium of appeals to the rourtmdis- papal court in disputed elections, which constantly arose, not Sons'1 ele°" onty out °^ disputes between the clergy themselves, but out of the attempts upon the part of the crown to force upon the chapters the selection of royal nominees. In such cases, prior to the famous controversy which followed the death of Archbishop Hubert Walter, the popes had contented themselves with rejecting unfit candidates, and with passing upon the canonical validity of elections.1 Upon the death of John and Hubert a controversy as to the future incumbent of Canter- innocent burv was br0ught on between John and Innocent III., which led to the assertion upon the part of the papacy of claims of a far more aggressive character. The bearings of this famous controversy will be considered hereafter. Summary. The causes have now been briefly reviewed which brought about in England after the Conquest the establishment of the clergy as a distinct and privileged " body completely organ ized, with a minutely constituted and regular hierarchy, pos sessing the right of legislating for itself and taxing itself, having its recognized assemblies, judicature, and executive, and although not as a legal corporation holding common prop erty, yet composed of a great number of persons each of whom possesses corporate property by a title which is either con ferred by ecclesiastical authority or is not to be acquired with out ecclesiastical consent. Such an organization entitles the clergy to the name of a ' communitas,' although it does not complete the legal idea of a corporation proper." 2 The prin ciple of cohesion which thus united the church as a spiritual organization grew out of that universal corporate spirit which was everywhere animating the clergy of Western Christen dom. The force of that corporate spirit was organized and strengthened by the growth of the canon law, in which the expanding claims of the clergy were distinctly defined, and by the application of that system by the clergy themselves, in their own courts and councils, to the maintenance and 1 See Stubbs, Const Hist, vol. iii. 2 Stubbs, Const. History, vol. iii. p. PP- 3°3-3°S- 290. IV.] THE WINNING OF THE CHARTERS. 349 advancement of the rights and privileges of their order. Thus organized and equipped for action, the clergy entered as one of the leading constitutional factors into the prolonged struggle for the charters. In that struggle, as we shall see hereafter, while the clergy as a body were intent upon the assertion of their special rights and immunities, — foremost among which was the right to tax themselves in their own councils, — they were at the same time animated by a broad spirit of generous patriotism. Throughout the struggle of the nation against the crown, in the corporate person of the church, English freedom found a stern and resolute defender. "The historians of the age, all of them churchmen, most of them monks, are all but unanimous on the popular side. Prelates like the Primate Stephen, like Robert Grosseteste of Lincoln and Walter Cantelupe of Worcester, were foremost t in the good cause ; the two latter were among the closest friends and counsellors of the patriot earl," x Simon of Montfort. Having stated the causes which impelled the clergy to Estate of withdraw from the main body of the nation, and to incorpo- ag^ "on' rate themselves into a spiritual organization which finally takes, for a time at least, its constitutional place as an estate of the realm ; or, in other words, having explained how the line was drawn between the clergy and the laity, — the more difficult task remains to draw out the causes which led to the division of the laity themselves into the two estates of the baronage and the commons. From the reign of Edward I. down to the present day, the estate of the baronage or peer- identical age has been identical with the house of lords.2 The hered- WoUse 0f itary and official counsellors of the crown who constitute lords- the upper house of parliament represent in their own persons the entire estate of the baronage, — they do not represent a wider noble class or caste of which they themselves are but 1 Freeman, Growth of the Eng. Con- constituted ; that they at length con- stitution, p. 112. sisted, as they now consist, of two dis- 2 The Lords' committee conclude, tinct bodies, having different charac- " that from the twenty-third of Edward ters, rights, and duties, and generally the First to the fifteenth of Edward the distinguished by the appellations Lords Second, the legislative assemblies of the and Commons ; the lords being all per- country appear to have been generally, sonally summoned by special writs, but but not always, constituted nearly in the distinguished among themselves as manner in which the assembly in the spiritual and temporal." — Report on twenty-third of Edward the First was the Dignity of a Peer, vol. i. p. 390. 350 THE NORMAN CONQUEST. [Ch. Distinction i between English -and conti- . nental no- i bility. ' The witan ¦ survives as - the house i of lords. a part. The only nobleman known to English law is he who holds the hereditary office of a peer. The right to inherit such an office the law concedes to the peer's eldest son, but it concedes no other rights to his children. The children of a peer — even the future holder of the peerage himself while the father lives — are, in the eyes of the law, commoners and nothing more. The crown may ennoble any one, but the nobility so granted belongs only to that member of the family so ennobled, — to the actual owner of the peerage himself. In this fact lies the marked distinction between nobility as it has existed in England and nobility as it has existed in those continental lands in which the privileges of the noble were permitted to extend to all his children and their children for ever. The theory that mere nobility of blood conveys po litical rights or privileges has never been recognized in the English system.1 As the hereditary peers of the realm, in conjunction with the lords spiritual, — whose special status will hereafter be explained, — constituted the entire estate of the baronage, and as the estate of the baronage is identical with the house of lords, it follows that the history of the one is the history of the other. It is a distinctive feature in the political history of the English nation that there has never been a time when it has been without a national assembly ; the ancient witenagemot has never ceased to exist ; it has never lost its corporate iden tity. Despite the changes of constitution and of name through which it has passed, it still survives in the person of the house of lords. In the language of one of the masters of English history, "the house of lords not only springs out of, it actually is, the ancient witenagemot." 2 The fact of this corporate identity can only be grasped through an exami nation of the process through which the Old-English national assembly was transformed into the feudal councils of the Norman and Angevin reigns ; then by a further examination of the process through which, out of these Norman and An gevin councils, was finally developed, by the practice of sum- 1 For a full statement of the differ- 2 Freeman, Growth of the Eng. Con- ence between English and foreign no- stitution, p. 91. See, also, Comparativt bility, see Freeman, Growth of the Eng. Politics, p. 232. Constitution, pp. 125-129; Stubbs, Const Hist, vol. ii. pp. 176-178. IV.] THE WINNING OF THE CHARTERS. 35 l mons, the hereditary chamber of the national parliament. An examination has been heretofore made of the history of the witan, whether considered as the supreme council of an heptarchic state, or as the supreme council of the whole Eng lish nation when finally united in a single consolidated king dom.1 After the coming of William the continuity of the old continuity national assembly went on unbroken ; the witan remained as witan. before the national council of the king, and during William's reign it retained much of its earlier character.2 Of the con stitution of the witan, either before or after the Conquest we have no direct or formal account, but the highest authorities substantially agree in the conclusion that on all ordinary oc casions the witan was a comparatively small gathering of great men, while on extraordinary occasions the assembly was sometimes reinforced by large popular bodies from every part of the kingdom. " According to one view, the assembly was in theory open to every freeman, but in practice only a small class habitually attended. According to the other view, it was in theory confined to a small class, but in practice it was ever and anon thrown open to large classes of men be sides its usual members. . . . The practical aspect of the two doctrines is the same."3 But although the witan, under the name of the great council, outlived the Conquest, and although in legal theory it retained all of its old powers, yet the fact remains that the constitution of the assembly underwent a great practical transformation. At the beginning of Wil- practical Ham's reign, those who composed the council that ordinarily ^fo"1' gathered around the king were a body of Englishmen ; by JJ^jg^ by the end of his reign this body had gradually changed into an quest. assembly of Normans, among whom an Englishman here and there held his place. This change naturally resulted from the character of the Conquest itself. Through William's policy of confiscation and regrant, nearly all of the great es tates passed from English to Norman hands ; and in the same way all of the great offices in church and state were parcelled out among his followers. The king's thegns thus 1 See above, pp. 147, 148. Stubbs, as to the constitution of the 2 See above, p. 241. witenagemot. See Norm. Conq., vol. 8 Mr. Freeman thus states the differ- v. p. 273. For the Bishop's views, see ence, if difference there be, between Const Hist, vol. i. p. 121. his own views and those of Bishop 352 THE NORMAN CONQUEST. [Ch, became his tenants-in-chief, holding their lands from him as The ancient their lord. Through this feudalizing process the ancient becomes7 national assembly of great men gradually became the king's court'of'5 court 0I feudal vassals, whose right to exercise power was feudal vas- made to depend practically upon the king's pleasure.1 Under Henry II. and his sons, the national council, which was now summoned at regular intervals, attained to a definiteness of organization which it had never possessed before. Its com position was that of a perfect feudal court, — an assembly ol archbishops, bishops, abbots, priors, earls, barons, knights, and freeholders. The constituent members of the assembly are the same as under the Norman kings, but greater promi nence and a more definite position is now assigned to the minor tenants-in-chief. In the days of Henry of Anjou, as in the days of Eadward and of William, an ordinary meeting of the national assembly embraced only the witan, the great men of the kingdom ; while on an extraordinary occasion it might embrace, besides these, not only the tenants-in-chief, The prac- but the whole body of freeholders. Through the influence mons SUm °f *ne Practice of summons, to whose origin an exact date cannot be assigned, the tendency was fast gaining ground to limit the national assembly to those only who were summoned by the king's writ either personally or in a body.2 The writs of summons were of two kinds : first, such as were specially addressed to those great personages whose presence was nec essary, and who were summoned as a matter of course; second, such as were addressed generally to the sheriff of each shire, requiring him to summon in a body the lesser landowners. How far this practice of summons, which was in active operation in the time of Henry IL, had developed up to the sixteenth year of the reign of John, can be den- as defined nitely ascertained from the fourteenth article of the Great Gre'atchar- Charter, which provides that, " to have the common counsel ta- of the kingdom, we will cause to be summoned the arch bishops, bishops, abbots, earls, and greater barons singly by our letters ; and besides we will cause to be summoned in general by our sheriffs and bailiffs all those who hold of us in chief."3 By this clause, which no doubt expressed the then 1 See above, p. 242. s The Lords' Committee report, 2 See above, pp. 289-291. « That the Great Charter of John is IV] THE WINNING OF THE CHARTERS. 353 existing practice, the qualification for membership in the na tional assembly was at last distinctly defined, and that quali fication naturally assumed a feudal shape. No one was ex pected to attend unless he was summoned, and no one was summoned unless he was a tenant-in-chief. By the form of the summons, a line was also distinctly drawn between two different classes of men, — between the magnates, who were entitled to a personal summons, and the main body of tenants- in-chief, who were summoned generally in the shires : in this way the distinction between lords and commons begins. The greater tenants-in-chief, who received personal sum- Every peer mons to the national council, and whose right to receive such hoTd abar-° personal summons became hereditary, represent, together °" th^kin& with the lords spiritual, the peerage of England.1 Every peer, whether temporal or spiritual, holds, or is supposed to hold, an ancient barony directly of the king.2 The theory is that the holding of an estate by the peculiar tenure of barony was the original qualification which entitled the tenant-in- chief to the right of personal summons,3 — " the baronage of the thirteenth century was the body of tenants-in-chief hold ing a fief or a number of fiefs consolidated into a baronial honor or qualification."4 The difficult matter, in the absence of any early enfeoffment of a barony, is to determine what elements were necessary to constitute the baronial honor or estate. Although the characteristics and attributes of the Nature of baronial tenure have been made the subject of special investi- tenure. gations by Selden,5 Madox,6 Hallam,7 and Stubbs,8 no precise or satisfactory definition of a barony has resulted from the the earliest document of which au- 2 But the simple holding by barony thentic evidence remains, from which was not of itself a sufficient ground for the constitution of that legislative as- requiring attendance in parliament ; a sembly called the king's great council, writ of summons did not necessarily or the great council of the realm, can follow tenure by barony. — Lords' Re- he, with any degree of certainty, col- port, vol. i. pp. 326, 342. Cf. Black- lected ; . . . that that assembly con- stone, bk. i. p. 1 56, as to the baronial sisted of certain persons who by that tenure of the lords spiritual. charter were required to be personally 8 Hallam, Middle Ages, vol. iii. pp. summoned by the king's writ, and of 9, 117. other persons who by that charter were 4 Stubbs, Const. Hist, vol. ii. p. 178. allowed to be summoned generally, and 5 Selden's Works, vol. iii. pp. 713- not personally." — Lords' Report, vol. i. 743. p. 389. • Baronia Anglica. 1 No reference is here made to life "> Middle Ages, vol. iii. pp. 9-14, 117- peerage, which will be separately con- 119. sidered hereafter. 8 Const. Hist, vol. ii. pp. 178-184. 354 THE NORMAN CONQUEST. [Ch. Barony by summons. Feudal rule of primo geniture. The right to be sum moned be comes hereditary. The lords spiritual. inquiry. The writer last named cautiously concludes that the definitions of law recognize rather than create the char acter of barony; that that estate, however acquired, was a barony which entitled its owner to a personal summons to the council of the king ; that the baronage was ultimately defined and recognized as an estate of the realm by the royal action in summons, writ, and patent. But the status of the peer was not fully established by the mere reception of the king's writ ; it was upon the hereditary right to receive the writ that the status of the peer ultimately depended. The hereditary right to receive the king's writ, rather than the tenure which was the original qualification for the writ, rep resents the constitutional basis upon which the peerage now reposes. As the process of feudalization advanced, the in herent power of the crown to determine who should be sum moned as barons gradually became subject to the limitation imposed by the feudal rule of primogeniture. It is generally conceded that certainly during the reign of Edward I. the right of a baron — whose ancestor had once been summoned and had once sat in parliament — to claim the hereditary right to be so summoned was clearly and definitely estab lished. The peers of the realm who thus acquired the hered itary right to be summoned, together with the lords spiritual, constitute the estate of the peerage which is identical with the house of lords.1 The political status of the lords spiritual, which was at one time involved in some confusion, has of late years been placed upon a broad and rational basis. It was for a long time contended that the spiritual lords sat in parliament by virtue of their baronial tenures only, and not by virtue of that older and higher right upon which the baronial status was simply superimposed. The fact has been pointed out over and over again that in the Old-English witan the prelates sat with the other magnates of the realm as constituent elements in the national assembly. The Conquest wrought no formal change in .this condition of things, apart from that general process of change through which the witan itself was silently transformed into a feudal council. In the process of feudal ization the church in its temporal relations was directly in- ] Courthope, Hist. Peerage, p. xii.; Stubbs, Const. Hist, vol. ii. p. 184 IV.] THE WINNING OF THE CHARTERS. 355 volved. The system of feudal law which Flambard seems to have worked into a definite and formal shape was applied by him with equal severity to all feudatories, temporal and spir itual. The estate of a bishop or abbot came to be regarded Estate of a as a fief or benefice held personally of the king by the tenure ^bb'oTre-1 of military service. When a vacancy occurred, as there was garded ass no heir who could demand seisin, the king took the fief into his own hands until he saw fit to admit a successor. The profits of the vacancy and the payment from the successor were the equivalents which the church paid for being exempt from the ordinary feudal exactions which fell upon the estates of laymen.1 In this way the bishops and abbots were made to assume the relation of tenants-in-chief, holding baronies of the crown " sicut barones ceteri," and in this way the idea grew up that the bishops and abbots sat in parliament by virtue of their baronial tenure only.2 But the sounder view seems to be that, as a part of the witan of the realm, the prelates never lost their immemorial right to sit in the na tional assembly. To this ancient right was simply added the new right growing out of their feudal relations ; the title of "barones" was simply added to that of " sapientes." 3 That Title of the ancient right was never forfeited is evidenced by the fact adteTt"" that the guardian of the spiritualities of a vacant see, who Jhat°f could not pretend to a baronial qualification, received the tes." formal summons ; 4 and by the further fact that even now, when the bishops no longer hold baronies, they are still sum moned to the house of lords. If we subtract from the English nation as constituted in The estate the thirteenth century the estate of the clergy and the estate ^0*e com' of the baronage, the remainder represents, although in a very vague and general sense, the third estate, — the estate of the commons. From the very variety and diversity of the 1 See above, p. 271. parliament, because his right to a seat 2 As an illustration of this view see in parliament is a franchise annexed to the Lords' Report (vol. i. p. 393), in the temporalities of his see, and not which the statement is made that the inherent in his spiritual dignity of " dignity of bishop arises from his bishop." consecration ; but he does not become 8 Freeman, Norm. Conq., vol. v. p. a lord of parliament until invested with 279 ; Stubbs, Const. Hist, vol. ii. pp. the temporalities of the see to which 169, 170; Hody, Hist, of Convocations, he is promoted, and until then he can- p. 126. not have a writ of summons to parlia- 4 Hallam, M. A., vol. iii. p. 9. ment to enable him to take his seat in 356 THE NORMAN CONQUEST. [Ch. The term " com mons " as understoodupon the Continent ; as under stood in England. Represen tatives of the shires and towns unite in the house of elements that entered into its constitution, the commonalty necessarily lacked that force of internal cohesion, that sense of corporate identity and oneness, which bound together the clergy and the nobles. No mediaeval politician would have thought of defining the third estate to be a union into one corporate body, conscious of its own identity, of all orders of men below the nobility and the clergy. Any such compre hensive definition would have been at utter variance with the facts. As an illustration of the narrow view of the "com mons " that existed on the Continent in mediaeval times, the fact may be cited that in France and Spain the term was then understood to embrace only the citizens of privileged towns, or of chartered communities of kindred municipal origin.1 In England, however, the term has always borne a wider signification ; it has there embraced not only freemen incorporated in towns, but freemen incorporated in shires. The term " commons," as it appears in the English political system, must therefore be understood to include all freemen organized and incorporated for government in the two lead ing classes of local communities, — towns and shires.2 In the English system the commonalty as organized in shires were the first to send representatives to parliament in the persons of the knights of the shire, who appeared as the representa tives of all the freeholders in their respective counties. Their example was soon followed by the commonalty as organized in communities of cities and boroughs. Out of the union of the knights of the shire, who represented the lesser landowners, with the citizens and burgesses, who represented the commercial interests of the towns, has grown the house of commons in which is now embodied a 1 As to France, cf. Thierry, History of the Tiers-Etat, vol. i. p. 56 (Eng. trans.); Savaron, IStats glniraux, p. 74. As to Spain, cf. Schafer, Spanien, vol. iii. pp. 215, 218; Zurita, t. i. fol. 71, 74. On the Aragonese cortes, see Middle Ages, vol. ii. p. 58 and notes. The term " commons " originally bore the same meaning in the constitution of Scotland. For the history of that constitution, and of the change made in it in 1427, whereby commissioners of shires were permitted to appear in par liament as the representatives of the minor tenants-in-chief, see Lords' Re port, vol. i. pp. m-124. In the lan guage of the Report, the change then made " bearing resemblance, so far as it extended, to the system of represen tation long before adopted in Eng land." — P. 114. 2 "The commons are the 'commu- nitates' or ' universitates,' the organ ized bodies of freemen of the shires and towns ; and the estate of the com mons is the ' communitas communita- turn,' the general body into which for the purposes of parliament those commu nities are combined." — Stubbs, Const Hist, vol. ii. p. 166. IV.] THE WINNING OF THE CHARTERS. 357 real representation, not of any single order or class, but of the whole English nation. This system of representation, which has grown and widened from humble beginnings until it has become the dominant force in the constitution, derived its original vitality from the fact that the representatives of the lesser landholders, who were for a long time the strength of the country, severed themselves from the baronage,1 and then united upon equal terms with the representatives of the towns in the formation of the third estate. The third estate in England thus acquired a vital element of strength which in continental lands it did not possess. How the representa tives of the shire and town communities were chosen, and how they were drawn together and happily united in a single chamber, are questions which must be worked out hereafter in connection with the growth of parliament. From what has now been said, the fact appears that, al- summary. though the elements out of which the three estates were organized existed from the very earliest times, the causes through which these elements were finally worked into a definite and formal shape sprang directly from the Norman conquest. The forces which the Conquest put in motion brought about not only the severance of the clergy from the laity, but the division of the laity themselves into the two estates of the baronage and the commons. The process of definition which begins with the Conquest is completed by the end of the reign of Edward I. The parliaments of Ead ward were assemblies of estates ; in them each estate or order appeared in person or by representatives. But the process of definition was by no means complete when the struggle for the charters begins. It was in the course of that strug gle, in which each class or order was fighting primarily to establish its own special rights and privileges, that the cor porate identity of each estate was definitely and permanently defined. 3. The statement has heretofore been made that the strug gle for the charters did not grow out of the mere possession by wise and politic princes of the type of Henry I., and of 1 " In most other eountries the class the estate of the nobles." — Freeman, of men who were returned as represen- Growth of the English Constitution, p. tatives of the counties, the knights of 130. the shire, would have been members of 358 THE NORMAN CONQUEST. [Ch. Pressure of the royal authority upon every class in the reign of Richard I. Taxation under Henry II. Land taxes : hidage; scutage. Taxation of personal property. his grandson Henry II., of vast and practically unlimited powers which were never deliberately employed for purposes of oppression merely. Not until the grinding weight of the royal authority was heedlesly and wantonly applied by care less despots to the oppression of all classes and conditions of men did the collective people, in the persons of the three estates, rise up to grapple with the crown in a struggle for the establishment of rights which were made eternal. With the wanton and irritating pressure of the royal authority upon every class in the reign of Richard I., the struggle for the charters really begins. The royal statesman and finan cier who preceded Richard, while engaged in the work of re organizing the general system of administration, remodelled and expanded with special care the machinery of taxation. Until the latter part of the reign of Henry II. all taxation, excepting the customs, fell upon the land, and consisted (i) of the ancient customary dues, and the tax on the hide, — sur vivals of the Old-English system ; and (2) of the feudal inci dents, and the scutage or tax on the knight's fee, — products of the new system of military tenures. Leaving out of view the ancient customary dues and the feudal incidents, the two land taxes that stand prominently forth are the Old-English tax on the hide, whether known as aid, hidage, carucage, or, in the case of towns, talliage ; and the new feudal tax on the knight's fee known as scutage. These two taxes affected two distinct classes of land-owners : the scutage was the tax assessed upon the lands of the tenants-in-chivalry, the hidage or carucage upon the lands of the freeholders. Only on rare occasions were both of these taxes imposed at once ; as a general rule, a year marked by grant of a scutage was not marked by the grant of a carucage. But as Henry's reign drew to a close, tempted by the great development in na tional wealth which had followed his policy of reform and order, he determined to widen the basis of taxation by a marked innovation. With the consent of a great council held at Geddingtpn in 1188, Henry brought taxation to bear directly upon personal property by decreeing a tithe of a tenth of movables to aid the common host of Christendom in retaking the Holy City from Saiadin. In order fairly to assess the tithe, Henry resorted to his favorite institution of IV.] THE WINNING OF THE CHARTERS. 359 inquest by the oaths of local jurors. Whenever any one was suspected of contributing less than his share, four or six law ful men of the parish were chosen to declare on oath what he should give. In this way the representative principle is first brought into contact with the system of taxation.1 The fruit of this enlarged and improved system, embracing not only land but personal property, was a gross receipt from all sources, in the last year of Henry's reign, of .£48,000. 2 And according to one chronicler, his treasure at the time of his death amounted to the improbable sum of ^goo,ooo.8 At the death of Henry the vigorous system of taxation which he had constructed with care and wielded with moderation passed into the hands of a spendthrift knight-errant, who from the beginning to the end of his reign strained it to the limit of its capacity to support brilliant adventures in foreign lands in which his people had little or no real concern. From Taxation a constitutional standpoint, the reign of Richard I. is chiefly Richard I. interesting in so far as it illustrates the improvements in the system of taxation suggested by its constant use, and the oppressions which arose out of its incessant application to all classes and conditions of men. Richard's first act after his accession was to seize upon his father's treasure, which he augmented by the sale of every available species of property, or office, or feudal right for which he could find a purchaser, from the disposal of the royal wards in marriage up to the sale of the supremacy over Scotland.4 With the money thus hastily accumulated during the few months of his sojourn in his English kingdom, he sailed in December, 1189, for Pales tine. During his absence, which, with the exception of his Adminis- sojourn after his captivity, was coextensive with his reign, the a^ju^ti-01 administration of the kingdom was committed in turn to four ciars- justiciars,6 who would no doubt have wielded the royal au- 1 For the authorities upon the sub- millia marcarum." — Vol. iii. p. 8 ; see ject of taxation as it existed in the note 2, R. S. reign of Henry II. see above, p. 298. 4 Benedictus, vol. ii. pp. 90, 91. " Wii- 2 Cf. Pipe Roll of the ist Richard I. lelmus rex Scottorum dedit Ricardo for the year ending at Michaelmas, 1 189. regi Anglia; decern millia marcarum 8 " Et inventa fuerunt et numero et sterlingorum." — Ibid., p. 98. pondere plusquam nongenta millia li- 6 " The English history of the reign brarum in auro et argento." — Bene- is, then, the history, not of Richard, but dictus, vol. ii. pp. 76, 77. Hoveden of his ministers ; of the administrations makes a much smaller estimate, — " ex- of his four successive justiciars, Wil- cedens numerum et valentiam centum liam Longchamp, Walter of Coutances, 360 THE NORMAN CONQUEST. [Ch. thority with wisdom and moderation had it not been for the The effort increasing pecuniary demands of their reckless master. In £ioo,Soeoo 1 192, during the justiciarship of the archbishop of Rouen, ard'fran- Rlcnar bishop of Lincoln, the opposition found a spokesman and a leader who was as ready to resist the demands of Richard as Thomas had been in the preceding reign to resist the de mands of Henry of Anjou. To the demand of the king for English money to pay a military force in a foreign war, the patriot bishop of Lincoln answered that his church and its pastor were bound to render military service to their lord the king within the realm, but that they owed him neither men nor money for wars in foreign lands.2 Hugh, supported by the bishop of Salisbury, held his ground, and the demand was withdrawn by the justiciar Hubert, who shortly after wards resigned.3 clerical op- This unsuccessful attempt to tax the baronage was followed taxation.*0 m tne same year by the imposition of a carucage upon the lands of the freeholders at the heavy rate of five shillings on each carucate or hide.4 The imposition of this tax is impor tant in view of the method employed for its assessment. In the latter part of the preceding reign, when personal property became subject to taxation, Henry II. invoked the aid of his favorite institution of inquest by the oaths of local jurors in Assessment order to ascertain how much each one should give.5 With property, the imposition of the carucage of 1 198 the same embryonic system of representation was for the first time extended to 1 Ei trecentos milites uno anno mora- Hoveden, p. lxxxi. ; Norm. Conq., vol, turos secum in servitio suo, vel tantam v. p. 465 ; Stubbs, Const. Hist, vol. i. pecuniam ei darent, unde ipse posset pp. 509, 510. per unum annum trecentos milites in 4 Hoveden, vol. iv. p. 46. "In some servitio suo retinere, videlicet unicuique cases the carucate seems to be identi- militi tres solidos Anglicanae monetae cal with the normal hide of 120 acres, de liberatione in die." — Hoveden, vol. but other instances show that the caru- iv. p. 40. cate varied in area. It is the land oil- 2 " Scio equidem ad militare servi- tivated by a plough-team ; varying in tium domino regi, sed in hac terra so- acreage, therefore, according to the lummodo, exhibendum Lincolniensem lightness or heaviness of the soil, and ecclesiam teneri ; extra metas vero according to the strength of the team. Anglia? nil tale ab ea deberi." — Magna — Seebohm, Eng. Village Community, Vita S. Hugonis, p. 248. p. 40. 8 As to the constitutional importance 6 See above, p. 298. of this event, see preface to vol. iv. IV] THE WINNING OF THE CHARTERS. 363 the assessment of real property. The officers who were sent out to collect it were commanded, with the aid of the sheriff in each county, to call before them the members of the county court, lords and bailiffs, the stewards of barons, the reeve and four men of each township, and two knights from each hundred, who were to be sworn to declare how many carucates, or what wainage for ploughs, there were in each township.1 Whether the assessment or survey was fully car ried out is not known,2 but it is quite clear that the collection of the tax itself, which was excessive in amount, met with resistance. The religious houses opposed it in such a spirit as to bring upon the clergy a royal proclamation which put clergy them practically outside of the law. The effect of this meas- ^^l^Z ure was to force the monks to purchase a reconciliation.3 Thus, by the steady and persistent pressure of taxation upon every class during the reign of Richard I., the clergy, the baronage, and the commons were each in turn aroused to more or less positive resistance. The poorer part of the commons of London break into open revolt under the leadership of William Fitz-Osbert ; the barons refuse a grant under the lead of Hugh of Avalon ; while a part of the clergy go far enough to bring upon themselves a denunciation which amounts practically to outlawry. By this severe preliminary discipline, under which every class and condition of men were made to feel the nature of the wrongs that were to be righted, the nation was trained for action in the darker days that were yet to come. 4. The sudden death of the childless Richard, which oc- From the curred in April, 1199, brought face to face two hostile of "johnto claimants to his continental provinces and to his island king- ^J^ dom, at a time when the principles regulating the right of >" i2°4- succession to the royal office were still in a state of transition from the ancient rule of elective kingship to the new feudal rule of hereditary right. If the growing feudal doctrines of primogeniture and representation had been universally recog nized, the right of Arthur, the son of Richard's deceased 1 " Quot carucarum wanagia fuerint 2 As to the resemblance of this in- in singulis villis ; quot scilicet in domi- quest to that of Domesday, see Stubbs, nico, quot in vilenagia, quot in elee- Const Hist, vol. i. p. 510- mosynis viris religiosis collatis." — 8 Hoveden, vol. iv. p. 66. Hoveden, vol. iv. p. 46. 364 THE NORMAN CONQUEST. [Ch. elder brother, would have been clearly superior to that of The right John. Upon the Continent, where the new feudal notions °ionUCCes nac* ta^en tne deepest root, Arthur's right was admitted in Anjou, while Philip received his homage as duke and count of all the provinces which Richard had held of the French crown.1 In Normandy and England, however, John, to whom Richard had bequeathed, as far as he had the right to be queath, his island realm, with all his other lands,2 entered into quiet possession of dukedom and kingdom without oppo sition in favor of Arthur's title. To the kingship of England John was elected according to the ancient custom, and, if the coronation story told by Matthew Paris can be accepted, Archbishop Archbishop Hubert, before he poured the consecrating oil upon the head Hubert. 0f the king-elect, reminded him that no man had by virtue of his birth a right to the kingship of England ; that that right was conferred through the election of the nation after invoking the aid of the Holy Ghost ; that the only limit upon the elective right thus vested in the nation was the right of the royal house to have the choice made of some one of its own members, provided one could be found eminently fit for the kingly office. Richard having died without an heir, and John being of the royal house, and possessing the other nec essary qualifications, was declared elected ; and the cry of " Vivat Rex" was the response of the assembled multitude.3 Thus secure in the possession of his English kingdom, John set himself to work to wrest from his nephew such of his continental lands as Arthur, by the aid of the king of the French, had been able to withhold from him. After two years and more of war and diplomacy between Philip and John, the latter in a sudden fit of energy surprised Arthur while he was besieging his grandmother in the castle of Mira- Arthur's bel, and took him prisoner to Rouen, where he was murdered in the spring of 1 203, as all the world believed, by his uncle's murder in 1203. 1 Hoveden, vol. iv. pp. 86-94. See, criticised, and its authenticity ques- also, Freeman, Norm. Conq., vol. v. p. tioned, but it is directly referred to by 466. Prince Louis of France in 1216, in a 2 Hoveden, vol. iv. p. 83. * Divisit public document printed in Rymer's Johanni fratri suo regnum Angliae, et Fadera." — Preface to M. Paris, vol. iii. omnes alias terras suas." p. xii., R. S. For Mr. Freeman's view 8 Matthew Paris, vol. ii. p. 80, R. S. ; of the speech, see Norm. Conq., vol. L and in a shorter form in Chr. Maj., p. 404, vol. v. p. 466. p. 197. " This speech has been much IV] THE WINNING OF THE CHARTERS. 365 hand. In the midst of the indignation aroused by this dark and bloody deed, Philip, after having first cited John to appear before his court to be tried by his peers upon an accusation of murder made by the barons of Brittany,1 declared that his guilty and contumacious vassal had forfeited all the fiefs which he held of the crown of France. In the execution of his own Loss of sentence Philip at once marched on Normandy. Castle after Normandy- castle fell before him, city after city surrendered at his mere summons, until the whole land, without any show of serious resistance, passed into his hands, to be united at last to his dominions as one of the most faithful provinces of France. By midsummer of 1204 Philip was master not only of Nor mandy, but of Maine, Anjou, and Touraine, and of nearly all of Aquitaine north of the Garonne.2 As a punishment for his great crime, John was thus stripped at a blow of all of his continental dominions, with the exception of the fragment which he retained of his mother's inheritance. By the breaking up of the vast empire of which England Political was only a part, although the greater part, John was brought theUioss°of into more dependent relations with the English nation than Normandy- had ever been imposed upon any of his Norman or Angevin predecessors. But the change which was thus brought about in the attitude of the king was no more marked than the change which the loss of Normandy brought about in the attitude of the baronage. By this time the great baronial houses of the Conquest had to a very great extent either died out or had been humbled by the overshadowing power of the crown which had raised up in their places a new ministerial The new nobility which had waxed strong in the sunshine of royal nobmty. favor. The new nobility which had thus grown to greatness on English soil, although in the main no doubt of Norman descent, were in feelings and interests far more English than Norman, and far less closely connected with the Norman duchy than had been the older nobility.3 With the conquest 1 On this subject, see Sismondi, to deprive his guilty vassal of all his Histoire des Francais, vol. iii. p. 489 ; lands which owed homage to the crown Le Baud, Hist. Bret, p. 210; R. Wen- of France." — Norm. Conq., vol. v. p. dover, iii. p. 273; Fadera, i. p. 140. 469. Mr. Freeman says : " The French king 2 Green, Hist. Eng. People, vol. i. pp. cunningly devised for himself a juris- 189, 190 prudence out of the romances of Char- 8 See Select Charters, 2d ed. p. 269. lemagne ; and by its help he professed 366 THE NORMAN CONQUEST. [Ch. The bar onage as sumes the leadership of the na tion. From the loss of Nor mandy to the signing of the Great Charter at Runny mede. The char acter of John. of Normandy by Philip, the last direct connection of the bar onage of England with the land of their fathers passed for ever away. An election had now to be made between Philip and John, and under the pressure of this necessity those families that still retained estates on both sides of the Chan nel either split into two branches, each of which made terms for itself, or, renouncing their interests in one kingdom, cast their fortunes with the other.1 This complete severance of all connection with the Continent, whereby the barons of Norman descent who had grown up on English ground were finally transformed into Englishmen, was the completion of the great work which had been steadily going on since the Conquest, — the work of building up a united English nation.2 At the head and front of the united nation, which thus arose out of the assimilation of the smaller mass of the conquerors by the greater mass of the conquered, the baronage — Nor man in descent, but English in interest and in feeling — held its place throughout the prolonged struggle in which the Great Charter was won. 5. After John had been reduced by the loss of his conti nental dominions to the kingship of England, he set himself to work to illustrate to his English subjects, with whom he was now brought face to face, how far, in the absence of positive guarantees, the royal authority might be applied to the wanton oppression of all classes and conditions of men, when that authority happened to be wielded by the vilest, the craftiest, the ablest of despots. " His worst enemies owned that he toiled steadily and closely at the work of administra tion. . . . His plan for the relief of Chateau Gaillard, the . rapid march by which he shattered Authur's hopes at Mira bel, showed an inborn genius for war. In the rapidity and breadth of his political combinations he far surpassed the statesmen of his time. . . . The closer study of John's history clears away the charges of sloth and ' incapacity with which men tried to explain the greatness of his fall. The awful lesson of his life rests on the fact that the king who lost 1 Hallam, M. A., vol. iii. p. 154; Stubbs, Const Hist., vol. i. p. 518. 2 " The loss of Normandy thus once more called into being an united Eng Ush natioa It was well at such a mo ment that England had a king whose reign was one long series of wrongs and insults done to the English nation." — Norm. Conq., vol. v. p. 470. V.] THE WINNING OF THE CHARTERS. 367 Normandy, became the vassal of the pope, and perished in a struggle of despair against English freedom, was no weak and indolent voluptuary, but the ablest and most ruthless of the Angevins." * By the scourge of oppression in the hands of Poweriess- such a master the English nation was aroused not only to a "r^wnwhen sense of its oneness, but to a sense of the utter weakness of opposed by the three the royal authority, even in the hands of the ablest and estates. craftiest of despots, when steadily opposed by a united people marshalled in the ranks of the three estates. The great lesson which the struggle for the Charter teaches is embodied in the fact that, while the royal authority which towered so high over the land was more than a match in a single-handed contest with any one order in the state, it became perfectly powerless in the presence of an offensive alliance between the three. As soon as the united nation was aroused to a realization of this fact, by the persistent warfare waged by John against the estates in detail, the royal authority was broken and the cause of the king was lost. The constitutional struggle, which pauses for a moment with The great the winning of the Great Charter, actively begins with the fa- ^"aJe mous ecclesiastical quarrel which brought John into conflict appoint- not only with the clergy of his own realm, but with the great- primate. est of all the popes, — Innocent III. The break between John and the clergy grew out of the death of Hubert Walter, arch bishop of Canterbury, which took place in July, 1205. The right to fill the vacancy thus created in the primacy of the kingdom gave rise to an angry controversy between the monks of Christchurch, the bishops of the primatial province, and the king.2 The monks upon their part claimed the right to exercise all of the powers of the cathedral chapter of Canter bury ; the bishops upon their part, while they conceded the right of capitular election, claimed that they should at least concur with the monks in the choice of the metropolitan; the king upon his part claimed that no valid election could be made by either or both without the royal license. As soon as the death of Hubert was known, the junior part of the 1 Green, Hist. Eng. People, vol. i. pp. of no modern historian who has stated 229, 230. the whole matter with more clearness 2 For a general statement of the than Lingard. — Hist. Eng., vol. ii. pp. controversy, see M. Paris, vol. ii. pp. 40-47. 104-107, vol. iii. p. 222, R. S. I know 368 THE NORMAN CONQUEST. [Ch. monks1 met clandestinely at night, and without the royal license, and without the concurrence of the suffragan bishops of the province, elected Reginald, their sub-prior, to the metropolitan office. In the hope of sustaining this rash and irregular proceeding, Reginald was dispatched to Rome to seek the confirmation of the apostolic see. After his depart ure the wiser part of the brotherhood resolved to ignore what had been done, and, having obtained the royal license, proceded to hold an open and regular election. At the king's dictation the chapter elected John de Gray, bishop of Nor wich, who was at once put into possession of the archbishop ric, and a delegation of twelve monks was sent to Rome to Decision of support his title. After a year's delay Innocent first decided nnocent. ^ cjjspute Detween the suffragan bishops and the monks in favor of the exclusive claim of the latter.2 This question being removed from the controversy, the pope proceeded to pass upon the validity of the two elections which the monks themselves had made, and, to the disappointment of both parties, quashed them both.3 The election of Reginald was annulled upon the ground that it was uncanonical; that of John de Gray,' upon the ground that it was improperly held while the validity of the first election was a pending question. These judgments of Innocent, which seem to have been in accordance with the jurisprudence of the age, were followed by the assertion of a papal claim of a startling character. The primatial see being vacant, and the representatives of the chapter having the right to fill the vacancy being present in Rome with authority to enter into a new election, the pope proceeded to end the controversy by assuming to him self the royal right of nomination. In the exercise of this assumption, which was contrary to all English precedent,4 > "Several of the cathedral churches more than reject unfit candidates or had been originally settled in monas- determine the validity of elections; teries, and still continued to be served now he himself proposed a candidate, by monks, who claimed and exercised pushed him through the process of all the rights of the chapters." — Lin- election, and confirmed the promotion, - gaJd> Y°l- "-P- 41- although the royal assent was with- Post multas tandem hinc inde held." — Stubbs, Const. Hist, vol. iii. disceptationes, tandem a domino papa p. 305. The pope promised that, if pronunciata est pro monachorum parte John would acquiesce, the appointment contra episcopos sententia diffinitiva." should not be converted into a prece- ~ 'a^?Jaris' vo1" "" p' 101- dent injurious to the English crown. 1 ?.bTld.-\P- lII\ See Lingard, vol. ii. p. 43. * "Hitherto the pope had done no IV.] ¦ THE WINNING OF THE CHARTERS. 369 Innocent commanded the monks to elect in his presence He claimed Stephen Langton, an English scholar of eminence, who had nomma- been raised to the rank of cardinal, and who was then present tion' at the papal court. Without conceding to John even the right to confirm the election, the archbishop-elect was conse crated by the pope himself at Viterbo in June, 1 207. As the theories and relations of mediaeval times cannot be Theory of measured by the standards of to-day, it is impossible to d^afem- understand the changing phases of the bitter and prolonged Pke- conflict which ensued between Innocent and John without some insight into that shadowy yet supreme overlordship which the Roman pontiffs then claimed and exercised over all the princes of the Christian world. The theory of the mediaeval empire rested upon the magnificent notion of a vast Christian monarchy whose sway was absolutely universal.1 The chiefs of this comprehensive society were the Roman em peror and the Roman pontiff, — the one standing at its head in its temporal character as an empire, the other standing at its head in its spiritual character as a church. The theory was that each chief in his own sphere ruled by divine right as the direct vicegerent of God, and that each possessed the hearty sympathy and support of the other. The Roman Empire Roman em- and the Catholic Church were, according to mediaeval ideas, catholic two aspects of a single Christian monarchy whose mission it ChUTC? two r ° J g aspects of a was to shelter beneath its wings all the nations of the earth, single Although this magnificent theory was never fully carried out, monarchy. although the universal monarchy never extended its dominion over all mankind, or even over the whole of Christendom, yet the fact remains that the ideal empire did for ages so far continuous influence the thoughts and actions of men that it is impos- Romanem- sible to understand the history of mediaeval Europe if we fail Pireth?key J r to medise- to grasp the theory of its existence. No part of the system vai history. was less faithfully carried out in practice than the require ment that the pope and the emperor should exercise their concurrent sway without conflict of jurisdiction. It could hardly have been otherwise, for the reason that the very 1 The outline here given of the in 1864 ; and from the brilliant review theory of the mediaeval empire is drawn of that work by Mr. E. A. Freeman. in the main from the famous work of The review may be found among Mr. Mr. James Bryce, entitled The Holy Freeman's select historical essays. Roman Empire, published at Oxford 37° ¦THE NORMAN CONQUEST. [Ch. Dante and SaintThomas as disputants. Mediaeval claim of papal su premacyas restated by Cardinal Manning. The papal supremacynaturally assumed a feudal shape. structure of the 'dual fabric necessarily provoked a struggle for supremacy between the temporal and the spiritual power. When this struggle grew into overshadowing prominence during the thirteenth and fourteenth centuries, while the dis putants admitted that the papacy and the empire were both ordained of God, and that each in its own sphere had universal jurisdiction, they failed to agree upon the relations of the two jurisdictions to each other. Whether the supreme temporal ruler, who was admitted into his high office through conse cration at the hands of the spiritual chief of Christendom, was in the last resort subordinate to the latter as the lesser to the greater light, or whether their dignities were coordi nate and coequal, were the questions over which was fought the great battle between pope and emperor in the days of the world's wonder, Frederick II.1 The contention which Fred erick left unconcluded was continued in the next age by two famous disputants. Saint Thomas of Aquin, in his treatise, "Of the Government of Princes,"2 defended the supremacy of the papacy on the one hand ; while Dante, in his treatise "De Monarchia," maintained the independence of the empire on the other.3 The mediaeval claim of papal supremacy has thus been re stated in our own time by a great English cardinal: "The supreme civil power of Christendom was dependent on the supreme spiritual authority. The pontiffs created the Em pire of the West : they conferred the imperial dignity by consecration ; they were the ultimate judges of the emperor's acts, with power of deprivation and deposition." 4 This su premacy, which the pope claimed not only over the emperor but over all other Christian princes, taking its color from the prevailing jurisprudence, naturally and necessarily assumed a feudal shape. The theory was that all Christian princes stood to the Roman pontiff as great vassals to a supreme lord or suzerain, and as such supreme lord the pope claimed the right to enforce the duties due to him from his feudal subordinates 1 See Pollock's Hist of the Science of Politics, p. 14 (Humboldt Library). 2 As to the authorship of the De Regimine Principum, see Rbformateurs et Publicistes de I 'Europe, Paris, 1864. 3 Dante, however, puts Frederick among the unbelievers in the Inferno, Canto xiii. 60-68 : — " I it was who held Both keys to Frederick's heart, and turned the wards." 4 See a monograph by Cardinal Manning entitled The Pope and Magna Carta, lately published in England, and reprinted in Baltimore in 1885. IV.] THE WINNING OF THE CHARTERS. 371 through an ascending scale of penalties which culminated at last in the absolution of the subject from the bonds of alle giance, and in the deposition of the sovereign himself. Such were the claims of the papal power, and such its resources, when John entered the lists against Innocent III. With the consecration of Langton the trial of strength be- John re- tween the pope and the king openly began. John at once de- receive the clared that Stephen should never set foot in England in his jj^"1" character as primate, while the monks who had taken part in his election were made the special objects of the royal ven geance. They were despoiled of their lands and driven across the sea.1 In vain did Innocent attempt to appease the wrath of John by the promise that, if he would acquiesce in what had been done and receive the primate, the election itself should not be converted into a precedent injurious to the preroga tives of the English king. When John refused to listen to such proposals Innocent threatened to lay the whole land under interdict 2 if Langton were longer kept out of his see. John responded with a counter threat that, in the event of an interdict, he would banish the clergy, and mutilate every Italian he could find in the realm. Thus defied, Innocent pro ceeded to compel his contumacious vassal to obedience by ap plying to his kingdom the coercive machinery incident to his supreme spiritual authority. On the day appointed, March Theinter- 23, 1208, the interdict which had been threatened fell upon ^t'I^"ch the land.3 The churches were closed ; the church bells were silent ; the administration of the sacraments, save to the new born and the dying, were suspended ; the dead were silently buried in unconsecrated ground. In the midst of the general gloom John, who mocked at the pope's resentment, vented his wrath upon the clergy by banishing the bishops who pro claimed the interdict, by confiscating the estates of those who observed it, and by subjecting them to the jurisdiction of the king's courts in spite of their privileges.4 Thus ended in an- johnbreaks ger that long alliance between the king and the clergy which dergy.e William and Lanfranc had built up, and which the quarrels of 1 M. Paris, vol. ii. pp. 112, 113; vol. pope to make the threat. — M. Paris, iii. p. 223. vol. ii. p. 114. 2 The bishops of London, Ely, and * Ibid., pp. 115, 116. Worcester were commanded by the 4 Cf. Green, Hist of Eng. People, vol. i. p. 232. 372 THE NORMAN CONQUEST. [CH. Anselm and of Thomas had never completely broken down. The church, so long the steadfast support of the royal author- ity against the baronage, was now changed from a faithful ally into a dangerous enemy. John remaining obdurate under the interdict for a whole year, Innocent proceeded to inflict upon Theexcom- him a still more serious punishment : in 1209 he was cut off munication, f.rom the pale of the church by a sentence of excommunica tion, which, under the papal procedure, was the natural prelude to a sentence of deposition. Three years elapsed, however, before the pope resorted to the supreme and final exercise of his authority. During the interval many of the bishops fled from the kingdom, while those who remained appealed to Rome for protection for themselves and their clergy against the cruelties and oppressions to which they were subjected. In vain did Innocent seek to renew negotiations with John, who was now carrying on military expeditions in Wales and Ireland by means of the vast sums which the plunder of the church had placed at his disposal. Not until all attempts to renew negotiations had failed did Innocent take the final step. rhedeposi- In 12 1 2 the bull of deposition was issued against John, absolv ing his subjects from their allegiance, and exhorting all Chris tian princes to unite in dethroning him.1 What gave alarm ing significance to the final sentence was the fact that its execution was specially committed by the pope to John's arch adversary, the king of France, who at once gathered a great host for the purpose of an invasion. These dangers from without were soon followed by a menace from within. The Welsh princes, who had just been forced into submission, again rose in rebellion.2 The universal discontent which prevailed throughout the host which John gathered for a fresh invasion of Wales revealed the fact that there was scarcely a man Defection upon whose loyalty the king could depend. The barons, too onage. "* timid as yet to lead the nation in an open attack upon the crown, were conspiring in secret ; some of them had even gone so far as to promise to go over to Philip upon his landing.8 1 M. Paris, vol. ii. p. 130. weeks he arrested some of the barons 2 M. Paris, vol. ii. p. 128. and seized their castles. — Walter of 3 When John discovered the con- Coventry, vol. ii. p. 207. Some of the spiracy he disbanded his host, and nobles took refuge in France. — M. sheltered himself in the castle of Not- Paris, vol. ii. p. 128. tingham. After an interval of two IV.] THE WINNING OF THE CHARTERS. 373 Thus menaced by conspiracies in his own ranks, John with consummate craft dealt a stunning blow to the adversaries combined against him by winning to his side as an ally the cohesive force by which they were united and directed. Be hind Philip, the clergy, and the baronage stood the power of Rome ; at the feet of that power John now sought deliver ance from the hands of his enemies. On the 13th of May, Johnsub- 1 213, he made an unqualified submission to Innocent, in which norem?,1"' he agreed that Langton should be received as primate ; that May' I213- the exiles, clerical and lay, should return and be restored to their lands and offices ; and that full restitution should be made to the clergy for the seizures to which they had been subjected.1 On the fulfilment of these terms and conditions the sentences of interdict and excommunication were to be revoked. But this was not all. On the 15th of May John surrenders knelt before the legate Pandulf and surrendered his kingdom domlmi to Innocent, to be held of him and his successors in the Ro- takfs the oath of man see at the annual rent of a thousand marks. John then fealty; took the oath of fealty to the pope in the form usual between lord and vassal.2 As the man of the p6pe, John was now en titled to his protection, and to a consequent revocation of the authority under which the French king was threatening to invade his dominions. Under these changed conditions the and is de- French army was withdrawn to face another enemy, while /rom^is Philip's dream of winning the English crown passed for the enemies- moment away. John's sudden and abject submission to In nocent, which entirely frustrated the plans of his enemies, was looked upon at the time as a complete settlement of all the difficulties in which he was involved. There is little or nothing in the contemporary accounts of the transaction to show that it excited anything like a feeling of national hu miliation.3 It certainly was not without precedent. John's own father, Henry II., had become the feudatory of Alexan der III.,* while his brother, the lion-hearted Richard, had 1 M. Paris, vol. ii. p. 135 ; Fadera, 8 Green, Hist. Eng. People, vol. i. p. i. p. 170. 236. 2 M. Paris, vol. ii. p. 135. The char- 4 See Lingard, vol. i. p. 417, note 1, ter placed by John in Pandulf's hands in which reference is made to a let- is in Rymer, Feeder a, i. p. in. The ter written to the pope by Henry and homage is renewed to Nicholas, bishop preserved by his secretary, Peter of of Tusculum, at London, on the 3d Oc- Blois. tober. — Fadera, i. p. 115. 374 THE NORMAN CONQUEST. [Ch. become the man of the emperor.1 The idea that the English nation thrilled with a sense of shame and degradation when John became the vassal of Innocent seems to have been the afterthought of a later time. John's The respite which John won from the attacks of his ene- mtTthe mies °y nls sudden submission to the pope was only of a mo- nobies. ment's duration. The defection of the baronage, which had crushed his hopes in the presence of Philip, still stood as a menace before him. The causes of this defection reached back to the very beginning of the reign. At his accession John had won the adhesion of the nobles by the promise that the demands made by them for the redress of grievances suf fered in the preceding reign should be satisfied.2 The per formance of this promise John had neglected ; and when in 1 20 1 the barons refused to follow him to Normandy until his pledge should be kept, he responded by seizing their castles and their children as hostages for their loyalty.3 The breach thus opened through John's faithlessness was widened and deepened in each succeeding year by the shameless pressure of taxation, by acts of wanton despotism in individual cases, and by an endless number of lustful assaults upon the honor Taxation of of the proudest of the baronial families.4 In the first year of the aron- tng rejgn tne scutage — the tax which specially affected the tenants-in-chivalry — was increased from a pound to two marks on the knight's fee ; in 1203 a seventh of the movable prop erty of the barons was exacted ;5 in 1204 an aid was taken from the knights ; 6 and in 1 207 a thirteenth of movables from the whole country.7 And apart from the pressure of taxation which these demands illustrate, the baronage were constantly Military harassed by demands for military service in fruitless expe ditions which were never carried out. In 1201, in 1202, in 1203, and in 1205 armies were assembled for the ostensible purpose of foreign service, and when the time for action came the king, either from caprice or mistrust, refused to fight; 1 See above, p. 360. alienation of his barons." — Lingard, 2 Hoveden, vol. iv. p. 88. vol. ii. p. 78. 8 Hoveden, vol. iv. p. 161; Stubbs, 6 M. Paris, vol. ii. p. 0.8. "Cepitabeis Const Hist, vol. i. p. 522. septimam partem mobilium suorum." 4 " The licentiousness of his amours 6 Ibid., p. 100. is reckoned by every ancient writer 7 " Cepit per totam Angliam tertiam- among the principal causes of the decimam partem ex omnibus mobilibus et rebus aliis." — Ibid., p. 108. service. IV.] THE WINNING OF THE CHARTERS. 375 and, after first accepting money from the forces, permitted them to disperse.1 But from his accession down to the event ful year 12 13 the baronage sullenly yet silently submitted to every insult and oppression that John saw fit to put upon them. While the church was being plundered, the nobles simply stood by without offering to make the cause of the clergy their own. Not until the quarrel between John and the church had ended in a submission, in which it was stipu lated that the clergy should be indemnified for all losses to which they had been subjected, did the redress of the wrongs which the baronage had suffered become a practical question. Open resistance upon the part of the nobles begins with their refusal in the summer of 1 213 to follow John to France upon the ground that he was still excommunicate. That objection being removed by a formal absolution pronounced by Lang ton on the 20th of July,2 John made a second demand upon the baronage to follow him. All admitted his right to call The barons upon them for service at home, but the northern barons, the ^"|e t0 barons who had sprung to greatness upon the ruins of the abroad- great houses of the Conquest, now openly maintained that their tenure did not compel them to serve abroad, and there fore they refused to follow the king.3 In a storm of rage at their defiance John, on the 25th of August, marched rapidly northward to force them to submission. At Northampton he was overtaken by Archbishop Langton, who reminded him that it was the right of the accused to be heard in the king's court, that not until all legal methods of redress had been appealed to in vain did he have the right to make war upon them.4 John continued his march, but before proceeding to extremities he yielded to Langton's suggestion, and sum moned the revolting barons to appear on a certain day before the king or his justices.6 1 Upon this whole subject of taxa- Paris attributes this second refusal to the tion and military service, see Stubbs, poverty of the baronage (vol. ii. p. 140), Const. Hist, vol. i. p. 523. but Bishop Stubbs prefers to assign to 2 The patriot primate required John this second refusal the reason which at the same time to swear not only to Ralph gives. — Const. Hist, vol. i. pp. maintain the church, but to observe 524, note 3, 525, note 1. See, also, the laws of King Eadward, — "quod- Walter of Coventry, vol. ii. p. 212. que bonas leges antecessorum suorum, 4 " Si absque judicio curiae suae con- araecipue sancti ^Edwardi, revocaret, tra quempiam, nedum suos homines iiingulis reddens sua jura." — M. Paris, geniales, bellum moveret." — M. Paris, vol. ii. p. 140. vol. ii. p. 142. 8 R. Coggeshale, pp. 242, 243. M. 6 Ibid., p. 143. 376 THE NORMAN CONQUEST. [Ch. Council at St. Alban's, Aug. 4, 1213. Represen tatives from town ships sum moned. Geoffry Fitz-Peter recurs to the laws of Henry I. In the council at St. Paul's Langton reads the charter of Henry I. Three weeks prior to the beginning of John's march to the north, a memorable council was held at St. Alban's, to which were summoned not only the bishops and barons, but also the reeve and four legal men as representatives from each town ship on the royal demesne.1 Although the reeve and four men were summoned no doubt simply to assess the damages due to the clergy,2 the incident is important as the first illus tration of which there is any historical proof of representa tives being summoned to a national council. The gathering at St. Alban's, although called simply to assess the damages due to the church, assumed in its deliberations a far wider scope. The resolves of the assembly, which were cast in the form of royal proclamations, threatened with the severest punishment all royal officers who should practise illegal exac tions. But what was far more .important, the laws of Henry I. — the embodiment of the laws of King Eadward as amended by King William — were brought to the attention of the as sembly by the justiciar Geoffry Fitz-Peter, and proclaimed as the basis upon which the liberties of the nation were to be reestablished.3 The significance of the then almost for gotten laws of Henry I., brought to light by the patriot justi- tiar, was emphasized by the patriot primate in a second gath ering of the barons held at St. Paul's in London on the 25th of the same month. In the council at St. Paul's Langton produced and read the charter of Henry I., which was warmly accepted as the basis of national action.4 The claims of the councils of St. Alban's and St. Paul's were then laid before the king by the justiciar, who died almost immediately there after,5 leaving the guidance of the baronage to Langton, un der whose leadership they united, upon the basis of Henry's charter in an open demand for a definite and positive scheme of national reform. On the 7th of November the king called 1 " In crastino autem misit rex litte- ras ad omnes vicecomites regni Anglise, prascipiens ut de singulis dominicorum suorum villis quatuor legales homines cum praeposito upud SanctumAlbanum pridie nonas Augusti facerent conve- nire." — M. Paris (ed. Wats), p. 239. 2 "De damnis singulorum episcopo- rum et ablatis certitudinem inquireret, et quid singulis deberetur." — Ibid. 3 "Galfridus Filius Petri et episco pus Wintoniensis cum archiepiscopo et episcopis et magnatibus regni, ubi cunctis pace regis denunciata ex ejus- dem regis parte nrmiter prasceptum est, quatenus leges Henrici avi sui ab oih nibus in regno custodirentur, et omnes leges iniquae penitus enervarentur." — Ibid., p. 239. 4 Ibid., p. 240; Ann. Waverl. p. 178. 6 M. Paris, p. 243; Walter of Cov entry, vol. ii. p. 215. IV.] THE WINNING OF THE CHARTERS. 377 a council at Oxford, to which the sheriffs were directed to summon, besides the armed force of the knights, four discreet men from each shire, to share J " in the king's deep speech First repre- touching the affairs of his kingdom, to form, in short, the P™iiament. first representative parliament." 2 The demands for reform which were made by the represen- The years tatives of the church, the baronage, and the people in the I214' I2IS" council at St. Alban's, and which were repeated in firmer tones in the council at St. Paul's, were permitted to lie without ac tion from October, 12 13, when they were presented to the king by the justiciar, until October in the following year. During the interval John set himself to work to so strengthen his position as to make it possible for him not only to set the demands pressed upon him by the baronage at defiance, but also to pursue their authors with his vengeance. In further ance of this design John deemed it expedient to cement more closely his alliance with the papacy, and at the same time to attempt to crush upon the fields of France the military power of Philip, to whom the baronage looked not only as a possible ally, but as a possible sovereign. With this end in view John John's ex- in the spring of 12 14 sailed to the coast of Poitou with such poitou.nt0 English forces as would follow him. After drawing to his standard a large number of the Portevin nobles 3 John crossed the Loire in triumph, and won back the city of Angers. Here it was he was informed by messengers from Rome that, in consideration of his acceptance of the papal award of dam ages to be paid to the bishops, the interdict which had now lasted for over six years should be finally removed.4 But in the very month in which John's reconciliation with Rome was consummated by the removal of the interdict, his hopes of military glory were shattered by Philip upon the field of Defeat at Bouvines, where the English forces under the Earl of Salis- ^ tj""' bury were, together with their allies, completely routed. Thus with Philip. broken by defeat, John sought and obtained a five years' truce from Philip, after which he returned from France in October 1 "Quatuor discretos homines de 2 Norm. Conq., vol. v. p. 474. comitatu tuo illuc venire facias ad nos " Again, however, the historians forsake ad eundem terminum ad loquendum us, and we do not even know that tha nobiscum de negotiis regni nostri." assembly was ever held.". — Stubbs, The summons to the Oxford council Const. Hist, vol. i. p. 528. may be found in the Lords' Report, 8 M. Paris, vol. ii. p. 148. App. i. p. 2. 4 Lingard, vol. ii. p. 57. 378 THE NORMAN CONQUEST. [Ch, to renew the struggle with adversaries made stronger by his discomfiture.1 The coming of the storm was now greatly accelerated by the king's demand of a scutage from those of the baronage who had refused to follow him to Poitou.2 The northern barons, against whom this demand was mainly di rected, were already on the alert and ready for action. In the Meeting of latter part of November these barons, under the pretext of a atst^Ed-8 pilgrimage, had assembled secretly at the abbey of St. Ed mund's, mund for the purpose of casting into a definite and final °V'1214" shape the schedule of liberties which they had resolved to force upon the king. They parted to meet again after Christ mas, after having first sworn on the altar to withdraw their allegiance from John, and to make war upon him until their demands should be complied with.3 In the presence of such dangers the king was not inactive. He not only garrisoned his castles, and brought mercenaries from Poitou, but he also attempted to break the coalition between the clergy and the baronage by spontaneously granting to the former the right to free election which had so long been withheld from them.4 But this act of royal diplomacy failed of its purpose. Early Reassem- in January, 121 5, the united baronage, faithful to the pledge ^eT'annarms made at St. Edmund's, met in arms to press their demands 1215, and upon the king. On the feast of the Epiphany John received truce until a deputation from his adversaries at the Temple, and after ter.r ^ listening to what was demanded of him he asked for a truce until the first Sunday after Easter.5 During the interval the crafty despot made a desperate and final effort to dissolve the confederacy arrayed against him by attempting to secure the allegiance of one or more of three estates. He strove to win the adhesion of the clergy by a reissue to the church of the charter of free elections,6 he attempted to strengthen his hold upon his tenants-in-chief by a renewal of their homage, while 1 For a general description of the 4 For the charter containing the campaign, see Green, Hist. Eng. Peo- grant of freedom of election to the pie, vol. i. p. 239 seq. church, see Statutes of the Realm: 2 " Dissensio orta est inter Johannem Charters of Liberties, p. 5- This char- regem Anglia? et quosdam de proceri- ter was reissued 15th January, 1215, bus pro scutagio quod petebat ab illis and confirmed by the pope. See St- qui non ierant, nee miserant cum ipso leet Charters, 2d ed., p. 287. in Pictaviam." — Walter of Coventry, 6 gee Stubbs, Const. Hist, vol. i. p. vol. ii. p. 217. 529. 8 M. Paris, vol. ii. p. 153; R. Cogge- 6 This was the reissue of January shale, p. 246. 15,1215. IV] THE WINNING OF THE CHARTERS. 379 he sought to draw to himself the main body of the people by demanding that a general oath of fealty and allegiance should be taken throughout the realm.1 But his efforts were all in vain. The clergy were unwavering in their devotion to the popular cause, the baronage were unshaken in their true alle giance, while the commissioners who were sent to the shire courts brought back the news that the "commons" were with the barons and against the king.2 In Easter week the baron- in Easter age again assembled in arms at Stamford, and as soon as the mletaglin truce expired they marched to Brackley in Northamptonshire.3 f stam- The king, who was at Oxford, sent Langton and William Mar shall to ascertain their demands, and when the commissioners brought back the same list of grievances that had been pre sented to him before, John cried out in anger, "Why do they not demand my kingdom ? I will never grant them liberties that will make me a slave." The king's passionate refusal aroused the nation. The baronage, when informed of it, pro- « Army of ceeded at once to London with their forces arrayed under the Holy""1 leadership of Robert Fitz- Walter as "Marshal of the Army ChurJh" of God and Holy Church." On the 24th of May London uponLon- threw open her gates to the patriot host, and Exeter and Lincoln followed her example. The occupation of the capi tal was followed by a summons from the confederates to all barons and knights who had so far stood aloof to unite them selves with the national cause, under the penalty, if they re fused, of being treated as public enemies. Nearly all of the nobles who had as yet clung to the king yielded to this final summons, thus leaving John with a mere handful of retainers to face a nation in arms. Among those who still remained with the king, rather as mediators than as supporters, were Archbishop Langton ; Pandulf, the papal envoy ; Ranulf, earl of Chester, and William Marshall, earl of Pembroke, — all of whom urged upon the king the acceptance of the charter. Thus overcome by force from without and pressure from John's sur- within, John yielded with affected cheerfulness to a necessity which he could no longer withstand. In order to save him self from the final humiliation of unconditional surrender, he 1 " Fecit sibi soli contra omnes horn- 2 Cf. Green, Hist. Eng. People, vol. i. ines per totam Angliam fidelitatem ju- p. 242. rare et homagia renovare." — M. Paris, 8 M. Paris, vol. ii. p. 155. vol. ii. p. 155. 38o THE NORMAN CONQUEST. [Ch. Analysis of the Great Charter. attempted to conceal the real nature of the submission about to be made under the cloak of a negotiation. With this end in view he invited the barons to a conference on an island in the Thames between Windsor and Staines,1 near the meadow Great char- of Runnymede. On the 15th of June the delegates met on If Runny- tnis island in view of the opposing forces encamped on either mede, June bank of the river, and after going through the form of a nego- '5' I2' ' tiation agreed upon the Great Charter of liberties in a single day.2 6. An analysis of the Great Charter, when made in the light of the circumstances attending its execution, clearly re veals the fact that, although it was issued in the form of a a compact royal grant, it was in substance a treaty or compact 3 entered crowneande/into between the royal authority on the one hand and the thees- nation marshalled in the ranks of the three estates on the other. As the clergy, the baronage, and the general com monalty of freemen all participated in the movement which brought about the making of the convention, and as all three orders participated equally in its fruits, the great act at Run nymede was in the fullest sense of the term a national act, and not the mere act of the baronage in behalf of their own special privileges. There is nothing in the provisions of the charter to recall obsolete distinctions of English and Norman blood ; there is nothing to suggest differences of English and Norman law. Upon the contrary, the very absence of such provisions clearly shows that such distinctions had passed forever away. It is clear that the process of assimilation, through which the lesser mass of the conquerors had been the con- absorbed by the greater mass of the conquered, had been 0™ work fully worked out before the Great Charter was won. The of union,— winning of the charter was in fact the final consummation of a national act, — 1 " Data per manum nostram in prato quod vocatur Runingmede, inter Win- delesorum et Stanes." — Magna Carta, § 63. 2 For the general history of the cri sis, see M. Paris (ed. Wats), pp. 252- 255 ; Walter of Coventry, vol. ii. pp. 219-229. The best modern statements of the transaction are to be found in Blackstone's preface to Magna Carta ; Stubbs, Const. Hist., vol. i. pp. 519-530 ; Green, Hist. Eng. People, vol. i. pp. 230-244. 8 M. Boutmy, in his comments on the " Constitution Anglaise," has this to say : " Les pactes sont au nombre de trois : la grande Charte (1215);..^ Le caractere de cet acte est aise a de- finir. Ce n'est pas precisement un traite, puisqu'il n'y a pas ici deux souverainetes legitimes ni deux nations en presence ; ce n'est pas non plus une loi; elle serait entachee d'irregularite et de violence ; c'est un compromis ou un pacte." — Etudes de droit constitu- tionnel, pp. 39-41 (Paris, 1885). IV.] THE WINNING OF THE CHARTERS. 381 the work of union. In the words of the masters : " It is the first great act of the English nation after the descendants of Norman conquerors and Norman settlers had fully become Englishmen, after all thought of any distinction between the king's men, French and English, had passed away from the thoughts of men."1 "The Great Charter is, then, the act of the united nation, the church, the barons, and the commons, for the first time thoroughly at one." 2 This first great act of the united nation was not in the path of political experiment. The provisions of the charter embody no abstract theory of ' government : they consist simply of a summing up of the tra- a summing ditional liberties of the English nation, with such modifica- "rational tions as those liberties had suffered through the results of the J^f^8]?^ Norman conquest. The fact has again and again been drawn nation. out, that the Conquest involved neither a displacement of the English nation nor a wiping out of the immemorial laws and political institutions of the conquered race. The Old-English system of local self-governing communities, together with the customary law, survived ; and upon that tenacious system as a substructure the Norman system of central or national ad ministration was superimposed. During the century and a half which followed the Conquest, this new system of central administration, with the source of its strength in the royal authority, grew and widened until it became the dominant force in the constitution. While the growth of the royal authority was thus advancing and overshadowing the tradi tional liberties of the kingdom, the causes were at work which finally brought about the division and classification of the na tion in three estates. By the thirteenth century the estate completion system had reached its completion, and the royal authority tate system, the limit of its growth.3 The tendency of that growth was to withdraw, through the centralization of justice and finance, the administration of all rights from the local and popular courts, whose procedure was regulated by that ancient code of Teutonic law which found its source in the customs of the people, into a single central or royal court whose procedure was regulated by the new code of royal law which found its source in the will of the king. The royal authority reached 1 Freeman, Norm. Conq., vol. v. p. 2 Stubbs, Const. Hist., vol. i. p. 543. 475- 8 See above, p. 337. 382 THE NORMAN CONQUEST. [Ch. Richard the limit of its growth when both Richard and John, accept- da*LJe°dn ing the imperialist theories of Glanvill, held that the will of winof'the tne Prince was the law of the land.1 The reckless attempts prince was made by John to enforce that theory finally brought about the land" the armed conflict between the nation and the king. Upon The nation the part of the nation it was claimed that the law of the thaHt was 'and was not the will of the prince, but the immemorial laws Eadwardfs °^ tne English kingdom, with such modifications and amend- .amendedby ments as those laws had suffered through the results of the Norman conquest. After the coming of the Conqueror, the Old-English system of customary law was generally appealed to as " the laws of good King Eadward," while the changes which it suffered through the results of the Conquest were generally described as the amendments made by King Wil liam. This statement is clearly illustrated by that clause in the famous charter of Henry I. in which the king promises to restore the laws of Eadward, with the amendments which his father had made.2 It is therefore plain that when the barons seized upon Henry's charter as the basis of national action, and demanded of the king that he should enter into a treaty with the nation upon the lines which it defined,3 it simply amounted to a demand upon their part that the legal and constitutional relations between the king and the nation should henceforth be regulated by the Old-English code of customary law, subject to such changes in that code as the results of the Conquest had brought about. There is no j attempt in the charter to wipe out the irrevocable effects of the Conquest ; the new system of central administration and the system of feudal tenures are both recognized as abiding The effort elements in the constitution. The effort is to fix the limits limits of* 0I innovation, to define the extent to which the centralizing : innovation. anc} feudalizing processes to which the Conquest gave birth shall be permitted to abridge the immemorial freedom in the time to come. In this vital question each estate is interested as a corporate entity, and the nation as a whole is also inter ested as a corporate entity. Upon the basis of these several interests the treaty is made. Each estate enters into a cov- 1 See Green, Hist, of the English meus earn emendavit consilio baronum People, vol. i. p. 243. suorum." — Art. 13. 2 " Lagam Edwardi regis vobis reddo 8 See above, p. 376. eum illis emendationibus quibus pater IV.] THE WINNING OF THE CHARTERS. 383 enant with the king as to its own special rights and privileges, Each estate while the nation in its corporate person covenants as to those forttfspe- general rights and immunities which are to be secured to the 5Jhiiegthe' whole body of freemen irrespective of their division into es- nation cove- tates or orders. The provisions of the Great Charter, there- the com- fore, fall naturally into two broad divisions : first, those that $°annghts specially relate to the rights and privileges of the three es tates ; second, those that relate to the rights and privileges of the nation as a whole. In the following statement of the contents of the charter, its leading provisions will be grouped, as near as may be, in the order which this division suggests. To the estate of the clergy the king promised that the The church Church of England should be free, and that she should have f??™^ her whole rights and liberties inviolable.1 The right to hold tions- free elections, which was considered first and indispensable, and which had lately been guaranteed in a charter twice issued,2 was for the third time repeated and confirmed. To the estate of the baronage, which consisted of the The bar- greater tenants-in-chief who held directly of the crown, the uevfdoT charter guaranteed many limitations and safeguards in miti- ^"burdens gation of the feudal duties and services due by virture of their by the 11. -ii • t-» crown. tenures to the king as supreme lord or suzerain. But it must not be supposed that the barriers which the greater tenants- in-chief thus interposed between themselves and the king were designed for their own protection merely. Animated by a broad spirit of generous patriotism, the barons stipu lated in the treaty that every limitation imposed for their protection upon the feudal rights of the king should also be The same imposed upon their rights as mesne lords in favor of the te^dedtc* under-tenants who held of them. Upon this all-important ^rntsndei> question the charter provides that "all the aforesaid cus toms and liberties that we have granted to be held in our kingdom, so far as pertains to us, with reference to our vas sals, all men of our kingdom, as well clerk as lay, shall ob serve so far as pertains to them, with reference to their men." 3 In this way the feudal burdens are limited not only 1 " Anglicana ecclesia libera sit, et 2 See above, p. 378. habeat jura sua Integra, et libertates ' Art. 60. suas illaesas." — Art. 1. 384 THE NORMAN CONQUEST. [Ch. Aid and scutagelimited. Relief, wardship,and mar riage regu lated. in favor of the baronage as against the king, but also in favor of all under-tenants as against the mesne lords themselves. The best illustration of this statement may be found in the following clauses touching the exactions of aids and scu- tages. As between the king and the baronage the stipulation is, that " No scutage or aid shall be imposed in our kingdom, unless by the general counsel of the nation, except for ran soming our person, making our eldest son a knight, and once for marrying our eldest daughter ; and for these there shall be taken a reasonable aid." 3 As between the barons and their tenants the stipulation is, that " We will not for the future grant to any one that he may take aid of his own free tenants, unless to ransom his body and to make his eldest son a knight, and once to marry his eldest daughter ; and for this there shall be only paid a reasonable aid." 2 The feudal clauses which stand next in importance are those which im pose restraints upon the exactions of lords in the matter of reliefs, wardships, and marriages. These clauses, seven in number, provide in substance that upon the death of a tenant- in-chief, whether earl, baron, or knight, the heir if of full age shall have his inheritance upon the payment of a fixed sum which is referred to as the " ancient relief." 8 If the heir is under age and the right of wardship is exercised, then, upon his majority, he shall have his inheritance without relief and without fine.4 In the event of a wardship stringent pro visions are imposed for the protection of the ward against the waste and improvidence of the keeper of his lands.5 Ex press provision is made that heirs shall be married without disparagement ; and that widows shall be endowed, and shall marry again, or refuse to marry, without being compelled to pay to their lords unreasonable sums for the privilege.6 It was further provided that no man shall be constrained to per form more service for a knight's fee, or other free tenement, 1 Art. 12. 2 Art. 15. And Art. 16 provides that "No man shall be distrained to perform more service for a knight's fee, or other free tenement, than is due from thence." 8 Art. 2. Cf. Reeves, History of English Law, vol. ii. p. 20; vol. i. p. 382. 4 Art. 3. 6 Arts. 4 and 5. Upon the subject of waste, see Reeves, vol. ii. pp. 21, 22. 6 Arts. 6 and 7. As to the older feudal law which forbade a woman to be endowed or to marry without the payment of a fine in one case, and with out obtaining a license in the other, see Blackstone, Com., bk. ii. p. 135. IV.] THE WINNING OF THE CHARTERS. 385 than is due from thence.1 These provisions, designed to relax the system of military tenures, were followed two years later by a clause which tended directly in the opposite direc tion. In order to increase the hold of lords upon their vas- A restraint sals it was provided in the second reissue of the Great aTion,*1^"! Charter in 12 17 that no tenant should give or sell to an other so much of his land as would render the remainder insufficient to answer the services due to the lord of the fee.2 This restraint upon the power of alienation was designed to check the growing practice of subinfeudation, which, as it diminished the power of the mesne lords to perform their services, tended directly to undermine the whole fabric of feudal obligation.3 As the constitution of the commons as organized in the Thecom- thirteenth century can be defined only in broad and general mons' terms, it is difficult to point out definitely and precisely those provisions of the Great Charter which relate exclu sively to the third estate. As heretofore explained, according to no mediaeval theory could the "commons" be defined to *^ be a union into one corporate body, conscious of its own identity, of all classes or orders of men below the nobility and the clergy. The term "commons," as understood on the Continent, bore a far more restricted meaning. In France and Spain the term embraced only the citizens of the privi leged towns, or of chartered communities of kindred municipal origin. The third estate in England differed, however, from the same estate in the continental constitutions in that it embraced not only citizens of towns, but also all landowners below baronial rank, many of whom in continental lands would have belonged to the estate of the nobles. The middle The Eng- class in England consisted not only of the citizens of towns, ckraem- ° but also of the lesser landowners dispersed throughout the jj^^f},,. shires. The term " commons," as it appears in the English low baro- political system, must therefore be understood to include all freemen, below baronial rank, organized and incorporated for 1 Art. 16. a As to the place of this provision in 2 " Nullus liber homo de cetero det the history of restraints upon aliena- amplius alicui vel vendat de terra sua tion, see Digby, Law of Real Property, quam ut de residuo terra? suae possit suf- pp. 118, 136, 199; Reeves, Hist. Eng. Scienter fieri domino feodi servitium ei Law, vol. ii. p. 24. debitum quod pertinet ad feodum illud." — Magna Carta (1217), art. xxxix. 386 THE NORMAN CONQUEST. [Ch. Privilegesof London and of all other cities and towns guaranteed. Rights of the shire communities. The mer chant class. The simple freeman. Provisions which re late to the nation as a whole. government not only in towns, but in shires.1 Guided by this definition it will be possible to collate, with approximate correctness, those provisions of the charter which specially relate to that great body of freemen, generally known as the middle class, that entered so largely into the composition of the shire and town communities.2 First among these pro visions must be cited that clause which provides that the city of London shall have all of its ancient liberties and free cus toms, as well by land as by water ; and further, that all other cities, boroughs, towns, and ports shall have all of their liberties and free customs.3 In this provision we have a definite recognition of the rights of the "commons" as orga nized in town communities. In the clause which provides that all "counties, hundreds, wapentakes, and tithings shall stand at the old rent, without any increase, except in manors on the royal demesne," we have a recognition of the rights of the "commons" as organized in "shire communities."4 " Neither town nor tenant shall be distrained to make bridges or banks, unless that anciently of right they are bound so to do."5 From such recognitions of the rights of the "com mons " in their corporate relations we naturally pass to those provisions touching the rights of individuals who are unmis takably embraced in the ranks of the third estate. In behalf of the merchant class it is provided that, except in time of war, they shall come in and go out of the kingdom without paying more than the ancient and allowed customs.6 In the event of war, the rights even of foreign merchants are to be carefully respected.7 The rights of the simple freeman are also specially remembered. His horse and cart are, by an express provision, protected against the forcible requisition even of the sheriff himself.8 Having now referred to those parts of the Great Charter which specially relate to the three estates, the task remains to collate those clauses which set forth the rights and immu- 1 For the authorities upon this sub ject, see above, p. 356. 2 " But in England the middle class was not confined to the towns; it spread itself, in the form of a lesser gentry and a wealthy yeomanry, over the whole face of the land." — Free man, Growth of the Eng. Const, p. 131. 8 Art. 13. 4 Art. 25. 6 Art. 23. 6 Art 41. 7 Ibid. Montesquieu has praised the framers of the charter for having thus made the protection of foreign merchants an article of their national liberty. — Spirit of Laws, vol. i. p. 349' 8 Art. 30. IV.] THE WINNING OF THE CHARTERS. 387' nities of the people as a whole, regardless of their division into classes or orders. First among the provisions of this latter class stand out the great constitutional clauses which relate to the organization and powers of the national coun cil, to the procedure of the king's court, and to the general administration of justice. The process has already been drawn out through which the Old-English national assem bly was gradually and silently transformed, during the Nor man and Angevin reigns, into a council of feudal tenants-in- chief. The definite results of this process of change are clearly set forth in a legal shape in that part of the Great Charter which describes the elements of which the common council of the kingdom shall be composed, and the method by which those elements shall be brought together for national action. The constituent elements of the national Theconsti- council are defined to be the whole body of the king's tenants- the national in-chief. Out of this body the archbishops, bishops, abbots, Jfi^ earls, and greater barons shall be summoned by a royal writ directed to each one personally ; the remainder — the lesser tenants-in-chief — shall be summoned in a body by a general writ addressed to the sheriff of each shire, in which writ shall be stated the time and place at which, and the cause for which the national council shall be called together.1 Ther right of the council thus organized to consent to taxation isJNotaxa- clearly and distinctly recognized. No scutage or aid, otherjoutYsron- than the three regular feudal aids, shall be imposed but by|sent- the common counsel of the nation ;2 and this common coun sel can only be taken in a national assembly summoned in the manner which the law directs.3 The immemorial right of the national assembly to join with the king in ordaining taxes — a right which even during the Norman and Angevin reigns had never been entirely ignored — was thus stated with a precision and clearness for which the nation itself seems to have been hardly prepared. In the many confirma tions of the charter which followed during the succeeding reign, these vital clauses as to taxation and the national coun- 1 Art. 14. mune consilium regni nostri," etc. — 2 "Nullum scutagium vel auxilium Art. 12. ponatur in regno nostro, nisi per com- 8 That direction is embodied in art 14. 388 THE NORMAN CONQUEST. [Ca cil were invariably omitted.1 Not until the latter part of the reign of Eadward I. was the right of self-taxation which they embodied finally restored, as a part of the " Confirmatio Cartarum," to a permanent place in the constitution. Reforms in The fact that the king's court was held in no fixed place shstemicial inflicted the greatest possible inconvenience and expense upon those suitors involved in common pleas who were obliged to follow its migrations. In the history 2 of the plea of Richard d'Anesty, which "followed the person of the king" for five years, and which imposed on D'Anesty nearly thirty different journeys, may be found, perhaps, an extreme illustration of the evils to which suitors were exposed. To remedy these evils, the charter provides that common causes between party and party shall be tried in some fixed place ; that common pleas shall no longer follow the person of the king.3 In order to expedite the administration of justice in the shires, it was also provided that two justices shall be sent four times a year through each county, who, together with four knights chosen by each county court for that purpose, shall take the recognitions of novel disseisin, mort d'ancester, and darrein presentment in their proper counties.4 It was further pro vided that no sheriff, constable, coroner, or bailiff of the king shall hold pleas of the crown ; 5 and that ho one shall be ap pointed a justice, constable, sheriff, or bailiff except such as are learned in the law and intend duly to observe it.6 The double purpose of these provisions was to strip the sheriffs of judicial functions,7 and at the same time to save those charged with criminal offences from trial before unfair and incom petent officers. In addition to these provisions touching the character and appointment of judicial officers, the framers of the charter were careful to announce a series of practical rules, both general and special, for the government of all courts in the administration of justice. First among these general rules stand the famous clauses which provide that 1 Cf. Stubbs, Const Hist, vol. i. p. the curia regis, see Madox, Hist. Exch., 534- vol. i. ch. xix. pp. 787-801; Reeves, 2 See Palgrave, Eng. Commonw., vol. ii. pp. 30-33 and notes. vol. ii. pp. ix.-xxvii ; Sir James F. Ste- 4 Art. 18. phen, Hist. Crim. Law, vol. i. p. 88 seq. 6 Art. 24. 3 " Communia placita non sequantur 8 Art. 45. curiam nostram sed teneantur in ali- ' Upon this interesting subject, see quo loco certo."— Art. 17. As to the Bigelow, Hist. Procedure, pp. 99, nl> history of this clause in its relation to 137, and note. IV.] THE WINNING OF THE CHARTERS. 389 "no freeman shall be taken, or imprisoned, or disseized, or General outlawed, or exiled, or anywise destroyed ; nor will we go togovem upon him, nor send upon him, but by the lawful judgment of J^atiJjfrf his peers or by the law of the land. To none will we sell, to justice. none will we deny or delay, right or justice." x Among the special provisions touching particular branches of judicial administration, the following clauses may be cited. In order to restrain the king from the wanton or tyrannical imposition Amerce- of amercements, — the pecuniary fines laid on those who had ments- offended against the royal prerogative, — it was provided that the freeman shall only be amerced according to his fault, saving to him the means of maintenance ; and in like man ner the merchant, saving to him his merchandise ; and also the villein, except he be the king's villein, saving to him his wainnage. No amercement shall be assessed in any case but by the oaths of honest and lawful men of the neighborhood.2 Clerks shall only be amerced in proportion to their non- ecclesiastical property.3 Earls and barons shall be amerced according to the offence, but only by the judgment of their peers.4 As a protection to the local jurisdictions it was pro- writ of vided that the use of the writ of praecipe should be limited.5 p***1^ In a case involving life or limb, nothing shall be given or writ of in- taken for the writ of inquisition, which shall be granted i1"31*1011- freely.6 No bailiff shall henceforth force a man to compurga- criminal tion or ordeal unless the accusation is supported by credible witnesses.7 No man shall be taken or imprisoned upon the accusations. 1 " Nullus liber homo capiatur, vel parium suorum." In the so-called laws imprisonetur, aut dissaisiatur, aut ut- of Henry I." the principle is thus ex- lagetur aut exuletur, aut aliquo modo pressed : " Unusquisque per pares suos destruatur, nee super eum ibimus, nee judicandus est et ejusdem provincial" super eum mittimus, nisi per legale — See Forsyth, Trial by fury, p. 91 and judicium parium suorum vel per legem note I et seq. (2d ed.) ; Stephen, Hist. terrae." — Art 39. Crim. Law, vol. i. p. 162. " Nulli vendemus, nulli negabimus, 2 Art 20. aut differemus, rectum aut justiciam." 8 Art 22. — Art. 40. The "judicium parium" * Art. 21. Upon this whole subject does not refer, as has been erroneously of amercements, see Reeves, Hist. Eng. supposed, to trial by jury, but to trial Law, vol. ii. pp. 35-39. by members of the feudal and county s Art. 34. For the history of this courts. In this formula was embodied writ see Bigelow, Hist. Procedure, pp. a principle which lay at the foundation 77, 78, 83. of all Teutonic law ; a principle which 6 Art. 36. The writ here referred two centuries before had been an- to — de odio et at id — was in those days nounced, in an edict of Conrad II., in one of the great securities of personal these terms : " Nemo beneficium suum liberty. Cf. Reeves, vol. ii. p. 47 seq. perdat, nisi secundum consuetudinem 7 Art. 38. antecessorum nostrorum et per judicium ous pro 390 THE NORMAN CONQUEST. [Ch. appeal or accusation of a woman for the death of a man intestates, other than her husband.1 When any freeman shall die intes tate his chattels shall pass to his next of kin, subject to the claims of the church and the rights of his creditors.2 In Collection order to restrain the severity with which debts due to the king's crown were exacted, it was provided that less oppressive debts. means should be used for their collection ; 3 and also for the collection of debts due to the Jews, in which debts the crown possessed a contingent interest.4 If, however, the king's debtor dies, no part of his chattels shall be removed until the royal demand is fully satisfied.5 In mitigation of abuses The forest which arose out of an undue expansion of the forest code, it code' was provided that the forest courts should not compel the attendance of those who were not directly concerned in the forest jurisdiction.6 Misceiiane- As a limitation upon the royal right of purveyance it was provided that the royal officers shall pay cash for all provi sions taken by requisition ; 7 and that neither sheriff nor bailiff shall take a man's horse or cart, or his wood, for the king's use, without the consent of the owner.8 Weights and measures shall be uniform throughout the kingdom.9 All forests made in the present reign shall forthwith be disfor ested, and all rivers placed in fence shall be thrown open.10 All weirs in the Thames and Medway, and throughout Eng land, except upon the seacoast, are to be removed.11 All evil customs concerning forests and foresters, sheriffs and their officers, rivers and their keepers, shall be inquired into in each county by twelve sworn knights, and forthwith abol ished.12 Articles of In addition to the clauses of a general and permanent rary'naLe. nature which have now been summarized, the charter con tained others of a temporary character, designed to remedy special abuses which had arisen out of recent events. All hostages and charters given to the king by his English sub jects as securities for the peace shall be given up;13 and, as 1 Art. 54. "Appeal" is here used in ' Art. 28. the sense of accusation. 8 Arts to V. 2 Art. 27. 9 Art. 35. \ Art. 9. 10 Art. 47. 4 Art. 10. This clause was omitted u Art. 33. in the first reissue of the charter. 12 Art 48 <• Art. 26. is Art, 49. 6 Art. 44. IV.] THE WINNING OF THE CHARTERS. 391 soon as peace is restored, all foreign mercenaries shall be sent out of the kingdom,1 and all who have been disseized or exiled shall be forgiven and recalled.2 To the Welsh, who have been illegally disseized or dispossessed, restitution shall be made and justice done according to law.3 The Welsh princes held as hostages shall be released, and the rights of the king of Scots shall be recognized.4 That the nation was fully impressed with John's faithless- Guarantees ness, is made manifest by the provision for the enforcement forcement of the treaty in the event of a breach of any of its provisions °grthe char" upon the part of the king. The enforcement of the charter is committed to twenty-five nobles to be chosen from the whole baronage. In the event of a failure upon the part of the crown or its officers to perform any of its terms, the duty is cast upon four barons, to be chosen out of the five-and- twenty, forthwith to lay the grievance before the king. If he shall fail to do justice in due time, then the twenty-five barons, together with the community of the whole realm, — "communa totius terra," — are authorized to levy war upon him, to distrain and distress 5 him, until the compact is kept and justice done.6 The charter concludes with an oath upon Conclusion. the part of the barons and upon the part of the king, that all the articles of the agreement shall be observed in good faith, and according to their true meaning. The coalition which coerced John into the execution of the charter trusted but little, however, to the good faith of a king whom no oath could bind. The only real guarantee that the principles which the charter defined should enter into the actual administration of government lay in the fact that, in the event of a breach of the compact upon the part of thfcharter the king, the legal right of resistance remained to the nation {^m^ in arms. The great act of the " Parliament of Runnymede " not the end, ° J of a con- marks the beginning, not the end, of a conflict.7 It embodies, met 1 Art. 51. « Art. 61. 2 Art. 52. 1 " For eighty years from the ' par- 8 Art. 56. liament of Runnymede," the history of * Arts. 58, 59. England is the narrative of a strugle of 6 "A contractual right of distress the nation with the king, for the real was so bound up with the legal customs enjoyment of the rights and liberties of the Middle Ages, that the Commit- enunciated in the charter, or for the tee of Resistance almost loses thereby safeguards which experience showed to its apparently revolutionary character." be necessary for the maintenance of — Gneist, The Eng. Parliament, p. 85 those rights." — Stubbs, Const. Hist, (Shee's trans.). vol. ii. p. 1. 392 THE NORMAN CONQUEST. [Ch, not a final statement of concessions to the nation from the crown, but rather a definite programme of reform which the nation resolves to persevere in until it is finally accepted by struggle the crown as an irrevocable basis of government. During a fornmoreS period of more than eighty years the crown resists the right than eighty 0f tne nation to enter into the full enjoyment of the rights and liberties which the charter defines. The struggle ends at last with the final confirmation of the charters at the close of the reign of Edward I. The absolute good faith with which Edward finally accepted the programme of reform announced at Runnymede closed forever the strife which ^Duplicity finds a firesh beginning in the duplicity of John, whose one besides a number of bishops, barons, and others,— minority, who constitute a resident and continual council for the dis patch of public business, apart from the greater body known as the common council of the kingdom. As the right to appoint the regent was assumed by the great council, it is more than likely that the other personal advisers who stood 1 Gualo, who returned to Rome in 6 The consideration is clearly stated: November, 1218, was succeeded by " Omnes de regno nostro, dederuntno- Pandulf. Cf. Lingard, vol. ii. p. 86. bis quintam decimam partem omnium 2 Ann. Dunst, p. 74. Pandulf re- mobilium suorum." signed in July, 1221. M. Westm., p. 280. 6 Honorius so declared in letters is- 8 See Green, Hist. Eng. People, vol. sued in 1223. i. p. 251 seq. 1 M. Paris, p. 336; Stubbs, Const 4 Statutes of the Realm : Charters, Hist, vol. ii. p. 39. pp. 22-25. IV.] THE WINNING OF THE CHARTERS. 397 with him around the king were also during the minority appointed with its consent and approval. From the great council the earl Marshall received his appointment as " rector regis et regni" in 12 16,1 and Ralf Neville the chancellorship in 1226.2 It is therefore probable that to the minority of Ministerial Henry can be traced the beginnings of the constitutional doc- "yfand'the trine that the king can do no wrong, and that the ministers ^"he who advise him are responsible to the assembled represen- king can do r . . , , , . .... no wrong. tatives of the nation who have a consultative voice in their ap pointment.3 Years, however, elapsed, after Henry's formal emancipation in 1227, before he actually attempted to govern alone. For five years more the real direction of affairs con tinues in the hands of the justiciar Hubert, who is for a time aided in the difficult task of preserving peace at home and abroad, and in governing England in the interest of the Eng lish, by the patriot primate, who died in July, 1228.4 After Langton Langton's death Hubert found himself too weak to stand f^ ,uly' alone against the tide of papal aggression which now began to press upon the realm. Hubert's supposed connection6 with an organized popular opposition to the collection of a tax6 imposed for the aid of Gregory IX. in his war with the emperor broke his power with the king, whose dominant im pulse was his devotion to the papacy, and led at last to his dismissal in July, 1232.7 After the fall of Hubert, his old rival, Peter des Roches, regained the royal confidence, and peterdes became for a time dominant in the king's councils. But his Roches- power was short-lived. In April, 1234, the king commanded Bishop Peter to confine himself to his spiritual duties ; 8 from that time the personal government of the king really begins. Henry, who held with his father that the will of the prince Henry's was the law of the land, now attempted to enforce his per- ]S?onal sonal rule, unrestrained by the influence of the great minis ters of state who had carried on the work of administration since the days of his grandfather, Henry of Anjou. The first 1 W. Coventry, ii. p. 233. 7 For the charges brought against 2 M. Paris, pp. 316, 430. Hubert, see M. Paris, p. 377- 8 Upon this whole subject, see Stubbs, 8 M. Paris, vol. ii. p. 366, R. S. Const. Hist, vol. ii. pp. 40, 41, 255-266. " Praecepit Petro, Wintoniensi epis- * M. Paris, vol. ii. p. 302, R. S. copo, ut pergens ad episcopatum suum 6 Ann. Dunst., p. 129. curis intenderet animarum, et de cetero 6 M. Paris, pp. 335, 361 ; Ann. Bur- regiis negotiis non interesset." ton, p. 245 ; Ann. Waverley, p. 305. 39« THE NORMAN CONQUEST. [CH; The justi ciar be comes sim ply the head of a law court. Foreign in fluences at work. Conflict be tween the crown and papacy on the one side and the English church and nation on the other. step was to abolish the ancient dignity and power of the jus ticiar. With the fall of Hubert de Burgh J the line of great justiciars comes to an end : henceforth the justiciar becomes simply the head of a law court ; he is no longer " secundus a rege!' Henry's policy was to reduce the dignity and impor tance of the justiciar, and at the same time to distribute all the other great offices of state among trained administrators wholly dependent upon his personal will. In spite, however, of the king's lofty assumptions, the actual direction of affairs soon passed into the hands of the brood of foreign favorites who followed in the train of Eleanor of Provence, to whom he was married in 1236,2 and to the Poictevin kinsmen of the queen mother who came in 1243.3 And about the same time still another and more potent foreign influence was introduced into the personal government of the king. The one power which Henry admitted to be superior to his own was the power of the papacy, whose influence upon English affairs was formally renewed by the arrival in 1237 of the legate Otho, who came upon Henry's secret invitation to carry out projected reforms in church and state.4 Out of the pressure of the king's personal rule as directed by the interests of the foreign favorites, and by the exactions of the papal court,5 arose that bitter conflict between the English church and nation on the one hand, and the royal and papal authority on the other, which finally resulted, in Henry's latter days, in an open appeal to arms. The dreary waste of years that inter venes between the beginning and the end of the conflict is filled up with endless details which illustrate the growth of the royal and papal exactions on the one hand and the rising spirit of resistance on the other. The history of the conflict can be most clearly traced in the proceedings of the parlia ments which meet to listen to demands for money from pope 4 " Ad reformandum statum ecclesiae et regni." — M. Paris, vol. ii. p. 398, 1 " Robert Bumell was the first great chancellor, as Hubert de Burgh was the last great justiciar." — Stubbs, Const Hist, vol. ii. p. 269. 2 M. Paris, vol. ii. p. 385, R. S. 3 " Henry, a good son and a good husband, could not bring himself to say No to his mother or his wife, and the land was filled with successive swarms of the kinsfolk and country men alike of Isabel and of Eleanor." ' — Norm. Conq., vol. v. p. 483. R.S. 6 Lingard, with his usual frankness, admits that "the history of Henry's transactions with the court of Rome discloses to us a long course of oppres sion, under which the English clergy, by the united influence of the crown and the tiara, were compelled to sub mit to the most grievous exactions." — Hist, of England, vol. ii. p. 99. IV.] THE WINNING OF THE CHARTERS. 399 or king, and, in turn, to concede or reject them. In the pro ceedings of the parliament of 1 242, which were duly recorded Earliest and which survive as the earliest authorized report of a par- reportofa liamentary debate,1 we find the representatives of the nation, P"^™1;" after thoroughly discussing the expediency of a foreign war, 1242. bold enough to oppose it by refusing an aid to the king to carry it on. To the parliament of 1244 the king was forced to appeal with his own mouth for aid out of the difficulties in which he had become involved by attempting to carry on war after a grant had been denied him. To this appeal upon the part of the king the parliament replied that they would grant him no money unless he would first assent to a definite plan The pro of reform which contemplated, among other things, the confir- F0°™ oP" mation of the charters, the election by the national assembly I244- of a justiciar, chancellor, and treasurer, and the establish ment of a permanent council which should attend upon him and supervise his administration.2 This demand, though not accepted at the time, defined the basis of later reforms ; it foreshadowed the practical expedients which were afterwards employed to force upon the king a faithful observance of the principles which the charter defined. From 1244 to 1254 From 1244 the contest is continuous. The effort upon the part of the t0 IZ54' king is to obtain from the parliament without conditions money enough to supply his ever-increasing wants ; the effort upon the part of the nation is to secure the appoint ment of the great officers of state in order to control through them the king's improvident administration. To the parlia ment of 1254 — which was convened by the regents for the purpose of obtaining an aid for the king, who was absent on an expedition to Gascony — the chosen knights from the Knights of shires are summoned for the first time since the reign of reappear in John.3 The grant which the regents asked was made and t^^fA' wasted, and at the end of the year the king returned to I254- 1 M. Paris, pp. 581, 582 ; Select Char- The Committee say that "it seems to ters, p. 368, 2d ed. have been the first instance appearing 2 M. Paris, pp. 640, 641. As to the on any record now extant, of an at- connection of Simon of Montfort with tempt to substitute representatives the joint committee of bishops and bar- elected by bodies of men for the attend- ons that drew up the reply to the de- ance of the individuals so to be repre- mand of the king, see Green, Hist. Eng. sented, personally or by their several People, vol. i. p. 275. procurators, in an assembly convened 8 Report on the Dignity of a Peer, for the purpose of obtaining an aid." — App. i. p. 13, and also vol. i. pp. 94, 95. P. 95. 400 THE NORMAN CONQUEST. [Ch. become involved in fresh complications. While in Gascony Henry had accepted from his papal overlord, for his second son Edmund, an offer of «the Sicilian crown, which was re garded as a papal fief, upon the pledge that England would send an army across the Alps, and also repay the sums which the pope was then borrowing to carry on his war with the house Disclosure of Hohenstaufen.1 In 1257 the pope presented his account king'sdebts t0 Henry, showing an indebtedness of 135,000 marks, which iiament?of" was duly laid before the parliament.2 The crisis had now come. 1257- The king was so helplessly in debt,3 and the administration of the kingdom was in such hopeless disorder, that the fact was apparent to all that the point had at last been reached at which it was necessary for the parliament to place the royal authority in commission, and to provide through its own agents .for the future government of the state. The work of reorganizing the system of central adminis tration which Henry's personal misrule had completely broken down, of freeing the nation from the presence and influence of the foreign favorites whom he had quartered on the crown, and of checking the aggressions of the papal power, natu rally devolved upon the barons, who were now aroused to a definite plan of action under the leadership of the great Earl of Leicester, Simon of Montfort4 In a parliament which met at London in April, 1258, the king in his helplessness agreed to put himself in the hands of the barons, and to sub mit himself to a definite plan of reform which they were to unfold in a parliament to be held at Oxford on the nth of June.5 At the time appointed, the baronage appeared in arms 6 under the leadership of Leicester and Gloucester, and presented a petition embodying the reforms which they had resolved to carry out.7 In accordance with the agreement The Bar ons' War, 1258-1272. Simon of Montfort. 1 Fadera, i. pp. 297, 301, 316, 318, 336, 337- See Ranke, Englische Ge schichte, i. 98. 2 Fadera, i. p. 354; M. Paris, p. 946; Ann. Burton, p. 384. 8 "It was calculated that since his wasteful days began, he had thrown away 950,000 marks." — Stubbs, Const. Hist., vol. ii. p. 71, citing M. Paris, p. 948. 4 The best sketch of the whole ca reer of Earl Simon is perhaps that one contained in Dr. R. Pauli's monograph entitled Simon von Montfort Graf von Leicester, der Schopfer des Manses der Gemeinen. Trans, by Una M. Goodwin, with introduction by H. Martineau, Lon don, 1876. See, also, Blaauw's Barons' War. 6 M. Paris, pp. 963, 968; Ann. Theokesb., p. 164 ; Fadera, i. pp. 37°> 37i- 6 M. Paris, p. 970; Pauh, p. 91 ! Lords' Report, vol. i. p. 126. 7 For the petition of the barons, see Ann. Burton, pp. 339~443- IV.] THE WINNING OF THE CHARTERS. 401 made at London in April,1 a committee of twenty-four were elected, half by the king and half by the barons, who drew up the articles generally known as the Provisions of Oxford.2 Provisions Under the terms of the Provisions, the royal authority was ii5°rford' placed under the control of three committees, who were charged with the task of reforming the entire administration. A council of fifteen were elected by four of the original twenty-four to advise the king in all ordinary matters of gov ernment ; another committee of twenty-four were appointed to deal only with the negotiation of financial aids ; 3 a third committee of twelve were chosen by the barons to represent the community in three annual parliaments : 4 while to the original committee of twenty-four was committed the reforma tion of the church.5 It was provided that parliament should convene thrice in the year, and that in each parliament the permanent council of fifteen should meet with the body of twelve to be chosen by the barons, to discuss the common business of the whole community.6 Hugh Bigod, the adher ent of both of the baronial leaders, was chosen justiciar ; and justiciar, chancellor, and the guardians of the king's castles were sworn to act only with the advice of the permanent council.7 The provisional government, which went into op eration in June, promptly expelled the foreigners, but the work of reform which it undertook to carry out proceeded so slowly that the knighthood8 openly complained that, while the barons had looked after their own interests, they had kept none of their promises. The result of this outcry was the Provisions additional provisions known as the Provisions of Westmin- t£&, ster, which were published in Latin and French in October, ,259- 1 For the king's consent to the scheme same persons." — Green, Hist, of the of reform, and to the election of the Eng. People, vol. i. p. 292. twenty-four, see Fadera, i. pp. 370, 371. 'With the further provision " that 2 Ann. Burton, pp. 446-453. Upon the commonalty shall hold as estab- the whole subject, see Select Charters, lished that which these twelve shall do. pp. 378-400, 2d ed. See, also, Mr. And that shall be done to spare the Luard's translation of the Ann. Bur- cost of the commonalty." ton, pp. 501-505. 7 Ann. Burton, pp. 447-449. A proc- 8 Ann. Burton, p. 450. lamation, the first in the English tongue 4 Ibid., p. 449. since the Conquest, was issued by the 6 Ibid., p. 486. " The complexity of king commanding the observance of the such an arrangement was relieved by Provisions. — Fadera, i. p. 378. the fact that the members of each of *. " Communitas bacheleria; Anglia:." these committees were in great part the — Ann. Burton, p. 471 ; Pauli, pp. 95- 100. 402 THE NORMAN CONQUEST. [Ch. Knights of the shire in the parlia ment of 1261. Award of St. Lewis, Jan., 1264. Battle of Lewes,May, 1264. 1259.1 This last effort, like the first, failed, however, to sat isfy public expectation. The very complexity of the scheme of reform which the barons had devised, coupled with the existence of an open feud between the baronial leaders — Gloucester and Leicester — foredoomed the provisional sys tem to failure and disappointment. The king, emboldened by the division of his adversaries, announced in 1260 that, as the barons had failed to keep the Provisions, they were no longer binding on him. In this crisis the king's eldest son, Edward, stood for a moment by the side of Earl Simon in behalf of the popular cause, while Gloucester went over to the king.2 But father and son were soon reconciled, and Gloucester returned to join with Earl Simon in calling a parliament, in the fall of 1261, at St. Alban's, to which were summoned three knights from every shire south of Trent.3 The death of Gloucester in the summer of 1262 delivered the popular cause from the difficulties of a divided leadership, leaving the great earl free to deal single-handed with his royal opponent. After raising the standard of successful revolt, Simon, in order to avert civil war, agreed in December, 1263, as a compromise, to submit the matters at issue between the nation and the crown to the arbitrament of the king of France, who, it was agreed, should pass upon the validity of the Provisions, and at the same time determine whether or no they should continue in force.4 Early in the following year Lewis made his award, in which he solved the questions at issue in favor of the king, with the proviso, however, that his award was not intended to abridge the liberties of the nation as defined by charter, statute, or custom.5 This award, which upon its face seemed to be a contradiction, settled nothing but the fact that the last and only hope of the nation was in civil war, which soon began. In the decisive battle fought at Lewes in May, 1264, Simon was completely victorious over Henry and Edward, who, to gether with their chief supporters, became prisoners in his 1 Statutes of the Realm, i. pp. 8-n ; Ann. Burton, pp. 471-479. In 1267 these Provisions were embodied in the Statute of Marlborough. — Select Char ters, p. 400. 2 Green, History of the English People, vol. i. pp. 294, 295; Pauli, p. 108. 8 Henry commanded the sheriffs to send the knights, not to St. Alban's but to Windsor. For the writ, see Lords' Report, App. i. p. 23. 4 Shirley, Royal Letters, vol. ii. pp. 249-251; Ann. Dunst, p. 225; Pauli, p. 132 seq. 6 The award may be found in the Fadera, i. p. 433, and in the Liber de Antt. Legg., p. 59. IV.] THE WINNING OF THE CHARTERS. 4°3 hands.1 The only use which the earl sought to make of his victory was to place fresh and binding restraints upon the royal authority. In the " Mise of Lewes " — the convention between the patriot leaders and their captive lord — the Pro visions were confirmed, and a new body of arbitrators ap pointed to settle all controversies existing between the nation and the king.2 Pending the award, the royal castles were delivered to the barons, and on the 4th of June writs were issued appointing guardians of the peace in each county, and summoning four knights from each shire to meet the king in Knights of a parliament to be held on the 22d of the same month.3 theparii™ The parliament met at the time appointed, and drew up a new ™e6nt of programme of government, — to last while Henry lived, — un der which the king was to act with the advice of a council of nine, to be nominated by three electors to be chosen by the barons, — three of the nine to be in constant attendance.4 In order to conclude the arrangements embraced in the " Mise of Lewes," and in order to gain a broader popular basis for his government, Simon, on the 14th of December, issued the Famous writs for his famous parliament, to which were summoned not of ^2™™ only the two discreet knights from the shires, but also, for the r^H\ ™^ first time in the history of English politics, two representa- first time tives from the cities and boroughs.5 This bold and unpre- from cities cedented appeal for aid to the rising democracy of the cities and towns' and towns did not avail, however, to save the government of the earl, now tottering to its fall. The weakness of the patriot party among the baronage had undermined Simon's strength, and this fact finally led to his overthrow when the disaffected, under the lead of Gloucester and the Mortimers, were joined by Edward, who escaped from the earl in May, 1265.6 In the person of the prince the royal cause now found 1 For a general account of the battle, ceteris burgis Angliae, quod mittant in see Rishanger, ed. Halliwell, p. 31 seq. ; forma praedicta duos de discretioribus, Ann. Waverley, p. 356 ; Blaauw's legalioribus et probioribus tam civibus Barons' War, pp. 143-189; Pauli, pp. quam burgensibus. 144-151. "Item in forma prsedicta mandatum 2 The substance of the convention, est baronibus et probis hominibus which contained seven articles, is stated Quinque Portuum." The writ is con- in the Chronicle of Rishanger, p. 37. tained in the Lords' Report, App. i. p. 8 Fadera, i. p. 442 ; Select Charters, 33. " The novelty was simply the as- p. 41 1 seq. sembling the representatives of the 4 Ibid., i. p. 443. towns in conjunction with those of the 6 "Item in forma praedicta scribitur counties." — Select Charters, p. 410. civibus Eboraci, civibus Lincolniae, et 8 Pauli, pp. 183-186. 404 THE NORMAN CONQUEST. [Ch. a brilliant leader, whom Simon himself had trained in the art Battle of of war. When, in August, master and pupil met at Evesham1 Aug!, 1265. as leaders of the opposing forces, the great earl went down, and with him perished for a time the patriot cause for which he had so long and so unselfishly contended. Those of Si mon's followers who survived the defeat were at once made to understand the full significance of unsuccessful rebellion. The franchises of every town that had supported the earl Council were held to be at the king's mercy, while a general sentence winches- of forfeiture was issued against all who had fought under his September standard.2 These exasperating measures drove the disin herited lords to gather for resistance in the castle of Kenil- worth, where they were besieged by the king from June to December, 1266.3 During the siege a parliament was held, and with the king's consent arbitrators were appointed who were charged with the duty of preparing a plan of reconcilia- Dictumde tion. The scheme thus prepared, known as the "dictum de worth", Oct., Kenilworth," provided among other things that no one should ,266- be conclusively disinherited from the mere fact of having par ticipated in the rebellion, — that all who would submit within a given time should be spared and forgiven.4 After the terms thus proposed had been generally accepted, and after all show of armed resistance to the royal authority had completely dis appeared, the king, in .November, 1 267, called a parliament at Marlborough, whose spirit stands in marked contrast to that which inspired the restoration parliament which had met in October of the preceding year. Instead of decrees of forfeit ure against those who had been in rebellion, a statute was now passed in which were embodied the Provisions of West minster,5 — a series of ordinances of a remedial character which comprised substantially all of the grievances embraced statute of in the Provisions of Oxford. By the enactment of this stat- ough, °r ute, known as the Statute of Marlborough,6 the nation won, Noy., 1267. after the pacification, the legal recognition of nearly every 1 As to the battle, see Ann. Wykes, 4 The ordinance known as the " dic- pp. 172-175; Chron. Mailros, pp. 199- turn de Kenilworth," which is divided 215; Ann. Waverley, pp. 362-365. into 41 articles, is contained in the 2 Fadera, i. p. 462 ; Liber de Antt Statutes of the Realm, i. pp. i2"'7 Legg., p. 76; Ann. Wykes, p. 176. As See, also, Select Charters, pp. 4i_>-42S- to the excesses of the Royalists, see 6 See above, p. 401. Blaauw's Barons' War, pp. 267, 268. 8 Statutes of the Realm, i. pp. '9" 8 Ann. Waverley, p. 373 ; Ann. Win- 25. For a commentary on this statute, ton, p. 104. see Reeves, vol. ii. pp. 323-340- IV.] THE WINNING OF THE CHARTERS. 405 right — excepting the appointment of ministers and the elec tion of sheriffs — for which the baronial leaders with Simon at their head had so long and so valiantly contended.1 The concessions thus wisely made by the crown in the hour of victory were followed by peace which remained unbroken down to Henry's death in November, 1272. 8. The period of peace which followed the policy of recon- From the ciliation inspired by the victor of Evesham was so profound EdXdV* that Edward took the cross and went to Palestine.2 While on t0 the 1 • _ 1 r _•_-., enactment his way home the news of his father s death reached him at of Quia Capua in 1273, but he did not arrive in England until August, em^t<"'es- 1274.3 The fact that no one questioned the right of the absent heir to succeed to the vacant throne goes far to show how the ancient doctrine of elective kingship was fast giving way to the new feudal notion of hereditary right. Without election or coronation, the reign of the new king dated, for the Edward's first time, from the death of his predecessor. On the day of j£,m the"*3 Henry's funeral tjie baronage swore fealty to their absent Jj?ath °,f lord,4 and three days afterwards the royal council, under whose cessor. control the kingdom passed, proclaimed the new peace in Ed ward's name.5 It was not, however, until the reign of Edward IV. that the new doctrine of hereditary right finally ripened into the maxim that the king never dies, from which results Maxim that the correlative idea that there can be no such thing as an neveTdfes interruption in the king's peace.6 The first act of the impor- ^^hlyd tant reign which now begins was a commission of inquiry until the into the territorial franchises, the results of which, recorded Edward in the Hundred Rolls,7 led to the passage of the Statute of Iv' Gloucester, which will be considered hereafter. The work of investigation thus begun was soon followed by the work of legislation : in April, 1275, Edward's first parliament met at 1 Stubbs, Const. Hist, vol. ii. p. 97. 6 Liber de Antt. Legg., p. 155 ; Fad- " Except the demand for the appoint- era, i. p. 497 ; Select Charters, pp. 447, ment of the ministers and the election 448. of sheriffs, the statute of Marlborough 6 Stubbs, Const. Hist, vol. ii. p. concedes almost all that had been 103. asked for in the Mad Parliament." ' For the facts upon this subject, see 2 Ann. Winton, p. 109. the introduction to the Rotuli Hundre- 8 The king arrived on the second and dorum, published by the Record Com- the coronation took place on the nine- mission. For the relation of the Hun- teenth. — Ann. Winton, p. 118; Fadera, dred Rolls of Edward I. to the history i. p. 514. of the manorial system, see Seebohm, * Ann. Winton, p. 112 ; Fadera, i. p English Village Com., p. 32 seq. 497- 406 THE NORMAN CONQUEST. [Ch. Statute of Westmin ster I., 1275. Free elec tions. Reform of legal pro cedure. FrancescoAccursi the civilian. Westminster. In that parliament was passed the great stat ute or code known as Westminster the First,1 which, in its fifty-one chapters, seems to have embraced nearly every sub ject which at the moment called for remedial legislation. This statute declares that the peace of the church and of the realm shall be kept and maintained in all things, and that common right shall be done to all, rich and poor alike, with out respect to persons.2 It further provides that all elections shall be free, and that no man shall by force or menace dis turb them,3 — a provision the more important in view of the fact that sheriffs, coroners, and other officers connected with the administration of justice were then elected by the peo ple.4 In favor of the feudal tenants, certain clauses of the Great Charter were emphasized by provisions forbidding the illegal exaction of feudal aids, the abuse of wardships, and the imposition of excessive amercements. The statute then provides for a far-reaching reformation of the whole system of legal procedure both in civil and criminal cases.5 As a compensation for this remedial measure, the parliament made a grant to the crown of custom on wool, woolfells, and leather.6 Wool, the then staple produce of the country, which had been for some time the subject of unrestrained royal exaction, was now protected to some extent against arbitrary seizure by being made for the first time the subject of parliamentary taxation.7 Passing over the parliament of 1276, which is only memorable because of the attendance of Francesco Accursi of Bologna,8 the civilian whose services Edward had retained before entering upon the work of legis lative reform,9 and over the year 1277, in which the king was engaged with an outbreak in Wales, we come to the par liament of 1278, in which was passed the Statute of Glouces- 1 Statutes of ihe Realm, i. pp. 26, 352 Ch. , 8 " And because elections ought to be free, the king commandeth upon great forfeiture that no man by force of arms, nor by malice or menacing, shall disturb any to make free elec tion." — Ch. v. 4 Cf. Coke, Inst, ii. p. 169; Reeves, Hist. Common Law, vol. ii. p. 391 seq. (ed. Finlason). 6 Upon this whole subject, see Reeves, vol. ii. pp. 390-429. 6 Pari. Writs, vol. i. p. 2. 7 Cf. Select Charters, p. 450. 8 Statutes of the Realm, i. p. 42- 9 " Francesco was in attendance on Edward at Limoges in May, iZ74i Fadera, i. pp. 511, 512." — Stubbs, Const. Hist, vol. ii. p. 107, note 2. He was the son of the great Accursi of Bologna, who was the writer of the glosses on the civil law. IV.] THE WINNING OF THE CHARTERS. 407 ter,1 a statute designed to give effect to the work begun by statute of the inquiry of 1274 into the territorial franchises. As hereto- £j£g.cester' fore explained, the jurisdictions of the local courts were from the earliest times cut up and undermined by a network of territorial lordships, which were nothing more nor less than law courts in private hands, that stood as stumbling-blocks to the orderly and uniform administration of law by the king's justices. Against the existence of these private law courts Anti-feudal the anti-feudal policy of Henry II. had been vigorously di- Henry °ii. rected,2 and in furtherance of that policy the Statute of Gloucester was enacted. Under the authority of that statute the itinerant justices were directed to inquire into the right by which the several franchises, liberties, and privileges were held by the lay and spiritual lords who claimed them ; and by virtue of the quo warrantos which were issued to all war was openly declared by the crown against all liberties and franchises in the kingdom.3 Every holder of a franchise was thus driven to maintain his warrant or title. The feudal lords, who regarded the inquiry as a dangerous assault upon their local rights, angrily resisted it ; and in this spirit it was that the Earl of Warenne, when called upon to show his title, produced an old sword and exclaimed to the justices, " See, my lords, here is my warrant." 4 The blow thus dealt at the possessors of territorial fran- statute of chises was followed in the next year by a memorable statute ™°r9^nam' devised in the interests of the feudal lords, with the king at their head, as against any " person religious or other, whatso ever he be, that will buy or sell any lands or tenements, or under the color of gift or lease, or that will receive by reason of any title, whatsoever it be, lands or tenements, or by any other craft or engine will presume to appropriate to himself under pain of forfeiture of the same, whereby such lands or tenements may anywise come into mortmain." 5 In order to charter prevent the cutting off of the feudal dues and services which ESdequate, resulted from the conveyance of lands into the " dead hands " of religious orders, it was provided in the Great Charter that 1 Statutes of the Realm, i. p. 45. 6 This is a translation of the vital 2 See above, p. 282. part of the famous statute De religiosis, 8 Reeves, Hist. Eng. Law, vol. ii. pp. commonly called the statute of mort- 523-526. main. — Statutes of the Realm, i. p. 4 Hemingb., ii. p. 6. 51. 408 THE NORMAN CONQUEST. [Ch. "it shall not be lawful from henceforth to any to give his lands to any religious house, and to take the same land again, to hold of the same house. Nor shall it be lawful to any house of re ligion to take the lands of any, and to lease the same to him of whom they were received to be holden." 1 This provision of the charter was not, however, sufficiently comprehensive to compass the evil, and for that reason the statute De religiosis was passed to give to the prohibition a wider application.2 Ecciesias- Ecclesiastical ingenuity proved, however, to be more than a nuity"lse' match for the skill of the legislator. The new statute was soon evaded by the bringing of actions for land, in which "the religious men and other ecclesiastical persons "sued the tenant, who, by " suffering a recovery," aided the plain tiff to evade the statute by acquiring the land, not by gift or Remedy alienation, but by process of law. To prevent this new de- of'thTstat1-5 vice a clause was introduced into the Statute of Westminster ute- II. which provided that in such cases a jury should deter mine whether the claimant had a right over the land sued for Prohibition or not.3 The prohibition as to mortmain imposed by the license6 y statute could only be removed by license from the crown and the mesne lords, if any, down to the passage of the stat ute of 7 & 8 Will. III. c. 37, whereby it was provided that such license could be granted by the crown alone, without the consent of the mesne lords, in any form whatsoever. Ex ceptions have also been made in favor of certain classes of corporations by act of parliament.4 Conquest From the congenial work of legislation Edward was called 1282-83?' m 12%2 by a renewal of the Welsh war, which, after less than a year's duration, ended in the death of Llewelyn and the annexation of the principality to the English crown. Llew elyn fell in December, 1282,5 and in the following June his brother David, who after having received an English lord ship from Edward's hands had conspired against him,6 was captured. In an anomalous assembly or parliament which 1 Cap. 43, ed. 1217. the old rule of law still prevails." 2 Reeves, Hist Eng. Law, vol. ii. pp. — Digby, Law of Real Property, p. 445 ¦*•?• 183. 8 Cf. Digby, Law of Real Property, » Fadera, i. p. 631 ; Cont, Fl. Wig, pp. 182, 183. p. 229. 4 " When, however, no license has 8 Green, Hist. Eng. People, vol. i. p. been obtained from the crown or has 332. been conferred by act of parliament, IV] THE WINNING OF THE CHARTERS. 4°9 met at Shrewsbury in September, 1283,1 David was tried and condemned as a traitor and immediately executed. A few days afterwards the king at Acton Burnell, in the irregular assembly which had gathered to witness David's trial, enacted the Statute of Acton Burnell, or, as it is generally called, the Statute of Merchants,2 in which was provided a more speedy statute of and certain remedy for the collection of that class of press- ^|r3chants' ing demands which arise out of mercantile transactions.3 In order to render secure the results of his conquest over Wales, Edward not only provided for the settlement of English barons upon the confiscated soil which rebellion had forfeited to the overlord, but he also, by statutes 4 published at Rhudd- incorpora- land in 1284, attempted to incorporate the principality into wakswith the body of the kingdom by introducing into the greater part Enghni of it the English shire system, together with the system of English legal administration.5 From this time began that tendency to closer union between the kingdom and the prin cipality which finally resulted, in the reign of Henry VIII., in the complete incorporation of Wales with England, and its representation in the English parliament.6 In 1285, the year following the settlement of the Welsh Two great conquest, were passed two great statutes — the Statute of statutes- Winchester and the Statute of Westminster the Second — which are justly regarded not only as the highest exhibitions of Edward's constructive skill as a legislator, but also as vi tally important links in the chain that binds the ancient sys tem of customary law which prevailed in the local courts of the people to the new system of royal or official law which prevailed in the central court of the king.7 These statutes, in their respective spheres, not only reorganized and im proved the systems of central and provincial administration, but they brought them into closer and more harmonious rela tions with each other. As the leading object of the second 1 Fadera, i. p. 630 ; Pari. Writs, vol. Welsh territories before he became i. p. 16 ; Select Charters, pp. 463, 467. king." — Stubbs, vol. ii. p. 117. 2 Statutes ofthe Realm, i. pp. 53, 54. 6 Green, Hist. Eng. People, vol. i. p. 3 Reeves, Hist. Eng. Law, vol. ii. p. 334. 452. ' " If the Statute of Westminster rep- 4 Statutes ofthe Realm, i. pp. 55-68. resents the growth and defined stature 6 " They were intended to assimilate of the royal jurisdiction, the Statute of the administration of Wales to that of Winchester shows the permanence and England, a principle which Edward adaptability of the ancient popular law." had in vain attempted to enforce in his — Stubbs, Const Hist, vol. ii. p. 118. 4io THE NORMAN CONQUEST. [Ch. Statute of Winches ter, 1285. Statute of Westminster II., 1285. Bill of ex ceptions. De donis conditional- ibus. Restraints upon alien ation. Statute of Westminster was to readjust and perfect the new system of legal administration which had sprung from the curia regis, so the leading purpose of the Statute of Winches ter 1 was to revive and strengthen the ancient system of po lice which had immemorially existed in the organization of the hundred, and the ancient military system which had im memorially existed in the organization of the fyrd.2 The statute last named recites that all kinds of crime are more frequently committed for the want of a proper enforcement of existing law ; and in order to remedy the special evil re sulting from the concealment of crime, provision is made that " hue and cry " shall be made in all public gatherings, so that no one by pleading ignorance shall shield himself from doing his duty in the arrest of criminals.3 The provisions of the Statute of Westminster4 the Second fall into two broad divisions : first, those which relate to the organization of the king's itinerant courts, and to the genera! administration of justice therein ; second, those that relate to the tenure and transfer of land. Under the first head the most important single provision is perhaps that one which grants to suitors the right to a bill of exceptions, whereby all matters of exception occurring at the trial can be reexamined upon a writ of error, whether appearing upon the face of the record or no.5 Under the second head, by far the most im portant provision is that one contained in the first chapter of the act, which chapter is generally known as the statute De donis conditionalibus. In order to clearly illustrate the bear ings of this statute, designed as a feudal restraint upon alien ation, it will be necessary to briefly review the other leading restraints upon alienation which precede and follow it. In the review heretofore made of the system of Old-Eng- lish land law as it existed in the pre-Norman period, the fact was drawn out that the village community or township was originally subdivided into family estates, and that the family estate consisted of house-lands in the village, the allotment 1 Statutes ofthe Realm, i. pp. 96-98. 2 Select Charters, p. 469. A transla tion of the statute is there given. 8 Reeves, Hist Eng. Law, vol. ii. p. 518 and note, Finlason ed. That part of the statute which relates to the fyrd and the assize of arms is contained in cap. vi. 4 Statutes ofthe Realm, i. pp. 7r-9S- 6 Coke, Inst, ii. p. 426; Reeves, Hist. Eng. Law, vol. ii. pp. 487-49" and notes, Finlason ed. IV.] THE WINNING OF THE CHARTERS. 4" of the family in the arable fields, together with the common rights in the waste lands appurtenant thereto. As the fam ily tie weakened, and as the communal system fell into decay, the "alod" of the free townsman, embracing both house- lands and arable in severalty, ultimately arose out of the primitive family estate. But even under this changed condi tion of things the influence of family organization lingered in Restraints the restraints which it imposed upon the right of alienation, the family. The family estate was primarily an estate of inheritance, and as such inalienable. This principle first yielded to the doc trine that lands were alienable within the limits and with the consent of the family. Then, when wills were introduced by the church, family land became subject to devise, the validity of the will originally depending upon family consent.1 With these beginnings, the doctrine that the lands of the family were alienable gradually widened as the idea of individual ownership and the use of written instruments in the aliena tion of land became more firmly established. As the primi tive method of transfer by actual delivery gave way to the new method of transfer by book or charter, whereby absolute estates were generally created, the term " book-land " became nearly if not quite coextensive in meaning with "alodial ; " in that way the "alod" disappeared in the book-land.2 But even after this change in the evidence of title, traces of the family influence still survived. As a general rule, the grantee under a grantee a book or charter had an absolute right of alienation by vir- °and_° ' tue of the terms of the book itself. In the absence, however, of the grant of such a power in the charter, the customary law stepped in and declared that the property of the family could not be wholly alienated.8 This restraint upon aliena tion in favor of the heir, which survived as a relic of primi tive custom down to the time of Glanvfll, had disappeared by the time of Bracton.4 With the growth of feudal ideas the primitive restraints upon alienation, based upon the duties of the ancestor to the heir, were succeeded by a new system of restraints which grew out of the duties due from the tenant 1 Upon this whole subject see above, earn extra cognationem suam." — Leg. p. \vj. Hen. I. 70, § 21, in Thorpe, Anc. Laws, 2 See above, p. 140. fol. ed., p. 251. Cf. Digby, p. 90. 8 " Si bocland autem habeat, quam 4 Digby, Law of Real Property, pp. ei parentes sui dederint, non mittat 90, 136. 412 THE NORMAN CONQUEST. [Ca Restraints in favor of the lord. Estatestail. Taitarum's case. Quia emptores, — Statute of West minster the Third, 1290. to his lord. First among these feudal restraints stands the clause of the Great Charter which provides that "no free man from henceforth shall give or sell any more of his land but so that of the residue of the lands the lord of the fee may have the service due to him which belongeth to the fee." 1 After a long interval this clause of the Great Charter was followed by the statute De donis conditionalibus, by force of which estates tail came into existence. The purpose of this statute was not only to protect the interest of the heir to a conditional estate by restraining its alienation by the an cestor, but also to prevent the defeat of the lord's right of escheat by the alienation of his tenant. By the force of this statute a new species of estates of inheritance came into ex istence, whose alienation was subject to a twofold restraint in favor of the heir and the lord.2 The great inconvenience which in time resulted from the establishment ' of this new system of estates was in a great measure modified by a series of legal fictions established in the famous case of Taltarum in 12 Edward IV.3 The crowning restraint upon alienation in favor of the feudal lords was, however, embodied in the statute of Quia emptores, enacted in the 18 Edward I. in the parliament of 1290. The primary object of this statute was to prevent the loss to the lords of manors caused by the granting out of lands by their tenants to be held of themselves by subinfeuda tion. In such a case, as there could be no immediate relation of lord and tenant between the chief lord and the alienee, the feudal rights of the former over the land conveyed were consequently diminished. To remedy this evil it was provided in the Statute of Westminster the Third — Quia emptores — that in all future conveyances by tenants the alienee, instead of becoming the feudal dependent of the alienor, should simply step into the shoes of the alienor, and 1 Cap.39(ed. 1217). " The provision in Magna Carta given above appears to be the only restraint upon alienation of lands in fee simple ever recognized by law in the interest of the lord." — Digby, pp. 136, 137. Cf. Coke, Inst, ii. p. 66 ; Reeves, vol. ii. p. 24. 2 Digby, Law of Real Property, pp. 187-195 ; Reeves, Hist. Eng. Law, vol. ii. pp. 459-463 ; Littleton, sec. 13. 8 Year Book, 12 Edward IV. 19. " From this time till 1834 (3 & 4 WlU IV. c. 74) it became the common practice for tenant in tail to suffer a recovery ; that is, by a proceeding sim ilar to that adopted in Taitarum's case, to convert his estate into a fee simple. — Digby, p. 219. IV] THE WINNING OF THE CHARTERS. 4J3 become subject to all the duties and obligations under which he held the land of the chief lord.1 The statute Quia emp- Edward's tores was the last of that series of remarkable legislative i^uto* enactments, whose far-reaching influence in defining and amending the common law has won for Edward the impos ing title of the English Justinian. Other important statutes of a political and constitutional character were passed, it is true, in the latter part of the reign, but it is rather to those statutes touching the private rights of individuals, and the general administration of justice, already reviewed, that Sir Matthew Hale alludes when he says that "it appears that the very scheme, mould, and model of the common law, especially in relation to the administration of common justice between party and party, as it was highly rectified and set in a much better light and order by this king than his predeces sors left it to him, so in a very great measure it was continued the same in all succeeding ages to this day. So that the mark or epocha we are to take for the true stating of the law of England, what it is, is to be considered, stated, and esti mated from what it was when this king left it." 2 Long before the organizing and defining hand of Edward Growth of was applied to the task of reducing through the agency of monhw. legislation the body of the customary law, as modified by the innovations to which the Conquest had given birth, to system and order, two great text-writers had been at work smoothing the path before him. In the reign of Henry II. we have the work of Glanvill, — the first English law-book Gianviu. bearing the name of a personal author, — which, as a com mentary upon the procedure of the curia regis, has been re ferred to already.3 The work of Glanvill, which is rather a treatise upon legal procedure than a systematic exposition of the corpus of the common law as it stood in Glanvill's day, was followed at the end of the reign of Henry III. by Brae- Bracton. ton's De Legibus et Consuetudinibus Angliae.4 This great 1 Reeves, Hist. Eng. Law, vol. ii. p. which, being passed with a distinct 527 seq. ; Digby, Law of Real Property, view to the interests of a class, have pp. 199-204. This act, though devised been found to work to the advantage in the interest of the lords for the pres- of the nation generally." — Select Char- ervation of their estates, really afforded lers, p. 478. Cf. Lords' Report, vol. i. greater facilities for their division, and p. 129. led to the multiplication of tenants in 2 Hist. Com. Law, vol. i. p. 277. capite, and of socage tenants also. " It * See above, p. 302. is one of the few acts of legislation * As to Bracton 's life, of which little 414 THE NORMAN CONQUEST. [Ca Influence of -the imperial and pontifi- - cal juris prudence. Britton and Fleta.Mirror of justices. Fortescue. Littleton. Coke. work, which even in Coke's time was looked to as the highest source from which a knowledge of the common law could be drawn, is a comprehensive and systematic statement of the whole law of England as it stood when the reign of Edward I. begins. Bracton's great familiarity with the imperial and pontifical jurisprudence, which had already been introduced to some extent into the English system by the clerical judges,1 is manifest not only from his frequent quotations from the Digest, Institutes, and Code of Justinian, but also from his use of definitions and maxims drawn from Roman sources.2 The tendency thus exhibited by Bracton to enrich the com mon law by principles and definitions drawn from the revived Roman jurisprudence was followed by Edward, who was careful to secure the services of the civilian, Francesco Accursi of Bologna, before entering upon the work of legis lative reform.3 For Edward's own reign we have the trea tises of Britton i and Fleta, which do little more than supple ment Bracton's work, and adapt the principles which it defines to practical uses. The Mirror of Justices, an anonymous treatise, is generally ascribed to the reign of Edward II. For the reign of Henry VI. we have the treatise De Laudibus Legum Anglia? from the pen of Henry's chancellor, Sir John Fortescue, in which the outlines of English law are set forth in the form of a dialogue between the chancellor and the prince.5 In the following reign was published Littleton's treatise on Tenures, of which the first part of Coke's Insti tutes is but a later elaboration. But neither to the work -of the legislator, nor to the more or less scientific disquisitions of the early text-writers, must we look for the overshadowing force which for centuries has been organizing and adapting the unelastie system of English law — which has grown out of an admixture of Teutonic custom and Norman feudalism — to the expanding wants of a progressive society. The great is known, see Foss, Judges of England, vol. ii. p. 251. 1 " It seems to be a fashion to dis credit Bracton, on a supposition of his having mingled too much of the civil ian and canonist with the common lawyer." — Reeves, vol. ii. p. 360, note 1. 2 Cf. Henricus de Bracton und sein Verhiiltniss zum Rbmischen Rechte, by Dr. Carl Guterbock, Berlin, 1862, trans lated by Coxe, Philadelphia, 1866. Digby, p. 104. 8 See above, p. 406. 4 As to the authorship of Britton, ct Nicholas' B-ritton, preface, pp. xviii- xxvii. 6 See the Introduction to the Cler mont ed. IV.] THE WINNING OF THE CHARTERS. 415 organs of interpretation which have given form and consist- judicial de- ency to the customary law are the judicial tribunals in which come a that law has been immemorially administered. The recorded ^"ce of decisions of these tribunals have stood not only as expositions of the existing law as applied to particular cases, but as sources of law from which have been drawn rules of decision which govern in new cases for which there is no precedent.1 In this way "the decisions of the tribunals come to constitute in the strictest sense of the term a source or cause of law. Judge-made or judiciary law henceforth gradually displaces customary law."2 Records of cases adjudicated in the Eng- Records of lish courts are in existence from the time of Richard I., and cases exist have been published by the Record Commission,3 which has *T^m ^e also lately published four volumes called Year Books, con- Richard i. taining the reports of cases decided on the itinera of the justices and at Westminster between the twentieth and thirty- second years of Edward I. The regular series of reports The Year known as the Year Books begin, however, with the reign of Bo0ks' Edward IL, and contain reports of cases decided to the end of the reign of Edward III., and from the beginning of the reign of Henry IV. to the end of that of Henry VIII., — the reports of the reign of Richard II. being contained in a vol ume known as Bellewe's Reports.4 9. The constructive genius of Edward, which was first Parliament employed in the work of organizing and defining the custom- SmbiySof ary law, is applied, as his reign advances, to the task of estates- organizing and defining the constitution of parliament itself. The process has already been drawn out through which the Old-English witan was silently transformed, after the Con quest, into the feudal councils or courts of the Norman and Angevin kings. Under Henry II. and his sons, the constitu tion of the national council reached a definiteness of organi- 1 " II y a quatre sources principales xxxvii. Blackstone holds that they are du droit constitutionnel anglais : les the evidence of the common law. — trails et les quasi-traites, les pre'ce- Com., bk. i. p. 70. dents et usages que l'on designe ordi- 8 The edition called Rotuli Curia nairement sous le nom de Common Regis was edited by Sir Francis Pal- law, les pactes, les statuts ou lois." — grave, and published in 1835. The first M. Boutmy, Etudes de Droit Constitu- publication in 18 11 bore the name of tionnel (Paris, 1885), p. 9. Placitorum Abbreviatio. 2 Digby, Law of Real Property, p. 4 Cf. Reeves, Hist. Eng. Law, vol. 103. That judicial decisions are a iii. pp. 73, 443, 570 ; vol. iv. pp. 24, 160, source of the common law is the doc- 225, 561. See, also, Digby, p. 175, and trine of Austin. — Jurisprudence, leet. notes. 4i6 THE NORMAN CONQUEST. [Ch. Election and repre sentation. The shire court. Represen tatives of the shire in the national council. zation which it had never possessed before; through the influence of the practice of summons, the right to attend the national council was limited to those only who were sum moned, by the king's writ individually or in a body. How far this practice had developed up to the sixteenth year of John is made clear by the fourteenth article of the Great Charter, which provides that the greater tenants-in-chief, lay and spiritual, shall be summoned individually by special writ, while the minor tenants-in-chief shall be summoned in a body by a general writ addressed to the sheriffs.1 This provision of the Charter as to the summons of the minor tenants-in- chief did not absolutely imply representation, but it recog nized a condition of things out of which representation arose as a natural and necessary consequence. The only constitu tional mode in which the sheriff could execute the general writ of summons to the minor tenants was in the county court,2 in whose organization and machinery the principles of election and representation had been imbedded from the earliest times. As heretofore pointed out, the earliest mani festation of the representative principle appears in the form of the reeve and four men who represent the townships in the courts of the shire and the hundred.3 In the shire court the reeve and four men appeared for each township, the twelve senior thegns for each hundred. The shire court was, there fore, not only a popular but a representative assembly, — a county parliament in which each township and hundred ap peared in the persons of its representatives. The represen tative principle, which survived the Conquest as a part of the machinery of the local courts, never entered, however, into the constitution of the national council prior to the reign of John. Not until that time did the ancient practice of send ing the reeve and four men from the township to the shire- moot expand into the practice of sending the " four discreet men " as representatives of the shire to the common council of the kingdom. For the first time, in the fourteenth year of John, the writ addressed to the sheriffs provided for the return of "four discreet men" from each shire as its representa tives in the national council.4 Thus, by a change in the form 1 See above, p. 387. 8 Select Charters, p. 39. 8 See above, p. 143. * See above, p. 377. IV] THE WINNING OF THE CHARTERS. 4*7 of the writ, a system of representation was substituted in lieu of the general summons to the minor tenants-in-chief. The practice of shire representation thus established slowly gained strength by repetition during the reigns of Henry III. and Edward I. until from the year 1295 it becomes fixed as a permanent institution. A considerable period elapsed, how- Represen- ever, before the right of representation first conceded to the fr0m the shires was extended to the cities and towns : in the famous Jow^m-lt parliament of Simon of Montfort, which met in 126?, the appear in ¦ • _i _- 1 a • 1 _- , ¦ the parha- citizens and burgesses first appear.1 A period of thirty years ment of then elapsed before the experiment was repeated, — the rep- ta 5" resentatives of the cities and towns are not again summoned until Edward's great parliament of 1295.2 The principle of representation which thus gradually worked itself into the constitution of the national council must be considered in connection with the growth of the system of estates with whose history it is inseparably interlaced. As heretofore Growth of explained, the growth of the estate system in England was system? simply a part of a general European movement which is generally regarded by the historians as the work of the thirteenth century. During that period was established in Europe that type of a national assembly into which the sev eral classes or orders of society entered, in the form of defi nitely organized estates, either in person or by representatives. In English history the three estates appear as the clergy, the baronage, and the commons.3 The process of definition which begins with the Conquest is completed by the end of the reign of Edward I. The growth of the estate system Synchro- and of the representative system therefore synchronize with "hatSorthe each other. In the composition of the famous parliament tf^Iystem. convened by Edward at Westminster in November, 1295, the estate system in England reached for the first time its full and final development. In the parliament of 1295 each The model estate appears in person or by representatives. In this of\z^nt assembly the baronage appear in person and represent them selves ; the clergy and the commons, each as an estate of the 1 See above, p. 403. the towns, but they are not allowed by 2 "The national councils of 1273 and constitutional lawyers the full name of 1283, and the parliament of Acton parliaments." — Select Charters, p. 44. Burnell, contained representatives of 8 See above, p. 337. 41 8 THE NORMAN CONQUEST. [Ch. realm, appear in the persons of their chosen representatives.1 This parliament, which stands as a model for all that succeed it, completes the transition in the constitution of the national assembly from a feudal council to a council of estates.2 After the failure of Edward's attempt to organize the clergy as a parliamentary estate, owing to the unwillingness of the clergy themselves to attend in a secular assembly, the lords and commons remain as the permanent elements in the parlia mentary system. Out of these elements, which the organ izing hand of Edward first brought into lasting contact with each other, has been gradually developed the parliamentary constitution of modern times. close of the io. In Edward's model parliament of 1295 the representa- tkmaistiug- tives 0I the three estates met together in the face of an final" on6 emergency which, in the language of the writs addressed to firmation of the archbishops and clergy, plainly admonished all "that intile^th5 common dangers must be met by measures concerted in com- of Edward mon " 3 These dangers were no less than rebellion in Wales, and war with Scotland and France. To put down the Welsh rebellion, to maintain his freshly established overlordship over Scotland, and at the same time to defend his Gascon possessions against the designs of Philip the Fair, were tasks well calculated to tax to the utmost the resources of Edward, not only as a general, but as a financier.4 In the face of such difficulties he appealed for aid and counsel not only to the clergy, the baronage, and the shires, but also to that rising branch of the commons which dwelt within the limits of the cities and towns. To the appeal thus made, the nation, which so far in Edward's reign had not been heavily taxed, made a hearty response : the barons and knights gave an eleventh ; the clergy a tenth ; the representatives of the boroughs a seventh.6 During the course of the year the 1 The writs to the baronage are is- the third estate from the ancient local sued on the ist October. — Lords' Re- machinery which it concentrates." — port, App. i. p. 67. The writs to the Stubbs, Const Hist, vol. ii. p. 168. archbishops and clergy are issued on 8 " Sic et nimis evidenter ut commu- the 30th September. — Ibid., App. i. p. nibus periculis per remedia provisa 67. The writs to the sheriffs com- communitur obvieter." manding the return of representatives 4 The character of Edward's diffi- from the shires and towns are issued on culties and their relation to the parlia- the 3d October. —Ibid., App. i. p. 66. ment of 1295 are clearly set forth in 2 " The thirteenth century turns the the Lords' Report, vol. i. pp. 217, 218. feudal council into an assembly of es- 5 M. Westm., p. 425,426; Ann. Wi tates, and draws the constitution of gorn, p. 522 ; Patent Rolls, Dec. 4. IV] THE WINNING OF THE CHARTERS. 4!9 Welsh were subdued,1 but not until midsummer, 1296, did Edward complete the conquest of Scotland, — an enterprise conquest which not only delayed his departure for the war against ofScotlaD Philip, but also exhausted the subsidies which had been granted him. To raise more money a new parliament was summoned to meet in November, 1296, whose constitution was in all respects the same as that of the preceding year. In this assembly the barons and knights gave a twelfth, and the representatives of the towns an eighth ; 2 but the clergy now notified the king that it was impossible for them to give anything by reason of a bull — Clericis laicos — which The bull had just been published by Boniface VIII., forbidding the iJcos" state to exact, or the clergy to pay, any taxes whatever from the revenues of their churches.3 In the face of this refusal the king at once collected what had been granted by the baronage and the commons, giving the clergy until January, 1297, to make their final answer. Before the end of the Attack month so fixed, their refusal was repeated and the clergy clergy, jan, practically outlawed ; and promptly thereafter writs were is- IZ9?- sued for the seizure of the lay fees of the province of Can terbury.4 Thus at open war with the clergy, the king re solved to appeal to the baronage alone to aid him in the .prosecution of the war in Gascony. The barons, under the Quarrel leadership of the great earls Roger Bigod of Norfolk and baronag*e. Humfrey Bohun of Hereford, met the king in February at Salisbury,5 where he proposed to them singly that they should go to Gascony while he took command in Flanders. The earls, while admitting that their tenures obliged them to go to Gascony with the king, firmly refused to go without him. After bitter recrimination between Bigod and the king the council broke up in anger, and the baronial leaders re tired to their estates and prepared for civil war. Thus exas perated by the refusal of the baronage to render military 1 The third Welsh war really ended 4 Lords' Report, vol. i. p. 219; Stubbs, before the model parliament met. Const. Hist, vol. ii. p. 131. 2 The material facts are all stated in 5 Hemingb., ii. p. 121 ; M. Westm., the Lords' Report, vol. i. p. 219. See, p. 429; Pari. Writs, i. p. 51. "No also, Pari. Writs, vol. i. p. 47 ; Hem- writs to the prelates, or for the elec- ingb., ii. p. 116; M. Westm., p. 428; tion of knights, citizens, and burgesses, Ann. Trivet, p. 352. appear on the record." — Lords' Report, 8 Fadera, i. p. 836 ; Wilkins, Cone., vol. i. p. 220. And yet the historians vol. ii. p. 222. call this meeting of the baronage a par liament. 420 THE NORMAN CONQUEST. [Ch. Edward'sextrememeasures. Resistance under the leadershipof Bigod and Bohun. Confirmation of the charters promised. service at the critical moment when, in. connection with his allies, he had planned a deadly blow against France, Edward resolved to ignore all of the restraints of legality, and by the mere force of royal edict to raise both men and money for the war.1 In execution of this rash policy Edward arbitrarily ordered the seizure of the wool of the merchants, security for pay ment being given in the form of tallies ; and a like order was also issued commanding the shires to furnish a large amount of provisions to be paid for in the same manner.2 Having thus provided for the raising of supplies, an equally unconstitutional measure was resorted to for the purpose of raising troops to cross the sea under the king's command. Writs were issued in May for a military levy of the whole kingdom to meet in London on the 7th of July, the sheriffs being enjoined to enforce the attendance in arms of all per sons holding lands of the annual value of .£20. 3 This pro posal to employ the whole force of the kingdom in a foreign war, regardless of tenure, precipitated the crisis between the nation and the king.4 When, on the day appointed, the mili tary force met, Bigod and Bohun as marshal and constable refused to perform their official duties ; whereupon the king indignantly superseded them in their offices, and they left the court. After the departure of the earls, Edward, as a last resort, assembled the leading men who had attended the military levy, and, although they had not been summoned to a parliament, appealed to them to assume the right to act as representatives of the nation, and as such to make on the in stant a money grant. In this unauthorized gathering, an aid of an eighth from the barons and knights, and a fifth from the towns, was declared to be granted ; 6 and as a reward for this concession the king promised a confirmation of the char ters. Before attempting, however, to collect the tax thus im posed, Edward resolved to make a final attempt to come to Lords' Report, vol. i. p. 1 Select Charters, p. 489. 2 Rishanger, p. 169; M. Westm., p. 430. 8 Fadera, i. p. 865 ; Pari. Writs, vol. i. p. 281. 4 " The attempt on the part of the king to require the military service be yond sea of all who held £20 a year of land, . . . occasioned great dis turbances." • 221. 6 M. Westm., p. 430 ; Ann. Dunst, p. 407 ; Select Charters, p. 490. " There is no evidence that this grant was made by a legislative assembly, and it seems that the manner of levying it was or dained by the king and his council." — Lord's Report, vol. i. p. 221. IV.] THE WINNING OF THE CHARTERS. 42* terms with the clergy and the earls. With this end in view The king ni3.kcs he made peace in a public manner with Archbishop Winchel- peace with sey,1 who at once assumed the rdle of mediator. But the J^"*" time for mediation had passed ; the time had now come when the supreme question, involving the right of the nation to tax itself, — a right which the barons of Runnymede had clearly defined, but which the struggles of eighty years had failed to confirm, — had to be settled once and for all between the na tion and the king. The twelfth article of the Great Charter The had expressly declared that no scutage or aid, other than the provisions three regular feudal aids, should henceforth be imposed but ch^K."*' by the common counsel of the nation ; and by the fourteenth article it was provided that such common counsel as to the assessment of aids and scutages should only be taken in an assembly duly summoned. These vital clauses were, however, omitted from the very first reissue of the charter, and in the numberless confirmations which took place during the reigns of Henry III. and Edward I. they were never afterwards re instated.2 During the reigns of Henry and Edward taxes, it is true, were generally imposed by national consent, but there was no constitutional guaranty that in the stress of a great emergency they might not be imposed simply as an effort of the royal will. In the stress of such an emergency Edward Edward's had ventured to press to the utmost the right of the crown measures to tax the nation without its authority, and the result was a fh" counter- counter-movement upon the part of the nation which made movement ,, , , r r , - , r led by the all such future attempts upon the part of the crown forever earls, impossible. Whatever may have been their motives,3 the fact remains that Bigod and Bohun, as the leaders of this 'counter-movement to bridle the royal prerogative, stood firmly by the nation and against the king. After repeated attempts, the archbishop utterly failed to bring the earls to submission ; 4 whereupon the king published a manifesto against the earls in which he appealed to the people to keep 1 At Westminster Hall, July 14. 8 Hallam pays a high tribute to the M. Westm., p. 430. patriotism of the earls (M. A., vol. 2 Dr. Gneist gives his reason why, iii. p. 6), while Stubbs holds that their during this long period, articles 12 and action was prompted by "personal am- 14 were omitted, the essence of which is bitions and personal grievances." — the supposed difficulty of drawing a Const. Hist, vol. ii. p. 146. line of demarcation between the greater . 4 As to Winchelsey's fruitless nego- and lesser nobles. See The English tiation with the earls, see Fadera, i. pp. Parliament, p. 89 (Shee's trans.). 872, 873 ; Wilkins, Cone, vol. ii. p. 227. 422 THE NORMAN CONQUEST. [Ch. who resist the collec tion of the unauthorized taxes. Close of the struggle. Charters confirmedat Ghent, Nov. 5, 1297,—Confirma tio Carta- rum. the peace during his absence.1 After this appeal, it seems that the baronial leaders brought forward a formal list of grievances, which were duly presented to the king before his departure.2 Thus the issue stood at the time of Edward's embarkation for Flanders on the 22d of August. Before leaving, the king appointed his son Edwardr regent, with Reginald Grey as his chief counsellor. On the day following the king's departure the storm broke : on that day Bohun and Bigod, backed by a military force in which appeared the citizens of London, came into the exchequer and forbade the collection of the unauthorized taxes which the king had levied until the promised confirmation of the charters had taken place.3 In the presence of such a demonstration, which amounted to civil war, the regent was compelled to yield ; and in order to carry out such concessions as were promised, a parliament was summoned for the 6th of October.4 In this assembly, which was irregularly summoned, and in which the baronial leaders appeared with a strong military force at their backs, the prolonged struggle was brought to a close. The earls demanded not only the confirmation of the char ters, but also the adoption, as a part of such confirmation, of certain supplementary articles that embodied the list of grievances which prior to his departure they had presented to the king. The regent, with the advice of his council, at once conceded all that was demanded of him, and then for warded the charters with the new articles to the king, who confirmed both at Ghent on the 5th of November.5 The new articles, which were thus solemnly made a part of the constitution, not only denounced all of the unauthorized taxa tion which had recently been imposed by royal authority, but 1 B. Cotton, p. 330; Fadera, i. p. 872, 873. 2 B. Cotton, p. 325 ; Ann. Trivet, p. 360; Rishanger, p. 175 ; Select Charters, p. 491. 8 M. Westm., p. 430 ; Rishanger, p. 178; Pari. Writs, i. p. 32; Lords' Re port, vol. i. p. 222. 4 That is to say, writs were addressed to the sheriffs on the 15th September commanding them to return, by the day named, representatives of the shires, to receive the king's charters and letters patent in consideration of an eighth to be granted him. No mention is made of representatives from the cities and towns, or of the inferior clergy. The facts as to this assembly, which was summoned in a most irregular manner, are all stated in the Lords' Report, vol. i. pp. 224, 225. See, also, Select Char ters, p. 4,0,2.. 6 Fadera, i. p. 880. The charters had been previously confirmed by /«• speximus on the 12th of October.— Fadera, i. p. 879 ; Statutes ofthe Realm, i. pp. 114-119. IV.] THE WINNING OF THE CHARTERS: 423 they also provided that, with certain exceptions, no taxes should henceforth be imposed without the common consent of the realm and to the common profit thereof. The king was made to promise the clergy, the barons, and " all the provisions commonalty of the land, that for no business from hence- artidesa™ forth will we take such manner of aids, tasks, nor prizes, but t0 taxation- by the common assent of the realm, and for the common profit thereof, saving the ancient aids and prizes due and accustomed."1 And in order to extend the limitation to indirect as well as to direct taxation, the articles further provide that the royal right of taxing wool shall not in the future be exercised " without their common assent and good will ; saving to us and our heirs the custom of wools, skins, and leather granted before by the commonalty aforesaid."2 Thus by the reincorporation into the charters of these vital limitations upon the royal right of taxation, which for more than eighty years had been omitted from them, the pro longed struggle which the barons of Runnymede had in augurated ended at last in a completely successful con summation. The exclusive right of the national assembly to Exclusive authorize taxation was now fully and finally recognized, save "ftionto"16 so far as that right was limited by the proviso, " saving the *"*&!" ancient aids and prizes due and accustomed."3 How under finally ad- the cover of this proviso the crown afterwards exercised the the crown. right to talliage the cities and towns upon the royal demesnes will be explained hereafter. 1 1. Before the end of Edward's reign the struggle for the Summary. charters was brought to a close, and with the close of that struggle finally disappeared the political results of the Nor man conquest. The fact has again and again been drawn 1 Art. vi. " They (the Latin articles, as the stat- 2 Art. vii. The supplementary arti- ute De tallagio non concedendo) were cles are preserved in French and Latin, referred to as a statute in the preamble and the two forms differ materially to the Petition of Right, and were de- from each other. In the French form cided by the judges in 1637 to be a the articles have become a permanent statute." — Select Charters, p. 497. part of English law. Statutes of the 8 By this proviso the king refused Realm, i. 124, 125. In their Latin form, "to relinquish his old exchequer-rights preserved by Walter of Hemingburg over the settlers on his domain lands, (ii. p. 152), the articles are generally and over the tolls traditionally fixed known as the statute De tallagio non (custuma antiqua), those, namely, on concedendo. A lucid analysis and com- wool, hide, and leather." — Gneist, parison of the two forms of the articles Eng. Parliament, note to page 136 with each other may be found in (Shee's trans.). Stubbs, Const. Hist, vol. ii. p. 142, 143. 424 THE NORMAN CONQUEST. [cH. out that the coming of the Normans did not involve the dis placement of the English nation, nor a wiping out of the immemorial laws and political institutions of the conquered race. The Old-English political system of local self-govern ing communities, together with the customary law, survived the shock of the Conquest, and upon that tenacious system as a substructure the Norman system of central administra tion was superimposed. By the coming of William two kin dred systems of government, both tending in the same direc tion and yet in different stages of development, were brought into the closest contact, and out of the fusion between the two has grown the modern constitution. The period of transition and growth which intervenes between the ancient constitution and the constitution in its modern form natu rally divides itself into three stages : the first or Norman stage, embracing the reigns of the four Norman kings, is the stage in which the great mass of foreign elements and in fluences were infused into the blood, the language, the laws, the political institutions of the conquered race ; the second or Angevin stage, embracing the reigns of Henry II. and his sons, is the stage in which the foreign and native elements were worked into a new combination which retained the strongest elements of both ; the third or charter stage, ex tending from the fifteenth year of John to the twenty-fifth of Edward I., is the stage in which the work of limitation and definition was so far advanced, and the machinery of the con stitution so far perfected, as to render it in outward form at least essentially the same as it is at the present day. The new system of central administration, with the source of its strength in the royal authority, grew and widened during the reigns of the Norman and Angevin kings, until it became the dominant force in the constitution. While the growth of the royal authority was thus advancing and overshadowing the traditional liberties of the people, the causes were at work which finally brought about the division and classifica tion of the nation in three estates. By the thirteenth century the estate system had reached its completion and the royal authority the limit of its growth. This limit was reached when both Richard and John, accepting the imperialist theo ries of Glanvill, held that the will of the prince was the law IV.] THE WINNING OF THE CHARTERS. 42S of the land. Upon the part of the nation it was claimed that the law of the land was not the will of the prince, but the immemorial laws of the English kingdom, with such additions and amendments as those laws had suffered through the re sults of the Norman conquest. In the conflict between these irreconcilable theories, the struggle for the charters had its birth. The parties to that struggle were the royal authority on the one hand and the nation marshalled in the ranks of the three estates on the other. In order to make good its cause against the crown, the nation undertook to render the royal authority subservient to that ancient system of Teu tonic law which finds its source in the customs of the people, and which as a system of law the effects of the Conquest were unable to wipe out. After the Conquest the Old-Eng lish system of customary law was generally appealed to as "the laws of good King Eadward," while the changes which it suffered through the results of the Conquest were gen erally described as the amendments made by King William, who claimed to rule, not according to any laws of his own making, but according to the laws of his predecessor, King Eadward. This statement is illustrated with great clearness in that clause of the famous charter of Henry I. in which the king promises to restore the laws of Eadward with the amendments which his father had made. It is therefore plain that when the barons seized upon Henry's charter as the basis of national action, and demanded of the king that he should enter into a fresh understanding upon the lines which it defined, their action simply amounted to a demand that the legal and constitutional relations between the nation and the king should henceforth be regulated by the Old- English code of customary law as modified and amended through the effects of the Norman conquest. The struggle for the charters involved no attempt to wipe out the irrevo cable effects of the Conquest ; in the charters themselves the new system of central administration and the system of feudal tenures are both recognized as abiding elements in the constitution. The effort was to fix the limits of innova tion, to define the extent to which the centralizing and feu dalizing processes to which the Conquest gave birth should be permitted to abridge the immemorial freedom in the time 426 THE NORMAN CONQUEST. [Ch. to come. Before the struggle for the charters began, the process of assimilation, through which the lesser mass of the conquerors was absorbed by the greater mass of the con quered, had been fully worked out. The winning of the Great Charter was in fact the final consummation of the work of union ; it was " the first great act of the English nation after the descendants of Norman conquerors and Nor man settlers had fully become Englishmen." But the fact must never be lost sight of that the winning of the Great Charter was the beginning, not the end, of a conflict. It embodied, not a final statement of concessions from the crown to the nation, but rather a definite programme of re form which the nation resolved to persevere in until it should be finally accepted by .the crown as an irrevocable basis of government. The struggle does not end until the charters are finally accepted in good faith by both parties as authori tative definitions of the rights and liberties of the nation on the one hand, and of the rights and prerogatives of the crown on the other. The definitions of rights and liberties thus established in favor of the nation as against the crown em body no abstract theories of government ; they consist sim ply of a summing up of the traditional liberties of the English nation, with such modifications and amendments as those liberties had suffered through the effects of the Norman conquest. When the struggle is over, when the process of limitation and definition has been finally completed under the master hand of Edward I., the English constitution stands forth, in a broad and general sense, in essentially the same outward form which it wears at the present day. Dur ing the reign of Edward the struggle of the constitution for existence comes to an end ; every vital part of the con stitutional machinery exists ; : nearly all of the great prin ciples of English freedom have been firmly established. Under Edward's organizing hand the Old-English system of local administration, embodied in the township, the hun dred, and the shire, is revivified and readjusted to the more perfectly organized system of central administration to which 1 It can hardly be maintained, how- parliament — had developed all of its ever, that the mechanism of the consti- powers and privileges, — a result which tution was complete in any full and was not reached until the reigns of the perfect sense until its vital organ — the Lancastrian kings. IV] THE WINNING OF THE CHARTERS. 427 the Conquest gave birth. And under the same hand the central system itself becomes essentially as complete as it is at the present day. Then as now the executive govern ment was vested in the king and his council ; then as now the king could not legislate without the counsel and assent of a parliament duly summoned ; then as now the king could levy no tax without the authority of such a parliament ; then as now the ancient code of customary law existed as a definitely organized system of jurisprudence ; then as now the courts of the king's bench, common pleas, and exchequer, each with its separate staff of judges, were dispatching the several classes of business that came before them ; then as now the system of itinerant judicature embodied in the courts of assize was in full operation. To a somewhat later day, however, must be assigned the full development of the equitable jurisdiction of the chancellor. But in attempting to establish an identity between the outward form of the constitution as it appeared in Edward's day and as it appears in our own, the fact must be borne steadily in mind that hidden inner changes have for centuries been going on which have completely revolutionized its practical working. These changes have taken place as certain parts of the ancient machinery which were once potent have become antiquated and obsolete, and as certain other parts, which were once undeveloped and insignificant, have grown into overshadowing importance. The changes which have thus taken place in this ever-altering constitution have been hap pily illustrated by likening it to " an old man who still wears with attached fondness clothes in the fashion of his youth : what you see of him is the same ; what you do not see is wholly altered." This great transformation which — without making any change in its outward form — has thus taken place in the internal mechanism of the English constitution, has been brought about by the silent migration of all the real powers of government from the king and the nobles to the main body of the people. The agent employed by the nation to bring about this result was the parliament, whose mediaeval growth will be traced in the following chapters. BOOK III. THE GROWTH AND DECLINE OF PARLIAMENT. CHAPTER I. HISTORY OF PARLIAMENT FROM EDWARD I. TO HENRY IV. piaceofthe i. In the gorgeous language of Burke, the "Parliament parliament 01 Great Britain sits at the head of her extensive empire in torth0nn tw0 caPacities. One, as the local legislature of this island, stitutions. providing for all things at home immediately, and by no other instrument than the executive power. The other, and I think her nobler capacity, is what I call her imperial character ; in which, as from the throne of heaven, she superintends all the several inferior legislatures, and guides and controls them all without annihilating any." x A third and higher capacity still in which the English parliament may be viewed is that in which it stands forth as the accepted political model after which have been fashioned the several systems of popular government which now exist throughout the world. In this last and highest capacity its position is not more than a cen- Represen- tury old. The political systems of all the Teutonic nations, ernmentT as tney appear to us when written history begins, contained invention?' ^ Serms or tne representative principle, and in every one of the modern European states that have arisen out of the set tlements made by the Teutonic nations on Roman soil a serious attempt has at some time been made in the direction of representative government. The remarkable fact is that in every continental state in which such an attempt was made, it ended at last in failure and disappointment. By the six teenth century nearly every effort in the direction of repre- 1 Speech on American taxation, April 19, 1774. See Burke's Works, 4th ed., vol. ii. p. 75. FROM EDWARD I. TO HENRY IV. 429 sentative government upon the continent of Europe had come to an end. In England only among the Teutonic nations did it survives the representative system survive ; in England only has the ^jy among representative principle — which has been called " a Teutonic t^J6".;. invention " — been able to maintain a continuous existence, tions. In this way the English nation has been able to hand down the representative principle from the barbarian epoch to modern times ; in this way England has become the " mother of parliaments," — the teacher of the science of representa tive government to all the world. Since the beginning of the French Revolution nearly all of the states of continental Europe have organized national assemblies after the model of the English parliament in a spirit of conscious imitation.1 But the typical English national assembly, embodying what English bi- is generally known as the bicameral system, was not copied sySem first into the continental European constitutions until it had first reproduced * in the Eng- been reproduced in a modified form by the founders of the hsh states federal republic of the United States. In the several colonial ' commonwealths founded by English settlers upon American soil, the typical English national assembly reappeared in an embryonic form as the predestined product of a natural pro cess of reproduction.2 These assemblies " were not formally instituted, but grew up by themselves, because it was in the nature of Englishmen to assemble." 3 A graphic statement of this fact may be found in the words of a writer upon our colonial history who tells us that in "this year (1619) a House of Burgesses broke out in Virginia." 4 When the colonial com monwealths in America severed the tie of political depend ence which bound them to the mother country, and rose to the full stature of sovereign states, they, with a single excep tion, organized their several legislatures after the ancient model as it existed in the insular system. And the framers of the federal constitution of 1787, abandoning the original idea of a federal assembly consisting of a single chamber, adopted the English system of two chambers in the form in which that system had reappeared in the several states.6 1 For the authorities upon this sub- * These are the words of Hutchin- ject, see above, p. 14. son quoted by Prof. Seeley, Ibid., p. 2 See above, p. 15. 67. 8 Seeley, The Expansion of England, 6 See above, pp. 44, 45, 71. p. 67. 43° THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. and then in Thus rendered popular by its successful reproduction in the ™ates°of e American constitutions, state and federal, the " British polit- Europe1'*1 *ca^ m°del was followed by France, by Spain and Portugal, and by Holland and Belgium, combined in the kingdom of the Netherlands ; and after a long interval by Germany, Italy, and Austria." 1 To the student of the " science of politics " the typical English national assembly, therefore, appears not simply as the local legislature of the United Kingdom, nor even as the imperial parliament of the British Empire, but higher still, — as the accepted model of popular government throughout the world. Continuity 2. To the mere student of the English constitution the tory of the English parliament appears only in the two aspects in which parlamenti Burke has presented it. Viewed in these aspects, it is all- important to grasp the persistency of its growth, — the un- t broken continuity of its historical development. The history of the English parliament is coextensive with the history of the English nation. From the time when the several branches of the " English kin " grouped together in the hep tarchic kingdoms were drawn together under the sway of a single royal house, the united nation has never been without a national assembly. In its progress through the centuries such assembly has, it is true, passed through a long process of change and of growth ; it has taken on new forms and new The primi- names ; and yet in all these changing phases of growth the assembly" personal identity of the primitive assembly has never been thrhouseS ^ost > t'ie constitutional historian can clearly explain how it of lords. still survives in the corporate person of the house of lords, Although the existence of the house of commons, which has grown up alongside of the older assembly, cannot be traced back farther than the thirteenth century, still the system of representation — imbedded in the local, self-governing com munities out of which the younger body grew — can be traced f*thro_duCt back t0 the very earliest times. As surely as the house of resentative lords is the lineal successor of the witan, the house of com- Imbedaed mons is the product of the representative principle imbedded g^nkations ^rom tne beginning in the organization of the shires and ofthe towns. In order to understand how the two distinct eie- shires and . . . . . , towns. ments, equally ancient, which enter into the composition ot 1 Sir Henry Maine, Popular Government, p. 13. House of commons I.] FROM EDWARD I. TO HENRY IV. 43 J the two houses, were at different periods of time worked into the constitution of the national assembly, it is necessary to constantly bear in mind the two great stages of transition Two great or growth through which the Old-English witan was trans- tuition. formed into the feudal councils of the Norman and Angevin reigns, and through which these councils were in their turn transformed into the parliaments of Edward I. At an earlier stage of this work an examination was made Historical into the historical origin of the witan, whether considered as °hj.gwit°n- the supreme council of a single heptarchic state, or as the agemot. supreme council of the whole English nation when finally united in a single consolidated kingdom.1 One of the leading objects of that examination was to explain the process through which the primitive national assembly or folkmoot, in which every freeman had his place, gradually shrank up into a nar row aristocratic body composed of the magnates only. Such was the historical origin and such the political structure of the witenagemot of the Old-English commonwealth in which all grave matters were discussed, and with whose advice and consent were performed all important acts which the king could authorize. After the coming of William the continuity of the old na- The witan tional assembly went on unbroken ; the witan remained, as conquest6 before, the national council of the king ; and during William's reign it retained much of its earlier character. Even the name witan goes on in English as long as the Chronicle con tinues, and the new Latin name of magnum concilium which grows up by its side is simply a translation of mycel gemSt. Of the constitution of the witan, either before or after the Conquest, we have no direct or formal account, but the high est authorities agree in the conclusion that on all ordinary occasions the witan was a comparatively small gathering of great men, while on extraordinary occasions the assembly was sometimes reinforced by large popular bodies from every part of the kingdom. What were the qualifications necessary to bestow the right of membership in the great council, dur ing the Norman reigns, cannot be definitely ascertained ; not until the reign of Henry II. can it be confidently maintained that every tenant-in-chief of the crown was a member of the i See above, pp. 147, 148, 183, 184. 432 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. The witan, after the Conquest,passes through a great prac tical trans formation : it becomes the king's court of feudal vas sals. Influence of the prac tice of sum mons. assembly. It seems to be clear, however, that the Norman conquest wrought no formal change in the constitution of the witan ; that, in legal theory at least, what the witan was in the days of King Eadward it remained in the days of King William. But although the witan under the name of the great council outlived the Conquest, and although in legal theory it still retained all of its old powers, yet the fact re mains that the constitution of the assembly underwent a great practical transformation. At the beginning of Wil liam's reign, those who composed the council that ordinarily gathered around the person of the king were a body of Eng lishmen ; by the end of the reign, this body had gradually been changed into an assembly of Normans in which an Englishman here and there held his place. This change naturally resulted from the nature of the Conquest itself. Through William's policy of confiscation and regrant, nearly all of the great estates passed from English to Norman hands ; and in the same way nearly all of the great offices in church and state were parcelled out among his followers! The king's thegns thus became his tenants-in-chief, holding their lands from him as their lord. Through this feudalizing process, the ancient assembly of wise men was gradually and silently transformed into the king's court of feudal vassals, whose right to exercise power was made to depend practically upon the king's pleasure. During the reigns of the Norman kings the legislative functions of the great council were re duced to a mere shadow.1 Under Henry II. and his sons the constitution of the national council reached a definiteness of organization which it had never possessed before. The com position of the council, which was now summoned at regular intervals, was that of a perfect feudal court, — an assembly of archbishops, bishops, abbots, priors, earls, barons, knights, and freeholders. The constituent members of the assembly are the same as under the Norman kings, but greater promi nence and a more definite position is now assigned to the minor tenants-in-chief. Through the influence of the prac tice of summons, to whose origin an exact date cannot be assigned, the tendency was fast gaining ground to limit the national council to those only who were summoned by the 1 See above, pp. 239-242. I.] FROM EDWARD I. TO HENRY IV. 433 king's writ, either personally or in a body. How far the prac tice of summons, which was in active operation in the time of Henry II., had developed up to the sixteenth year of John, can be definitely ascertagted from the fourteenth article of the Great Charter, which poovides that, " To have the common counsel of the kingdom we will cause to be summoned the archbishops, bishops, abbots, earls, and greater barons singly by our letters ; and besides we will cause to be summoned in general by our sheriffs and bailiffs all those who hold of us in chief." By this article, which no doubt expressed the then existing practice, the qualification for membership in the na tional council was at last distinctly defined, and that qualifica tion naturally assumed a feudal shape. No one was expected to attend unless he was summoned, and no one was to be summoned unless he was a tenant-in-chief. By the form of The line the summons a line was also distinctly drawn between two tween lords definite classes of men ; between the magnates, who were ^ns°m entitled to a personal summons, and the main body of tenants- in-chief, who were summoned generally in the shires : in this form the distinction between lords and commons begins.1 The time was now fast approaching when the constitution Constitu- of the feudal council, which the practice of summons had thus feudal definitely defined, was in its turn to be modified by the force mooted by of a new principle which demanded that every national assem- 'f^0^* bly should consist of representatives of all the estates or tatesystem. classes of men into which the body-politic was divided. The causes which brought about the establishment of the estate system were general in their operation, and in each one of the European countries the result was reached about the same time. The complete establishment of the system is generally regarded by the historians as the work of the thir teenth century. During that period was established through out Western Europe that type of a national assembly into which the several orders or classes of men entered in the form of definitely organized estates. In each country the system has its special or local history, bjtfFas a general rule in all of the European constitutions the 'three political factors are the same, — the clergy, the nobles, and the commons.2 In nearly all of the Western nations the old primary assem- 1 See above, pp. 289-291. 2 See above, pp. 337. 434 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Primary as- blies died out and were succeeded by representative assem- dteoutes blies founded on the principle of estates. In one important butTn^Eng- particular the English kingdom stands as an exception to the land. general rule, — in England the oldagarimary assembly never entirely died out. After first shrin^ig up into the narrow aristocratic body known as the witan, — the witan of the consolidated kingdom which survived the Conquest was ulti mately transformed, through the practice of personal sum mons to the great magnates of whom it had been immemori ally composed, into the house of lords. In this feudalized form the Old-English national assembly survived, and entered as the aristocratic element into the new system of estates.1 Effects of 3. The ultimate effect of the process of feudalization upon of feudal the constitution of the national council was to transform the the'nati'onai ancient assembly, composed of the lay and spiritual witan, council. into a court or council of feudal vassals in which, according to feudal theory, every tenant-in-chief possessed the right of membership. In practice, however, after the Conquest as before, the feudal councils which ordinarily gathered round the king were composed, as the old assembly had been, only of the territorial magnates, and of the holders of the great offices in church and state. The greater tenants-in-chief who thus gathered around the person of the king, and who won for themselves the right to be personally summoned to his council, and in whom that right became hereditary, repre- Engiish sent, together with the lords spiritual, the peerage of England, identical which is identical with the house of lords. By the practice house' of or personal summons, to whose origin an exact date cannot lords. be assigned, the line was first drawn between the greater tenants and the mass of lesser vassals who were summoned generally in the shires. This practice, which was in active operation in the reign of Henry II., received positive recog nition in the terms of the Great Charter itself. The difficult matter to ascertain is the qualification of blood, or tenure, or 1 " In England, . . . the primitive constitution. That is to say, I believe Assembly never died out ; it never was that the primitive Assembly was, by trampled out ; it simply — through the lineal personal succession, continued natural working of causes of which I in the Witenagemot, and that the Wi- have already spoken — shrank up into tenagem6t is, by lineal personal succes- a narrow body. Through that law of sion, continued in the House of Lords." shrinking up, the old democratic As- — Freeman, Comparative Politics, p. sembly lived on to become the aristo- 232. cratic element in a new form of the I.] FROM EDWARD I. TO HENRY IV. 435 special privilege, which entitled the greater tenants to receive the special writ. Upon what principle were those who re ceived the special writ distinguished above their fellows ? The theory is that the folding of a feudal estate by the pe- Thehoid- culiar tenure of barony was the original qualification which e"fateby entitled the tenant-in-chief to the right of personal summons, ^"j"**6 — " the baronage of the thirteenth century was the body of quaiifica- tenants-in-chief holding a fief or a number of fiefs consoi- personal idated into a baronial honor or qualification." 2 It seems to summons! be clear, however, that a special summons did not necessarily although follow tenure by barony, — that the holding by such tenure writ^Tnot was not of itself a sufficient ground for requiring attendance necessarily in parliament. It follows, therefore, that the right to receive tenure. the special writ was not an incident of tenure merely. Only by the actual reception of the writ was the dignity of peerage conferred upon the holder by barony. But not until this right to receive the king's writ had become hereditary was the status of the peer ultimately fixed and determined. The hereditary right to receive the writ, rather than the tenure The heredi- which was the original qualification for the writ, finally be- to receive' came the constitutional basis upon which the peerage now 'eYhasithe reposes. As the process of feudalization advanced, the inher- of peerage. ent power of the king, as the fountain of honor to determine who should be summoned as barons, gradually became subject to the limitation imposed by the feudal rule of primogeniture. Feudal rule It is generally conceded that certainly during the reign of ge£t™e." Edward I. the right of a baron — whose ancestor had been summoned and who had once sat in parliament — to claim the hereditary right to be so summoned was clearly and firmly established.2 The right thus established was ulti- Peerage by mately defined in that rule which provides that where a ^.ends'by peerage has been created by writ the right descends by °f j^f™ operation of law to the heirs of the person so ennobled, with- the heirs of _ <¦_¦•_ ri _ _- o person en- out words to that effect in the terms of the writ itself. A nobied. 1 Stubbs, Const. Hist, vol. ii. p. 178. writ ; and unless the terms of the writ, 2 For the authorities upon the sub- or of the patent under the authority of jects restated in this section, see above, which it issues, provide to the contrary, pp. 353, 354. he now gains by the writ, and his seat 8 See Blackstone (Sharswood's ed.), in parliament thereupon, an hereditary Comm., bk. i. p. 399. " The blood of honor, descendible to the heirs of his a temporal lord is considered as enno- body, whatever may have been formerly bled by a writ of summons to parlia- the law on this subject." — Lords' Re- ment, and taking his seat under that port, vol. i. p. 393. 436 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Heiresses. Degrees of dignity in the peer age : earls and barons only prior to Edward III. A duke created by patent. A baron created by patent in I387- Under this rule a barony created by writ could, in default of male heirs, descend to baronial heiresses, who, although they could not themselves sit in the king's council, conveyed to their husbands the presumptive right to receive his sum mons.1 The hereditary peers thus created by writ were designated — prior to the reign of Edward III. — by the titles of earl and baron only.2 The former dignity, which descended from the Old-English system, was generally em braced, however, in the latter term. Upon the comprehen sive title of baron, which was common to the whole peerage, the higher titles of duke, marquis, earl, and viscount were simply superimposed.3 In the reign of Edward III. the title of duke was for the first time conferred upon a subject, and, what is more important, the new dignity was created by letters patent.4 This new method of creation by patent instead of by writ gave rise to an important innovation. The dignity conferred by the new method did not descend gener ally to the heirs of the person ennobled ; its descent was pre scribed and limited by the terms of the instrument by which it was created. The result of the new method of creation was to limit the descent of the peerage to a particular line of succession, — generally to the heirs male of the person enno bled. Prior to the reign of John, the ancient dignity of earl seems to have been generally derived from patents of the crown.6 In the reign of Edward III. the title of duke was so granted, and in subsequent reigns the titles of marquis and viscount.6 But not until the reign of Richard II. was a baron pure and simple created by patent instead of by writ. In 1387 Richard II. created John Beauchamp of Holt, a baron by patent,7 and from the twenty-fourth year of Henry VI, barons were generally created in that manner.8 To the two 1 " They even sat, after the death of their wives, as tenants by the curtesy." — Hallam, M. A., vol. iii. p. 119, citing Collin's Proceedings on Claims of Bar onies, pp. 24, 73. 2 Lords' Report, vol. ii. p. 65. 8 Ibid., vol. ii. p. 240. 4 Ibid., vol. ii. p. 186. " The dignity of duke, as a distinct name of honor, was first given by Edward the Third in the eleventh year of his reign, when in parliament he created his eldest son, Edward, before Earl of Chester, Duke of Cornwall. In the patent for this pur pose the words of creation used are," etc. 6 Lords' Report, vol. i. p. 69. 6 Ibid., vol. ii. p. 240. 7 Ibid., vol. i. p. 345. The language of the Report is, "which is commonly considered as the first creation of a baron by patent." 8 See Nicolas, Hist. Peerage (Court- hope ed.), p. 291 ; Stubbs, Const. HisU vol. iii. p. 437. I.] FROM EDWARD I. TO HENRY IV. 437 ordinary methods of creating the dignity of peerage, by writ and by patent, must be added the extraordinary method of Peers created by creation by the king in parliament:1 to such creations the the king in assent of parliament is frequently stated. As to the dignity Parliament' of banneret, the better opinion seems to be that it was a Bannerets. mere order of knighthood and not a rank of peerage.2 The peers of the realm, although distinguished from each other by titles expressive of different degrees of dignity, were otherwise equal both in privilege and authority.3 During the two centuries which intervene between the Legislative Conquest and the formation of the estate system in the reign p"Wers oT of Edward I., the national assembly survives in the form of *U]^fof the feudal court or council, whose constitution has in general the No> terms been already defined. Although this council, gener- early An ally known as the magnum concilium, may have embraced on gevm ngSl extraordinary occasions the whole body of the tenants-in- chief, it was no doubt composed, on all ordinary occasions, only of the greater tenants, among whom were, of course, embraced the holders of all the great offices in church and state. To the great council thus constituted passed, in legal theory at least, the sum of political, fiscal, legislative, and judicial powers which had been possessed by the ancient witenagemot.4 The dominant force in the feudal court or council was the new kingship to which the Conquest gave birth, a kingship which refused to be limited by the constitu tional action of the witan on the one hand, or to be weak ened by the disruptive tendencies of feudalism on the other. That the Norman and Angevin kings were practically abso lute there can be no doubt ; and yet it is equally clear that they retained throughout both the theory and form of a national council, by whose counsel and consent they per formed all important acts of judicature and legislation.5 Even Dr. Gneist, who denies the survival of the witan in the form of a feudal council, and who holds that the royal power 1 Lords' Report, vol. ii. p. 40, citing sembly, so no formal change took Co. Litt., 16 b. place in its powers. . . ._ But with the 2 Lords' Report, vol. i. pp. 328, 329; powers of the assembly, just as with its Stubbs, Const Hist, vol. iii. p. 441. constitution, while there was no formal 8 Ibid., vol. ii. p. 243. The Report change, the practical change was great." says : "As peers of the realm all were — Freeman, Norm. Conq., vol. v. pp. esteemed equal." 280, 281. 4 " As no formal change took place 6 See above, pp. 241, 291. in the constitution of the national as- 438 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. in Norman times was virtually absolute, admits that the form of counsel and consent in legislation was never entirely abol ished, — that " in the first centuries of the Norman period is Survival of met with, occasionally, the consensu baronum meorum, which andron*!1 crops up whenever fundamental changes in the hereditary sent." . common law ' are in question." 1 Although the legislative functions of the great council may in Norman times have been more nominal than real, the immemorial form of coun sel and consent which descends from the earliest Teutonic legislation never entirely disappeared. That the great council of peers was a supreme judicial court, in the same general sense in which the witan had been, cannot be successfully questioned. judicial 4. The standing committee of the great council, — curia thehouse regls> — aiter glvmg birth, to the four great courts of king's of lords. bench, common pleas, exchequer, and chancery, still retained a vast and indefinite reserve of administrative, legislative, and Relation of judicial functions.2 In order to indicate, even in general uai tottiT terms, the domain of these far-reaching powers, it is neces- great coun- sary to outline the relation which existed between the great council and the smaller body which, in the language of Lord Hale, stood to the former as a concilium in concilia. To the great council, as heretofore pointed out, passed, in theory at least, the sum of political, fiscal, legislative, and judicial powers which had been possessed by the ancient witena gemot. To facilitate the work of administration, the ordinary exercise of these powers was committed to an inner or con tinual council, whose relation to the greater body, owing to the scantiness of documentary evidence touching the Norman period, is vague and shadowy in the extreme. From the ex isting evidence, the conclusion has been reached that the lesser or continual council was what would be called in mod ern language a standing committee of the great council.8 1 Gneist, The English Parliament, not independent legislative or govern- p. 60 (Shee's trans.). For the views ing assemblies, needs no proof. The of this writer upon " the transforma- kings were practically absolute, but tion of the ancient witenagemotes into they retained the theory and the form the Norman ' court-days,' " see Ibid., of a national council." — S,tubb_, Const. pp. 54-71. See, also, Gneist, Hist, of Hist, vol. i. p. 356, note 1, citing Ver- the Eng. Const, vol. i. pp. 246-271 wait. i. 238 seq. (Ashworth's trans.). " Gneist's posi- 2 See above pp. 245, 249 tion, that the Norman assemblies were 8 See above, p. 242. I.] FROM EDWARD I. TO HENRY IV. 439 As such standing committee, the continual council seems to reproduce the relation which existed between the primary Teutonic assembly and the permanent council composed of the magistrates (principes) who decided all ordinary ques tions, reserving only the graver ones for the consideration of the greater body.1 Such was the relation finally established, All ordi- so far as judicial business is concerned, between the continual deadedby council and the four great courts developed out of it, on the th£ ""^ one hand, and the great council, finally known as fehe house or by the of lords, on the other. All ordinary questions of judicature of it. pass in the first instance to one or the other of the great law courts ; a more exceptional class, to the court of the chan cellor ; while another and more difficult class still is reserved to the king in his ordinary council.2 Only causes of an ex- Only ex traordinary character remain for the judgment of the great causes re-"7 council of the kingdom. In the exercise of this extraordi- ^judg- nary jurisdiction the house of lords, as the highest judicial ment °fthe body in the realm, appears in three aspects : (i) as a court of peers for the trial of its own members ; (2) as a high criminal court of state for the trial of both peers and commoners who are impeached by the commons ; (3) as a • supreme court of error and appeal in civil causes. As a court of peers for the trial of its own members, the The house house of lords was the only tribunal in which the peerage a court of could enjoy the benefits of that principle of Teutonic law jhTtrilTof which granted the judicium parium to the members of every its °™ 0 J f . J members. class or order. As heretofore explained, the famous clause in Magna Carta touching the " legale judicium parium suo rum " refers rather to the general right of each estate or class to be tried by its own members than to the special right of trial by jury as afterwards understood.3 From the very na ture of the right itself, the right of a peer to be tried by members of his own order could not have antedated the organization of the peerage as a distinct estate. Although the right had been claimed at an earlier date, it was first defi nitely established in 1341 by the statute of 15 Edward III., Statute of which provides " that no peer of the realm, officer, or other, ^dward on account of his office, can be brought before the court, 1 See above, p. 108. s See above, p. 389, note 1. 2 See above, p. 302. 440 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. condemned to the loss of his worldly possessions, put in arrest or prison, rendered responsible, or judged otherwise than through award of the said peers in parliament." 1 Two years later this statute was repealed, but in the repealing statute the general principle embodied in the first was dis tinctly recognized. The right as ultimately defined in the law of the land was restricted, however, to a narrower basis than that upon which the statute of 1341 had placed it. In that act the right of a peer to be tried by his peers was made to extend to all offences whatsoever; in the law as finally established, the right was limited to cases of treason and felony A peer may only. A peer may be tried like a commoner for the commission nkeTcom- of a misdemeanor.2 By statute of 20 Henry VI. the right of ™?n1e^fora a peer to be tried by his peers in cases of treason and felony meanor. was extended to peeresses.3 When an accusation is to be made against a peer, it is made by indictment in any compe tent court having cognizance of the offence, and if the offence charged be treason or felony the case is removed for trial by certiorari to the house of lords.4 If parliament is sitting, the trial proceeds in the house of lords as such, which is usually, The lord though not necessarily, presided over on such an occasion by a.dhandehis a lord hlgn steward5 appointed for that purpose. Under court. these circumstances the lord high steward is simply the presi dent of a court in which the peers are the judges. If, how ever, the parliament is not sitting, the indictment is tried in the court of the lord high steward, which was originally sim ply a select committee composed only of such peers as the steward might see fit to summon. In this tribunal the stew ard sits as the only judge, while the peers summoned by him — the "lords triers" — act as a jury.6 Owing to an abuse which arose out of the power of the steward to limit his court to such peers only as he saw fit to summon,7 an act was passed (7 and 8 Will. III. c. 3) which provides that, upon the trial of any peer or peeress for treason or misprision, all the 1 Rot Pari, ii. p. 132. 6 As to the origin of the office, Coke, 2 3d Inst., 30 ; Hawkins, C. P., bk. 2, 4th Inst, 58. ch. 44, §§ 13, 14 ; Stephen, Hist, of the <» See Sir T. Erskine May, Pari. Criminal Law, vol. i. p. 164. Prac, p. 737-741 ; Campbell, Lives of 8 Rot. Pari., v. p. 56. the Chancellors, vol. iii. pp 538 n., 557 n. 4 Stephen, Hist, of the Crim. Law, -7 See trial of Lord Delamere, n vol. i. p. 165. Howell, St. Tr. 539 ; Macaulay, Hist. of England, vol. ii. pp. 313-316. I.] FROM EDWARD I. TO HENRY IV. 441 peers shall be summoned, and that every peer so summoned and appearing shall have a vote at the trial. A second and higher judicial aspect still, in which the house The house of lords appears, is that in which it stands out as a high tv^™ criminal court of state for the trial of all persons who are ^e triai'of impeached or accused by the commons, sitting as a grand ail persons jury of the whole nation, of the commission of high crimes by a^com- and misdemeanors. The right to thus assail the great func- mons' tionaries of the realm was one of the weapons won by the commons during their struggles for political power in the four teenth and fifteenth centuries. The earlier instances of crim inal proceedings which take place in parliament during the period which intervenes between the beginning of the reign of Edward I. and the fiftieth year of Edward III. are both irregular and ambiguous.1 Not until the year last named do we find, in a series of proceedings which take place in the Good Parliament, a clear instance of a parliamentary impeach ment in the sense in which that term is now understood. The proceedings against the lords Latimer and Neville, and Proceed- their agents and accomplices,2 who were accused of the com- ihfiords1154 mission of all kinds of fraud upon the revenue, are regarded L d"??6"^ by the historians as the earliest instance of a trial by the lords upon a definite accusation made by the commons.8 In the early part of the reign of Richard II. (1377-1383) im peachments were directed for various kinds of misconduct against Gomenys and Weston, against Cressingham and Spykesworth, and against the Bishop of Norwich, Elmham, and others.4 In 1386 these cases were followed by the fa mous accusation against Michael de la Pole, the lord chancel lor, who was impeached for grave misconduct in his office.5 Thus by frequent repetition and employment the law and practice as to parliamentary impeachments was by the end of the reign of Richard II. established in substantially the same form in which it appears in modern times. During the period in which the practice of impeachment by public accusation of the commons was taking on a definite 1 See Stephen, Hist, of the Crim. 4 Rot. Pari., iii. pp. 10-12, 153, 156. Law, vol. i. pp. 145-155. 6 Rot. Pari., iii. pp. 216-219; Knigh- 2 Rot. Pari., ii. pp. 323-^326, 328, ton, u. 2684. See Hallam, M. A., vol. 329 ; Rymer, p. 322. iii. pp. 66, 67. 8 Hallam, M. A., vol. iii. p. 56; Stubbs, Const. Hist, vol. ii. p. 431. 442 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Private ac cusations by " ap peal " abol ished by Stat. Hen. IV. ... 14. Impeach ment be coming obsolete. The law of impeachment as finallysettled. and final form, it was for some time rivalled by a method of private accusation known as an " appeal," whose history, as a part of the procedure in ordinary criminal cases, has been heretofore examined.1 By an " appeal " any person had the right to bring any other to trial for any offence before the high court of parliament. In the reign of Richard II. the lord chancellor was in this manner impeached by a fish monger who accused him of taking bribes in the form of money, and in cloth and fish delivered free at his house.2 The strife and the bloodshed which resulted from the use of this unbridled method of private accusation by the turbulent feudal nobility were so serious that it was finally abolished by a statute passed in 1 Henry IV. c. 14, which provided " that no appeals be from henceforth made, or in any wise pursued in parliament in any time to come." The practice of impeachment by accusation of the com mons, thus left without a rival, was employed against the duke of Suffolk, who was charged with high treason in 1450,3 and against Lord Stanley in 1459.4 After the trial of Lord Stanley, no impeachment seems to have taken place until the trial of Sir Giles Mompesson in 1621, — an intermission of one hundred and sixty-two years. From that date down to the impeachment of Lord Melville in 1805, the impeachments which have taken place have been estimated at fifty-four.5 Of these the most famous are those which took place in the struggle between the parliament and the crown during the first two years of the Revolution of 1640. The law of im peachment as finally settled has thus been summed up by Sir James Fitzjames Stephen : — " 1. The house of lords is a court of justice in which peers may be tried for any offence, and commoners for any offence not being treason or felony, upon an accusation or impeach ment (impetitio) by the house of commons, which is the grand jury of the whole nation. " 2. When such an impeachment is once made, it is not abated either by a prorogation or by a dissolution of parlia ment, but must go on from session to session, and from par liament to parliament, till it is determined. 1 See above, p. 311. 2 Rot. Pari., iii. p. 168. 8 Rot. Pari., v. p. 176. 4 Rot. Pari., v. p. 369. 6 See Stephen, Hist of the Crtm. Law, vol. i. pp. 157-159. I.] FROM EDWARD I. TO HENRY IV. 4-_3 " 3. A pardon from the crown cannot be pleaded in bar of an impeachment." 1 The third and last aspect in which the house of lords is to House of be viewed as a court of justice is that in which it sits as a c°0rursta0Sfa final court of appeal for the correction of errors in iudg- error in cr ... jo clvil causes, ments and decrees rendered in civil suits by the great courts of law and equity. This supreme appellate jurisdiction in civil cases seems to have lain dormant from the time of the complete organization of the courts of Westminster down to its revival in the sixteenth and seventeenth centuries. The right to remove a law case to the house of lords by writ of error, originally derived from the crown, was confirmed by statute in the 27th year of Elizabeth ; 2 while their appellate jurisdiction in equity cases on petition to themselves, without reference to the crown, has been exercised since the reign of Charles I.3 5. Having now explained how the witan grew into the House of feudal councils of the Norman and Angevin reigns, and how th^odlct out of these feudal councils was developed the house of lords, fJ^H^t the task remains to explain the process through which a new principle _ _ i •¦__¦_ ii imbedded and a popular assembly grew up, alongside ot the older in the o_- aristocratic body, out of the system of representation imme- ^"heatlon morially imbedded in the organization of the shires and ^wnsand towns. In order fully to grasp the nature of this later growth, it is all-important to bear in mind the fact that, from the time of the Conquest down to the establishment of the estate system in the reign of Edward I., all of the great powers of government were concentrated around and central ized in the person of the king acting through his ordinary council, composed of the great officers of state and the house hold, or through that larger body known as the great council, composed of those tenants-in-chief who won for themselves the right to be personally summoned, and in whom that right became hereditary. During a long period of time, from the person of the king acting through his lesser or greater council, — whose relation to each other is not clearly defined, 1 Hist, of the Crim. Law, vol. i. p. p. 56. " In 1873, indeed, their ancient 146. appellate jurisdiction was surrendered 2 See Intr. to Sugden, Law of Real by the Judicature Act; but before that Property, p. 2. act came into operation this provision 8 See May, Parliamentary Practice, was repealed." — Ibid., p. 56. 444 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch — emanated all the great acts of government, whether admin- istrative, legislative, judicial, fiscal, or political.1 Under the highly centralized political system to which the Conquest gave birth, the main body of the people, upon whom the burden of government fell, were sternly excluded from all How the voice in its administration. The great outcome of the polit- ™athebpeo- ical struggle between the nation and the crown, which ex- pieasor- tends through the thirteenth and fourteenth centuries, is gamzed in ° > shires and embodied in the fact that during that period the main body the' right to of the nation as organized in shires and towns won for them- m national selyes the right to participate in, if not absolutely to control, affairs. the entire administration of the kingdom. The way in which the nation worked out this result was by building up along side of the older national assembly a new body composed of the representatives of the local self-governing communities, which, from humble beginnings, won first the right to par ticipate in taxation, then to participate in legislation, then to impeach the ministers, and finally to participate in the con trol of the royal administration, and in the deposition of the king himself. The whole process is one of struggle and of growth. At the outset " Vos humbles, pauvres communs prient et supplient pour Dieu et en ceuvre de charite""1, that their petitions may be granted. Next they establish the principle that not until their grievances as set forth in their petitions are redressed will they grant the supplies expected of them. With this weapon in their hands they next claim the right to examine the royal accounts, to regulate the royal expenditures, and to hold responsible to themselves the min isters, who in earlier days answered not to the nation, but to the king. The final result of this process, which has only been fully worked out in our own time, has been a virtual transfer of the fiscal, political, and administrative powers of The com- government from the king and his council to the represen- to°partic£se tatives of the people. One great power only has never Sureix?'" iomed in tne migration. The judicial power vested in the cept in greater and lesser councils, and in the tribunals born of them, attainders , c and im- has never passed to the popular chamber ; the house ot com ments, mons persistently refused to participate in the judicature of 1 See above, pp. 241-247. formula." See The Eng. Parliament 2 This, Gneist says, "is the wonted (Shee's trans.), p. 138. I.] FROM EDWARD I. TO HENRY IV. 445 the realm save so far as its participation was necessary in bills of attainder and impeachments. The process of growth through which the body of the nation, as organized in shires and towns, work their way into a partial exercise of the great powers of government, originally vested in the king and his feudal council, begins with the appearance of the shire rep resentatives in the national council in the reign of John.1 That tentative effort is followed in 1265 by the appearance in the national council not only of representatives from the shires, but from the cities and towns.2 From the meeting of the famous parliament of 1 29s,8 which completes the transi tion from a feudal council to an assembly of estates, the right of the shires and towns to send representatives to the national council becomes a permanent institution. It is, therefore, as a part of the estate system that the representa- Representa- tives of the English commons finally take their place in the coVmm*onshe national parliament. Who, then, were the third estate, — the u?e *eir ..... r place in commons, — as that term was understood in the politics of parliament the thirteenth century ? As heretofore explained,4 the term tteestate" "commons," as it appears in the English political system, system- must not be understood to imply a union into one corporate body conscious of its own identity of all orders of men below the nobility and the clergy, — it must be understood only to include all freemen organized and incorporated for govern ment in the two leading classes of local communities, — shires and towns. In order, therefore, to present a complete statement of the origin and growth of the house of commons, it is first necessary to describe the political organization of the shires and towns ; second, the successive periods at which representatives were sent from these local communi ties to the national council ; third, the union of the shire and town representatives in one house; fourth, the process through which that house won, step by step, the right to participate in all the great functions of government. 6. At an earlier stage of this work the historical origin of origin and the shire, and the nature of its internal organization before the'shhe °f and after the Conquest, were made the subjects of special £?mmuni" examination. The conclusion was then reached that the 1 See above, p. 377. 8 See above, p. 417. 2 See above, p. 403. * See above, p. 356. 446 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. modern shire — the shire of the consolidated kingdom — finds its historical origin in the primitive state; "that the state of the seventh century became the shire of the tenth, while the shire of the seventh century became the hundred The mod- of the tenth." The modern shire is an aggregation of hun- aggregation dreds, the hundred an aggregation of townships.1 The fact dreds"" tnat tne m°dern shire finds its historical origin in the prim itive state is best illustrated by the structure of the shire- moot, which was not only a popular but a representative assembly — a county parliament 2 — in which each township and hundred appeared in the persons of its representatives. The repre- In the reeve and four selectmen who appear for the town- prina'pie at ship in the courts of the shire and the hundred we have the shire '" the verv ear'iest illustration of the representative principle. In the shire court thus constituted, the whole body of " suitors " (attendants) were the judges, and in theory whatever judg ment was rendered was the judgment of the whole assembly. In practice, however, the unwieldy body usually delegated its powers to a committee of "judices " who acted in behalf of the whole court. This principle of delegation, involving the selection of a chosen few to act in behalf of the whole, which is further illustrated by the action of the twelve senior thegns as a jury of presentment, and by the party-witnesses who under certain conditions declare the report of the community, runs through the whole system.3 Into the structure and procedure of the courts of the shire and hundred the prac tice of election and representation entered from the very The shire earliest times as an active and familiar principle. Through vWes'theUr" ttie ordeal of the Conquest the system of local self-govern- Conquest. ment embodied in the shire system passed without material impairment. It seems to have been a leading feature in the Conqueror's policy to maintain the ancient usages of the English nation by keeping up the administration of the cus tomary law in the popular courts of the shire and the hun dred. Leaving out of view the removal of the bishop from the shire court to a court of his own, the transformation of the ancient office of earldom into a titular dignity, and the addition of trial by battle to the ancient procedure, the 1 See above, pp. 145, 170-172 8 See above, pp. 203, 303. 2 See above, p. 303. I.] FROM EDWARD I. TO HENRY IV. 447 shire under the Norman name of county maintains unim- The shire paired its old position as the governing unit in the local or N^man*5 district administration. From the so-called laws of Henrv I. name°f i _li_ _r i _-. county. we learn that, after the Conquest as before, the shire-moot was attended by the " thegns of the shire," by the parish priest, and the reeve and four selectmen from each township. The full court, which met twice a year, still possessed both civil and. criminal jurisdiction, which was exercised according to the old forms of witness, compurgation and ordeal ; and the old theory survived that the "suitors " were the judges. The "judices " and the "judices et juratores " of the Pipe Roll of Henry I. probably represent the body of landholders, above the villeins in rank, who constituted the courts of the shire and the hundred, with full power to participate in the admin istration of justice. A punishment by fines applies to all members who fail to attend and discharge their judicial duties.1 The Old-English system of local administration embodied The oid- in the shire-moot is first brought into contact with the system ^"rge-moot of central administration embodied in the Norman curia regis brought , ..... .... . . , into contact through the visitations of the itinerant justices, who were sent with the through the shires during the reign of Henry I. to assess the curiaregis. revenue. While thus engaged in provincial business the jus tices sat in the shire-moot, where judicial work soon followed in the path of their fiscal duties. In the reign of Henry II. the system of itinerant judicature became a well organized and permanent institution.2 After that time the full assembly a full as- of the shire, summoned by the sheriff to meet the royal jus- th™shLef tices in order to participate with them in the administration ^^ the • i-i • ri ii-, justices of justice, and in the transaction of other public business, itinerant embraced a far more perfect representation of the county than the ordinary shire court. Before the coming of the judges a general summons was issued to the sheriffs, command ing them to summon all archbishops, bishops, abbots, priors, counts, barons, knights, and freeholders of their entire baili wick, and of each vill or township, four lawful men and the reeve, and of each borough twelve lawful burgesses, and 8 all 1 Upon this whole subject, see above, tiariis itinerantibus venire solent et pp. 252-256, 303-306. debent." See the form in Bracton, vol. 2 As to the growth of the itinerant ii. p. 188 ; Stephen, Hist. Crim. Law, judicature, see above, pp. 247, 248. vol. i. p. 101. 8 " Et omnes alios qui coram justi- 448 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. others who by duty or custom were bound to appear before the itinerant justices. Of the extent and variety of the fiscal and judicial business usually transacted before the justices in Agenda of one of these county parliaments, the agenda of the iter of 1^94!" °f t^e year 1 194 1 has been frequently cited as a typical illus tration. The sheriff After the bishop was by the effect of William's ordinance the°execu- removed from the shire-moot, and after the ancient earl was the sure °f striPPec^ °* his official character, the presidency of the shire was left alone to the sheriff, the king's ever-present and immediate representative.2 The earlier iters, which seem to have been rather fiscal than judicial, were generally held by the sheriffs, who were only occasionally superseded by jus- Deciine in tices from the curia regis. A steady decline in the judicial powers o? powers of the sheriffs resulted, however, from the develop- the sheriff. ment of the itinerant system. In 1 194 it was provided that the sheriffs should no longer sit as judges in their own shires, and the holding of the pleas of the crown was committed to Coroners of elective officers, — the coroners of the thirteenth century. teenth cen- Although the 24th article of the Great Charter, which forbade tury' both sheriffs and coroners to hold pleas of the crown, does not seem to have been promptly enforced, it led the way to the final settlement of the principle that the sheriff is a mere ministerial officer, and that judicial functions in the courts of assize belonged exclusively to the king's itinerant justices.3 But even after the loss of his judicial functions the sheriff still remained in possession of great local power and impor tance. He was still the executive head of the shire ; he still convened the county court, in which was transacted all of the business of the shire, whether judicial, fiscal, military, or such as arose out of the conservation of the peace. So great were The right his powers that the right to appoint him was claimed in turn to appoint r . i_.ii the sheriffs, ot the crown, by the baronage, and by the shire communities. In the scheme of reform known as the Provisions of Oxford, which was forced on the crown by the baronage in 1258.it was provided " that in each county there be a vavasour of the same county as sheriff to treat the people of the county well, loyally, and rightfully. And that he take no fee, and that he 1 See Hoveden, vol. iii. pp. 262- 2 See above, p. 258. 267- 8 See above, p. 319. I,] FROM EDWARD I. TO HENRY IV. AAf) be sheriff only for a year together." 1 The right to control the nomination of the sheriffs, which thus passed for a mo ment to the baronage from the king, was challenged in the succeeding reign by the people of the shires, who claimed that they should have the right to choose the sheriffs by elec tion. This demand Edward I. in 1300 conceded to the people The office of those shires where they desired to have it, and where the deIctiv£ne office was not " of fee," or hereditary.2 This privilege, which seems to have been sparingly exercised, was withdrawn by ordinance early in the reign of Edward II.8 Upon a renewal of the contest in the reign of Edward III. he ordered that the sheriffs be elected by the shires ; but after a few years more Finally ap- it was finally provided that the sheriffs should be appointed 8j£to«. by the officers of the exchequer, and that they should hold °l theex- office for not more than one year.4 When in 1294 the sheriffs were forbidden to sit as judges The in their own shires, the holding of pleas of the crown was coroner- committed to four officers, — three knights and a clerk, — who were always elected in full county court.5 These elected officers, whose duty it was to look after the pleas of the crown and other branches of the king's business in the shire, were the coroners of the thirteenth century.6 Although the coroner has been stripped of his ancient dignity, and although his chief remaining duties are the holding of in quest in case of violent or sudden death, and the discharging of the functions of sheriff in the event of the disability of that officer, the office itself is still elective. The freeholders The office who in full county court elected the coroners also elected ?™.eleo" in the same manner the venderers, the officers who stood venderers. between the crown and the people in the administration of the forest laws.7 1 Cf. Ann. Burton, pp. 446-453 ; Se- suited from the limitation of his period leet Charters, 2d ed., pp. 391, 395. of office." See, also, Blackstone, Com., 2 " Le roi ad grante a soen poeple bk. i. p. 340. qil eient esleccion de leur viscontes en 6 " 20. Praeterea in quolibet comitatu chescun conte, ou visconte ne est mie eligantur tres milites et unus clericus de fee, sil voelent." — Statutes of the custodes placitorum coronas." For a Realm, i. p. 139. list of the agenda of the " iter " of 8 Statutes of the Realm, i. p. 160. 1 194, see Hoveden, vol. iii. pp. 262- 4 Fadera, ii. pp. 1049, 1099- Up°n 267. the whole subject, see Stubbs, Const. 6 Cf. Bigelow, Procedure, p. 131. Hist, vol. ii., pp. 206-208, 382. The 7 See 2 Inst, p. 558 ; Blackstone, Bishop concludes (p. 208) that "the Com., bk. i. p. 347. real loss of his ancient importance re- 43° THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. The shire the training school of the English people in self-government. Election and repre sentation employedin every branch of business. Present ment of criminals. The system of recogni tions. The shire, which was recognized by the state as a " commit. nitas " 1 or corporation, and whose court or assembly was the place in which was transacted all local public business, whether fiscal, judicial, or administrative, was the preparatory school in which the main body of the English people were trained for the work of self-government in a higher sphere. Under the new order of things to which the Conquest gave birth, the principles of election and representation, which from the ear liest times had entered into the structure and procedure of the shire-moot, were still employed in every branch of judicial, fiscal, or remedial work which devolved upon the shire com munity. Into the new system of presentment and recognition by jury, election and representation both entered, in different forms and in different combinations, as an active and familiar principle. Under the Old-English procedure the present ment of criminals was probably made either by a private accuser, by the reeve and four men of the township, or more often perhaps by the twelve senior thegns of each hundred or wapentake. By the Assize of Clarendon, under which the ancient system of presentment was reorganized and reestab lished, the representatives of the township and hundred were brought into a fresh and formal union in the discharge of a public duty with which each body of representatives had been immemorially connected.2 In the reign of Richard I. the presentment system was still more perfectly reorganized upon a basis distinctly representative. Under the last arrangement "four knights are to be chosen from the whole county, who by their oaths shall choose two lawful knights of each hun dred or wapentake, and those two shall choose upon oath ten knights of each hundred or wapentake, ... so that these twelve may answer under all heads concerning their whole hundred or wapentake."3 The principles of election and rep resentation thus embodied in the system of presentment were as clearly defined in the system of recognitions. By the terms of the Grand Assize, a writ was directed to the sheriff com manding him to summon four lawful knights of the neighbor- 1 " A city or borough is, in its corpo- milites de toto comitatu, qui per sac- rate capacity, a 'communitas;' so is a ramentum suum eligant duos leenles county." — Introduction to Toulmin milites de quolibet hundredo vel wapen- Smith's English Gilds, p. xx. tacco, et il 1 i duo eligant," etc. - Hove- 2 See above, pp. 306, 307. den, vol. iii. p. 262. 8 " In primis eligendi sunt quatuor I.] FROM EDWARD I. TO HENRY IV. 45 1 hood wherein the disputed property lay, who were directed to choose twelve lawful knights of the same neighborhood cognizant of the facts, who were to declare on oath who had the best right to the land in question. In the other assizes the procedure was substantially the same, with the exception that the twelve were chosen by the sheriff without the inter vention of the four electors.1 In either event the chosen recognitors, who were regarded as mere witnesses, acted in a representative capacity, — as representatives of a particular community they declared its testimony as to the fact in ques tion. By the employment of local jurors in fiscal as well as Represent*. judicial business, the representative principle was first brought p™ comes1* into contact with the system of taxation. This contact first ^j^g0' arose when personal property and income were brought under system of contribution. By the Assize of Arms, in which each free- when per- man was required to equip himself with arms according to e?fyisProp* his means, and in which local jurors were required to deter- J^f1^,.. mine the liability of each, the first step was taken towards tnbution. the taxation of rent and chattels. Seven years later, Henry II. took the final step when with the consent of the great council he demanded a tenth of all movables to aid the host of Christendom in the war against Saiadin. In order to fairly assess each man's liability to the tithe, Henry employed his favorite institution of inquest by local jurors. Whenever any The Saia- one was suspected of contributing less than his share, four or ^sedby six lawful men of the parish were chosen to declare on oath x°^2ZTol what he should give. In the next reign, when the Danegeld assessment ,. i- _^i _. soon ex- WaS revived under the name of carucage, the new system was tended to extended to the assessment of real property liable to that tax.2 ^.prop" Early in the reign of Henry III. a writ was issued for the collection of a carucage in which the sheriff was ordered to cause two knights to be chosen in the full assembly, and by the "will and counsel" of the county court, to take part in the assessment and collection of the tax.3 In the review heretofore made of the primitive system for The shire the preservation of the peace, whose difficult history extends fe°^e sys' back to the very earliest times, the conclusion was reached 1 See above, pp. 329, 330. ad hoc faciendum." — Close Rolls, i. 2 See above, pp. 298, 299. 437- Cf. Select Charters, 2d ed., pp. 8 " De voluntate et consilio omnium 351—353. de comitatu in pleno comitatu eligentur 45 2 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch, The " view of frank pledge." The mano rial court leet. Sheriff's tourn and leet. Business of the courts leet as county po lice courts. that it survived the Conquest under a name which did not clearly express its real character. The ancient frithborh (peace-pledge), the mutual guarantee by which every member of a tithing as well as of a meagth became a pledge or surety (borh) to the other members, as well as to the state, for the maintenance of the public peace, was incorrectly translated by the Norman lawyers into liberum plegium (frank-pledge), instead of pacis plegium (peace-pledge).1 The " view of frank pledge," the right to see that these peace associations were kept in perfect order, ultimately became a part of the criminal jurisdiction of the manorial court, where it still survives. As the manor was nothing but a dependent township under a new name, so the court baron, the principal court of the ma nor, was primarily the successor of the tun-moot, the ancient assembly of the village or township. To the functions thus inherited by the manorial court from the tun-moot was added, by a grant of sac and soc, the jurisdiction, civil and criminal, of a private hundred court. The criminal side of the jurisdiction thus derived from the hundred survives as the manorial court leet.2 It was not, however, in these mano rial courts leet only that the jurisdiction of the hundred court was exercised. It was the duty of the sheriff to hold a hun dred court twice a year in different parts of the county for the view of frank-pledge, and this court was called the great court of the hundred, or the sheriff's tourn and leet,3 to dis tinguish it from the lesser court held monthly by the bailiff of the hundred chiefly for the settlement of disputes concern ing small debts. The hundred court held by the sheriff on his semi-annual turn, tourn, or circuit, for the dispatch of criminal business, was the great court leet of the county,— that held by the steward was the court leet of the manor ; "one being only a larger species of the other, extending over more territory, but not over more causes."4 The business of the courts leet was not only to take the view of frank-pledge, but to present by jury all crimes whatsoever that happened within their respective jurisdictions, and to punish all trivial misdemeanors. In the system of district administration, as 1 See above, p. 198. 2 See above, pp. 207-211, 254. 3 Blackstone, Comm., bk. iii. pp. 33, 34 ; bk. iv. p. 273. See, also, Viner's Abridgment, vi. p. 586 ; vii. pp. 3, 8. 4 Blackstone, Comm., bk. iv. p. 273. I.] FROM EDWARD I. TO HENRY IV. 453 it existed after the Conquest, the courts leet were the county police courts in which all criminals were presented, and in which those accused of trivial offences were tried and pun ished. By the force of legislation the jurisdiction of the courts leet, excepting the view of frank-pledge, has been gradually transferred to the court of quarter session,1 a tri bunal which grew out of the establishment of the office of justice of the peace. The execution of the provisions of the Statute of Winches- justices of ter, whereby Edward I. revived and strengthened the ancient * e peace- system of police, was committed, as vacancies occurred, to conservators of the peace, who were elected, like the coroners, in full county court.2 The election of these conservators was, however, put an end to by a statute enacted early in the reign of Edward III. (i Edw. III. c. 16) 3 which provided that " in every county good men and lawful which be no maintain- ers of evil or barretors in the county should be assigned to keep the peace." By the terms of this act the assignment or appointment of conservators was vested in the crown, and the right to elect them taken away from the people. At first the authority of the conservators thus appointed was simply executive, limited probably to quelling riots and apprehend ing offenders. Not until 1344 were judicial functions con- judicial ferred upon them by an act (18 Edw. III. stat. 2, c. 2) 4 which j£°fe£31 provided that " two or three of the best of reputation in the in J344- counties shall be assigned keepers of the peace by the king's commission ... to hear and determine felonies and tres passes done against the peace in the same counties, and to inflict punishment reasonably." The Statute of Laborers, passed in 1350, provided that the justices should sit four times a year for its enforcement. In 1360 another statute (34 Edw. III. c. 1) 5 gave to the keepers of the peace not only 1 See Sir James F. Stephen, Hist, of 8 Statutes of the Realm, i. p. 257. the Criminal Law, vol. i. pp. 75-85 ; " This put an end to the election of Blackstone, Comm., bk. iv. p. 273. conservators, and was the beginning of 2 " In pleno comitatu de assensu the legislation relating to the officers ejusdem comitatus." — Pari. Writs, who afterwards became justices of the vol. i. p. 390. " Probably the conser- peace." — Stephen, Hist, of the Crim. vators were in the first instance ap- Law, vol. i. p. 112. pointed by the crown; the vacancies 4 Statutes of the Realm, i. p. 301. being filled by election : see Pari. 6 Ibid., i. p. 364. Writs, vol. i. pp. 389-391." — Stubbs, Const. Hist., vol. ii. p. 273, note 2. 454 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Court of quarter sessions. the right to arrest offenders, but to " hear and determine at the king's suit all manner of felonies and trespasses done in the same county." Upon that statute rests the jurisdiction of the courts of quarter sessions for counties, and from the time of its enactment the conservators or wardens of the peace prob ably take the higher title of justices.1 Although the jurisdic tion of the quarter sessions was extended by the statute to all felonies, by the terms of the commission 2 issued to the justices it was practically limited to minor offences by the proviso, " that if a case of difficulty shall arise they shall not proceed to give judgment except in the presence of some justice of one of the benches or of assize." In this way the practice finally became settled to reserve the trial of all serious offences to the justices of assize, " only petty larcenies and misdemeanors " — originally punishable in the tourn and leet — remaining for trial in the quarter sessions.3 By the Statute of Winchester it was provided that for the better keeping of the peace two constables in every hundred and franchise shall inspect all matters relating to arms and armor. The high constables thus established were appointed at the courts leet of the hundred or franchise over which they were to preside, or, in default of an election in that way, by the justices at their quarter sessions. The petty constables, first instituted about the reign of Edward III., are inferior officers in every town or parish, who act in a twofold capa city as subordinates to the high constables of the hundred.4 With the history of the English shire the history of the the'Engiish English town is closely interlaced. The fact has heretofore town- been stated that the Old-English town or borough was simply a subdivision of the shire "in which men lived closer together than elsewhere ; it was simply several townships packed tightly together, a hundred smaller in extent and thicker in population than other hundreds." 5 Although the early his tory of the borough constitution is very obscure, in it was High and petty con stables. Origin and structure of 1 Stephen, Hist, of the Crim. Law, vol. i. p. 113, citing Lambard, Eiren- archa, from which the author says is drawn the statements of Blackstone and other writers upon this subject. 2 As to the form of the commission, which was first settled in Michaelmas term, 1590, see Lambard, p. 43. 8 Cf. Stephen, Hist, of the Crim. Law, vol. i. p. 115. 4 See Blackstone, Comm., bk. iv. pp. 355- 356- „ , 6 Freeman, Norm. Conq., vol. v. p. 312. I.] FROM EDWARD I. TO HENRY IV. 455 undoubtedly embodied the system originally represented by the free township, which system survived as the basis of The town- municipal authority. Despite the obscurity and confusion ^m III' which surrounds the historical origin of the English municipal basis. °f the system, a definite conclusion has at last been reached, which SstemPa is now generally accepted as final by the historians, and that is that the English town or borough is of purely Teutonic ori gin; that it has its historical beginning in the immemorial system of local organization which is coeval with the race ; that at the outset it was nothing more nor less than a town ship, or a group of townships, more thickly settled and in a higher state of organization than the group ordinarily known as the hundred. The theory that the Roman municipal sys- Roman mu- tem survived the Teutonic conquest of Britain, that the perish"'"* Roman cities preserved in the island kingdom a continuous municipal existence as they did in Italy and Provence, is a delusion which has finally disappeared in the light of the latest research.1 If, then, we accept the township system as the basis of the municipal system, if we regard the ordinary borough constitution as simply representing a group of town ships, it follows that the town or borough was simply a hun dred thicker in population than other hundreds, and for that very reason more strictly organized for the purposes of inter nal administration. The burgemot, hustings, or law court of The burge- the Old-English town was usually nothing more than the ShM°orm hundred court in a slightly different form ; its origin was the Jj^J ^™" same, and its procedure substantially the same.2 If this con ception of the primitive constitution of the ordinary English town is kept steadily in view, it will be easier to explain the endless variations from the normal type which occur in the special histories of particular cities, each one of which seems to have advanced by its own road and at its own pace towards municipal independence. In order to account even in a general way for the endless obscurities and anomalies which appear in the internal arrangements of the cities and towns when their histories can be studied in the charters in which their special privileges are recorded, the fact must be borne in mind that each town constitution presents not only a spe cial phase of municipal development, but a special combina- 1 See above, pp. 125, 192. 2 Essays in A. S. Law, p. 22. 456 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. aii the eie- tion of constituent elements. These elements have at least municipal one thing in common : they are all drawn from a common fron^a3,1™ source > tney are a^ Parts of the Teutonic system of local Teutonic self-government and self-help immemorially imbedded in the source gild, the township, the hundred, and the shire. The confu sions which have to be mastered arise out of the endless variety of forms in which these elements of organization are combined in the several city and town constitutions. The town- As the ancient borough usually represented a group of jansh? the townships, it is not strange that we should find in its consti tution those phases of local administration which the town ship presents in its twofold aspect of parish and manor. As heretofore explained, the township as the domain of a single priest became so involved with the parish, and the meeting of the township for church purposes became so involved with the meeting of the vestry, that, in small parishes, the idea and even the name of the township is lost in that of the parish. That the township under the name of the parish ¦entered into the constitution of cities and towns is illustrated by a writer who has graphically described that bewildering •political aggregate known as the city of London as a " collec tion of geographically continuous parishes covered with build ings in the counties of Middlesex, Surrey, and Kent."1 The The town- relation of the township to the manor arose out of the " pro- manor! e cess °f feudalization," through which the free townships lost their independence, and became subject to a superior lord. After the Conquest the township appears as the manor of the lord, and the ancient j urisdiction of the tun-moot survives in the parish vestry and the manorial courts.2 That the town ship in its manorial aspect entered into the borough constitu tion is most clearly illustrated by the fact that at the time of the Conquest we find the inhabitants of towns living upon the demesnes of the king, or some other lord, in the relation of tenants paying individual annual rents and other dues in various forms to the lord as owner of the soil. The first effort at emancipation from the jurisdiction of such lords is made when the burgesses obtain grants whereby the indi 1 Sir F. Pollock, Hist, of the Science as the parish and as the manor see of Politics, p. ii (Humboldt Library). above, pp. 143, 144. 2 Upon the history of the township I.] FROM EDWARD I. TO HENRY IV. 457 vidual tributes are converted into a gross sum paid as a per petual rent by the borough as a self-governing community.1 To the elements of organization thus derived by the borough Relation of from the township as parish and manor must be added those {he consd*0 which it derived from the constitution of the hundred, which S_ti°n of ' the hun- it so closely resembles. The most important local court in dred. the Old-English system, in the sense of being that court which brought justice and police protection nearest to every man's door, was the hundred court. How the hundred juris diction was vested by express grants of sac and soc in the Sac ami soc. courts of the manor has been explained already.2 At the time of the Conquest those boroughs that did not possess the right to hold a hundred court by virtue of their own orga nization as hundreds, often received the right by a grant of sac and soc from the crown whenever they happened to be situated upon the royal demesne.3 When, therefore, the gov ernment of a borough appears to be vested in whole or in part in a court leet, it is easy to understand how that element of hundred jurisdiction passed into the borough constitution. In some instances the government of the town by the court leet has continued until modern times. It has been less than The corpo- fifty years since the corporate (representative) body in Bir- Binning- ™ mingham was the bailiffs and court leet.4 In some of the ^ff*|nd larger towns, however, the municipal constitution widened court leet beyond that of the hundred: such towns became counties, ago!yea' with a complete shire constitution of their own, and with sheriffs of their own. This form of constitution, first be stowed upon London by the charter of Henry I., was after wards extended to Bristol, to York, Newcastle - on - Tyne, cities as Norwich, Lincoln, Hull, Southampton, and other cities, which cocrpU0rate!» in time became "counties corporate."5 In some of these instances the borough courts do not simply represent the hundred court, but the courts of the township, hundred, and 1 " The town was then said to be it belongs entirely to the king, or to the Affirmed, or let in fee farm, to the bur- earl or bishop." — Stubbs, Const. Hist, gesses and their successors forever." — vol. i. p. 408, citing Madox, Firma Hallam, M. A., vol. iii. p. 24, citing Burgi, p. 16, in which many illustrations Madox, Firma Burgi, p. 1. are given. See, also, Stubbs, vol. iii. p. 2 See above, p. 254. 564, citing Firma Burgi, p. 23. 8 " In some of the Domesday towns * See Introduction to Toulmin Ihe sac and soc belongs, as in Lincoln, Smith's English Gilds, p. xxii. to the owners of manorial estates which 5 Cf . Merewether and Stephens on are united within the walls. In some the History of Corporate Boroughs. 458 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. London as a distinct shire, as a stand ard for im itation. The gild. shire under new names. Under the charter of Henry I., London 1 is recognized as a distinct unity, entirely free from and above the organization of the county in which it is situ ated. As a distinct shire it has its own sheriff and justiciar, who are elective officers ; it has its own folk-moot as the equiv alent of the shire-moot ; each ward has its own ward-moot, which is nothing but a hundred court ; within the wards or hundreds the burgesses were grouped together in township, parish, or manor, to which are annexed the common lands which everywhere enter into the borough constitutions. Into the civic organization of London, to whose special privileges all lesser cities were ever striving to attain, the elements of local administration embodied in the township, the hundred, and the shire thus entered as component parts.2 Into the constitutions of all other towns and cities, these identical elements, in different forms and in different combinations, everywhere entered as the constituents of municipal life.3 In the statement which has now been made of the elements out of which has been gradually developed the English muni cipal system, an omission has been made of a vitally impor tant factor which at one time became the dominant and cohesive force in nearly all city and town constitutions. Out of that system of neighborhood association for mutual help and protection which gave rise to the institution of "frith borh," or "peace-pledge," also sprang that closer form of association for local self-help known as the gild. In the one form of association, men banded together in a given district and joined in a " borh," or pledge for the keeping of the peace, and performance of public duties, by themselves and all other members ; in the other, men entered into a local association or benefit society, to which they gave their " wed," or indi vidual promise, to abide by the by-laws or internal regulations made for the common benefit.4 The spirit of association in 1 For Henry's charter to the citizens of London, see Fadera, i. p. n. 2 " The city is an accumulation of distinct and different corporate bodies, but not yet a perfect municipality, nor, although it was recognized in the reign of Stephen as a communio, did it gain the legal status before the reign of Richard I." — Select Charters, p. 107. 8 As to the general municipal history of London, see Norton's Commentaries on London. 4 " A gild was the association of men together for common objects of private and individual benefit, in which each man gave his ' wed ' to abide by their internal by-laws ; while a frithborh was the banding of men together, within the limits of a boundary, in which each joined in the ' borh,' or pledge for the I.] FROM EDWARD I. TO HENRY IV. 459 which the gild system finds its origin has manifested itself Uncertain in many lands, and its historical beginning has been traced gUdTystem! by some scholars to the banquets and sacrificial assemblies of the heathen Teutonic tribes,1 while others derive it from that form of association which existed in the Roman system under the name of collegia? The gild system seems, however, to have attained its highest development in the Teutonic coun tries, — especially in England during the middle ages. One of the most eminent of the modern authorities has emphati cally declared that he deems England the birthplace of gilds ; 3 and from three English gild-statutes, probably drawn oldest up at the beginning of the eleventh century, is derived the detailed , 11 i- 1 1 i i -i -i /¦ account of oldest reliable and detailed account of gild organization. The g!14 °rgani- earlier English gilds, traces of whose existence can be found Ish°n Eng' as far back as the laws of Ine, ^Elfred, and ^Ethelstan, seem to have been scattered through country and town wherever the pervading spirit of association united men in clubs or so cieties for religious, charitable, or social purposes. In cities Tendency and towns where populution was densest, the tendency of J^Moiidate gilds crowded together in close neighborhood was to coalesce in a single body. As early as the time of ^Ethelstan the gilds of London thus united for the purpose of more effectu ally carrying out their common objects ; and at a later day the gilds of Berwick-upon-Tweed enacted " that where many bodies are found side by side in one place they may become one, and have one will, and in the dealings of one with another have a strong and hearty love." 4 "The united brotherhood or town gild " thus created, partaking of the commercial spirit keeping of the peace, and performance p. 390, Genevas, 1766, and also Cicero, of public duties by all others." — In- De Senectute, cap. 13. traduction to Smith's English Gilds, by 8 " The oldest reliable and detailed Miss Lucy T. Smith, p. xv. accounts which we have of gilds come 1 Wilda, who dissents from this view, from England ; they consist of three finds in the family union the germ from gild-statutes." — Dr. Brentano's Essay which the gild was developed. See in Smith's English Gilds, p. lxv. These Wilda, Das Gildewesen im Mittelalter, statutes may be found in Kemble, Sax- Halle, 1831, p. 28 seq. See, also, Hart- ons in England, vol. i. Appendix D. wig (Untersuchungen uber die ersten i This is the language of the " Stat- AnfSnge des Gildewesens, p. 153), who utes of the Gild," whose first article agrees with Wilda in the conclusion that provides that " All separate gilds, here- nothing which is essential to the gild tofore existing in the borough, shall be can be derived from the custom of hold- brought to an end." — See Smith's ing feasts. English Gilds, pp. 338, 339, Brentano's 2 Cf. De collegiis el corporibus opifi- Essay, p. xcix. cum, in Heineccii opera omnia, torn. ii. 460 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. The "town which by the time of the Conquest had become universal, romes the begins to be known from that time as the " merchant-gild," l "merchant whose relation to the government of the towns becomes of the closest and most perplexing character. The confusing relation which thus grew up between the merchant-gild and the borough, of which it was the inner circle, has been thus its relation defined: "Those sworn fraternities for the protection of right borough- and tne preservation of liberty, of which mention has already been made in Part I., arose independently of the towns. Yet in the towns the necessity of protecting liberty, property, and trade against the violence of neighboring nobles . . . must have specially moved the small freemen to the forma tion of the societies above referred to. These inhabitants of the towns were old, free landed proprietors ; partly of the neighboring estates, but chiefly of land within the territory of the towns themselves. Most of them carried on trade; some probably also handicrafts. But the possession of town- land is the distinguishing mark of these earliest burghers. To this possession alone was full citizenship everywhere attached in the first movements of civic life. . . . Naturally, therefore, the whole body of full citizens, that is, of the pos sessors of portions of the town-lands of a certain value, the 'civitas,' united itself everywhere into one gild, 'convivium conjuratum'; the citizens and the gild became identical; Gildiawbe- and what was gild-law became the law of the town."2 The ic°™fsthewn gud nal1 became the town hall, and the merchant-gild, which gild hath!r arose within the town and yet independently of it, merged town hail, its organization in that of the town in such a manner as to draw to itself the real exercise of all municipal authority.3 No one could enjoy the full status of burgher or citizen un less he were a member of the gild ; and even the villein (nativus) who obtained admission into the brotherhood, and remained unclaimed by his lord for a year and a day, became a freeman. The cities and towns thus constituted, which grew up 1 Green, History of the Eng. People, governing body, its power of regulation vol. i. p. 211. of trade passed, together with other 2 Dr. Brentano's Essay in Smith's functions and properties, into the same English Gilds, p. xciii. hands." — Stubbs, Const. Hist., vol. ill. 8 " When the merchant guild had be- p. 563. come identified with the corporation or I.] FROM EDWARD I. TO HENRY IV. 46 1 within the jurisdiction of the shires, and upon the demesnes Thestrug- of the king or some other great lord, began the struggle for fmancipa- municipal independence with the effort to free themselves ^iff°_md from the financial and judicial administration of the sheriff lord- upon the one hand, and from the control of the lord upon the other. Until their severance from the general shire adminis tration, the sheriff exercised the same jurisdiction over the towns as over the rest of the county ; he collected from them the rents which formed a portion of the ferm of the shire ; and he looked after the king's rights in their courts of justice. In order to render their portion of the burden thus imposed clear and definite, the towns first required the sheriff to fix the amount which they were called upon to pay apart from the general contribution of the shire. The next step was to obtain a charter from the crown permitting the towns to pay directly to the exchequer a fixed rent in lieu of the sum contributed through the sheriff. The fixed rent thus paid by the towns directly to the crown, which was known as the firma burgi? the burghers apportioned and Thefirma collected among themselves by means of their own internal urg1' regulations. Thus freed from the financial interference of the sheriff, the next effort made by the towns was to free ' themselves from his judicial authority. Those boroughs which of themselves constituted hundreds, and those which by virtue of an express grant of sac and soc possessed the jurisdiction of a private hundred court, were exempt, of course, from all other forms of hundred jurisdiction. But such exemption did not relieve the burgesses from attend ance upon the courts of the shire. Only by virtue of a special privilege, or exemption secured by fine or charter, could the townsmen claim the right to have all causes affect ing themselves tried and finally determined within their own limits and in their own courts, according to the ancient meth ods of legal procedure, free from the Norman innovation of trial by battle. This exemption from the ordinary sessions of the county court did not extend, however, to the greater courts held in the shires by the itinerant justices. In these 1 See Brady on Boroughs, p. 40 seq. ; afforded by the case of Huntington, in Madox, Firma Burgi, p. 18 ; Hist, of reference to which the term first ap- the Exch., p. 226 seq. An instance of pears in Domesday. See Hallam, M. a firma burgi before the Conquest is A., vol. iii. p. 24, note 1. I 462 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. The towns courts each town was represented by twelve lawful1 men; fuUcounty and the mixed juries before which the townsmen were tried representa- were comPosed of six strangers, and six drawn from the body tives. of which they were members.2 Thus practically severed from the administration of the shire, the burghers made a further advance towards complete civic organization by ob- taining from the king, or other lord, grants which widened Purchase of their commercial privileges, exempted them from tolls, and prWUeges. at the same time conferred upon the body of the citizens or ganized in the merchant-gild greater power to regulate their internal trade. The charters which conveyed to the towns men these precious privileges of freedom of trade, of justice, and of internal government had invariably to be purchased from the lord of the town, whether king, noble, or abbot, and paid for in hard cash.3 The towns In order to administer the special rights and privileges right to thus acquired by purchase from the king and other lords, and ownmagis- in 0T^ev r0 supply the deficiency which arose out of the trates. exclusion of the shire administration, it became necessary for the towns to acquire the further right of electing their own magistrates. While the borough was administered as a de pendent township, or as a group of dependent townships, the The leet reeve and his companions, afterwards called the leet jury, constituted the only magistracy, whose authority was supple mented and strengthened by that of the gild. The reeve or bailiff held the courts of the borough upon the same general principle of accountability to an external authority under which the steward held the courts of the manor.4 Not until the borough won exemption from the jurisdiction of the sheriff, did it win the further right to establish an independ ent magistracy, and to choose as its head a reeve or bailiff, who now became an elective officer.6 The municipal char- 1 The sheriffs were required to sum- per vi probos homines extra burgum mon "of each vill four lawful men and amercientur." — Charter Rolls, p. 51. the reeve, and of each borough twelve 3 In the charters granted to the lawful burgesses." See the form of the cities and boroughs by Henry I., Hen- summons as stated by Stephen, Hist, ry IL, Richard I., and John, may be of the Crim. Law, vol. i. p. 101, cit- found ample illustration of the various ing Bracton, ii. (Twiss ed.), pp. 234, privileges thus purchased. 581. * See Select Charters, 2d ed. p._4l- 2 An illustration of this may be 6 For the terms in which Richard found in John's charter to Dunwich. grants the right to Lincoln to elect its " Et si forte amerciari debuerint, per own reeve ( prapositus), see Fadera, 1. sex probos homines de burgo suo et p. 52. For the terms in which John jury. I.] FROM EDWARD I. TO HENRY IV. 463 acter of the borough was not completed, however, until the The dec- elective reeve or bailiff was supplanted by the "mayor," sup^ded whose advent completed the transition from the old system ^ or „ of township government to the new system in which the. borough community appears as a " communitas" or corpora tion.1 "The 'communitas' has, at common law, and with- inherent out any statute, full power to regulate its own affairs, and to ?h*w make 'bye-laws,' for its own governance, by the assent of its munitas" own members. This power is inherent, and necessary to enable it to fulfil its obligations to the state." 2 The entire communitas was the corporation, and yet the exercise of all real power lay in the hands of the gild-merchant, which was in fact, if not in theory, the governing body. Acting as such, it gave law to the corporation : " what was gild-law became the law of the town." 3 So fully was the idea of incorpora- corporate existence represented by the gild that it was de- bynthTplied cided in later times, in the case of Totnes, that the incor- ^5* of ' gilaa mer- poration of a borough was implied by the grant of gilda eatoria. mercatoria. When the existence of the merchant-gild be came merged in the corporation, the title of alderman, which originally belonged to the heads of the separate gilds, was transferred to the magistrates of the several wards into which the town was divided, or, where there was no such division, to the mayor's sworn assistants. And what was more impor tant, the common property held by the merchant-gild became the property of the town corporation.4 By the beginning of Condition the thirteenth century the cities and towns that had made the begin-" the greatest advance towards municipal independence had Sirteenth6 won the right to be exempt from the financial and judicial century. administration of the sheriff, to pay their dues to the crown in the form of a gross sum settled by a direct negotiation with the exchequer, to hold their own courts under their own officers, to elect their own bailiffs, and in some instances a grants the same right to Nottingham, 2 Introduction to Smith's English see Charter Rolls, p. 39. Gilds, p. xxii., quoting from an unpub- 1 " When municipal rights were lished paper written by Toulmin Smith granted by the Plantagenet kings this in 1864 upon the " Origin of Corpora- officer (reeve) was replaced by the tions." 'mayor,' whose appearance is always 8 Brentano's Essay in Smith's Eng ine sign of the establishment of an in- lish Gilds, p. xciii. dependent commune." — Elton's article 4 Stubbs, Const. Hist, vol. iii. pp. on " Municipality," in Enc. Brit, vol. 565, 566. xvii. p. 30. 464 THE GROWTH AND DECLINE OF PARLIAMENT [Ch. John'scharter to London, May, 1215 mayor, and, above all, the right to regulate their internal trade through by-laws enacted by their gild-merchant. Such was the general nature of the municipal rights recognized or confirmed in the charters which were granted by the Plan- tagenet kings. In the numerous charters issued by Richard and John, nearly every stage can be traced in the unequal march of the English towns towards municipal completeness. At the head of the column stands the great city of London, whose constitution is the model after which the privileges of all larger towns are modelled.1 A month before the Great Charter was extorted from John, he granted to the barones of the city of London the right to elect their mayor annually ; and in the charter itself provision was made that " the city of London shall have all its ancient liberties and free customs, as well by land as by water : furthermore we will grant that all other cities and boroughs, and towns and ports, shall have all their liberties and free customs." 2 Summary. Such in general terms was the stage of development reached by the cities and towns when the parliamentary period begins. The more advanced have attained a complete municipal existence as communes or corporations, while the rest are advancing towards the common goal at different rates of progress. Under this condition of things there is, of course, a great variety of local usage, and an utter lack of uniformity in the internal arrangements through which the cities and towns are governed. " Roughly, however, we may divide them into two classes, those in which the local ad ministration was carried on by a ruling body of magistrates or magnates, and those in which it remained in the hands of the townspeople in general ; the former being the type of the larger and more ancient municipalities, the latter that of the smaller towns, and of those whose corporate character was simpler and newer." 3 7. Having now indicated the stage of development reached by the two great classes of self-governing communities when the parliamentary period begins, the processes must next be drawn out through which the shires and towns appear by 1 " It became a general rule to con- already enjoyed." — Bretano's Essay, firm the gild of a town by granting it p. cv. all the liberties which another town 2 Charter Rolls, p. 207. 8 Stubbs, Const. Hist, vol. ii. p. 217- I.] FROM EDWARD I. TO HENRY IV. 465 their representatives in the national council, and through Appearance which such representatives finally unite in the formation of andtown'16 the house of commons. The records of the year 12 13 furnish "^^"^j the earliest authentic instance of the shire communities being national . , ., council, and called upon to send representatives to a national council, their final On the 7th of November the king called a council at Oxford onTL'use. to which the sheriffs were directed to summon, besides the Earliest armed force of the knights, quatuor discretos homines de moning"' comitatu tuo illuc venire facias ad nos ad eundcm terminum shu"e5.ePre- J . . , _ sentatives ad loquendum nobiscum de negotiis regni nostri? The im- topariia- memorial practice of sending the reeve and four men as rep resentatives of the township to the shire-moot thus widened into the practice of sending " four discreet men " as repre sentatives of the county to confer with the king in his great council touching the affairs of the kingdom.2 The next instance in which it is clear that representatives of the shire were summoned to parliament occurs in 1254, when the The writ of sheriffs are commanded to return, duos de uno comitatu et I254- duos de alio, ad providendum, una cum militibus aliorum comitatuum quos ad eundem diem vocari fecimus, quale aux ilium nobis in tanta necessitate impendere voluerint? In the language of the Lords' Report, this " seems to have been the first instance appearing upon any record now extant, of an attempt to substitute representatives elected by bodies of men for the attendance of the individuals so to be represented, personally or by their several procurators, in^an assembly convened for the purpose of obtaining an aid."4 In 1261 Theassem. Gloucester and Earl Simon joined in calling an assembly at Afban's In St. Alban's, to which were summoned three knights from I2Sl- every shire south of Trent. The significant words in the writ, in which the king afterwards commanded the sheriffs to send these. knights, not to St. Alban's but to Windsor, are collo quium habituros? In 1264, after his triumph at Lewes, Earl Simon caused writs to be issued summoning four knights from each shire to meet the king in parliament, — nobiscum tractaturi de negotiis prmdictis? To the famous parliament 1 The writ may be found in the 4 Vol. i. p. 95. Lords' Report, App. i. p. 2. See above, 6 For the writ, see Lords Report, p. 377. App. i. p. 23. 2 Select Charters, p. 287. 6 Fadera, i. p. 442. 8 For the writ, see Lords' Report, App. i. p. 13. 466 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Earl of 1265 the representatives from the shires and towns were fc_mousSpar- summoned in the same form as the magnates.1 Passing over i2oTnt°f *^e anomal°us assemblies which met prior to the year 1290, we find in that year the knights of the shire summoned ad consulendum et consentiendum pro se et communitate? To Edward's Edward's model parliament which met in 1295 — from which Hamenfof time the attendance of representatives from both shires and I295- towns has been continuous, or nearly so — both knights and burgesses are summoned ad faciendum quod tunc de communi consilio ordinabitur in prczmissis? Knights of The writs which thus clearly explain the purpose for which eiectedby the knights of the shire were summoned to the national coun- the : whole cji fajj however, to disclose who were the electors of the rep- body of ' ' r freeholders resentative members. From the returns to the writs, it is county plain that they were elected per totam communitatem, or in court. pleno comitatu, or per consensum tojius comitatus? Beyond this the record evidence does not go ; only by inference from the well established usage of the county court can be deter mined who were the electors by whom the shire representa tives were chosen. Despite all the conflicting views which have been expressed concerning the representative character in which the elected knights first appear in the national council, the following statement may be accepted as a substantial embodiment of the conclusions which have been established by the latest and ripest research. It seems to be more than Fourteenth probable that the fourteenth article of the Great Charter, SeGreat which provided that the lesser tenants-in-chief should be sum- ithaIJob ble monec^ by rhe sheriffs generally in the shires, was intended to purpose. rouse the lesser baronage to the exercise of rights which had practically passed into desuetude. But the fact that this pro vision was omitted from the very first reissue of the charter is persuasive to prove that the principle requiring the whole body of the lesser barons to attend in person never received more than a limited application in practice. The fact seems to be unquestioned that from the issuance of the Great Charter down to the time when the representative members appear, the great council, although occasionally attended by a few of 1 Lords' Report, App. i. p. 33. See, 8 Lords' Report, App. i. p. 66. also, Select Charters, p. 415. * See Pari. Writs, i. 21-24, 38, 4°i 2 Lords' Report, App. i. p. 54. 41 ; Stubbs, Const. Hist, vol. ii. p. «& I.] FROM EDWARD I. TO HENRY IV. 4&7 the lesser knighthood, continued to be simply a gathering of the prelates and greater tenants-in-chief. The minor tenants- The elected in-chief as a body fail to attend, and in their place and stead appla/in- appear the elected knights chosen in the shires. If these ^nde°bodye elected knights had been chosen elsewhere than in the county °f min0. • r r • • • tenants m- coiirt, the inference of a certain school might be a fair one, chief. that they represented, not the community of the shire, but only the minor tenants-in-chief.1 In order to maintain this narrow view it is necessary to show that only the lesser barons were the electors, and not the whole body of the county court. To give color to this idea, it has been claimed that the court summoned for the election of the knights was not the court leet of the county, at which all residents were required to attend, but the court baron, which, excluding the tenants of mesne lords, embraced only such tenants as owed suit and service to the king.2 The fact has, however, been put beyond question, that the mesne tenants (the vavassores of the barons) did attend ;3 and it is equally clear that if the elected knights were chosen by a mere fractional part of the shire court, the election could not have been described as the act of the whole community in pleno comitatu. The weight of authority, or rather of inference, sustains the conclusion that Rep_esenta- the elected knights were not only representatives of the whole *£*$%£' shire community, but that they were chosen by the whole J™^*5^ body of freeholders in full county court.4 The representative quaiifica- character of the elected knights, as well as the qualification of to°s,°d* " the electors, were both determined by the nature of the only j^rXnechar. court or assembly in which the sheriff could constitutionally acter of the execute the writ under whose mandate the knights were court. 1 This narrow and now obsolete burgh Review, vol. xxvi. pp. 341-347 . view, which was maintained by Brady, Bigelow, Procedure, p. 142. Carte, and Blackstone, received a half- * This was the view of Prynne (2d hearted assent from the Lords' Com- Register, p. 50), who holds that the mittee, whc confess, however, that the knights were " elected in the full county, whole subject "is involved in great by and for the whole county." This obscurity." — Vol. i. pp. 149, 150. See, view has been sanctioned by Hallam, also, p. 30. M. A., vol. iii. pp. 19. 216-219, and by 2 " The county court, at which the Stubbs, Const Hist, vol. ii. pp. 225-232. elections afterwards took place, was The Bishop concludes that "the theory that court which has been considered of the election was that it was the act of as the court baron of the county, dis- the shire-moot, that is, of all the suitors tinguished from the sheriff's turn, at of the county court assembled in the which all residents were bound to ap- county court, irrespective of the ques- pear." — Lords' Report, vol. i. p. 140. tion of whom or by what tenure their 8 See Mr. Allen's article in the Edin- lands were held."— Page 232. 468 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. chosen. The sheriff could only act in the county court, which was composed of the whole body of freeholders, and he could only act in accordance with those methods of procedure with which the shire community had been immemorially familiar. As heretofore explained, the principles of election and rep resentation which from the earliest times had entered into the procedure of the shire-moot were still employed, after the Conquest as before, in every branch of judicial, fiscal, or re medial work that devolved upon the shire community.1 When Practice of in the reign of Richard I. the presentment system was reor- and repre- ganized upon a basis distinctly representative, " four knights the county11 are cnosen from the whole county who, by their oaths, shall court. choose two lawful knights of each hundred or wapentake." The four knights, who under the terms of the Great Charter are to assist the itinerant justices in taking the three assizes, are elected by the county court. The two knights, who by " the will and counsel " of the shire community take part in the assessment and collection of the carucage of 1220, are elected in the full assembly of the shire. And the elections of coroners, venderers, and conservators are all conducted in the same manner.2 What, therefore, could be more natural or probable than that the knights who were to represent the shire in the national council should have been elected in full county court, as were the knights who were elected by the shire for local purpose? The force of this inference is cer tainly not weakened by anything that can be found in the form of a restriction either in the writs themselves or in the returns which were made under them. No legal restriction upon the right of the members of the county court to partici- Fhst limi- pate in the election of the representative knights can be found thefan?011 Prior to the statute of Henry VI.,3 whereby the electoral cHse, 1430. franchise was limited to the forty shillings freeholders. Represen- The earliest instance of anything like a representation from tativesfrom ,, ..... ., ,, townships the towns appearing in the national council occurs in the demesneyaI memorable meeting at St. Alban's, in August, 12 13, to which summoned were summoned not only the bishops and barons, but also to the coun- J c ' . di at st. the reeve and four legal men from each township on the royal 1213? sm demesne.4 Although, as heretofore explained, the reeve and 1 See above, p. 255. 8 8 Hen. VI. c. 7. 2 See above, pp. 303, 307. * See above, p. 376. I.] FROM EDWARD I. TO HENRY IV. 469 four men were probably summoned simply to assess the dam ages due to the plundered bishops and abbots, the incident is important as the first illustration of which there is any his torical proof of representatives, either from shires or towns, being summoned to a national council. Not until the 7th of November of the same year did the king call a council at Oxford, to which were summoned, besides the armed force of the knights, the "four discreet men" from each shire.1 The appearance of the town representatives in the council at St. Alban's cannot be regarded, however, as more than a mere indication of the brighter day that was yet to come when Earl Simon, in the hope of giving a broader popular basis to Represen- his government, issued writs, on the 14th of December, 1264, .ferities0™ for his famous parliament, to which were summoned not only |^^™s the two discreet knights from the shires, but also, for the m°ned to ... --_,., . . parliament first time in the history of English politics, two representa- by Earl tives from the cities and towns.2 The writs addressed on t^™™1" this occasion to the cities and towns, commanding them to send up two representatives each, were not addressed to them through the sheriff of the county according to the practice which prevailed at a later day when they became a constituent element in the national parliament. After the year 1265, another long interval occurs before the representatives from the towns appear in what the constitutional lawyers concede to be a genuine parliament. Although representatives from the boroughs appear in the national councils of 1273 and 1283, and in the parliament of Acton Burnell, not until Ed ward's model parliament of 1295 are they regularly sum moned. At that time their status was first recognized as Represen- an integral part of parliament, and from that time their rep- ^towns'" resentation has been continuous, or nearly so.3 Under the ^d^asln writs issued for the parliament of 1295, the representatives integral from both shires and towns were to be chosen ad faciendum liament in quod tunc de communi consilio ordinabitur in pramissis, a I295- 1 See above, p. 465. the Cinque Ports the mandate is, 2 " Item in forma praedicta scribitur " Item in forma praedicta mandatum civibus Eboraci, civibus Lincolniae, et est baronibus et probis hominibus ceteris burgis Angliae, quod mittant in Quinque Portuum." — Lords' Report, forma praedicta duos de discretioribus, App. 1. p. 33. legalioribus et probioribus tarn civibus 8 See Select Charters, p. 44. quam burgensibus." To the barons of 4;o THE GROWTH AND DECLINE OF PARLIAMENT. [Ch, Under the writ com mandingthe sheriff to return members from the towns, he could ex tend or withhold the privi lege, as he saw fit. form which is retained until the terms ad consentiendum are added in the reign of Edward II.1 The question has been raised whether the sheriff, under the writ commanding him to return representatives from every city and borough in his county, was restricted to such only as were situated on the royal demesne, or whether he could send his precept to any town, held by any lord other than the crown, which he might deem worthy of the privilege. Although the theory of restriction has been advocated by Brady 2 with his usual leaning to the doctrine of tenure, and has been in part supported by the Lords' Report,3 the weight of authority is decidedly in favor of the more liberal view, which is fully, sustained by the fact that in the parliaments of Edward I., North Allerton, Lynn, Downton, Evesham, Tun- bridge, and other towns of the same class were represented, which were held in demesne by lords other than the king,4 Under the general terms of the writ the sheriff seems to have possessed the power not only to extend the franchise to any town which he saw fit to recognize, but also to ignore others that were manifestly worthy, or even such as had once en joyed the right of electing members. The legal fiction which the sheriff employed to conceal such an omission is well illustrated by the familiar case which occurred in the 12th Edward III., wherein the sheriff of Wiltshire, after making returns from one city and two boroughs, reported that there were no more cities or boroughs within his bailiwick, and this, too, in the face of the fact that eight other towns in his shire had sent representatives to preceding parliaments. In the 6th of Edward II., the sheriff of Bucks, after making a re turn from Wycomb, reported that there were no more bor oughs in his county, although in that very reign three other boroughs had twice sent up representatives.5 From the well- 1 Hallam, M. A., vol. iii. p. 38, citing Prynne's 2d Register, p. 92. 2 According to his view representa tives were sent only by " the king's de mesne cities and burghs, such as had charters from the king, and paid a fee farm rent in lieu of the customs." — Brady on Boroughs, p. 73. 8 See vol. i. pp. 231, 232. 4 These instances, and others, are collated by Stubbs, Const. Hist., vol. ii. p. 233. The more liberal view is sus tained by Allen, Edinburgh Review, vol. xxxv. pp. 30, 36, 37 ; and by Hal lam, M. A., vol. iii. pp. 217, 218. 6 See Brady on Boroughs, pp. 110- 126; Prynne, 3d Register, p. 231 ; Hal lam, M. A., vol. iii. p. no. To the same effect see, also, Lords' Report, vol. i. p. 375. To remedy this abuse a statute was passed (5 Richard II. stat. ii. c. 4) which imposed a fine upon the sheriff for such neglect. See Lords Report, vol. i. p. 341. I.] FROM EDWARD I. TO HENRY IV. 47' known reluctance of the boroughs to send members to par- Reluctance liament, it is more than likely that such returns by the sheriff 0UghI to1" were in many instances the result of connivance upon the j^ mem" part of the burgesses themselves, who were more anxious to escape the expense incident to attendance, and the higher rate of taxation which such attendance imposed, than to enjoy the privilege of representation. In some instances in which the sheriff could not be persuaded to omit particular boroughs, they escaped the burden of representation by sim ply failing to make any return whatever to his precepit or mandate. The most difficult and obscure question connected with the who were representation of towns is that one which involves the in- 0fe.heei.or-S quiry : Who were the electors of the borough representatives ? sentatm«!T The difficulty arises not only out of the utter lack of symme try and uniformity in the internal arrangements of the towns, — in each one of which the manner of election was deter mined by local usage or custom, — but out of the further fact that the municipal records in which much of the mediaeval Medisevai history of the English towns is contained have not as yet EnguJh° been made the subject of thorough investigation. And y°™uity0t strange as it may seem, it is nevertheless true, that the pros- worked out. ecution of such investigations is not always free from official obstruction. As late as 1862 the officers of the corporation of Bristol, in refusing access to its municipal records, stated that they conceived " it to be their duty to withhold the cor porate records from the scrutiny of historical students." x Happily for the cause of municipal history, the conduct of the corporation of Bristol is only conspicuous as an exception. From such imperfect data as we do possess,. it is possible, however, to arrive at a few definite conclusions which indicate the general nature of the process through which the borough members were chosen. The writ ordering the election of Thesher- knights, citizens, and burgesses was returnable in about forty dure under days by the sheriff himself, who was at first required to re- ^tdection port to parliament the names of the persons chosen under the writ in the county court. Nothing more definite as to the sheriff's procedure can be positively stated until the passage 1 See Smith's English Gilds, p. 283, note, quoting from Mr. Samuel Lucas (Secularia, p. 102). 472 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. of the statute of Henry IV. (1406), which provided that the election should take place in the first county court held after the receipt of the writ, that it should be had in full court by those present, and that after the election the names of the representatives chosen shall be written in an indenture under the seals of them that did choose them, — which indenture tacked to the writ as the sheriff's return was to be sent into The formal chancery.1 During this period there can be no doubt that aiirep_e-of the formal election of all representatives of the commons toof'ilce t0°k place in tne county court ; and it seems to be equally in the clear that the real election of the city and borough members courtf— took place in the several municipalities which they were ekctufn of chosen to represent. From the time of Edward I. it seems borough to have been the custom for the sheriff to send to such towns members in . the bor- as he saw fit to recognize a precept or mandate commanding themselves, the town authorities to prepare for the formal election to take place in the county court in which they were cited to appear. The failure of the sheriffs to do their duty by sending the precepts or mandates to the cities and boroughs entitled thereto led no doubt to the act of 1445,2 which undertook to regulate the discharge of this duty by positive law. In the Sheriffs re- words of the Committee : " In cities and boroughs great ir- ?aw"to send regularity probably prevailed, for want of settled rules for the precepts to COnduct both of the sheriffs of counties in issuing their pre- the proper y trt officers of cepts, and the returning officers in returning writs in cities towns. and boroughs ; and therefore it was enacted in the 23d of Henry VI, that the sheriffs should issue precepts to the proper officers of cities and boroughs, containing a direction, that in cities the election should be by the citizens of the city, and in boroughs by burgesses of the borough."3 By this act, — which sets forth the fact that the sheriffs have of late sometimes returned persons who were not chosen, and have failed to return persons who were chosen, and in some cases have failed to send precepts, — it was provided, that the sheriffs should send to the magistrates of each borough a 1 " Soient lour nouns escriptz en en- in cancellaria nostra." — 7 Hen. IV. c. denture dessoutz les sealx de toutz 15; Statutes, ii. p. 156. ceux qui eux eslisent, et tacchez au dit 2 23 Hen. VI. c. 14 ; Statutes, ii. p. brieve du parlement ; . . . et electionem 340. tuam in pleno comitatu tuo factam dis- 8 Lords' Report, vol. i. p. 369. See, tincte et aperte sub sigillo tuo et sigillis also, p. 375. eorum qui election! illi interfuerint nos I.] FROM EDWARD I. TO HENRY IV. 473 precept for the election to be held therein ; that such election should be held between the hours of eight and eleven in the morning, that the return should be made by indenture be- Return to tween the sheriff and the electors, and that sheriffs, mayors, i^dTnture.3' and bailiffs who failed to do their duty under the act should suffer a penalty. Such were the legal provisions touching the real election which took place in the boroughs themselves, prior to the formal election which took place in the county court on the day the boroughs were cited to appear therein. At the time appointed a delegation of burghers from each The formal city and town appeared in the county court and there an- theC county nounced the names of those chosen in the town meeting, or court as deputies of the town, and with its assent they themselves there chose its parliamentary representatives.1 Such is the reasonable inference as to the usual course of procedure which has been drawn from the existing evidence. Under this view the representatives of the borough were either elected primarily by the governing body of the town, and the fact then announced in the county court ; or a deputation was elected by the town with power to make its choice in the county court. In either event the original question remains unanswered : Who were the electors who possessed the right to take part in the primary election which took place within the borough itself ? This difficult question was vaguely answered by the Committee in the assertion that the sheriffs were directed to issue " precepts to the proper officers of cities and boroughs, containing a direction that in cities the election Theeiec- should be by the citizens of the city, and in boroughs by the city were burgesses of the borough. But who should be deemed citi- in"^.6"5' zens and burgesses seems still to have depended on usage, °ush the where not regulated by charter of the crown."2 Where not who were expressly regulated by charter, the right of suffrage every- £"jg^;;easnd where depended upon local usage or custom, and such usage depended , . r t upon local was so various as to render anything like a perfect generaliza- usage, tion, even upon sufficient data, almost impossible. The near- regStted est approach to such a generalization is that one which has ^ charter- been made by the master of the constitutional history of the middle ages by the aid of the later evidence which exists 1 Cf. Stubbs, Const Hist., vol. iii. pp. 2 Lords' Report, vol. i. p. 369. 413. 414- 474 THE GROWTH AND DECLINE OF PARLIAMENT. [Ctt tion of Bishop Stubbs. GeneraUza- when our knowledge of the subject really begins : "The most ancient, perhaps, of the franchises, was that depending on burgage tenure ; this was exactly analogous in origin to the freeholder's qualification in the counties ; but as the repres sive principle extended, the right of a burgage vote had be come in many places attached to particular houses or sites of houses, probably those which were originally liable for a quota of the firma burgi ; in others the right still belonged to the whole body of freeholders ; and this may be regarded a second sort of franchise. A third custom placed the as Municipal Corporations Act of 1835. right to vote in the freemen of the borough, or of the guild which was coextensive with the borough ; the character of a freeman being personal and not connected with tenure of land or contribution to the public burdens. A fourth gave the electoral vote to all householders paying scot and lot ; that is, bearing their ratable proportion in the payments levied from the town for local or national purposes. A fifth lodged the right in the hands of the governing body, the cor poration ; the constitution of which again varied from com parative freedom in one place to oligarchic exclusiveness in another. The newer the constitution of the town was, the less liberal the constitution seems to have been, ... it is obvious that the tendency of restriction set in from the first institution of charters of incorporation in the fifteenth cen tury." x The wonder is that this archaic system, under which as a general rule the right of suffrage was taken away from the main body of townsmen and vested in official oligarchies, should have so long survived as a monument of injustice and inequality. The bringing of order and equality out of this chaos of antiquated custom was the achievement of the Mu nicipal Corporations Act of 1835,2 which reorganized all of the municipal corporations of England and Wales upon a uniform basis. The provisions of that act3 — which recog nized the principles that the government of towns should be vested in councils chosen at short intervals by the citizens and burgesses, and that in that class should be included prac- 1 Stubbs, Const. Hist., vol. iii. pp. 419, 420. See, also, as to the original form of the elective franchise in bor oughs, Merewether and Stephens on Boroughs, Introd., xxvi. 2 5 & 6 Will. IV. c. 76, amended by 22 Vict. c. 35. 8 See Dillon, Municipal Corporation), vol. i. p. 35. I.] FROM EDWARD I. TO HENRY IV. 475 tically all who occupied houses or shops, and paid taxes for the relief of the poor — will be specially considered hereafter. The questions which have now been asked and answered Eligibility as to the qualification of electors naturally suggest an inquiry elected as to the eligibility of the elected members. From the lan- members- guage of the writs it is evident that, so far as the shire repre sentatives were concerned, an early effort was made to limit the honor to members of the knighthood only. Under the writs for the parliaments of 1290, 1294, and 1295, the election was to be made de discretioribus, et ad laborandum potentior- ibus, militibus? The difficulty, however, of forcing the at- Represen- tendance of discreet and able knights made it necessary in Ihelwres"1 the reign of Edward II. to so modify the terms of the writs not neces- as to allow the sheriffs to dispense with the original qualifica- knights. tion.2 The innovation thus brought about was definitely recognized by the statute of 23 Henry VI. c. 14, which declared that only notable knights, or such notable esquires and gentlemen of birth as may become knights, are to be elected ; and by no means a man of the degree of yeoman (vadlet)3 or under. By the statute of Henry V.4 residence ^|^nce was made a qualification of both electors and elected : the quaiifica- knights of the shire are to be resident within the shire at the electors and date of the writ, and the same thing is required of their ^uterf* choosers ; and the citizens and burgesses are to be free and Henry v- resident citizens and burgesses. This requirement, after having been long disregarded in practice,5 was finally re pealed by 14 Geo. III. c. 58, which made the residence of the Repealed electors and elected in their respective counties, cities, and \\\\, 5|°' boroughs no longer necessary. After the qualified represen tatives of the shires and towns were duly elected, they were required to give security for their attendance, and the names of the bailsmen or manucaptors were entered in the return,6 1 Pari. Writs, i. 21, 25, 29, etc. * 1 Hen. V. c. I. By statute of 2 This change was brought about by 10 Hen. VI. c. 2, it was provided that adding to the older form, " seu aliis, de the land which gave the vote should be comitatu tuo assensu et arbitrio homi- situate within the county. num ejusdem comitatus nominandos." 6 As to the statute of Henry V. per- See Stubbs, Const. Hist, vol. iii. p. 397. ishing under the doctrine of desuetude, 8 Men of this class had been elected see Hallam, M. A., vol. iii. p. 115; prior to the passage of the act. Upon Peckwell, Rep'ts of Contested Elections, the subject of " Valetti in Parliament," i. 53, note D. see the editor's learned note to Taswell- 6 Luders' Reports, vol. i. p. 15. Langmead's Eng. Const. Hist, pp. 347, 348. 476 THE GROWTH AND DECLINE OF. PARLIAMENT. [Ch. Represen tatives re quired to give secu rity for their at tendance. The plena potestas. Wages. The consti tution of parliament established through the development of the writ pro cess. a practice which continued down to the end of the fifteenth century. The members thus bound over to appear were armed in the early days with a plena potestas? in the form of letters of attorney, authorizing them to represent their con stituents, whose duty it was to provide beforehand for the payment of their wages. Such wages, which were made to cover not only the period of attendance in parliament, but the journey to and fro, and which seem to have been allowed from the very beginning of the representative system, were first reduced to a certain sum by the day in the 16th of Edward II.2 By the writs de levdndis expensis issued in that reign, the wages were fixed at four shillings a day for every knight, and two shillings for every citizen and burgess.3 From what has now been said, the fact appears that through the development of the writ process in its highest form the constitution of parliament was finally established as an assembly of estates. Although the name of parliament was not restricted in its earlier use 4 to councils containing representative members, it was finally limited only to such assemblies of estates as contained all of the necessary parlia mentary elements and no more, and which were convened under the authority of writs regularly issued.5 In a parlia ment thus constituted the lords spiritual and temporal ap peared to represent themselves in response to the individual writs addressed to each member of the peerage ; the repre sentatives from the shires and towns appeared in obedience to the general writs directed to the sheriffs commanding their election ; the representatives of the clergy appeared in obedience to the pramunientes clause in the writs directed to the bishops commanding them to cause the election and return of proctors armed with full powers from the chapters and parochial clergy. The right to issue the parliamentary writs belonged pri marily to the king, who, with the advice of his council, could 1 For instances in which it was be stowed, see Pari. Writs, i. pp. 21-23, 39. 41 1 59- 2 Prynne, 4th Register, p. 53 ; Hallam, M. A., vol. iii. p. 114, note 2. 8 Such writs may be traced down to the end of the reign of Henry VIII. See Prynne, 4th Register, p. 495. 4 As to the early use of the term, see Lords' Report, vol. i. p. 20. 5 " The constitution of the legislative assembly of the kingdom must now be considered as resting in usage, as de clared by statute in the 15th of Edward the Second." — Lords' Report, vol. 1 p. 229 I.] FROM EDWARD' I. TO HENRY IV. 477 determine, subject to the limitations imposed by custom, Pariiamen- both the time and place at which parliament should assem- issued by ble.1 Not long after the permanent incorporation of the ^thkthe representative members the custom became established that a*vice of .. i. ,111111 <¦ •/• the counc"- parliaments should be held annually, or oftener if necessary. Annual Such was the rule laid down in an ordinance adopted in the PJfJ™- fifth of Edward II., and in statutes passed in the fourth and thirty-sixth of Edward III.2 After the particular time within the year had been agreed upon, a choice had next to be made of the place at which the estates should be called together. During the pre-Norman period the witan, after due proclama- Meeting- tion, was usually assembled at some one of the royal resi- national dences, generally after harvest, or on one of the great festi- councils- vals of the church, — Easter, Whitsuntide, or Christmas.3 When Westminster became, in the reign of Eadward the westmin- Confessor, the recognized residence of the king, it became at dlyVo/the the same time the recognized home of the national council. Confessor; After the Conquest, however, when the witan was trans formed into a feudal court or council which followed the person of the king, councils were held at Westminster only when the king saw fit to make it his resting-place. There the Conqueror often held his summer courts ; there William in the days Rufus built the great hall which afterwards became the home mannings" of the courts of justice ; there Henry I. held his councils ; there Stephen founded in honor of his patron saint the chapel which finally became the meeting-place of the house of commons ; 4 and there the common pleas were held after it was fixed by the terms of the Great Charter that they should be held in some certain place. In the reign of Henryin. Henry III., who rebuilt the abbey and enlarged the palace, abbTytnd6 Westminster finally came to be considered as the customary p^|esthe and lawful meeting-place of parliament. Not, however, until the following reign of Edward I., when the central adminis trative machinery became permanently fixed in and around the palace, did Westminster become, in the full sense of the 1 " The writ of summons has always 8 Kemble, Saxons in England, vol. named the day and place of meeting, ii. pp. 192, 202, citing E. Chron., a. without which the requisition to meet 1010. would be imperfect and nugatory." — 4 A graphic description of the pal- Sir T. Erskine May's Pari. Practice, ace of Westminster, as it appeared in p. 46. 1640, may be found in Hosmer's Young 2 See Ibid., p. 45. Sir Henry Vane, pp. 97, 98. 478 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Westmin ster be comes the seat of gov ernment in the reign of Edward I. The meet ing of par- Jiament. 'Opening .speech. Triers of rpetitions appointed. term, the seat of government. From that time onward the dwelling-place of the king — out of whose household organi zation the national administrative system has been largely developed — was gradually devoted to the uses of govern ment : "the chamber became a council room, the banquet hall a court of justice, the chapel a hall of deliberation."1 After the final division of parliament into two houses, each found a meeting-place within the precincts of the palace of West minster, " where the witan of all England still meet for judg ment and for legislation."2 At the time fixed in the writs, the lords spiritual and tem poral, together with the representatives from the shires and towns, were expected to appear before the king at West minster, or at any other place that he had seen fit to desig nate. When a sufficient number had arrived the parliament was opened, and the names of the elected members were called over in order to identify them with those returned by the sheriffs. At a little later day it also became the practice to call over the names of the lords in order to ascertain who had come and who had not.3 The first business in order was the opening speech, delivered by the chancellor, the primate, or some other great officer of state, in which was explained the purpose for which the estates had been called together.4 After the close of the speech, and after the appointment of triers of petitions, the parliament dissolved itself into its con stituent elements in order that each group might deliberate apart upon the common work given them in charge. Whether there ever was a time, after the appearance of the representa tive members, when the three estates deliberated together in a single assembly, is a question whose discussion has drawn out diametrically opposite views from the highest authorities.5 When all the probabilities are weighed in the dim light of the existing evidence, it seems to be more than likely that the different estates, each taxing itself upon its own basis, 1 Stubbs, Const. Hist, vol. iii. p. 384, * As to the early practice, see and pp. 382, 383. Elsynge, Ancient Method of Holding 2 Freeman, Norm. Conq., vol. ii. p. Parliament, pp. 131 seq. ; as to the 336. modern practice, see May, Pari. Prac- 8 See Rot. Pari., i. 350; Ibid., ii. p. tice, pp. 47, 219. 147; Ibid., iii. pp. 55, 71, 78, 184; 6 Prynne (1st Register, p. 233) holds Stubbs, Const. Hist, vol. iii. p. 427 and that they never deliberated together; note 2. Coke (4 Inst, p. 4) holds that theydid. I.] FROM EDWARD I. TO HENRY IV. 479 deliberated apart from the very beginning, save when momen- it is proba- tarily assembled in the presence of the king, or for the pur- three es- pose of special conference with each other. The period of ^^part uncertainty, which begins with the permanent incorporation f™m *e of the representative members in the famous parliament of save when 1295, ends with the definite and final division of parliament ^J into two houses in the reign of Edward III.1 In tracing out sp^ial pur" the causes which led to this division, it is easy to understand why the lay and spiritual baronage, long accustomed to The lay united conciliar action in the great council, should have per- uafiSon- petuated their separate organization in the house of lords, ageperpet- The difficult matter is to determine why the knights of the separate or- shire, selected from the lesser landholders, who in continental fn thehouse lands would have belonged to the estate of the nobles, should of lords' have withdrawn from the baronage in order to unite upon equal while the terms with the representatives of the towns in the formation t?vermtm-a' of the house of commons. So rapidly did this happy coalition ^gJouse advance that by the fifteenth of Edward II. (1322) the con- of com- stitutional status of the lower house seems to have been defi nitely recognized in an act which provided that " matters to be established for the estate of our lord the king and of his heirs, and for the estate of the realm and of the people, should be treated, accorded, and established, in parliaments, by the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm, according as had been before accustomed." 2 Not, however, until the sixth of Edward III. Parliament (1332) do the parliament records distinctly mention the fact and finally that the prelates, the lords temporal, and the knights of the f^t^se? shire deliberated apart, — the prelates by themselves, the » ^3t earls, barons, and other grantz by themselves, and the knights in. from the counties by themselves.3 In the next year we learn that the lords and the proctors sat apart by themselves, and the knights, citizens, and burgesses by themselves.4 Finally the parliament rolls of the thirteenth and fifteenth of Edward III. make it clear that the process of division had by that time reached completion, — that the lords and commons had 1 Cf. Hallam, M. A., vol. iii. pp. 38. 8 Rot Pari., ii. p. 66. September, 39 i Stubbs, Const. Hist, vol. iii. pp. 1332. 430, 431. * Rot. Pari., 11. p. 69. . 2 Statutes 15 Edw. II. i. p. 189. See, i also, Lords' Report, vol. i. p. 229. 480 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. then definitely arranged themselves in two separate and dis- in 1352 tinct bodies. In 1352 the commons were ordered to with- ordereduo draw to the chapter house of Westminster Abbey, which houseapter seems to nave been then regarded as their chamber.1 In 1376 the lower house formally completed its organization as a deliberative body by the election of Peter de la Mare as in 1377 Sir foreman.2 In 1377 Sir Thomas Hungerford was chosen,— fordHchosen the first to whom the title and position of speaker were defi- speaker. nitely assigned ; 3 from that date the list of speakers is com plete. Although the speaker was chosen by the votes of all the representative members, never did the honor pass to other than a knight of the shire until the election of Robert Brooke, The chan- a member from London, in 1554.4 In the house of lords the side" Fn the duty of presiding generally devolves upon the chancellor,6 lords6 °f whose position differs in several important particulars from that of the speaker of the commons. The clergy 8. The statement which has now been made of the final of parUa-ate arrangement of the representatives from the shires and towns ment. jn one house, and of the lay and spiritual baronage in another, naturally suggests an inquiry as to the fate of the parlia mentary representatives of the clergy who, under the scheme of Edward I., were to be incorporated as a substantive ele ment in the assembly of estates. The idea of summoning the representatives of the clergy of both provinces as a constituent element in a national council was first fully developed in the writs by which Edward called together his famous parliament The pro- of 1 295. The prczmunientes clause, contained in the writs diTule!" " addressed to the bishops, premonished them to cause the deans and priors of cathedrals and the archdeacons to appear in person, and each cathedral chapter to appear by one and the clergy of each diocese by two proctors, armed with suf- 1 "When the commons deliberated * His successor in 1555 was a burgess apart, they sat in the chapter house of from West Looe. Browne Willis, Sot. the Abbot of Westminster, and they Pari., p. 113. Stubbs, Const. Hist., vol continued their sittings in that place iii. p. 453. after their final separation." May, 6 As to the status and duties of the Pari. Practice, p. 25, citing Elsynge, p. chancellor as speaker of the house of 104. Not until the reign of Edward VI. lords, see May, Pari. Practice, pp. did St. Stephen's Chapel become the 49, 243, 246. The lord chancellor is meeting-place of the commons." — Bay- not necessarily a peer. In 1830 Lord ley and Britton, p. 363. ' Chancellor Brougham sat on the wool- 2 Chronicon Anglia, p. 72. sack as speaker before his elevation to 8 Rot. Pari., ii. p. 374. See May, the peerage, — one of many instances Pari. Practice, p. 23 and note 4. of a like kind. Ibid., p. 244' I.] FROM EDWARD I. TO HENRY IV. 481 ficient power to represent the clergy and chapters.1 " In the pramunientes clause, inserted in the writs of the 23d of Ed ward the First, a representation of the clergy in convention was provided, bearing a strong resemblance to the representa tion of the laity in the legislative assembly in parliament, provided by the writs issued for that purpose at the same time."2 If the English clergy had seen fit to accept instead of oppose this arrangement, there was no reason why, in Eng land as elsewhere, the clergy, like the nobles, should not have formed themselves into a distinct parliamentary estate. But The dergy from the very beginning the plan was opposed by the clergy E^s themselves, who preferred to vote their aids in their own pro- Plan fr°m vincial councils or convocations. Under the persistent force ningbesin" of clerical opposition, the plan of Edward broke down and became a mere shadow. The pramunientes clause itself is still inserted in the writs, but it has been a dead letter since the fourteenth century.3 The clergy of the two provinces, clergy refusing to be jointly assembled as an estate of parliament, ^fsbf1"' continued to tax themselves in their provincial convocations convocation until after the restoration of Charles II.4 The subsidies of therestora- the clergy were voted in the convocations in the form of " be- Charles 11. nevolences," separate and apart from the aids granted by the laity, down to the year 1664, when, by a mere verbal agreement Sheidonian between Archbishop Sheldon and Lord Chancellor Claren- \°^ct of don, an arrangement was made under which the clergy waived ^rei"Jhe their right to tax themselves, and agreed to be assessed by the nounced laity in parliament. The results of this silent revolution, separate ° which has been called " the greatest alteration in the consti- taxation- tution ever made without an express law," 6 were distinctly recognized 'in an act of parliament passed in the following year (16 and 17 Car. II. c. 1), which recited the fact that the 1 The language of the summons is : Rights of the Lower House of Convoca- " Pramunientes priorem et capitulum tion, by Bishop Atterbury, p. 7, 4to, ecclesiae vestrae, archidiaconos, totum 1702 ;' May, Pari. Practice, p. 637 and que clerum vestrae diocesis, facientes note 1. quod iidem prior et archidiaconi in pro- 6 Speaker Onslow, in a note ap- priis personis suis, et dictum capitulum pended to Burnet's History of his Own per unum, idemque clerus per duos Times (Oxford ed. vol. iv. p. 308), says : procuratores idoneos, plenam et sum- " Gibson, Bishop of London, said to cientem potestatem." — For the writ, me that it was the greatest alteration see Lords' Report, App. i. p. 67. in the constitution ever made without 2 Lords' Report, vol. i. p. 214. an express law." — See Sir Travers 8 See Select Charters, p. 38. Twiss' article on Convocation in Enc. 4 Cf. Parliamentary Original and Brit. 9th ed. vol. vi. p. 327. 482 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch, The clergy gain the right to vote for members of the house of com- Early par ticipation of the com mons in taxation. Taxation during the Norman period. clergy had been assessed by the commissioners named in the statute, without any objection being raised on their part or behalf. In this act was embraced, however, a proviso, that " nothing therein contained shall be drawn into example to the prejudice of the ancient rights belonging to the lords spiritual and temporal, or clergy of this realm." If by this proviso the clergy intended to save the right to tax them selves, as Mr. Hallam 1 supposes, suffice it to say, that they have never since seen fit to reassert it. By their renuncia tion of the right of separate taxation,2 the clergy gained the new right of voting at the election of members of the house of commons by virtue of their ecclesiastical benefices, —a right which has been more than once distinctly recognized by statute.3 9. The refusal of the representatives of the clergy to habit ually assemble as a separate estate of parliament fixed the fact that the national legislature of England should consist of two houses instead of three. Having explained how this division into two houses was finally settled, the task remains to draw out the process through which the younger body — composed of the representatives of the shires and towns — gradually won, through persistent effort, first the right to participate in taxation, then to participate in legislation, then to impeach the ministers, and finally to participate in the control of the royal administration and in the deposition of the king himself. The whole process is one of struggle and of growth, which finds its origin in the doctrine — fast gain ing ground at the beginning of the thirteenth century — that the tax-payer had the right to be consulted in some form be fore he was taxed. This doctrine touched, no doubt, its lowest point during the Norman reigns, from whose vague fiscal annals it is hard to determine whether taxes were im posed by mere edict of the sovereign, or whether with the counsel and consent of the great council. The idea that the nation was in some form consulted, even during the Norman period, is strengthened by two records which belong to the reign of Henry I. : in the one, the king describes " the aid 1 Const. Hist, vol. iii. p. 243 and note, the house of commons." — Freeman, 2 " And, till this power was given up, Grcnuth of the Eng. Const, p. 130. an ecclesiastical benefice gave no right 8 E. g., 10 Anne, c. 23, and 18 George to vote in the election of members of II. c. 18. I.] FROM EDWARD I. TO HENRY IV. 483 which my barons gave me ; " in the other — the charter order ing the restoration of the local courts — he speaks of sum moning the county courts whenever his royal necessity should require it.1 These two documents clearly indicate the only two methods through which the nation — prior to the appearance in the national council of the representative members — could be consulted in reference to taxation. The lay and spiritual baronage were consulted in the great coun- Lay and cil, but the grants there made did not bind absolutely the in- blronlge ferior clergy, nor the main body of the nation incorporated ^"h^^reat for government in shires and towns.2 Before contributions council; could be drawn from the clergy and the commons, separate the clergy negotiations had first to be conducted with the archdeacons L-chdfa- of each diocese representing the spiritual estate, and with J^e com-d the several county courts in which representatives appeared ™ons from every portion of the shire community. Such negotia- county tions between the crown and the local communities were car- cour s' ried on by a detachment of justices from the exchequer during their fiscal circuits of the shires. The exchequer The ex- officers, dealing with the shire communities in their corporate ^^ capacity, sat in the county courts, and there debated "with ?^n^ the landowners the number of hides for which they owe the shires, Danegeld, or the number of knights' fees from which aids county and reliefs are due ; they likewise assess the towns, which court- are now becoming important contributors to the revenue." 3 The county court was thus the only organ of communication in fiscal matters between the crown on the one hand and the shire and town communities on the other, prior to their rep resentation in the national council. When the organization and procedure of the county court is considered, it is not hard to understand why the system of representation, so long employed therein for local purposes, should have been ex tended into a higher sphere. As heretofore explained, the The county county court which met the itinerant justices upon their visita- "unty pap tions was not only a popular but a representative assembly, — liameqt a county parliament, composed not only of the archbishops, 1 See above, p. 300, and notes 5 lay. The facts are thus stated in the and 6. writ : " Pro se et communitate totius 2 In the grant made by certain bish- regni quantum in ipsis est." — Rot. ops and barons of an aid " pur fille Pari., i. p. 25. marier" in the parliament of 1290 the 8 Select Charters, p. 18. limitation is put, in so far as in them 484 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. bishops, abbots, priors, earls, barons, knights, and freeholders, but also of the reeve and four men as representatives from each township, and twelve burghers as representatives from each borough in the shire.1 Into both the fiscal and judicial work of the shire, election and representation entered as Early in the active and familiar principles. From a writ issued for the Henry m. collection of a carucage early in the reign of Henry III. it asse™Sgby aPPears that a subsidy granted in the great council was two knights assessed in the shire, not as in the earlier days by the itin- the"wiii erant justices, but by two knights freely chosen in a full seP'ofttie assembly of the county court.2 In 1225 a writ, issued for county tne collection of a fifteenth, provided that the tax should be court. f collected by the reeve and four men in each township, who were commanded to pay over the proceeds to four elected knights of the hundred, who in their turn were to inquire by the oaths of local jurors into all disputed cases.3 The reeve and four men, who were thus charged with the collection of the tax, had been immemorially charged with the higher duty of representing the township in the miniature parliament The repre- known as the county court. When John, in 1213, summoned system™ Tor the first time the " four discreet men " from each county la" t0f the'1" t0 aPPear as representatives in the great council, he simply county applied to national purposes a system of representation that plied 'toP had existed from the very earliest times. " The four men purpose. anc* the reeve had from time immemorial represented the township in the shire-moot ; now the four men and the sheriff represent the shire-moot in the national council." 4 The fact The elected can hardly be questioned that the elected knights were at summoned nrst summoned to parliament, for the purpose of consenting ment'as^a to taxation upon the part of the shire communities, as a mat- matter of ter of fiscal expediency merely. Instead of the officers of fiscal expe- , , .,.,,. , .. t diency. the exchequer going down into the shires to there negotiate separately as to the amount each would give, it was deemed more expedient for each shire court to send representatives to the national council armed with full power to express its corporate assent to whatever tax the general voice might there impose. 1 See above, p. 320. 8 Fadera, i. p. 177 ; Select Charters, 2 See above, p. 451. pp. 355-357. 4 See above, p. 367. I.] FROM EDWARD I. TO HENRY IV. 485 The same general causes which brought about the appear- Represent* ance in parliament of the elected knights also brought about, the towns at a somewhat later day, the appearance of elected representa- |ormtme°ed tives from the cities and towns. Until the severance of the same rea- borough communities from the general shire administration, the sheriff exercised the same jurisdiction over the towns as over the rest of the county ; he collected from them the rents which formed a portion of the ferm of the shire, and he looked after the king's rights in their courts of justice. The borough communities which thus grew up within the jurisdic tion of the shire, and upon the demesnes of the king or some other great lord, began the struggle for municipal independ- Thestrug- ence with the effort to free themselves from the financial municipal ¦ and judicial administration of the sheriff upon the one hand, encePen :and from the control of the lord upon the other. One of the : first steps in this process was to require the sheriff to fix the : amount of the ferm which the borough was to pay separate .and apart from the general contribution of the shire. The mext step was to obtain a charter from the crown permitting cthe town to pay directly into the exchequer a fixed rent in lieu of the sum contributed through the sheriff. The fixed The firma : rent thus paid by the town directly to the exchequer, which urgi' : was known as the firma burgi, the burghers apportioned and i collected among themselves through their own internal regu lations.1 But after this much had been accomplished the .towns were subject to another form of taxation, which de fended chiefly upon the royal pleasure. Whenever the great -council made a grant to the crown, the king claimed the right _ to levy upon his tenants in demesne an equivalent exaction sunder the name of a "free aid." When the growing wealth The "free iof the mercantile classes within the towns began to render •/them tempting objects of taxation, the imposition of "free i;aids " grew more and more frequent. During the reigns of ,;Henry III. and John, such demands were often made by royal ^authority, even when no general grant had been made by jthe great council. When a dispute arose over the collection of a " free aid," the contention could only be settled after a tedious negotiation between the town magistracy on the one ^hand and the officers of the exchequer on the other. The 1 See above, p. 461. 486 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch, representatives of the towns were therefore summoned to parliament simply because the crown found it more profitable to obtain grants of subsidies from them in a national coun cil than to collect " free aids " from them through the more tedious process of separate negotiation.1 Transition By so reorganizing the national council as to require every c_aimtoSpe order of men to appear therein in person or by representa- general tives, Edward I. finally completed the transition from the consent in , . . taxation, older system of separate consent to taxation, which grew out of feudal ideas, to the more efficient and comprehensive one of general consent expressed as the corporate act of the nation in an assembly of estates. Although in such an assembly each estate taxed itself separately at first upon its own basis, the concurrent act was a national act, resting upon the consent of every class of tax-payers to be affected by it.2 Exclusive io. The corollary, which naturally followed the principle liament to"" that each estate had the right to consent to taxation in an authorize assembly of estates, was that no taxes whatsoever could be taxation. / legally imposed upon the nation save such as were expressly authorized by parliamentary authority. The first great effort for the establishment of this principle was made by the bar onage in the famous struggle with John in 1215 ; and the fruit of that effort was embodied in the twelfth and fourteenth articles of the Great Charter, which provided that no scutage or aid, except the three regular feudal aids, should be imposed but by the common counsel of the nation, and that such com mon counsel could only be taken in a national council duly Declaration summoned under writs regularly issued. The fact that these of the ex- ... . . . , . , , ,, elusive vital clauses were invariably omitted from all subsequent re- nftionto"16 issues of the Great Charter is persuasive to show that the uxat°one Precise and positive definition of the exclusive right of the contained nation to authorize taxation, which the barons in the hour of in the Great • _. r i t 1 . 1 Charter, victory forced upon John, was premature, — that for such an premature, absolute assertion of the right, the nation itself was at the time hardly prepared.8 It is true that during the eighty years which followed the issue of the Great Charter the im- 1 All this has been restated by Green commons to a share of the taxing pow- with his usual clearness. See Hist, er, together with the clergy and the Eng. People, vol. i. pp. 355, 356. baronage." — Stubbs, Const. Hist., voL 2 " The process of transition belongs ii. p. 243. to the years 1282 to 1295, and the tran- » See above, pp. 387, 388. sition implies the admission of the I.] FROM EDWARD I. TO HENRY IV. 4*7 position of taxes generally received parliamentary sanction, but not until the end of that period did the nation finally win a constitutional guarantee that they should never be imposed simply by the force of the royal authority. In the stress of a great emergency Edward I. so reasserted the taxing power of the crown as to alarm the nation ; and the result was a counter-revolution which made all such future attempts upon the part of the crown forever impossible. At the end of the Guarantees "Barons' War," Edward I., in the Confirmatio Cartarum, was j_ftheC«i- made to promise the clergy, the barons, and " all the com- ^^««». monalty of the land, that for no business from henceforth will we take such manner of aids, tasks, nor prizes, but by the common assent of the realm, and for the common profit thereof, saving the ancient aids and prizes due and accus tomed." In order to extend this limitation of the royal authority to indirect as well as to direct taxation, it was also provided that the right of the crown to tax wool should not in the future be exercised " without their common assent and good will ; saving to us and our heirs the custom of wools, skins, and leather granted before by the commonalty afore said."1 Although Edward clearly conceded the chief subject of contention, he plainly indicated by the foregoing reserva tions that he did not consider his action at Ghent as a final and unconditional surrender of the right of the crown to still impose certain kinds of direct and indirect taxes. Under the terms of the first proviso — " saving the ancient aids and Right of .. i t i _.• the crown prizes due and accustomed — the crown for a long time t0 taiiiag« claimed the right to talliage the towns upon the royal de- *hpe0£X' mesnes without the sanction of parliamentary authority. In royal de- 1304 Edward himself ordered a talliage to be imposed on his cities and towns in demesne,2 and in the next year he author ized the great lords to talliage their ancient demesnes as he had talliaged his.3 In the sixth year of his reign, Edward II. also imposed a talliage on his cities, boroughs, and demesnes throughout the realm ; and the command was to take " of their movables a fifteenth, and of their rents a tenth; and to send the assessment to the sheriffs of the city, to levy the talliage, and pay it into the exchequer." 4 The citizens of 1 For a full statement of this sub- 2 W. Hemingburgh, ii. 233. ject, with the authorities, see above, pp. * Rot Pari., 1. 161, 162. 418-423. 4 Lords' Report, vol. 1. p. 266. 488 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Right of talliage be comes ex tinct in the reign of Ed ward III. Parliament ary control .over indi- :rect taxes. Toll originallyimposed directly upon the ship. Prisage. Origin of the duty _n exports. London, in resisting this impost, did not dispute the general right of the crown to impose it, but defended themselves under that clause of the Great Charter which guaranteed to them their ancient immunities.1 In 1332 Edward III. issued commissions for the collection of what was probably the last talliage ever demanded of the cities and towns. When the matter came up in the parliament of that year, a compromise was reached wherein it was agreed that the crown should recall the commissions, and accept in lieu of the talliage a grant of a fifteenth and tenth.2 While the principle was thus becoming settled that the crown could impose no kind of direct taxes — not even tal liage upon ancient demesnes — without parliamentary author ity, the royal right to impose indirect taxes in the form of customs became subject to the same limitation. The origin of indirect taxes has already been traced to the customary right of the Old- English kings to levy tolls in harbors, and upon transport by roads and navigable streams. Upon en tering the harbor the toll was imposed directly upon the ship, and the tax thus paid was the equivalent given by the merchant for the right to bring wine and merchandise into the realm, and to trade under the king's protection. The nature of this toll or tribute is well illustrated by the ancient hereditary duty belonging to the crown called prisage, which consisted of the right of the crown to take from each wine ship, English or foreign, entering the realm, one cask out of every ten, at the price of twenty shillings the cask.3 The customs thus find their origin in the duties imposed upon im ports, which are more ancient than those upon exports, — the latter originating, as it is said, as a part of the general sys tem of taxing personal property.4 The receipts from the customs, which during the reigns of Richard I. and John con stituted a considerable item in the revenue,5 had become of sufficient importance in the reign of the latter to suggest 1 Art. 13. 2 Lords' Report, vol. i. p. 305. Upon the whole subject, see Stubbs, Const Hist, vol. ii. pp. 333, 376, 383, 518-521. Hallam, improperly assuming that the right of talliage had been expressly surrendered in the struggle of 1297, maintains that the three Edwards acted illegally in exacting it. — Middle Ages, vol. iii. p. 43. The Bishop, in criticis ing Hallam's view, says: "Unconsti tutional the exaction certainly was, but not contrary to the letter of the law. — Vol. ii. p. 519, note 1. 8 Madox, Hist. Exch., pp. 526, 532. * See above, p. 299. 6 Madox, Hist. Exch., p. 529 seq. I.] FROM EDWARD I. TO HENRY IV. 489 that provision of the Great Charter which forbade the levy ing of more than the ancient and lawful customs x on mer chants entering and leaving the kingdom. When the produc tion of wool increased to such an extent as to render it the leading element of national wealth, it soon became subject to an export tax which became an important item in the royal revenue. But not until after this tempting commodity had Export tax been for a long time the subject of all kinds of irregular fosr_ixed seizures and exactions, was the export tax on wool definitely ^J^&di fixed on a legal basis by the parliament of 1275, which gave 12is- to Edward I. a custom of half a mark on each sack of wool exported, three hundred woolfells, and a mark on the last of leather.2 The duty thus imposed by statute on wool, skins, First legal and leather (magna et antiqua custuma) is regarded as the 0?uthea<.is" first legal foundation of the customs revenue.3 As Edward's tomsrev- • enue, — reign drew to a close, the royal right of taxing wool became magna et subject, however, to a more positive limitation. A subject of "cZstuma. bitter contention in the crisis of 1297 was "the maletote on wools, that is, to wit, a toll of forty shillings for every sack." As a remedy for such exactions it was provided in the Con firmatio Cartarum that the royal right of taxing wool should not in the future be exercised " without their common assent and good will ; saving to us and our heirs the custom of wools, skins, and leather granted before by the commonalty aforesaid."4 Six years later (1303) Edward summoned to the exchequer at York an assembly of merchants, consisting of two or three burghers from each of forty-two towns, with the view of obtaining their consent to an increase of the customs on wool, wine, and other commodities to which the foreign merchants had already assented. This increase in the customs, to which the foreign merchants had already assented, but to which the mercantile representatives of towns refused to assent, was known as the nova or parva custuma, The nova as distinguished from the magna et antiqua custuma granted custuma, in the parliament of 1275.5 Early in the reign of Edward II. 1 " Ad emendum et vendendum, sine * Statutes, i. pp. 124, 125; Select omnibus malis toltis, per antiquas et Charters, p. 497- . _ rectas consuetudines." - Art. 41. • Pari. Writs, 1. pp. 134, 13S > jg%* 2 Pari. Writs, i. 2 ; Select Charters', Charters, p. 500 ; Stubbs, Const. Hist, p. 4Si. vol. ii. pp. 156, 192, 524, 525. 8 See Blackstone, Com., bk. i. p. 313- 490 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. the new customs were declared illegal by the Ordainers, and their collection was suspended in 131 1; but after the king's victory in 1322 they were promptly reestablished. In the year which followed the accession of Edward III. the customs, as reestablished in 1322, were confirmed ; and from that time they became a part of the king's ordinary revenue, and as such they received the sanction of parliament in the Statute of Before the Staples, enacted in 1353.1 Before the close of the reign of reign of Edward III. the exclusive right of parliament to authorize fii-The1 every form of direct and indirect taxation was thus fully and right of finally established, not only in principle but in practice. As to control a principle, the doctrine could hardly have been more clearly oftaation announced than in the statute of 14th Edward III.,2 which jj1s1^destab" declared that the nation shall be " no more charged or grieved to make any common aid or sustain charge, except by the common assent of the prelates, earls, barons, and other magnates and commons of the realm, and that in parliament." Feudal tax- While the exclusive right of the nation to authorize tax- tngupon" ation was being gradually established, the feudal councils individual which once gathered around the Norman and Angevin kings trans- were silently transformed into national parliaments ; and the national older feudal taxes, which rested in a measure upon individual resting11 consent, were gradually supplanted by the new national taxes, upon gen- which were the fruit of general consent expressed through sent. representatives in a sovereign assembly. Even the right of each estate to assent separately to the quota of the general contribution to be borne by it gradually passed out of view. "The last instance of separate assent to taxes is in 18 Ed ward III. In later reports both houses are mentioned, in con junction with the observation ' that they have advised in com- Scutage, mon.' " 3 In this process of transition from special to general and the taxation, the old feudal burdens of scutage, — the tax on the SrTeudS1" knight's fee, — of talliage, — the feudal impost upon towns upon aids be- the royal demesnes, — together with the three regular feudal come odso- . . , _. ° ° lete. aids, gradually died out and became obsolete. But while the exchequer was thus being impoverished on the one hand by diminishing receipts from the old feudal burdens on land, it was being enriched upon the other by the new tax on personal 1 Stubbs, Const Hist, vol. ii. p. 526. ' Gneist, The English Parliament, 3 Statutes, i. 289 seq. p. 137, Shee's trans. I.] FROM EDWARD I. TO HENRY IV. 491 property, which was first imposed in the reign of Henry II. The tax on personal property was at first levied in the form Tax on per- of grants to the crown of actual tenths and fifteenths of all "^ movables. The amount of a fifteenth, which was more usu- hiall,y actu?' tenths and ally granted than a tenth, was finally reduced to a fixed basis fifteenths. by a careful assessment of every township, borough, and city, in the 8th Edward III. In this assessment the fifteenth part Assessment of the value of every township or parish was ascertained and ^*ind" recorded in the exchequer. Whenever in later years a fif teenth was granted, every parish knew that the proportion which it was expected to raise by a rate was the sum imposed upon it in the assessment made in the 8th Edward III.1 A still more important and comprehensive form of taxation which must now be mentioned is that which came into use in the reigns of Richard II. and Henry IV. under the name of The sub- subsidy, — a tax not directly imposed upon property, real or S1 y' personal, but upon persons in respect to both. When a sub sidy was imposed, each tax-payer was rated according to the income supposed to be derived from his lands and goods ; so many shillings in the pound for lands, so many for goods. During the later middle ages the older feudal taxes were thus older feu- finally supplanted by subsidies and fifteenths, which were suf- supplanted ficiently comprehensive to embrace every form of direct tax- ^^[" ation then imposed upon real and personal property. The fifteenths. lineal successor of the subsidy and the fifteenth is the mod ern land-tax, which, embracing both real and personal estates, " has superseded all the former methods of rating either prop erty, or persons in respect of their property, whether by tenths or fifteenths, subsidies on land, hydages, scutages, or talliages." 2 Or, to sum up in the weighty words of a German scholar, " All the charges falling upon land get at last united a general into one general land-tax ; ., ° , . a uniform "All personal charges, into a uniform income-tax ; income-tax; "And all customs and excise, into a general tariff, in such a general wise that the latter adapt themselves to a lasting revenue of the crown, which, since the reign of Henry V., gets assured to the king, by way of supplement to the diminishing reve nues from the domain-lands. For a considerable time after, 1 Cf. Blackstone, Comm., bk i. p. 2 Blackstone, Comm., bk. L p. 307. 309 ; citing 2 Inst. 77, 4 Inst. 34. 492 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. "Tonnage" and " pound age." Participation of the commonsin legisla tion. The great functions of governmentmonopolized for a time by the king and his feudal council. Right of the com mons to participatein taxation drew after it the right to partici pate in legislation. the chief group of these indirect taxes is lumped together under the designation of ' tonnage ' and ' poundage.' " 1 n. The fact has been heretofore explained that the primi tive form of royal legislation, common to all the Teutonic nations, and which from the earliest times moulded the enact ments of the Old-English kings, was retained by their Nor man and Angevin successors. As Ine and Alfred legislated with the counsel and consent of the witan, so William and Henry of Anjou legislated with the counsel and consent of the great council. During the two centuries which follow the Conquest, " counsel and consent " may not have implied that full and authoritative power of deliberation possessed by the witan in earlier times ; " and yet the very survival of the ancient form attested the fact that the theoretical right of the nation to participate in legislation was not forgotten."2 From the time of the Conquest down to the establishment of the estate system in the reign of Edward I., all the great acts of government, whether administrative, legislative, judicial, po litical, or fiscal, emanated from the person of the king acting through his inner council, composed of the great officers of state and the household ; or from that larger body known as the great council, composed of those tenants-in-chief who won for themselves the right to be personally summoned, and in whom that right became hereditary. The way in which the main body of the nation, grouped together in shires and towns, achieved the right to participate in the great functions of government, thus monopolized for a time by the king and his feudal council, was by building up alongside of the older body a new and a representative assembly which first vin dicated its right to participate in taxation, next to participate in legislation, and finally to control the administration of the state itself. How the first step was taken, how the represen tatives of the shires and towns won for themselves the right to join in the granting or withholding of taxes, has been ex plained already.3 By the leverage thus established, the com mons soon found themselves in a position to take the second step, — the right to participate in taxation soon drew after it the right to participate in legislation. This result was 1 Gneist, The Eng. Pari., Shee's trans. p. 138, 2 See above, pp. 186, 240, 291, 292- 8 See above, pp. 482-486. I.] FROM EDWARD I. TO HENRY IV. 493 brought about by the employment of a homely but natu ral expedient. As early as the reign of Henry III. the prin ciple was openly recognized by both the crown and the nation that concessions in favor of liberty moving from the former to the latter were legitimate subjects of bargain and sale. Of this principle, the confirmation of the charters by Henry in 1225 may be taken as a typical illustration. In his charter the king openly admits that " for this concession, and for the gift of these liberties and those contained in the charter of the forests, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and all men of the realm granted us a fifteenth part of all their movable goods." J In the light of such precedents the representatives of the commons, when as a matter of fiscal expediency they were regularly Supply de- summoned to parliament, were quick to learn how to insist SponThe upon the redress of grievances in return for a money grant. "".^sof When such a grant was asked, it became the custom for the commons to put forward in the form of a petition to the crown such grievances as required amendment at the hands of the king and his council.2 The discussion of grievances became the preliminary to the discussion of the grant, which was invariably made in the expectation that the prayer of the petition would be followed by adequate redress. Although Theproced- ,1 ._•._¦ i_ r i ure by peti- earlier precedents of the procedure by petition may be found, tion. the records of the early years of Edward II. (1309 and 13 10) afford perhaps the earliest satisfactory illustrations of the nature of such petitions, and of the character of the com plaints which they set forth.3 In the reign of Edward III. it became the custom for the chancellor at the opening of parliament to proclaim the willingness of the king to hear the petitions of his people.4 The petitions thus presented 1 " Pro hac autem concessione et articles, eleven in number, see Prynne, donatione libertatum istarum et alia- 2d Register, p. 68. In 1301 the lords rum libertatum contentarum in carta had told the king that if the demands nostra de libertatibus forestse, . . . made by them m behalf of the whole omnes de regno nostro, dederunt community were granted, they would nobis quintam decimam partem omni- increase their gift from a twentieth to um mobilium suorum." — Statutes, a fifteenth. — Pari. Writs, 1. p. 105. Charters of Liberties, pp. 22-25. 8 Cf. Hallam, M. A., vol. 111. pp. 40- 2 As early as 1309 the commons 43. granted a subsidy " upon this condition, * Rot Pari., 11. pp. 237, 309 ; 111. pp. that the king should take advice and 56, 71 seq. ; Stubbs, Const .Hist, vol. grant redress upon certain articles ii. p. 572. In 14th Edw. III. an extra wherein they are agrieved." For the force had to be appointed to aid in 494 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Such peti tions as de mandedredress by the making of an ordi nance or statute. The statute coined out of the peti tion and answer. Nearly all legislation based on petitions during the fourteenthcentury. Right of the com mons to assent to legislation not clearly establisheduntil the reign of Edward II. consisted either of such as required reference to the proper judicial tribunal, or to the king himself in council, or of such as demanded redress by the making of an ordinance or stat ute.1 To this latter class belonged the public petitions which were presented by the commons in behalf of the community. To such petitions the king was expected to make his answer during the session of parliament, and then " the petition and the answer were entered in the parliament rolls, and out of both, by advice of the judges and others of the king's coun sel, the act was drawn up conformable to the petition and answer, and the act itself for the most part entered in a roll, called the statute roll, and the tenor thereof affixed to proc lamation writs, directed to the several sheriffs, to proclaim it as a law in their respective counties."2 The right to par ticipate in legislation thus won by the commons through the petition process grew to such proportions during the four teenth century that, during that period, as the parliament rolls will show, nearly all statutes were based upon such peti tions. At what exact point of time the concurrence of the commons in legislation was deemed indispensable, it is difficult to determine. Such could not have been the case as early as the 1 8th of Edward I., the year in which the statute Quia emp tores was enacted by the king and the barons, before the day for which the commons were summoned.3 Not before the reign of Edward II. was the right of the commons to assent to legislation clearly established ; not until the fifteenth year of that reign was it declared by statute that " the matters to be established for the estate of the king and of his heirs, and for the estate of the realm and of the people, should be treated, accorded, and established in parliament by the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm, according as had been before accus tomed."4 When the right of the commons to assent to legis- dispatching the petitions in parlia ment. See Lords' Report, vol. i. pp. 3">312- 1 As to the ancient mode of peti tioning parliament, see May, Pari. Practice, pp. 606-608. 2 Hale, Hist, of the Common Law, vol. i. pp. 16, 17. 8 On the 14th of June the knights of the shire were summoned to meet at Westminster on the 14th of July. On the 8th of July the king, at the instance of the magnates, enacted the statute Quia emptores. For the writ of sum mons to the knights, see Lords' Report, App. i. 54 ; for the act, see Statutes, i. p. 106. 4 Statutes 15 Edw. II. i. 189; Lords' Report, vol. i. p. 282. I.] FROM EDWARD I. TO HENRY IV. 495 lation thus became clearly established, the ancient formula was so widened as to embrace the new factor. After the permanent incorporation of the representative members, the king legislates either "by the assent of the prelates, earls, barons, and the commonalty of the realm," or " at the request of the commons, and by the assent of the prelates, earls, and barons." During the reign of Edward III. the name of the commons is rarely omitted from the enacting clause of a stat ute, and from that time it may be safely assumed that the concurrence of both houses in legislation was deemed neces sary.1 The foregoing method of legislation, based upon the peti- Abuses and tions of parliament and the answers of the king thereto, was Seswhi°h liable in practice to so many abuses upon the part of the crown Few out <" , . , the proced- that it became necessary to supersede it by a more definite ure by peti and guarded system. In the first place the grant of money had necessarily to precede the redress of grievances, — the royal promise was the only guarantee or equivalent which the parliament received when the grant was made. To obtain clear and definite answers to petitions, much less an actual redress of grievances during the session of parliament, was often attended with great difficulty. In 1344 and 1362 the commons beg, for the safety of the people, that the petitions may be examined and redress ordered before the end of the parliament.2 Sometimes, by a qualified or evasive answer, the petition was so modified that the statute coined out of the two in nowise expressed the original intention. And even in the event of a prompt and definite answer being given during the session, it was not a certainty that the petition and an swer would in the hurry of business, in the interval between the parliaments, be turned into a statute. And even if it was, the danger remained that the petition would be materi ally altered in the process of being transformed into an act to be entered upon the statute-book. To remedy evils of the kind last named, the commons, in 1347, pray that all petitions presented by them for the remedy of mischiefs might be an- 1 Mr. Clifford (Hist, of Private Bill This statement may be accepted with Legislation, vol. i. p. 288) says: "When the qualification put upon it by the the commons are not named in the editor of Longmead's Const Hist, p. early statutes, their assent may be pre- 269, note 2. sumed from the fact that most meas- 2 Rot. Pari., ii. pp. 149, 272. ures originated with their petitions." nance. 495 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. swered and indorsed before the commons in parliament, that they might see the indorsements and have remedy thereon Evils of the according to the ordinance of parliament.1 In order to rem- remediedby edy the evils and uncertainties which grew out of "this ex- yieintro- tracting of the statute out of the petition and answer, about bills in the the latter end of Henry VI. and beginning of Edward IV., statutes, they took a course to reduce them, even in the first instance, into the full and complete form of acts of parliament."2 When this departure was made from the older form of initia tion by petition, when bills were introduced in the form of statutes, — the original draughts of which could only be altered Transition by the parliament itself, — the transition from royal to national toTaHonai legislation, which began with the reorganization of the feudal legislation, council as a representative assembly, reached its full and final consummation. Difference It must not be supposed, however, that the right thus won ^tatute^nd ^y tne Parliament to control the enactment, amendment, and an ordi- repeal of all the more weighty and permanent acts of national legislation was absolutely exhaustive of the older right of the crown to legislate in a tentative way, and with the advice of the council, upon a certain class of subjects, by way of ordinance. Through the maze of learned refinement, which has grown out of the attempt to define the difference between a statute and an ordinance, it is only possible to pass without confu sion by keeping steadily in view the two distinct sources ordaining from which each drew its authority. The line must be clearly thTking in drawn between the ordaining power of the king in council theenacting anc* the enacting power of the king in parliament. After the power of organization of the estate system the effort was continuous the king in _ . J . . , parliament, upon the part of the national assembly to draw to itself the exclusive control of the taxative and legislative powers which, at an earlier day, were vested in the king and council. In resisting such encroachments upon the prerogative, the effort upon the part of the crown was to reserve to itself fragments at least of taxative and legislative power which it could still exercise in council free from parliamentary interference. In the review heretofore made of the struggle between the nation and the crown as to the exclusive right of the former 1 Rot. Pari., ii. p. 165. Statutes, preface ; May, Pari. Practice, 2 Hale, Hist of the Common Law, p. 520. vol. i. p. 18. See, also, Ruffhead's I.] FROM EDWARD I. TO HENRY IV. 497 to authorize taxation, the fact was developed that, even after the Confirmatio Cartarum, the crown, under the cover of certain reservations, for a long time reserved the right to talliage the cities and towns in demesne, and to a certain extent to regulate the customs.1 Long after the general right of the nation to authorize taxation had been clearly admitted, an unflinching and persistent warfare had to be carried on by the parliament before the taxative power of the king in council was fully and finally extinguished. In draw- in drawing ing to itself the right to initiate and control legislation, the controfof16 parliament stopped short of complete victory, — it left in the kg'^tion, hands of the king in council an undefined residuum of legis- stopped lative power which was for a long time exercised by the complete making and revoking of a class of temporary enactments victory" known as ordinances. Whereas, before the end of the four teenth century, the general principle was firmly established that all the great and permanent acts of national legislation could only emanate from parliamentary authority, it was equally well understood that alongside of this principle existed the ordaining power of the king in council. With this statement as a preface, it will be the more easy to grasp the full significance of the following statement of the rec ognized distinction between a statute and an ordinance : "The statute is a law, or an amendment of law, enacted by Bishop the king in parliament, and enrolled in the statute roll, not definition to be altered, repealed, or suspended without the authority of fj^^t- parliament, and valid in all particulars until it has been so tween a ,. iiii- 1 statute and revoked ; the ordinance is a regulation made by the king, by an ordi- himself, or in his council, or with the advice of his council, nance' promulgated in letters patent or in charter, and liable to be recalled by the same authority. Moreover, the statute claims perpetuity. . . . The ordinance is rather a tentative act which, if it be insufficient to secure its object, or if it operate mischievously, may be easily recalled, and, if it be successful, may, by a subsequent act, be made a statute."2 12. At what exact point of time the parliament, which won for itself the exclusive right to authorize taxation and to 1 See above, pp. 487. lam, M. A., vol. iii. pp. 50-53 ; Gneist, 2 Stubbs, Const. Hist, vol. ii. pp. The Eng. Pari., p. 143 ! Clifford's His- 585, 586. On the distinction between tory of Private Bill Legislation, vol. i. statutes and ordinances, see, also, Hal- p. 332. 498 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Parliament- initiate legislation, secured the more comprehensive right to OTe/the™ deliberate in all matters of national concern, it is difficult mmfstra- to determine. Although such a right was no doubt claimed tion. and exercised in some form by the council of magnates prior to the date of the Great Charter, it is not until the reign which follows that event that we find clear illustrations of the right of parliament to discuss foreign affairs, and to super- Minority of vise and control the royal administration. The minority of thenfirstIL Henry III., the first which had occurred since the Conquest, ?jn^e^he cast upon the national council the duty of appointing a guar dian of king and kingdom ; and it is more than likely that the other personal advisers who stood with the regent around the king were, during the minority, appointed by the same au thority. From that time it is possible to trace the existence An inner of an inner royal council, composed of the king's personal council. advisers, which acts as a distinct and organized body, apart from the larger administrative body that directs the affairs of state and the household. Out of this condition of things the constitutional doctrine emerges that the king can do no Responsi- wrong, and that the ministers who advise him are respon- minfsters'to s^e to the assembled representatives of the nation, who the nation have a consultative voice in their appointment.1 The right in parha- rr ° ment. thus established by the baronage to control the royal admin istration during the minority of the king was expanded, before the close of Henry's reign, into a general right of control whenever the exigencies of the state might require it. When in the crisis of 1258 the executive government was found to be in such hopeless embarrassment as to render it necessary for parliament to place the royal authority in commission, the baronage elected a board of control of twenty-four, who provisions drew up the articles generally known as the Provisions of 1258* °r ' Oxford, under whose terms three committees were chosen, who were charged with the task of reforming the entire administration.2 When in 1297 Edward I., under a pressure to raise money for a foreign war, attempted to subject the nation to unauthorized taxation, he was resisted by the Bohun and baronial party under the lead of Bohun and Bigod, who, with an armed force at their backs, appeared in the exchequer and forbade the collection of the tax until a promised confirma- 1 See above, pp. 396, 397. 2 See above, pp. 400, 401. I.] FROM EDWARD I. TO HENRY IV. 499 tion of the charters had first taken place. In a parliament irregularly summoned in the midst of the revolution the regent was forced to concede, and the king to approve, the national demands, which were embodied in the famous Con- Confirma- firmatio Cartarum? When, early in the reign of Edward IL, rum, 1297. a crisis was provoked by the offensive conduct of the royal favorite Piers Gaveston, as well as by the confused condition into which the affairs of the kingdom had fallen, a council of bishops and barons was called to meet the king at Westmin ster in February, 1310.2 A condition of things similar to that which in 1258 had brought on the Barons' War seems to have suggested substantially the same procedure as was then employed. The baronial assembly, which in March met the king in arms, resolved that the affairs of the kingdom should be intrusted for a year to a body of twenty-one Ordainers, to The Lords be chosen by themselves,3 who should ordain such things as _3io. ' should be " to the honor and advantage of Holy Church, to the honor of the king, and to his advantage and that of the people, according to the oath which the king took at his coronation." 4 In a parliament composed of the three estates held in London in August, 131 1, the Ordainers, after report ing the six ordinances, which they had published with the king's confirmation in August, 1310,6 issued thirty-five ad ditional articles6 of like tenor, designed to carry out more completely a general reform of existing abuses. In the addi tional articles (xiii. -xviii.) express provision was made that all the great officers of state were to be appointed by the king with the counsel and consent of the baronage; and they (xxxix.) were to be sworn in parliament. And it was further provided (ix.) that the king was not to declare war, to sum mon forces, or to go out of the realm, without the consent of the baronage in parliament. The right thus asserted and 1 See above, pp. 419-423. cites the Lords' Report (vol. i. p. 259), 2 The inferior clergy and the com- which states " that the parliament which mons were not summoned. York was assembled at Westminster consisted first designated as the meeting-place, only of prelates, earls, and barons." __ but a change was afterwards made to 8 As to the election, see Fadera, 11. Westminster. See Pari. Writs, i. pp. p. 105 ; Rot. Pari., i. pp. 443. 445 > Parl- 40, 41 ; Stubbs, Const. Hist, vol. ii. p. Writs, II., ii. p. 26. 325, and note 5. Cf. also, pp. 326- * Pari. Writs, II., 11. p. 27. , 330. Although Hallam's text (M.A., 6 Fadera, ii. p. 113; Rot. Pari., L vol. iii. p. 43) would indicate a belief pp. 446, 447. j upon his part that the commons coop- • Statutes, i. p. 157 seq.; Rot. Pari., erated in the proceedings, in a note he L pp. 281-286. 500 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch, Right of the baron age to the exclusivecontrol of the royal administration. Growing power and influenceof the com- They win the full right of de liberation in the vreign of EdwardIII.; assent to the treaty of peace with Scot. land, and are con sulted as to the war with France. HundredYears'War, maintained by the baronage to control all ministerial appoint- ments, as well as the great questions of war and peace, clearly discloses the fact that the nobles were still regarded not only as the sole counsellors of the crown, but as the teal representatives of the nation and the guardians of its privi leges. The parliamentary status of the commons, down to this point, seems to have been but little better than that of mere tax-payers and petitioners for the redress of grievances. From this time, however, the parliamentary position of the commons passes through a marked transformation ; they gradually cease to follow the lead of the barons, who in their turn learn how to follow the lead of the commons. By the statute of 1322, — which provided that all matters to be established touching king or kingdom " should be treated, accorded, and established in parliament, by the king, and by the assent of the prelates, earls, and barons, and the com monalty of the realm,"1 — a full and final recognition was made of the right of the commons to participate in all forms of legislation. But the full right of deliberation in parliament did not pass to the representatives of the shires and towns — now fast becoming welded into a definitely organized body under the name of the commons — until the following reign of Edward III., whose financial necessities, occasioned by his expensive foreign wars, rendered him continually depend ent upon their bounty. At the very beginning of Edward's reign, during the administration of Isabella and Mortimer, the treaty of peace with Scotland was settled with the coun sel and consent of the three estates, — prelates, earls, barons, and commons.2 As soon as Edward's personal rule begins we find him, in 1331, consulting parliament on the question of war or peace with France.3 On these occasions not only the magnates but the knights of the shire, who now deliberate apart, are consulted. In 1336 parliament advises the king to declare war against Scotland, because he "could no longer with honor put up with the wrongs and injuries daily done to him and his subjects by the Scots."4 When in 1338 the prolonged struggle known as the Hundred Years' War opens with France, the king declares that he undertakes it with the 1 See above, p. 494. 2 Rot. Pari., ii. p. 442 ; Fadera, ii. p. 730. 8 Rot. Pari, ii. p. 61. ? See Pari. Hist, i. p. 93- I.] FROM EDWARD I. TO HENRY IV. 5c I assent of the nobles, but at the earnest solicitation of the commons,1 — it is called, in fact, "the war which our lord the king has undertaken against his adversary of France by common assent of all the lords and commons of his realm in divers parliaments." 2 In the parliament of 1341, when more money is asked with which to carry on the war, the lords and commons unite in the demand that commissioners be appointed to audit the accounts of those who receive the money in behalf of the king, and that the great officers of state be appointed by the king in parliament, and there sworn to obey the law.3 Although Edward by an act of duplicity afterwards repudiated these concessions, the vital principle had been announced by both lords and commons, fighting side by side in a common cause, that the ministers who conduct the royal administration are responsible not only to the king, but to the nation in parliament. As incidents, to the substantive right to supervise and Right to control the royal administration, which the assembly of SJe'suppKes estates fully established during the reign of Edward III., pU^™| should be noted the right to audit the public accounts, and to appropriate the supplies to special purposes. Although the germ of the right last named can be discovered as early as the reign of Henry III. in the arrangements then made for the collection and custody of particular grants intrusted to officers specially appointed for that purpose,4 the right of appropriation as a parliamentary right was not clearly estab lished until the middle of the fourteenth century. In 1346 and 1348 the practice distinctly appears in the provisions then made that the money collected from the northern coun ties should be applied to defence against the Scots;5 and more distinctly still in 1353, when a subsidy on wool was i granted with the express direction that it should be applied < exclusively to the prosecution of the war with France.6 In 1380 the commons pray that the aid granted may be ex pended in defence of the kingdom;7 and in 1390 a part of j the custom on wool was appropriated to the expenses of the )¦ Fadera, ii p. 1015. 6 Pot Parl.,\\. p. 161, art. 15; p. 202, i 2 Cf. Hallam, M. A., vol. iii. p. 53. art. 7. 8 Rot. Pari., ii. pp. 128, 130. 6 Rot. Pari., ii. p. 252. 4 See Select Charters, 2d ed., pp. 35S. 7 Rot. Pari., iii. pp. 9°. 93- 94- ,j 364, 368. 502 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. king, a part to the prosecution of the war.1 The right to appropriate the supplies, thus clearly established by the par liaments of the fourteenth century, was not maintained, how ever, by those of the fifteenth and sixteenth. After the reign of Henry IV. the practice seems to have fallen into disuse, and it was not firmly reestablished until 1666, when, by virtue of the Appropriation Act of Charles IL, it became "an undisputed principle, recognized by frequent and at length constant practice," that " supplies granted by parlia ment are only to be expended for particular objects specified by itself."2 Right to Closely allied to the right to appropriate the supplies, was pubUc'ac- the right to audit the accounts which contained the history counts. 0f their expenditure. The struggle for the establishment of this right, which begins in the time of Edward III., is brought to a close during the minority of his successor. In the stormy parliament of 1341 both lords and commons join in a demand for the appointment of commissioners to audit the accounts of those who had received money granted to the king, and of those who had received and disbursed his money on both sides of the sea since the war began. Although Edward distinctly made the concession, it was probably an nulled in the general revocation through which the statutes of 1341 were repudiated.3 The claim is again asserted, how ever, in Edward's last parliament, by the commons, who prayed that two earls and, two barons might be appointed as treas urers to see that the grants were properly expended.4 In the first parliament of Richard II. both lords and commons renew the demand ; and when liberal grants are made, the condition is annexed that treasurers be appointed, to the end " that the money might be applied entirely to the ex penses of the war, and no part of it in any other way." Two London merchants, William Walworth and John Philypot, were then appointed by the king and sworn in parliament to faithfully perform the duty assigned them.6 Two years later, in the parliament of 1379, the king, of his own motion, 1 This appropriation was made, says 2 Hallam, Const. Hist, vol. ii. p. Bishop Stubbs, "in a way which antici- 356. pates the modern distinction between 8 See above, p. 501. the civil list and public expenditure." 4 Rot. Pari., ii. p. 364. ¦— Const. Hist, vol. ii. p. 567. 5 Ibid., iii. pp. 5-7. I.] FROM EDWARD I. TO HENRY IV. 503 without waiting for a petition from the commons, ordered the treasurers to lay before the parliament the accounts of the subsidy.1 From that time the right to examine the accounts, and to appropriate the supplies, may be looked upon as clearly established. 13. Before the close of Edward's reign the doctrine of The right ministerial responsibility, so clearly announced in the mem- ment.peac " orable proceedings of 1341,2 assumed a more serious and threatening aspect when the commons began to employ for the first time the new constitutional weapon of impeachment. The earlier instances of criminal proceedings, which take place in parliament during the period which intervenes be tween the beginning of the reign of Edward the First and the 50th year of Edward III., are both irregular and ambiguous.3 Not until the year last named do we find, in a series of pro- First clear ceedings which take place in the Good Parliament, a clear parliament- instance of a parliamentary impeachment in the sense in iXl^DiaA which that term is now understood. The proceedings against 1376. the lords Latimer and Neville, and their agents and accom plices,4 who were accused of the commission of all kinds of frauds against the revenue, are regarded by the constitutional historians 6 as the earliest instance of a trial by the lords upon a definite accusation made by the commons sitting as a grand jury of the whole realm. In the early part of the reign of Richard II. the new weapon forged by the commons is used without stint, and before the close of the rdgn occurs the famous accusation against the lord chancellor, Michael de la impeach- Pole, who was impeached for grave misconduct in his office.6 Mkhaei de From frequent repetition and employment, the law and prac- \*f°( tice of parliamentary impeachment was, by the end of Rich- Suffolk. ard's reign, established in substantially the same form in which it appears in modern times. Through the establish- Doctrine of ment of this means of punishment, the doctrine of ministerial "sp^jbji- responsibility, which appears in an embryonic form during the j^P1^^. minority of Henry III., was finally placed upon a definite niteconsti- constitutional basis. As the constitution prescribed no basis. 1 Rot Pari., iii. pp. 56, 57 ; Stubbs, 6 Cf. Hallam, M. A., vol. iii. pp. 54- Const Hist., vol. ii. pp 567-569. 57 ; Stubbs, Const. Hist, vol. 111. pp. 2 See above, p. 501. " 43°. 431- , „ . , 8 Stephen, Hist, of the Crim. Law, 6 Rot. Pari., in. p. 216; Knighton, c. vel. i. pp. 145-148. 2684. Precise and formal charges 4 Rot. Pari. ii. pp. 323-326 and 329. were presented against Suffolk. 504 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Legal fic tion that the king can do no wrong. The right of deposi tion. Right of the witan to depose the king : a right never as serted by the feudal councils of the Nor man and Angevin kings. mode, short of deposition, through which the king could be made personally amenable for any act of maladministration, it became necessary to accept the legal fiction that the king in his political capacity could do no wrong, or rather that in the conduct of public affairs nothing could be imputed to his bad intentions. In order to give efficacy to this fiction, which excused the king while it punished the minister, it became necessary for the law to deny to the minister either the right to claim immunity from punishment by pleading obedience to the commands of his sovereign, or a pardon granted by him under the great seal pending the impeach ment.1 14. The ever-widening power of parliament which thus drew to itself the right to control the royal administration, and to impeach and punish the ministers guilty of misconduct, did not reach the limit of its growth until the doctrine was finally established that, in the presence of a great emergency, the assembly of estates possessed the right to lay hands upon the throne and to depose the king himself. From the an nals of the Old-English commonwealth the fact appears that the witan, which possessed the power to elect the king, pos sessed also the correlative right to depose him whenever his government was not conducted for the good of his people, Although the greater number of instances in which this power seems to have been exercised belong to the period which pre cedes the union of the heptarchic kingdoms under the house of Cerdic, there are at least two well authenticated acts of deposition which occur after that event. In 958 the unity of the realm was broken by a revolt in which the Mercians reject Eadwig, sever their kingdom from his, and elect Ead gar as their king. Early in the next century, ^Ethelred the Second was deposed in favor of his conqueror, and after wards by act of the witan restored to the throne.2 Such acts of supreme authority, occasionally performed by the Old- English national assembly, were never repeated, however, by the less authoritative feudal councils which, during the two centuries that follow the Conquest, gathered around the Nor- 1 As to the law of impeachment as as to the practice, see May, Pari. Prat- finally settled, see above, pp. 442, 443 ; tice, ch. xxiii. , 2 See above, pp. 189, 190. assem- . of estates. I.] FROM EDWARD I. TO HENRY IV. 505 man and Angevin kings. Not until after such feudal councils were transformed into an assembly of estates did the repre sentatives of the nation dare to revive that highest of all Right re- rights which the witan had occasionally exercised from the t^asse5. very earliest times. To Edward I. belongs the honor of "y^ having transformed the feudal council into an assembly of estates ; within thirty years of the first meeting of such as sembly at Westminster, the limit of its sovereign power was reached in the deposition of his son. By the deposition of Deposition Edward II. the parliament, for the first time since the Con- $ Edward quest, asserted the right to rid the nation of a worthless and incompetent king. The first serious conflict which Edward provoked, by making himself subservient to the favorite Piers Gaveston, resulted in a practical transfer of the royal power for a time to a committee of prelates and barons called the The Lords Ordainers.1 The fatal conflict which at a later day arose out 0rdainers- of the choice of new favorites, in the persons of the Dis pensers, led Edward into a revolution in which his foes were marshalled under the leadership of his wife Isabella, and her paramour Mortimer. Deserted in the hour of his need by all upon whom he had the right to rely, the king sought safety in flight, leaving the kingdom to the queen and Mortimer, who began their administration by having the young Edward, with the assent of the assembled magnates, proclaimed guar dian of the realm on the 26th October, 1326.2 In November Edward's the king was captured, and in a parliament which met on the ty'the"^ 7th January, 1327, the question of his fate was submitted by lament of the partisans of the queen to an assembly to which were summoned, in addition to the usual constituents, forty-eight representatives from Wales.3 To the parliament thus con stituted the question was put, whether they would have the father or the son to be king ? In answering this question in Six articles favor of the son, the parliament expressed, in six articles drawn up drawn up by Stratford, Bishop of Winchester, the reasons Stratford. !" 1 See above, p. 499. Lords' Report, vol. i. p. 289. By 34 and 2 Fadera, ii. p. 646 ; Pari. Writs, II. 35 Hen. VIII., c. 26, Wales was di- '¦ P- 349- vided into twelve counties, with the 8 "No attempt to procure representa- right to send one knight each to par- tives from either North or South Wales liament; every borough which was a appears to have been afterwards made shire town being allowed to send one until the act passed for the purpose in burgess. the reign of Henry the Eghth." — So6 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. why Edward of Carnarvon should cease to reign. His in capacity to govern, his heed of evil counsellors, his neglect of good counsel, the loss of Scotland, Ireland, and Gascony, his oppression of the church and baronage, his violation of his coronation oath, and the general mischief which he had wrought to himself and the realm, — were the specific accusa tions preferred against him. As no formal trial was had, or proof taken upon the charges, it was considered a prudential measure to send a deputation of the parliament to obtain Edward as- Edward's consent to the election of his son.1 After the dis- son's eiec-1S crowned king had meekly yielded to his fate, Sir William tion. Trussell, as proctor of the whole parliament, after renouncing the homage and fealty of those he represented, said : "I now make protestation in their name that they will no longer be in your fealty and allegiance, nor claim to hold anything of you as king, but will account you hereafter as a private person, without any manner of royal dignity." Sir Thomas Blount, the steward of the household, then broke his staff of office in token of the fact that the king had ceased to reign.2 This final ceremony, used only on the occasion of a king's death, was the omen of Edward's murder which occurred in the following September. Deposition The deposition of Edward II. , which was the result of mere of Richard weariness Up0n the part of the nation with a worthless and incompetent king, was followed, after an interval of seventy- two years, by the deposition of Richard IL, which stands out as the culmination of a conflict in which the royal authority, after having defied the constitution by an assumption of absolute power, was completely mastered and overcome by Richard's the irresistible supremacy of parliament. The candor, the youST"1 liberality, the courage, manifested by the youthful Richard at the outset of his reign, when in the midst of revolution he was brought face to face with the miseries of his people, gave no token of the imperious and fanatical spirit which in his maturer years provoked his deposition and murder. The brilliant reign of Edward III., during which the military re nown of England reached perhaps its highest point, was the nursery of a social discontent which began to manifest itself 1 T. de la Moor, p. 600. action, with the authorities, may be 2 A clear account of the whole trans- found in Lingard, vol. ii. pp. 259-261. I.] FROM EDWARD I. TO HENRY IV. 507 for the first time in the ranks of the common people. The peasant revolt, which Richard was called upon to quell upon Causes of the threshold of his career, was the result of causes which the revou638*"' pressure of perpetual war, and the visitations of the great plague, had set to work in his father's time. When, at the condition close of 1348, the Black Death began its desolating march %£$££ through the English kingdom, the laboring classes, amongst a* ^^ whom its results are historically most prominent, had for a the Black century or more been moving from the lower stages of serf- 1348. age, in which the duties of the villein to his lord were dis charged by personal services, to a state of comparative free dom, in which personal services were commuted by money payments. So rapidly had the process of enfranchisement advanced, that lords of manors were obliged to rely for the cultivation of their lands upon hired laborers who took the places of the villeins, who were now discharging their duties to their lords by rentals in money in lieu of base ser vices. Upon this hopeful condition of things the great plague fell like a blight. By its ravages the total population was so Population reduced that hired labor, which had heretofore been cheap tha^hhed1 and abundant, now became dear and scarce. It is probable l*h°l 5s" that not much less than half of the entire population was and scarce. destroyed,1 and the number of laborers was so reduced that those who survived demanded double the old rate of wages. As a remedy for this condition of things, which threatened ruin to the great landowners, and to the wealthier craftsmen of the towns, the council in 1349 passed an ordinance which The council attempted to regulate the price of labor by providing that all ^guTateae laborers should be forced to serve at the rate of wages which ™a^e°fby had prevailed before the plague began.2 This ordinance, pub- ordinance. lished in June, was afterwards turned into the statute known statute of as the Statute of Laborers.3 This measure the parliament of ^9°rers* 135 1 rendered still more stringent by denying to the laborer the right to quit his parish in search of better employment.4 When the villeins refused to accept the starvation wages thus held out to them, the landlords fell back upon their demesne 1 Cf. Rogers, History of Prices, i. viii., made an act of parliament, and p. 60. constitutes stat. 23 Edw. III." — 2 Knighton, c. 2600; Fadera, iii. c. Reeves, Hist. Eng. Law, vol. iii. p. 198 ; Statutes, i. 307. 128. 8 23 Edw. III. " This ordinance was 4 25 Edw. III. afterwards by stat. 3 Rich. II., st. I, c. 508 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch, Conflictbetweencapital and labor inten sified by the teach ings of the Lollardpreachers. The poll- tax. Rising of the com mons be gins on the 5th June, 1381. The politi cal griev ance. rights, which when contested were tried in the manor court, presided over by the steward, whose interest it was to have the judgment given against the villein and in favor of the lord.1 The wide-spread irritation and discontent among the lower classes which grew out of this bitter conflict between capital and labor was also quickened and intensified by the teachings of some of the Lollard preachers, who went about not only inveighing against the right of the clergy to hold property, but against the whole system of social inequality, which during the middle ages held the rich and the poor so wide apart. Foremost among agitators of this class stood John Ball, " a mad priest of Kent," who openly proclaimed a new doctrine of social equality, based upon the natural rights of man, which found quaint yet pointed expression in the popular rhyme : — When Adam delved and Eve span, Who was then the gentleman ? 2 The social discontent which thus smouldered at the end of Edward's reign broke into flame when, shortly after the accession of his son, the pressure of taxation was applied with fresh force, and through a new device, to every hearth and home in the realm. In the last year of Edward's reign the parliament of 1377, in order to meet the urgent need of money to carry on the war with France, devised a new form of general taxation by granting to the crown a poll-tax of a groat a head.3 Two years after Richard's accession the par liament of 1379, in response to another pressing demand for money, granted a second poll-tax, under which every man was charged with a direct contribution in proportion to his rank or dignity.4 In the next year still another and severer poll-tax was granted.5 The collection of this last tax in June, 1381, was the signal for revolt, — on the 5th of June the rising of the commons began. Although the grounds of dis content seem to have varied somewhat in every district, two great motives for revolt stood out above all the rest, clearly and distinctly defined. The first was the political grievance which grew out of the imposition of the poll-tax, whereby the 1 As to such proceedings, see See- 2 Cf. Green, Hist, ofthe Eng. People, bohm, Eng. Village Community, pp. 30. vol. i. p. 440. 31 ; Reeves, Hist. Eng. Law, vol. iii. 8 Rot. Pari., ii. p. 364. pp. 130-132, notes, Finlason, ed. 4 Ibid., iii. pp. 57, 58. 6 Ibid., iii. p. 90. I.] FROM EDWARD I. TO HENRY IV. 509 pressure of the war was brought home to the laboring classes, already in a state of seething discontent, by subjecting them to a burden which had not before been imposed upon them. The second was the social grievance which grew out of the The social attempts of the landlords to exact work from the laborer at s^5™"^ low wages, or, in default of that, to revive their demesne rights to base services from men who had begun to regard themselves as no longer villeins. The first actual outbreak, Wat Tyler which began in Kent on the 5th of June, was provoked by Kentish the collection of the poll-tax ; this seems to have been the men- main grievance of the hundred thousand Kentish men who gathered around Wat Tyler of Essex to march upon London : their cry was for the suppression of the poll-tax and better government. On the other hand, the grievance of the men The men from Essex and the eastern counties seems to have been an°dt__eSseX rather social than political ; their demand was that bondage eastern counties. should be abolished, that tolls and other imposts on trade should be done away with, that the native-born villein should be emancipated, and that all villein service should be com muted for a rent of fourpence the acre.2 When, on the Richard's morning of the 14th of June, Richard rode from the Tower th^IsLx to Mile-end to meet the Essex men, their cry was, " We will men- that you free us forever, us and our lands ; and that we be never named nor held for serfs." In reply the king promptly pledged his royal word that their demands should be granted ; and as soon as the charters of freedom and amnesty could be drawn, the mass of those seeking emancipation withdrew to their homes. The same happy result followed when, on the next day, Richard, meeting the Kentish men, made to them the same pledges of freedom, coupled with the reminder that he was their captain and their king. In a little more than a Revolt fortnight the revolt was over, and then came a period of ^ th^e reaction, during which the confiding peasants were taught to a fortnight feel how little trust could be placed even in the written pledges of a king. On the 30th of June a royal proclamation was issued ordering all tenants of land to continue their accustomed services ;2 on the 2d of July the charters of free dom and pardon were revoked,3 and on the 18th the local 1 For a full statement of the crisis 2 Fadera, iv. p. 126. and its causes, see Stubbs, Const. Histn 3 Ibid, iv. p. 126. vol. ii. pp. 449-463. 510 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. courts were ordered not to release their prisoners.1 Tres- silian, the chief justice, then began to bring the law to bear upon the insurgents, who were punished with the greatest in spite of cruelty. And yet, in spite of all the cruelty and repression repression! tmis applied by the government to the laboring classes dur- the purpose ;ng the peri0d of reaction which followed the revolt, the great voit fully purpose of the revolution was fully accomplished. The can- pUshed. cellation of charters upon the part of the crown, the attempt upon the part of the landlords to revive their old demesne rights, could not conceal the fact that villeinage had received within a its death-blow.2 The process of enfranchisement, so hope- ThaMafter1 fully progressing when the advent of the plague arrested 'iidna"!' *ts Pr°gress> advanced again so rapidly that, at the end of an obsolete a century and a half from the time of the rising, villeinage was looked upon as a rare if not an obsolete institution. Yeoman And as the work of enfranchisement advanced, the number comesbthe °f small freeholders was so increased by the constant ac lasis of the ceSsion of new freemen that the yeoman class soon came electoralsystem. to be regarded in every shire as the basis of the electoral system.3 The In 1394 the queen, Anne of Bohemia, died, and two years chan^in thereafter the king married a second wife, Isabella, the Richard's daughter of Charles VI. of France. From that time dates temper ° , . dates from the marked change of temper which prompted Richard to marriageC_n drop all disguises, and to exhibit his purpose of ruling as an 1396- absolute monarch, surrounded by a profuse and profligate court. While the king was in this mood an effort was made by the parliament of 1397 to reform, among other things, the royal household. When the bill of complaint upon that sub ject, which originated with the commons, was presented to the lords, the king sent for them,4 and requested them to inform the lower house of the offence they had given in pre suming to " take on themselves any ordinance or governance of the person of the king, or his hostel, or of any persons of estate whom he might be pleased to have in his company." 1 Fadera, p. 128. to oppose his assertion of right in the 2 " The landlords gave up the prac- courts of the manor and the county." tice of demanding base services : they — Stubbs, Const Hist, vol. ii. p. 462. let their lands to leasehold tenants, 8 Green, Hist, of the Eng. People, and accepted money payments in lieu vol. i. p. 486. of labor ; they ceased to recall the * Rot. Pari., iii. pp. 338-340. emancipated laborer into serfdom, or I.] FROM EDWARD I. TO HENRY IV. 51 1 Not content with this rebuke, he also commanded the Duke Richard of Lancaster to demand of the house, through the speaker, to commons, e give up the name of the member who had dared to bring ^ds the forward the offensive proposal. In response to the demand name of _ r _« . m. the offend- the obsequious commons gave up the name of Sir Thomas ingmem- Haxey, a prebendary of Southwell, who was condemned by er" the lords to suffer the death of a traitor,1 — a fate from which he was saved by being claimed as a clergyman by Archbishop Arundel. In the new parliament, which met in September of this a fresh year, the crime of treason, which with its penalty had first 0f the'crfme been defined by a law passed in 1352,2 received a fresh defini- °ii?eason' tion in a statute which declared the four articles of treason to be, the compassing of the king's death or deposition, the levying of war against him, and the surrendering the liege homage due to him.3 After the king had procured such further legislation as enabled him to punish his enemies, — chief among whom were the appellants Arundel, Gloucester, and Warwick, — this parliament, which had been elected under the open pressure of royal influence, was adjourned to Shrewsbury, where it sat for three days. During these days, Parliament through parliamentary action which purported to be volun- bLy^j^.. tary, Richard was transformed into a practically absolute ^®'a!™]ade monarch, and parliamentary government for a time brought practically to an end. After granting a subsidy on wool, woolfells, and leather to the king for life,4 — such a grant as had never been Grant of a before made, — the parliament terminated its existence by Kfe.sldy for delegating its authority to a committee of eighteen members, who were empowered not only to hear petitions, but also " to examine and determine all matters and subjects which had been moved in the presence of the king, with all the dependencies thereof."6 In this wise, by bringing about the surrender of the authority of parliament into the hands of a committee, selected from those who were supposed to be his faithful adherents, Richard accomplished for a time the great consti tutional change to which his policy since the French mar riage had been openly directed. 1 Haxey was condemned under an 8 Rot. Pari, iii. p. 343- See Reeves, ex post facto ordinance passed by the Hist, of Eng. Law, vol. m. pp. 187, lords and the king. Rot. Pari., iii. pp. 315. „ , ... ,a «o iai Am _io8 * Pot Pari., 111. p. 368. 33*ibid, I P?°39. 6 Ibid., iii. pp. 369, 372, 38S- 512 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Reaction Although this daring usurpation, through which the king followed struck down the power of parliament, and secured for himself usurpation a revenue for life, was not at the moment resisted, the reac- costhimhis tion which followed it led directly to his deposition, and to his life. the transfer of the crown to the house of Lancaster. The opportunity for the counter-revolution grew out of a quarrel Quarrel be- which occurred in December, 1 397, between the Duke of foufand™" Norfolk and the son of John of Gaunt, Henry of Lancaster, Hereford. now Duke of Hereford. The settlement of the quarrel was referred by a committee of parliament ! to a court of chiv alry, which met in April, 1398, and in which it was decided that the quarrel between the two dukes should be settled by single combat at Coventry in the following September. When at the time appointed the dukes entered the lists, Richard forbade the combat, and sentenced Norfolk to ban ishment for life, and Henry of Lancaster to exile for six Henry of years. The exile thus forced upon the heir of Lancaster was (BdkTand soon followed by an act of confiscation. In January, 1399, his estates jonn 0f Gaunt died, and although special leave had been given Henry to receive his inheritance on the death of his father, Richard, under an ordinance passed by the parliamen tary committee,2 annulled the permission and seized the Lancastrian estates. Two months after that event the king left the realm in charge of his uncle, Edmund, Duke of York, as regent, and went to Ireland for the purpose of reducing it to complete subjection. An opportunity was thus promptly offered to the exiled and disinherited Henry not only to redress his own wrongs, but to become the leader of the counter-revolution through which the nation was to reestab lish, more firmly than ever before, the supremacy of parlia- Henry ment. On the 4th of July, 1399, Henry landed in Yorkshire, Yorkshire and as he marched rapidly to the south, with an army that Jui*i3499. &rew at every steP> a11 show of resistance broke down, the forces gathered by the regent refusing to oppose him. By the first of August, Henry was so completely in possession of the realm that when Richard landed in Wales all chance for a struggle was over. On the 2d of September the king was brought to London and placed in the Tower, and on the 30th 1 Rot Pari., iii. p. 383. pp. 49, 51 ; Stubbs, Const. Hist., vol. il 2 Ibid., iii. p. 372 ; Rymer, viii. pp. 500, 501. I.] FROM EDWARD I. TO HENRY IV. 513 of that month the parliament met in which his fate was to be decided. The procedure which was now employed was a substantial reproduction of that which seventy-two years before had attended the deposition of Edward II. On the Procedure day before the parliament met, Richard was required to sign a deposition deed of resignation in which he fully renounced his right to the fx Richard crown, and absolved his people from their oaths of homage and fealty.1 The parliament not only accepted the resigna tion, but in addition thereto pronounced a judgment of deposi tion, upon written articles presented against the king in which he was formally charged with every possible act of illegality and malversation.2 The throne having thus been made vacant, not only by Richard's own act, but by the act of parliament, the all-important question of the succession re mained to be determined. If that question had depended Theques- only on the strict rule of hereditary descent which the feudal suction! lawyers applied to the succession of estates, the crown would have now passed to Edmund Mortimer, the infant son of Roger Mortimer, Earl of March, son of Phillippa, the daugh ter and heiress of Lionel of Clarence, the third son of Edward III. But the strict rule of hereditary descent had not yet strict rule received positive and formal recognition in the case of the ^edreS«nt crown ; it had not yet superseded the immemorial right of "{fj^.^ the national council to choose, in the presence of a great crown. emergency, that member of the royal household whom it deemed most competent to govern.3 And yet the notion that the right to the throne depended upon the hereditary prin ciple had sufficiently advanced to prompt Henry, when he stood forth before the parliament to challenge the crown, to claim it " as that I am descended by right line of blood com ing from the good lord king Henry III."4 But this shadowy Henry's claim, which depended upon a false tradition, was too flimsy |h7re_u"t to conceal the patent fact that the new monarch had been %£&£*• raised to the throne through a parliamentary revolution, — revolution. 1 Ann. Ricardi, pp. 252, 255 seq. ; parliament to choose in such a case a Mon. Evesh., pp. 157 seq. On the next successor among any other members day the resignation was accepted. Rot, of the royal house." — Green, Hist of Pari., iii. p. 416 seq. the Eng. People, vol. i. p. 521. 2 Rot. Pari., iii. pp. 416-424. 4 See what Mr. Freeman has to say 8 "The strict rule of hereditary de- as to the growth of the hereditary doc- scent had never received any formal trine, in Enc. Brit, 9th ed. vol. vm. p. recognition in the case of the_ crown, 320. and precedent suggested a right of 514 THE GROWTH AND DECLINE OF PARLIAMENT. that the royal authority was for the future to rest upon a parliamentary title. And so it came to pass that the auda cious attempt made by Richard to subvert the constitution, by rendering the crown independent of the assembly of estates, not only became abortive the moment the nation under a competent leader was aroused to action, but it also fell out, as a consequence of the struggle, that the crown was placed in such a position of dependence upon the two houses as to render all such future attempts doubly perilous. Authority Through the results of the counter-revolution, the authority mentr '* °f parliament reached the limit of its growth when, after a reached, the struggle of scarcely two months' duration, it deposed the growth ruling sovereign ; and then, after ignoring the pretensions of resuiti of e the claimant who really represented the hereditary title, tionrevolu awarded the throne to another member of the royal house, whom it deemed more competent to govern.1 1 During the memorable crisis of to depose the king himself from his 1386 the parliament had warned the royal throne, and in his stead to raise king that a time might come when it up some other of the royal race upon would be " lawful for his people, by the same." — Knighton, c. 2683 ; Pari. their full and free assent and consent, Hist, i. p. 186. CHAPTER II. HISTORY OF PARLIAMENT FROM HENRY IV. TO HENRY VII. i. A point has now been reached from which it is possible Review of to review the general advance made by the parliament during ofpfrTia-' the period which intervenes between the Norman conquest J^o™1" and the end of the fourteenth century. During that period quest to the the feudal councils which gathered around the Norman and Henry iv. Angevin kings, with authority too vague and shadowy for precise definition, are gradually transformed into an assem bly of estates which wins not only the right to participate in taxation and legislation, but to supervise and control the en tire system of national administration. At the beginning of the period all of the great powers of government are central ized in the person of the king, acting ordinarily through his continual council composed of the officers of state and of the household, from which body emanated all the important acts of government, whether administrative, legislative, judi cial, fiscal, or political. At the end of the period we find The sum of that the sum of governmental power originally vested in the mental king in council has been vastly reduced through the opera- fn°awlyr ong" tion of two distinct processes of subtraction. In the first J^'kin"1' place, by the growth out of the continual council — which soon council re- came to be known as the curia regis 3 — of the common law double l*o- courts of king's bench, common pleas, and exchequer, the tractbm"1" greater part of the judicial work of the council was perma nently transferred to three distinct tribunals, each devoted to Greater . ¦ C All Part 0I '"e the hearing of a definite class of causes. And when at a judicial later day, out of the residuum of judicial power retained by ™°urnC°/ the the council, was developed the equitable jurisdiction of the '""hSgerred chancellor, the judicial functions of the crown were confined courts of within a still narrower circle. By the transfer thus brought entity. 1 The term curia regis, which for a into three distinct courts — which took long time after the Conquest was ap- place at the end of the reign of Henry plied not only to the continual but to III. — of the limited tribunal created the national council, finally became the out of the council by Henry II. in exclusive designation of the court of 1179. See above, pp, 248, 249. king's bench, after the final division 5i6 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Due pro cess of law defined. The assem bly of es- states draws to itself the control of the legisla tive, taxa tive, and fiscal busi ness of the kingdom. about of the greater part of the judicial business originally dispatched by the king in council to the great courts of law and equity, the central administration, in its judicial aspect, was transformed into a government of law as distinguished from a government of functionaries.1 In this way the prin ciple became settled that judicial controversies should no longer be determined by the mere force of royal authority, but by due process of law, — that is, by law administered in fixed tribunals by trained judges governed by principles and precedents drawn from the Old-English code of customary law as modified by Norman innovation. That the judicial work of the kingdom should be thus conducted was as late as the reign of Henry IV. made the subject of a special de mand in parliament : in 1406 the commons, as a part of the scheme of reform pressed upon the king in that year, demand that the council shall determine nothing cognizable at com mon law unless for reasonable cause and with the consent of the judges ; that the council and officers of state shall be sworn to observe the common law and all statutes, specially those recently enacted.2 In the second place, while the law courts were upon the one hand drawing to themselves the control of the bulk of the judicial work which had originally belonged to the king in council, the assembly of estates was upon the other struggling to draw to itself the exclusive con trol of the legislative, taxative, and fiscal business of the kingdom. But before the national assembly was in a position to essay so great a task, a reorganization had first to be ef fected in its own constitution, a result which was brought about by the building up alongside of the older feudal coun cil of a new and a popular body composed of representatives from the shires and towns. How these representative mem bers were called up to confer with the king upon the business 1 " The guarantee of the supremacy of the law leads to a principle which, so far as I know, it has never been at tempted to transplant from the soil in habited by Anglican people, and which, nevertheless, has been, in our system of liberty, the natural production of a thorough government of law as contra distinguished to a government of func tionaries." — Lieber, Civil Liberty and Self-Government, p. 91. 2 Rot. Pari., iii. pp. 585-589. A series of petitions begin as early as 1351 against the judicial usurpations of the council. See Rot. Pari., ii. pp. 228, 2.39, 295. In 1390 the commons peti tioned that no one should be sum moned before the chancellor or the council by the writ quibusdam de causis to answer in any case in which the common law gave a remedy. — Rot Pari., iii. p. 267. IL] FROM HENRY IV. TO HENRY VII. 517 of the kingdom as a matter of mere fiscal expediency, how they coalesced in the formation of the lower house, and how that house gradually won the right to participate in taxation and legislation, to impeach the ministers, to participate in the general control of the royal administration, and in the deposi tion of the king himself, has been drawn out already. In the parliament thus reconstructed the commons soon ceased to be mere auxiliaries of the baronial body : they became the more active and aggressive force in the new combination.1 By the end of the fourteenth century the parliament as an The five assembly of estates had won for itself the possession of five ^htspos? substantive rights which embraced all of the higher functions s|srifadmbent of government: I. The exclusive right to authorize both di- at the close .... . . ... ,of the f our- rect and indirect taxation ; and as an incident thereto the teenth cen- commons claimed the right to make the grant of supplies tury- dependent upon the redress of grievances. 2. The right to concur in the enactment, amendment, and repeal of all per manent acts of national legislation. 3. The right to super vise and control the royal administration ; and as incidents thereto (a) the right to appropriate the supplies to special purposes, (b) and to audit the accounts which explained the method of their expenditure. 4. The right to impeach and punish the ministers. 5. And finally the right to depose the king himself, and to vest the succession in another member of the royal house more competent to govern. And yet, when a summing up is made of the results of the Neither two processes of subtraction through which the bulk of the subtraction judicial business was transferred from the king and council exhaustive. to the great courts of law and equity on the one hand, and the virtual control of the legislative, taxative, and fiscal busi ness of the kingdom to the parliament on the other, the im portant fact remains that neither process was exhaustive. After the jurisdictions of the four great courts at Westmin ster had been fully and finally established, an undefined re- An unde- . , ..... .... ., fined re- Serve of judicial power still remained to the king in council, serve of — a reserve out of which at a later day grew the court of cfafancUeg. star chamber, a reserve which has reached our own time in j^™^ the form of the judicial committee of the privy council. In mains to . , _. A 1 • .the king in the same way, and about to the same, extent, the parliament, council. 1 See above, pp. 482-504. 5i8 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. A definition of the pre rogative. Definition of parlia mentary privilegesthe work of the fifteenthcentury. Privileges belongingto parlia ment as a whole : origin of the modernform of leg islation. in its effort to draw to itself the exclusive control of taxation and legislation, stopped short of complete victory. After persistent warfare, the assembly of estates finally extinguished, it is true, the taxative power of the king in council. But the effort made by parliament to win the exclusive control of leg islation was less conclusive. At the end of the struggle there still remained in the hands of the king in council an undefined reserve of legislative power which was for a long time exercised in the making and revoking of a class of tem porary enactments known as ordinances. When to the inher ent right of the crown to conduct the executive business of the kingdom are added the personal privileges incident to kingship, and the two remnants of judicial and legislative power which remain to the king in council after the full de velopment of the law courts and the parliament, the sum thus made up represents the aggregate of royal authority gen erally known in mediaeval and modern times as the prerogative. 2. By the end of the fourteenth century all of the substan tive powers of parliament had reached their full growth. During the fifteenth, no new powers are added. Nothing in fact transpires in the history of parliament during the latter period more important than the settlement of its principal forms of procedure, and the assertion and definition of privi leges 1 which belong either to the parliament as a whole, or to the respective houses of which it is composed, or to its indi vidual members. Chief among the privileges belonging to parliament as a whole, which received final definition during the fifteenth century, was that which involved the form in which the es tates should concur with the king in the enactment of legis lation. After the principle was settled that the concurrence of both houses in legislation was necessary, the common form of legislating throughout the fourteenth century was that initiated by the petitions of the commons, to which the king 1 " During this epoch, the parlia ment gained none of those signal vic tories which distinguished the reigns of Edward III. and Richard II. ; no really new right, no fundamental and previ ously unknown guarantee, were added to those already possessed. . . . The internal constitution of the parliament, especially during the course of this period, made important progress ; from this time we may date, with some de gree of accuracy, its principal forms of procedure, and its most essential privi leges." — Guizot, Hist. Rep. Govern ment, pp. 509, 510 (Scoble's trans.). IL] FROM HENRY IV. TO HENRY VII. 519 was expected to reply during the session of parliament. When the answer came it was entered, together with the. pe tition, in the parliament rolls, and out of the two, after the adjournment, the act itself was drawn and entered in the statute rolls. The manifold abuses and uncertainties which grew out of this loose and unguarded system have been ex plained already. To remedy the evils which grew out of this uncertain method of "extracting of the statute out of the petition and answer, about the latter end of Henry VI. and beginning of Edward IV they (the commons) took a course to reduce them, even in the first instance, into the full and complete forms of acts of parliament. " x After the passage of bills thus introduced in the lower house, they were sent to the lords, and if passed there they were presented to the king for approval or rejection without alteration. The new method buis may of legislation thus inaugurated by the commons was soon eith™ a'e m adopted by the lords ; and in time it became the settled law J^n' ex" of parliament that, with the exception of money bills, which money-bills, • • • 1 1 . , -n 1 • 1 and bills must originate with the commons, and bills touching the touching peerage, which must originate with the lords, all bills upon ePeerase- other subjects may originate in either house.2 In considering the privileges which belong to each house privileges as a constituent part of the high court of parliament, the J^hltwo fact must be remembered that, although each house exercises houses sep. ¦ • 1 * ^ ^ * _* « * 1 &T&tcXy j all its own privileges and usages independently of the other, they depend are enjoyed, not by any separate right peculiar to each, but gFe°c0deS.m" solely by virtue of the law and custom which appertains to parliament as a single body. "As every court of justice hath laws and customs for its direction, — some the civil and canon, some the common law, others their own peculiar laws and customs, — so the high court of parliament hath also its own peculiar law, called the lex et consuetudo parliamenti." 3 All parliamentary privileges rest upon the ancient law and custom of parliament considered simply as a part of the un written law of the land, or upon that law and custom as 1 Hale, Hist. Com. Law, vol. i. p. 18. as a constituent rjart of parliament, ex- See, also, Ruffhead's Statutes, preface; ercises its own privileges independently 2 As to the ancient mode of enact- of the other. They are enjoyed, how- ing laws, and the transition therefrom ever, not by any separate right peculiar to the modern system, see Sir T. Ers- to each, but solely by virtue of the law kine May, Pari. Practice, ch. xviii. and custom of parliament" — May, 8 Coke, 4 Inst., 15. "Each house, Pari. Prac, pp. 71, 72. 520 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Privileges ¦of the lords : .right of au- . dience. Presidency i of the lord i chancellor. ; Right to vote by proxy. Right to be tried by peers, and freedomfrom arrest. defined by statute. It has been said that the lords enjoy the. privileges possessed by them simply because "they have place and voice in parliament." x An enumeration of the most important of these privileges will do much to point out not only the difference in the usage of the two houses, but also the difference in the privileges possessed by the individual mem bers of the house of lords, as compared with the privileges pos sessed by the individual members of the house of commons. Foremost among the privileges possessed by the lords should be noted the right of each individual peer, as an hereditary counsellor of the crown, to have audience with his sovereign. As the corporate successor of the great council, the upper house possessed from the beginning the right to give counsel ; and only by personal access to the sovereign could that right be rendered efficacious.2 By reason no doubt of this close relation, the presidency of the upper house became vested in the officer most closely connected with the crown, the lord chancellor, or lord keeper of the great seal, who is prolocutor or speaker of the house of lords by pre scription, although not necessarily a member of that body.3 When a member he is invested with no more authority than any other peer ; when he is not, his office is limited to the putting of questions, and other merely formal proceedings. All speeches are addressed, not to him, but to the whole house.4 From the earliest times down to a very recent date, when the peers by a standing order voluntarily abolished it,6 every lord possessed the right to appoint another lord of parliament as his proxy to cast his vote, — a right orig inally exercised by virtue of a royal license which was seldom refused.6 Every peer possesses not only the right to be tried by his peers,7 but also immunity from arrest, not merely as a member of the house of lords, but as a baron of the realm, — an immunity which is not limited to the session of parliament, for the person of a peer is " forever sacred and inviolable." 8 1 Hakewell, p. 82. 2 See Diary and Correspondence of Lord Colchester, vol. iii. pp. 604-607. 8 See above, p. 480 and note 5. * May, Pari. Practice, pp. 243-246. 6 On the 31st May, 1868, the house of lords agreed to a standing order, " that the practice of calling for prox ies, on a division, shall be discontin ued." 6 For a list of the occasions upon which the permission to appoint prox ies was withheld, see Elsynge, Ancient Method of holding Parliaments, p. 117. 7 See above, p. 389, and note 1. 8 Stubbs, Const. Hist, vol. iii. p. 498. IL] FROM HENRY IV. TO HENRY VII. 52 1 Although each house is equally entitled to its own peculiar Privileges privileges under the same code of parliamentary law, the commons. term "privileges of parliament" is generally understood to relate more particularly to those which were won by the lower house during the period in which the united represen tatives of the commons were striving to win recognition as a coordinate factor in the assembly of estates. From the cus tom upon the part of the commons of submitting their priv ileges to the crown for confirmation, it would appear that such privileges were at first mere matters of i;oyal favor. "But whatever may have been the origin and cause of this custom, and however great the concession to the crown may appear, the privileges of the commons are nevertheless independent of the crown, and are enjoyed irrespective of their petition."1 First among the privileges established by the representative members was the right to organize as an independent cor- Right to porate body and to elect a speaker. As early as 1376 the 5™^. lower house formally completed its organization as a delib erative body by the election of Peter de la Mare as head officer,2 but the title of speaker was not then assigned him. In the next year the parliament rolls contain the first men tion of a speaker of the house of commons expressly named as such : " Monsieur Thomas de Hungerford, chivaler qi avoit les paroles pur les commons d'Engleterre en cest par- lement." 3 From that year the list of speakers is complete. The choice of a speaker was made by the commons under a command from the crown usually expressed at the close of the opening speech. After the election the speaker-elect His de- was presented by the commons to the king as their chosen rights'Lid* "parlour et procuratour!' After the speaker had expressed Pf"t"eeges his insufficiency for so great an office, it was usual for the house. crown to approve and confirm him as a speaker. After his confirmation it became his duty to claim of the crown, on behalf of the commons, all of their ancient and undoubted rights and privileges, and at the same time to request that his utterances might be considered as their utterances, that no offence should be taken at his words, and that all his shortcomings should be equitably considered. The usage has 1 May, Pari. Practice, pp. 69-71. " Rot. Pari., ii. p. 374- 2 See above, p. 480. speech. 522 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. The mod- been, since the sixth year of Henry VIII., for the speaker, the demand " in tne name and on behalf of the commons, to lay claim by andre: humble petition to their ancient and undoubted rights and privileges, particularly that their persons and servants might be free from arrests and all molestations ; that they may enjoy liberty of speech in all their debates ; may have access to her majesty's royal person whenever occasion shall re quire ; and that all their proceedings may receive from her majesty the most favorable construction." To this the lord chancellor replies, that "her majesty most readily confirms all the rights and privileges which have ever been granted to or conferred upon the commons by her majesty or any of her royal predecessors." : Freed™ of Although it may be reasonably assumed that freedom of speech was inherent in the constitution of parliament from the very beginning, it is nevertheless a fact that only after a long period of struggle with the crown was the privilege finally established upon a secure legal foundation. From Elsynge we learn that the " commons did oftentimes, under Edward III., discuss and debate amongst themselves many things concerning the king's prerogative, and agreed upon petitions for laws to be made directly against his prerogative, as may appear by divers of the said petitions ; yet they were never interrupted in their consultations, nor received check for the same, as may appear also by the answers to the said Haxey's petitions." 2 In the 20th of Richard II. , however, when Sir Thomas Haxey ventured to introduce a bill for the reforma tion of the royal household, that imperious monarch was quick to show that he was not animated by the tolerant spirit of his grandfather. The speaker was forced to give up the name of the offending member, and Haxey was condemned by the lords as a traitor. After the counter - revolution had placed Henry IV. upon the throne, Haxey exhibited a petition to the king in parliament to reverse the judgment against him as being "against the law and custom which had been before in parliament," and the prayer of the petition was granted with the assent of all the lords spiritual and temporal.3 Not content with this adjudication by the king 1 See May, Pari. Practice, pp. 68, 2 Ancient Method of holding Parlia- 69. ments, p. 177. 8 Rot. Pari., iii. p. 430. case. IL] FROM HENRY IV. TO HENRY VII. 523 and lords, the commons in the same year again took up the case and presented it in a petition to the king which prayed that the judgment should be reversed, " as well for the fur therance of justice as for the saving of the liberties of the commons." By the assent of the king and lords to the peti tion of the commons it was agreed by the whole legislature that the condemnation of Haxey, being in derogation of the privileges of parliament, " should be annulled and held to be of no force or effect." 1 In the 33d of Henry VI., Thomas Young's Young complained to the commons that five years before case' that time he had been imprisoned in the Tower "for matters by him showed in the house," which "matters" consisted of a motion that, as the king had no issue, the Duke of York might be declared heir-apparent. The petition was trans mitted to the lords, and the king " willed that the lords of his council do and provide for the said suppliant, as in their discretion shall be thought convenient and reasonable."2 The question of freedom of speech next arose in the 4th of Henry VIII. in the case of Strode, a member of the house, strode's who was prosecuted in the stannary court, fined and impris- case' oned, for having proposed certain bills to regulate the tinners in Cornwall.3 This violation of privilege led to an act which not only pronounced the proceeding against Strode void, but also declared that all similar proceedings that might be begun in the future against " the person or persons that now be of the present parliament, or that of any parliament thereafter, . shall be . . . utterly void and of none effect."4 Thirty years later the petition of the commons at the opening of parlia ment for the first time includes freedom of speech among their "ancient and undoubted rights and privileges."5 After frequent violations occurring after that time, the right of free debate was for the last time directly impeached in the famous Case of case against Eliot, Holies, and Valentine, against whom a Holies, judgment was obtained in the king's bench in the 5th year of Charles I. for their conduct in parliament. In 1641 the 1 Rot. Pari., iii. p. 434. common law, for the local redress of 2 Ibid., v. p. 337. private wrongs." — Taswell-Langmead, 8 Pari. Hist, vol. iv. p. 85. " The Eng. Const. Hist, p. 325, note 2. court of the stannaries of Cornwall 4 4 Henry VIII., c. 8. and Devon is a court of special juris- 6 Rot. Pari., 33 Henry VIII.; El- diction ... in derogation from the synge. Ancient Method, etc., p. 176. general jurisdiction of the courts of and Valen tine. 524 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. house of commons declared the proceedings in the king's bench to be against the law and privilege of parliament;1 and finally in April, 1668, the judgment of the king's bench was reversed, on a writ of error, by the house of lords.2 By Question the ninth article of the Bill of Rights it was declared, " That tied byBm the freedom of speech, and debates or proceedings in parlia- of Rights. ment; ought not to be impeached or questioned in any court or place out of parliament."3 Supply The statement has heretofore been made that during the pTndenf fourteenth century parliament established the exclusive right Kdress^f to authorize both direct and indirect taxation, and that as an grievances, incident thereto the commons claimed the right to make the grant of supplies dependent upon the redress of grievances. The claim thus set up by the commons to make supply de pend upon redress did not ripen, however, into a settled par- Doctrine liamentary privilege until the reign of Henry IV. As early fnthereign as the reign of Henry III. the principle was openly recog- jjjHenry nized by both the crown and the nation that concessions in favor of liberty moving from the former to the latter were legitimate subjects of bargain and sale. Of this fact Henry's confirmation of the charters in 1225, in which the king openly admits that the concessions made to the three estates are in consideration of a grant of " a fifteenth part of all their mov able goods," may be cited as a familiar illustration. But in parliamentary practice the difficulty was to secure for the . principle a practical operation. When a grant was asked, it became the custom for the commons to put forward in a peti tion to the crown such grievances as required amendment at originally the hands of the king and his council. The discussion of preceded grievances thus became preliminary to the discussion of the the redress. grantj which had to be made simply upon the hope that the prayer of the petition would be followed by adequate redress.4 To obtain definite answers to petitions, much less actual re dress of grievances, before the close of parliament, was an undertaking always attended with great difficulty. It was usual for the king to wait until the last day of the session, and then to give such answers as he saw fit after the grants 1 Com. Journal, ii. p. 203. Upon the whole subject, see May, 2 Lords' fournal, xii. p. 223. Pari. Practice, pp. 118-123. 8 1 Will, and Mary, sess. 2, c. 2. * See above, p. 493. IL] FROM HENRY IV. TO HENRY VII. 525 had all been made. Any attempt to change this order of proceeding was declared by Richard II.'s judges to be high treason.1 In the third year of Henry IV the lower house Finally the grew bold enough, however, to attempt to bring about the de- vdthheid sired change by availing themselves of the king's necessities, "^ons When, in the parliament of 1401, supplies were asked, the are an- commons put forward many demands, and, among others, that before they made any grants, answers should first be made to their petitions. Although the king promised to con fer with the lords on the subject, he withheld his reply until the last day of the session, and then answered "that this mode of proceeding had not been seen or used in the time of his progenitors or predecessors, that they should have any answer to their petitions before they had shown and done all their business of parliament, whether it were matter of a grant or otherwise ; the king would not in any way change the good customs and usages made and used of ancient times." 2 The effect of this peremptory refusal seems, however, to have been soon overcome by the practice which grew up shortly after that event of delaying the grant until the last day of the session, by which time all the more important petitions were probably disposed of.3 The right to make supply de pend upon redress was thus finally established by the employ ment .of a simple yet potent expedient. At a little later day in the same reign (9 Henry IV.) a col- au money lision took place between the two houses which gave rise to origSinate in the earliest declaration of two principles of parliamentary law ^nsTking which have since become of primary importance : First, that shall not • tiikc notice all money bills shall originate in the house of commons ; of matters second, that the king shall not take notice of matters debated p^^ent in parliament until after a conclusion is reached in both g^°gthe houses, and such conclusion brought before him by their con sent and authority. After a debate by the lords in the pres ence of the king upon the state of the kingdom, the former undertook to specify what subsidies were necessary for the national defence. Whereupon the king requested the com mons to send a committee to the lords to ascertain their views and to report the same to their house, " to the end that they 1 Hallam, M. A., vol. iii. p. 85. 8 This is the inference of Bishop 2 Rot. Pari., iii. p. 458. Stubbs, Const. Hist, vol. m. p. 263. 526 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. might take the shortest course to comply with the intention of the said lords." A deputation of twelve from the com mons then attended upon the lords and reported to their fel lows. But when such report was received the lower house was not slow to manifest its alarm at the proceeding, " saying and affirming it to be much to the prejudice and derogation of their liberties." From the entry in the roll it appears that " after that our lord the king had heard this, not willing that anything should be done at present, or in time to come, that might anywise turn against the liberty of the estate for which they are come to parliament,1 nor against the liberties of the lords, — wills and grants, and declares, by the advice and assent of the lords, in manner following : that it shall be law ful for the lords to commune amongst themselves in this present parliament, and in every other in time to come, in the absence of the king, Of the state of the realm, and of the remedy necessary for the same. And that in like manner it shall be lawful for the commons, on their part, to commune together of the state and remedy aforesaid. Provided always that the lords on their part, and the commons.on their part, shall not make any report to our said lord the king of any grant by the commons granted, and by the lords assented to, nor of the communications of the said grant, before the lords and commons shall be of one assent and one accord in such mat ters, and then in manner and form accustomed, that is to say, by the mouth of the speaker of the commons, in order that the lords and commons may have their will of our said lord the king." 2 Right of As all members of the house of commons were chosen monTS under the writ directed to the sheriff of each county com- reguiate manding him to return two knights from the shire, and two elections. ° ° citizens or burgesses for each city or borough within his baili wick, it came to be a matter of vital importance to the lower house to regulate by law both the procedure of the sheriff under the writ, and the qualification of the electors by whom the representative members were chosen. The conclusion has 1 " The true position of the house of note I. To the same effect, see above, commons, as not being in itself an es- p. 337 and note 3. tate of the realm but the representative 2 Rot. Pari., iii. p. 61 1 ; Middle Ages, of the estate of the commons of Eng- vol. iii. pp. 100-102. See, also, Lords' land, is here expressed." — Taswell- Report, vol. i. pp. 358, 359. Langmead, Eng. Const. Hist, p. 313, IL] FROM HENRY IV. TO HENRY VII. 527 heretofore been reached that from the beginning of the rep resentative system the right to choose the elected knights was not limited to the lesser tenants-in-chief, but was vested in the whole body of freeholders assembled in the county court.1 When in 1376 the commons, in order to prevent the malpractice of the sheriffs in returning members without due election, petitioned that the knights of the shire should be chosen by common election of the better folk of the shires, Edward III. answered that the knights should be chosen by the common assent of the whole county.2 This declaration of what was no doubt the earlier custom 3 was first incorpo rated into a positive law when the statute of 7th Henry IV The fran- c. 1 5 undertook to fix the franchise upon a definite and popu- Sated by8"" lar basis by providing "that at the next county (court) to be Sfnl™ holden after the delivery of the writ, proclamation should be lv- made, in full county (court), of the day and place of the par liament, and that all they that be there present, as well suit ors duly summoned for the same cause as others, shall attend to the election of the knights for the parliament ; and then, in full county, they shall proceed to the election, freely and indifferently, notwithstanding any request or command to the contrary." This statute, which recognized the fact that the franchise was vested not only in all freeholders but in the whole body of persons assembled in the county court on the day of the election, was seriously modified, however, by the statute of 8th Henry VI. c. 7, which is said to be the first The dis- disfranchising act to be found on the statute-books of Eng- s™ute1SofS land. This act, after complaining that the election of knights **£ ^e?nry of the shire had lately been made " by very great, outrageous, and excessive number of people dwelling within the same counties, of the which most part was people of small sub stance and of no value," restricted the qualification of county electors not only to freeholders, but to such only as " have free land or tenement to the value of forty shillings by the year at least above all charges." The qualification of county electors, thus fixed at the end of the middle ages, remained 1 See above, pp. 467, 468. note. It has been contended, however, 2 Rot. Pari., ii. p. 355. that the act of 1406 extended the suf- 8 As to the effect of this act as a. frage. See Homersham Cox, Ancient declaration of the earlier custom, see Parliamentary Elections, p. 105. Stubbs, Const. Hist., vol. iii. p. 406 and 528 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. The com mons regu late by law the sheriff's procedurein elec tions. Right of commons to try con tested elec tions. unchanged until late in the first half of the present century. The omissions and commissions of which the sheriffs were guilty in the execution of the writs under which the repre sentative members were chosen soon brought about legisla tion designed for their correction. In the 5th of Richard II. a statute was passed which provided that if any sheriff should fail to make return to a parliamentary writ, or should omit from such return any city or borough which had been for merly accustomed to send members to parliament, he should be punished by fine.1 In the next reign this regulation was followed by the notable statute of 1406 (7th Henry IV. c. 15), made " on the grievous complaint of the commons of the un due election of the knights of shires for parliament," which provided that the election should be held in the first county court holden after the receipt of the writ ; that the election should be made in full county court by those present ; and that after the election the names of the persons chosen " shall be written in an indenture under the seals of them that did choose them." 2 Prior to this statute it was the duty of the sheriff to report to parliament the names of the elected members, together with the writ ; afterwards the return, which was declared to be the indenture tacked to the writ, was sent into chancery. A little later in the same reign (nth Henry IV. c. 1) an act was passed which gave to the justices of assize the power to inquire into the returns, and to fine the sheriffs for returning persons not duly elected. This measure was supplemented and rendered more effective by the act of 1445 (23d Henry IV. c. 14), to which refer ence has been made already.3 At a time when it was necessary for the crown to require security from the elected members for their appearance in parliament, it is hardly to be expected that we should find instances of contested elections in the sense in which that term is now understood. Such instances of disputed or contested elections as the mediaeval records do contain clearly disclose the fact that the house of commons in the early days did not presume to claim for itself the right to of these indentures, see 1 5th Richard II. st. ii. c. 4. specimens 2 See above, p. 472 and note 1. For Prynne, 2d Register, pp. 128-132. 8 See above, p. 472. IL] FROM HENRY IV. TO HENRY VII. 529 determine contested elections ; that such right was originally Right origi- claimed, and for a long time exercised, by the king with the tXlvb£ aid of his council, or with the help of the lords. After the in councU- return was made the king, with the aid of the council or of the lords, took cognizance of all disputes which grew out of the election.1 The earliest instance of the commons being associated with the consideration of such questions occurred in the 7th Richard II. (1384), when the borough of Shaftes bury petitioned the king, lords, and commons, complained of a false return wherein the sheriff of Dorset had substituted the name of a person not elected, and prayed remedy.2 Twenty years later (1404) the commons prayed the king and lords in parliament that an improper return, wherein the sheriff of Rutland had returned a person as elected who had not been elected, might be examined in parliament, and pun ishment inflicted in the event the sheriff should be found guilty. The lords, after sending for the sheriff and the two contestants, and after due investigation, ordered the return to be amended by the substitution of the name of Thorp, the person really elected, in lieu of that of Ondeby, improperly returned by the sheriff, who, by reason of his misconduct, was removed from office.3 Two years after this occurrence the act of 1406 was passed requiring the sheriff to make return by indenture, which, together with the writ, were sent into chancery. After the arbitrary power of the sheriffs was thus cut off by a regulation which virtually permitted the electors themselves to make the return, the act of 1410 was passed, which gave to the justices of assize the power to justices of inquire into the returns, and to fine the sheriffs for returning powertTS persons not duly elected.4 But even after the passage of this ?heirree.Srns. act placing the conduct of elections under the supervision of the justices of assize, it is probable that the ultimate right to pass upon the validity of the return remained to the king, assisted by the lords, or by the judges only. It seems to be clear that down to the end of the fifteenth century the com mons had never thought of claiming the right to hear and determine all matters touching the validity of their own 1 Cf. Stubbs, Const Hist, vol. iii. pp. 8 Rot. Pari., iii. p. 53°; Hallam, 421-423. Middle Ages, vol. iii. p. no. 2 Prynne, 4th Register, p. 261 j Carew 4 See above, p. 528. on Elections, p. 118. 530 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Right to determinevalidity of election first as serted by the com mons in the reign of Elizabeth. Right finally set tled in the reign of James I. elections. In the reign of Elizabeth this right was for the first time distinctly asserted in a case in which the lower house ventured to examine into the circumstances attending an irregular election that had occurred in the county of Nor folk. Owing to some defect in the first return from that county, the chancellor had issued a second writ, under which a different member was chosen. Although the queen, after the matter had been noticed by the commons, directed the speaker to express her displeasure that "the house had been troubled with a thing impertinent for them to deal with, and only belonging to the charge and office of the lord chan cellor," a committee was nevertheless appointed to inves tigate the matter, and a report was made in favor of the members elected under the first writ. In their report, which was agreed to by the whole house, the committee took occa sion to say that "they had not thought it proper to inquire of the chancellor what he had done, because they thought it prejudicial to the privilege of the house to have the same determined by others than such as were members thereof." ] An important issue again arose between the crown and the commons when upon the accession of James I. a royal procla mation was issued which undertook to specify what kind of persons should be chosen, " bankrupts and outlaws " being specially excepted. Under the terms of the exception the clerk of the crown refused to receive the return of the elec tion of Sir F. Goodwin, chosen for the county of Buckingham, for the reason that some years before he had been outlawed. A second writ was issued, under which Sir John Fortescue was chosen. When the matter was brought before the house the election of Goodwin was sustained, and he was ordered to take his seat. In the course of the controversy which followed, the king maintained not only that outlaws had no right to sit, but that the house had no right to meddle with returns which were made into the court of chancery, and which were within its exclusive jurisdiction. James further declared that "he had no purpose to impeach their privileges, but since they derived all matters of privilege from him, and by his grant, he expected that they should not be turned against him." He then invited the commons to confer with 1 D'Ewes, Journal, p. 393 ; Hallam, Const. Hist, vol. i. p. 275. IL] FROM HENRY IV. TO HENRY VII. 531 the judges, and upon their failure to do so he attempted to force them to confer by commanding them as an absolute king. Finally, as a compromise of the whole matter, the commons brought in a bill prohibiting outlaws from sitting in parliament in future, and as a personal favor to the king the elections of both Goodwin and Fortescue were set aside ; James admitting on his part, in an interview with a committee of the commons, that they were the proper judges of the returns.1 From that time the commons never failed to assert their exclusive right to decide upon the legal validity of the returns, and the conduct of the returning officers in making them, — a right which was recognized and affirmed in turn by the house of lords, by the courts of law, and finally by an act of parliament (7 William III. c. 7) which declared that "the last determination of the house of commons con cerning the right of elections is to be pursued." 2 Leaving out of view the immunity from arrest which the immunity peers enjoy, not merely as members of the upper house but °f Su™d"S as barons of the realm, a brief statement will be made of the andpariia- • • re r , 1 ments from origin of the right of freedom from personal molestation and personal legal arrest which, from the earliest times, has belonged to tion. members of the English national assembly. From the very beginning of national councils in England, the persons of those who attended such assemblies were protected by law while going to and fro. By a law of iEthelberht, provision Laws of was made that "if the king called his 'leod' (people) to him berhtjcnut, (i. e. to the gemot) and any one there do them evil, let him ^dt^d' compensate with a twofold 'bot' (satisfaction) and fifty shil lings to the king." 3 This law, made at the end of the sixth century, was succeeded early in the eleventh by a law of Cnut, which provided " that every man be entitled to grith (freedom from molestation) to the gemot and from the gemot, except he be.a notorious thief." 4 The same immunity was recognized in the laws of the Confessor in favor of persons going to and from the synods.6 After the Conquest, the 1 Commons Journal, vol. i. pp. 149- low's case, 2 Ventris, p. 37 ; Prideaux 169 ; Pari. Hist., vol. i. pp. 993-1017 ; v. Morris, 2 Salkeld, p. 502. Gardiner, Hist, of Eng., vol. 1. pp. 185- 8 _Ethelbert, § 1 ; Select Charters, p. 188. 61 j Kemble, Saxons in England, vol. 2 See Taswell-Langmead, Eng. Const, ii. p. 33. Hist, p. 341, citing Barnardiston v. 4 Cnut, § 83 ; Select Charters, p. 74. Soame , 6 Howell St. Tr. 1092 j Ons- 6 LI. Eadw. Conf., art. 2, cl. 8. Cf. Blackstone, Comm., bk. i. p. 165. 532 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. persons who responded to the writs under which the parlia ments were convened still retained without any fresh enact ment the protection guaranteed by the earlier laws, — the sovereign who issued the writs placing under his protection, while going to and fro, the persons who obeyed them. This protection extended not only over the period occupied by the parliament, but, as was generally claimed, over a period of forty days before and after each session.1 And it was held that this immunity extended not only to the members them- immunity selves, but to their servants. Such the privilege was de- servants. ° clared to be by statute in the 5th Henry IV. c. 6, in the special case of Chedder, a member's servant beaten by one Savage, who was required to surrender in the king's bench, and in default to pay twofold damages to the party injured, stat. of besides the fine to the king.2 By a general law passed in vi. enry nth Henry VI. c. 11, a penalty identical with that imposed by the law of ^Ethelred was fixed in all cases of affray or assault upon any member of either house coming to council or parliament under the king's command.3 Exemption The immunity from personal molestation thus enjoyed by arrStand tne members and their servants was also held to exempt distress. both, together with their property, from legal arrest, and dis tress in civil suits, during the period over which the privilege extended. When Edward I. was petitioned by the Master of the Temple for leave to distrain for rent of a house held of Cases of him by the Bishop of St. David's, he replied that " it does not st? David's seem fit that the king should grant that they who are of his rfMaiton council should be distrained in time of parliament."4 And Edward II. in 13 15 recognized the privilege by resenting the arrest of the Prior of Malton while on his way from parlia ment, not only as an offence to the prior, but as a breach of the king's peace and dignity.6 But in spite of frequent prior recognitions, this privilege was openly violated in the famous Thorpe's case of Thomas Thorpe, speaker of the commons, who, dur ing a prorogation of parliament, was in 1453 imprisoned on 1 For the authorities touching the 8 Statutes, ii. p. 286 ; Rot Pari., iv. duration of the privilege, see May, p. 453. Pari. Practice, p. 139. i Rot. Pari., i. p. 61. See, also, 2 Statutes, ii. p. 144 ; Rot. Pari., iii. Coke, 4th Inst, 24 E ; Hatsell, Prece- p. 542- dents, i. p. 3. 6 Hatsell, Precedents, i. p. 12. case. IL] FROM HENRY IV. TO HENRY VII. 533 an execution issued out of the exchequer for the non-pay ment of a fine due the king for a trespass committed in the seizure of certain property belonging to the Duke of York. When the commons complained to the king and lords, and demanded the release of their speaker, the judges were con sulted, and they, after protesting that "the determination and knowlegge of that Privelegge belongeth to the Lordes of the Parlement, and not to the Justices," nevertheless took occasion to assert that " if any persone that is a membre of this high Court of Parlement be arested in suche cases as be not for treason or felony, or suerte of the peas, or for a con- dempnation hadde before the Parlement, it is used that all such persones shuld be relessed of such arrestes, and make an Attourney, so that they may have theire fredom and liber- tee frely to entende upon the Parlement." In spite, however, of the opinion of the judges, the lords — influenced no doubt by the fact that Thorpe was an enemy of the Duke of York, who was then dominant — held that notwithstanding his privilege he should remain in prison ; and the commons were - directed in the king's name to proceed to the election of a new speaker, which they did the next day.1 The practical difficulty under which the commons labored, Authority and which the case of Thorpe disclosed, was that, although ofthemac& the right to freedom from arrest had been established by the highest legal authority, the house itself possessed no inde pendent means for its enforcement. Not until the middle of the sixteenth century did the commons ever attempt to de liver a member out of custody by virtue of their own un aided authority. Prior to that time, when " members were in execution, in order to save the rights of the plaintiff, they obtained special statutes to authorize the lord chancellor to issue writs for their release ; and when confined on mesne writs of ' privilege process only, they were delivered by a writ of privilege issued at first is- by the lord chancellor."2 In 1543 the commons first asserted f^-dchan-6 their right to release a member by their own authority in the celIor" case of Ferrers, a member held in custody in a civil suit ase. 1 Rot Pari., v. pp. 239, 240. It was 2 May, Pari. Practice, p. 130, citing afterwards said in parliament that this cases of Larke, Clerk, Hyde, and At- case was " begotten by the iniquity of wyll ; Rot Pari., iv. p. 357 ; Ibid., v. the times." — Commons Journal, i. p. p. 374; Ibid., vi. pp. 160, 191 ; Sadcliffs 546. case, Hatsell, Precedents, i. p. 51. 134 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. The privi lege as de fined by statute in 1770. Right of conference with the lords. under a writ issued from the king's bench. When the house, hearing of the arrest, sent their sergeant to demand the re lease of the member, he was at first resisted by the jailers and sheriffs of London, but when the* sergeant was sent a second time the prisoner was promptly surrendered. As a vindication of its dignity, the house committed for contempt not only the jailers and sheriffs, but even the plaintiff in the suit. When these energetic measures were reported to the king, he earnestly commended the action of the commons in the presence of the judges, the speaker, and other leading members of the house ; and, when he had finished, his views were confirmed by the lord chief justice.1 Although after that time members were released by writs of privilege when obtained by the permission or warrant of the speaker, the case of Ferrers may be regarded as establishing the right of the commons to release a member from custody by the war rant of the mace alone. The privilege in its widest form, giving rise to many abuses, was restricted from time to time by statute,2 until at last, in 1770, an act3 was passed by which it was reduced to its ancient limits ; that is to say, freedom from arrest was guaranteed to the persons of members only, their servants and their property being left subject to ordinary legal procedure. At no time was the privilege ever allowed to interfere with the administration of criminal justice, — im prisonment for treason, felony, or for security of the peace at all times being excepted from its operation.4 In the parliament of 1402 the commons made a fresh and formal demand for the exercise of a privilege which had no doubt existed in some form from the very organization of the parliamentary system, — the privilege of conferring with the lords upon all pending questions of importance which called for concurrent action. Although the lords claimed that it 1 .This case rests upon the authority of Holinshed (i. p. 824), and not upon parliamentary records. As to the accu racy of the account, see May, Pari. Practice, p. 132. 2 12 & 13 Will. III. c. 3; 2 & 3 Anne, c. 18; 11 Geo. II. c. 24. 3 10 Geo. III. c. 50. It has been held that the arrest of a member is irregular ab initio, and that he may be discharged immediately upon motion in the court from which the process is sued. See Colonel Pitt's case, Strange, vol. ii. p. 985. 4 As to the limits of privilege in case of open contempt of a court of justice, see May, Pari. Practice, p. 160. In the case referred to, Cockburn, C. J., after fining two members for contempt in connection with the " Tichborne Case," said if he had seen fit to commit them, he would not have been restrained by privilege. II.] FROM HENRY IV. TO HENRY VII. 535 was the duty of the commons to debate among themselves and then to report their views to them, and although the commons often claimed the right when a conference was to be had of selecting the lords with whom they were to con fer, the usual course seems to have been for each body to appoint a committee to confer with a similar committee from the other, and then after consultation each committee re ported the result to its own house. In 1373 the first instance occurs of the commons requesting the lords to appoint a se lect body to confer with them.1 In 1383 the commons renew the request for a committee of conference from the lords, and couple with it the request that they be allowed to elect the lords of whom the committee should be composed. Richard 1 1., in yielding to the request as a matter of grace, was careful to assert that the right of selection claimed be longed, not to the commons, but to the king himself.2 When, in the parliament of 1402, the commons demanded of Henry IV. the right to confer with a select committee from the lords touching certain important matters he had given them in charge, he yielded to the request, but with the express statement that he did so as a matter of favor and not as a matter of right.3 3. The effort made in the preceding chapter to outline The house the history of parliament during the fourteenth century con- °er- ancas" eluded with the statement that its authority reached the limit of its growth when, after a struggle of scarcely two months' duration, it deposed the ruling sovereign in the person of Richard IL, and then, after ignoring the claimant who really represented the hereditary title, awarded the crown to an other member of the royal house whom it deemed more competent to govern.4 After Henry of Lancaster had stood forth in the assembly of estates at Westminster Hall, and had challenged and claimed the kingdom of England and the crown thereof, by reason of conquest, inheritance, and Richard's resignation,5 the estates there assembled were con- 1 Rot Pari., ii. p. 317. tween the houses, see May, Pari. Prac- 2 Ibid., iii. p. 145 ; Hallam, M. A., tice, pp. 490-496. vol. iii. p. 66. 4 See above, p. 514. 8 Rot. Pari., iii. p. 486. Cf. Stubbs, 6 These are the three grounds as Const. Hist, vol. ii. pp. 426, 465. 593! stated by Froissart, iv, x453- final loss of Aquitaine, now turned the tide against him. His arrest in December broke his power with the council, and in March of the next year York, whose influence was su preme, was chosen protector.1 The advantage thus gained Yorkpro- by York was, however, of but short duration; early in 1455 tector' the king recovered, the protectorate was terminated, and Somerset released from custody. No recourse now being left to York but arms, with Salisbury and Warwick at his back he marched upon the king, and in May the first battle with the of St. Alban's was fought, in which Somerset was slain and 0f st.Ai-6 York completely victorious. With this fight, which was but ^?'J^y' little more than a skirmish, the civil war begins. war begins. York, timid to the last in putting forward his claim to the York's royal office, demanded no more after his victory at St. Al- teSorate"0" ban's than the first place in the council, and the calling of a parliament to which he could appeal for an approval of his policy. The parliament which met in July 2 was prorogued until November, and in the interval the king again became insane, rendering necessary a second protectorate. At the re quest of the commons the lords nominated York as protector, and the king confirmed the nomination, with a subsequent proviso that the government should be vested in the council, with the duke as its head.3 The ascendency thus secured by York,' who now held in his grasp the royal authority, the demented king, and the infant heir, forced the leadership of the Lancastrian cause upon its natural defender, the indomi table and despotic Margaret of Anjou. Fortune favored her Margaret at the outset : in February; 1456, the king recovered his rea- feXship6 son, and the duke's second protectorate came suddenly to an fj^t™ end.4 The three years of peace which now ensued, during cause. which a great formal pacification took place in March, 1458,5 their return, see Lingard, vol. iii. p. 4 Rot. Pari., v. pp. 321, 322; 209. Fadera, xi. p. 373. See Paston Letters, 1 Rot. Pari., v. p. 242. i. 378, as to the queen's disposition 2 Lords' Report, iv. p. 936. towards the duke. 8 Rot. Parl.,v. 284-290; Fadera, xi. 6 Fabyan, p. 464; Hal1. P- I72J ras- pp. 369, 370. ton Letters, i. pp. 424-427- 558 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. between York and Margaret, at St. Paul's, were simply the prelude during which both factions were marshalling their forces for the final appeal to arms. Despite the victory won Battle of by Salisbury over the forces of Lord Audley at Bloreheath, in Sept, 1*459! September, 1459, the duke was soon driven through deser- York'saiis- t*ons to seek sneiter m Ireland, while his great lieutenants, bury,' and Salisbury and Warwick, took refuge at Calais. From these safe retreats York and Warwick were busy concerting a fresh attack upon the kingdom, while Margaret, in the parlia ment which met at Coventry in November, was striving to complete the ruin of the Yorkist lords by bills of attainder.1 In June, 1460, Warwick and Salisbury, with York's eldest son, the future Edward IV, landed in Kent, and, after pub lishing a manifesto2 severely arraigning the royal advisers, marched with a great popular following at their backs upon London, where they were joyfully received early in July. On York the ioth of that month a decisive battle was fought at North- Norttfamp3* ampton 3 which resulted in a great slaughter of the Lancas- ton< JuI^ trian lords, the capture of the king, and the flight of Marga- state's his ret to Scotland. Richard's hour of triumph had now come, cro™.0 ^ and with it came the necessity of propounding to the nation the definitive claim of his house to the royal office. In an as sembly of estates which met on the 7th of October, after the repeal of the acts of the Coventry parliament,4 Richard, whose right as heir-presumptive to the crown by virtue of his descent from Edmund of Langley had been cut off by the birth of a son to Henry and Margaret, finally rested his claim to the crown solely upon his descent from Edward III. through the house of Mortimer.5 To Richard's claim as thus propounded the lords, who were consulted as to its suffi ciency, stated five objections,6 which were scarcely so con vincing as that of the king himself, who when questioned upon the subject thus replied: "My father was king; his father was also king ; I myself have worn the crown forty 1 Rot Pari., v. pp. 346-350. consulted, but they replied that it was 2 Stow, pp., 407, 408; Eng. Chr., not a question for them to decide. On pp. 86, 87. this subject it was that Sir John For- 8 Eng. Chr., pp. 95-97; Wore, p. tescue afterwards wrote his Defensio 773 ! Gregory, p. 207. Juris Domus Lancastria, which may * Rot. Pari., v. p. 374. be found in the first volume of the Cler- 6 Ibid., v. p. 375. mont ed., 1869, pp. 505-516. 6 Ibid., v. p. 376. The judges were IL] FROM HENRY IV. TO HENRY VII. 559 years from my cradle : you have all sworn fealty to me as your sovereign, and your fathers have done the like to mine. How, then, can my right be disputed?"1 The answer to Acompro- this cogent question was found in a compromise wherein ^ur^the it was agreed that Henry should " keep the crown and his succession estate and dignity royal during his life, and the said duke house of and his heirs to succeed him in the same" at his death.2 Henry's This settlement, which forever cut off the rights of her son, death- was accepted by Margaret as a fresh challenge to arms. Rapidly gathering forces in the north in the king's name,3 in December she met York and Salisbury at Wakefield, and after a bloody fight York was slain and Salisbury captured York slain and beheaded at Pomfret.4 But the fall of the duke was no %^^ overthrow of the cause of York, — it was simply an incident Dec-; '460. through which the leadership of that cause was transmitted to a more crafty, a more merciless, a more brilliant defender. The young Edward, who at the time of his father's fall was gathering forces on the Welsh marches, now took the lead, and in February, 146 1, won a battle at Mortimer's Cross,5 just two weeks prior to Warwick's defeat in the second bat tle at St. Alban's. After that event Edward and Warwick joined forces and entered London, where on the ist of March Chancellor Neville explained to an assembly of citizens the nature of Edward's title. On the 4th, after seizing the crown Edward iv. and sceptre of Edward the Confessor, he was proclaimed crown 'and king at Westminster under the title of Edward IV.6 Thus, ^^ not only without the authority of parliament, but in open de- ster, March fiance of the acts through which it had settled and confirmed virtue'of y the succession in the house of Lancaster, the heir of York jj^ "^ seized the crown and entered into possession of the royal office as an estate which he claimed belonged to him by the unaided force of his hereditary title. Although parliamentary sanction followed, Edward's reign, in contemplation of law, dates from the day upon which he asserted his hereditary 1 Blackm., 305; Lingard, vol. iii. p. Gregory, Chr., p. 215. Cf. Stubbs, Const. 223. Hist, vol. iii. p. 189. Although there 2 Rot. Pari., v. 375-383. may have been no formal parliamen- 8 Whethamstede, i. p. 381. tary election, the authorities clearly 4 Eng. Chr., p. 107. show that the technical claim of lnde- 6 W. Wore, pp. 775, 776 ; Eng. feasible hereditary right drew its prac- Chr., p. no. tical vitality from the genera', approval 6 Hardyng, p. 406 ; Eng. Chr., p. expressed through the forms of a pop- 110; Whethamstede, i. pp. 405-407; ular election. 560 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Decisive battle of Towton Field, March 29, 1461. Outline of the consti tution by Sir John Fortescue. All govern ments di vided into threeclasses. claim by the seizure of the crown and sceptre at Westmin ster. But although Edward was now king at London and in the south of England, the decisive struggle of the civil war was yet to come. Robbed of the capital, Margaret had with drawn with her army to Yorkshire, the Lancastrian strong hold in the north, and there on the 29th of March, 146 1, was fought the bloody battle of Towton Field, in which the two armies numbered together nearly one hundred and twenty thousand men.1 After a desperate conflict Edward was com pletely victorious : the Earl of Northumberland and the lords Wells and Neville were among the slain ; the earls of Devon shire and Wiltshire were taken and executed ; Margaret, with the king and heir, was forced to seek refuge in Scotland ; the war of the succession was practically at an end,2 — the cause of Lancaster was lost. , 7. No attempt to outline the form which the English con stitutional system assumed during the fourteenth and fifteenth centuries should fail to embrace some allusion to the accounts given of that system by Sir John Fortescue, the great Lan castrian lawyer, who attended Queen Margaret in her exile on the Continent, where he seems to have undertaken, for a time at least, the political education of the heir-apparent. From the De Laudibus Legum Anglice, which was designed to in struct the prince how he should rule over the English ; from the De Dominio Regali et Politico, a Treatise on Absolute and Limited Monarchy, and in particular on the Monarchy of England ; and from the De Natura Legis Natures? — it is pos sible to draw something like a definite idea of the extent to which the English kingship had become limited towards the end of the fifteenth century by the growth of the parliament on the one hand, and by the growth of the system oi legal ad ministration on the other. Under the influence of mediaeval political ideas, the writer divides all governments into three classes ; the first of which he describes as regal government (dominium regale), the second as political government (domin- 8 These three treatises are contained in the first volume of the sumptuous edi tion of the works of Sir John Fortescue, printed for private distribution by Lord Clermont in 1869 in two volumes quarto The first volume of this, the only com plete edition of the works of Sir Tohn, 1 See Green, Hist. Eng. People, vol. i. p. 575. 2 " By the surrender of Berwick to the Scots, in April, the fall of the house of Lancaster was recognized as final." — Stubbs, Const. Hist, vol. iii. p. 190, citing Hall, p. 256. IL] FROM HENRY IV. TO HENRY VII. 561 ium politicum), and the third as government of a mixed na ture, regal and political (dominium regale et politicum)? To the third class England belongs. The contrast is then sharply - drawn between the absolute regal government of France, where the civil law prevails, and the limited regal and politi cal monarchy of England, where the common law prevails.2 The maxim of the civilians, that "what has pleased the prince has the force of law,"3 has no place in the English system. The king of England is a rex politicus : 4 he cannot, King of "at his pleasure, make any alterations in the laws of the f^po'itt^ land, for the nature of his government is not only regal, but ims- political. Had it been merely regal, he would have a power to make what innovations and alterations he pleased in the laws of the kingdom, impose talliage and other hardships upon the people, whether they would or no, without their consent, which sort of government the civil laws point out when they declare Quodprincipi placuit legis habet vigorem : QUOd but it is much otherwise with a king whose government is %*"/„(' political, because he can neither make any alteration or legis habet 'VZP'07'Bftt change in the laws of the realm without the consent of the notanEngi subject, nor burden them, aga'inst their wills, with strange IS maxim" impositions ; so that a people governed by such laws as are made by their own consent and approbation enjoy their prop erties securely, and without the hazard of being deprived of them, either by the king or any other." 5 In England the Limitations king " cannot by himself or his ministers lay taxes, subsidies, u^olTthe or any imposition of what kind soever, upon the subject ; he t^ariL cannot alter the laws, or make new ones, without the express mentary 1 1 1 11 « system. consent of the whole kingdom in parliament assembled. ° Sir John, who had been chief justice of the king's bench, while explaining how the liberties of the nation as a whole were protected by the parliamentary system, did not forget to point out how the life, liberty, and property of the individual subject were guarded by the system of legal administration. bears the title, " The Works of Sir 2 De Laudibus, cc. 35, 36. John Fortescue, Knight, Chief Justice 8 Ibid., cc. 9, 35 ; De Nat. Leg. Nat., of England and Lord Chancellor to i. 28. . King Henry the Sixth, now first col- 4 De Nat Leg. Nat, 1. 16. lected and arranged by Thomas (For- 6 De Laudibus, c. 9. tescue) Lord Clermont." 6 Ibid., c. 36. 1 De Natura Legis Natura, i. 16 ; De Dominio Regali et Politico, c. 1. 562 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. In the account given of the provisions made for the local ad ministration of justice, a careful statement is contained of the procedure in jury trials both in civil and criminal cases.1 In The jury a civil case the issue is tried by an impartial jury taken from system. tjie neighborhood ; in a capital case the jury is not only se lected impartially from the neighborhood, but the defendant is given a large number of challenges, for which he need assign no cause or reason. " In a prosecution carried on in this man ner there is nothing cruel, nothing inhuman ; an innocent person cannot suffer in life or limb : he has no reason to dread the prejudice or calumny of his enemies ; he will not, can not, be put to the rack to gratify their will and pleasure. In such a constitution, under such laws, every man may live Parliament- safely and securely."2 Thus by the middle of the fifteenth systenw the century the personal and political rights of the English peo- practicai pje which had long before been defined in statutes and char- guarantees r ° • , of liberty, ters, were permanently and practically guaranteed to the na tion as a whole by the parliamentary system on the one hand, and to the individual subject by the jury system on the other.3 The house 8. Through the exercise of the ultimate power of parlia- ?tf_Y?,i— ment the house of Lancaster was raised to the throne, and lbS 3,CCc3~ sion marks for more than sixty years it reigned by virtue of a parliamen- ning of a tary title. To the ascendency which the parliament thus ofnreacetio°n. won over the monarchy, in the hands of that branch of the royal house which may be regarded as its own creation, must be added the advantage which accrued to the estates by rea son of the continual dependence upon them of the ruling house for the means with which to maintain a never-ending foreign war. Under the favorable conditions thus presented by the period of Lancastrian rule, the powers and privileges of parliament were so far defined and consolidated as to war rant the hope that in the assembly of estates the English na tion had at last found a defender constant enough and strong enough to maintain its liberties as against the monarchy in all the years of struggle and of change that were yet to come. A|id yet this hope, apparently well founded, ended in failure and disappointment the moment that the immature parlia mentary system was called upon to maintain itself amid the 1 De Laudibus, cc. 26, 27. 8 This is well put by M. Duruy, Hist. 2 Ibid., c. 27. -* du Moven Age, Paris, 1864, p. 450. 1 1.] FROM HENRY IV. TO HENRY VII. 56,1 vicissitudes of a dynastic struggle between two factions which it was powerless to control. By the fall of the house of Lan caster the first period of parliamentary growth, which had been steadily progressing for nearly two centuries, was brought suddenly to a close. With the accession of the house of York began that prolonged period of reaction which reached its highest point under the house of Tudor, — dur ing which the monarchy, released from the fetters and safe guards which the growth of the parliamentary system had put about it, resumed in substance, if not in form, the exer cise of that system of royal autocracy which it had wielded before the charters were won. The great fact which the dy- collapse of nastic struggle known as the War of the Roses teaches, so ^rerarHa- far as constitutional history is concerned, is embodied in the mentary r •, r , .• „ , system. failure ot the parliamentary system to maintain itself when subjected for the first time to a crucial test of its strength in the storm and stress of civil war. The question which this failure naturally suggests is this : Why was it that the mon archy, upon the accession of the house of York, was able to suddenly free itself from the limitations and restraints with which the framers of the charters had so carefully hedged it about ; why was it that the parliamentary system, upon which the practical enforcement of these restraints really depended, should have suddenly given way at the very moment when its ex-istence as a conserving and arbitrating force had become a great national necessity ? The political struggles of the thirteenth century had demonstrated the fact that the mon archy, when relying solely on its inherent strength, could not Themon- resist the might of the united nation marshalled in the ranks powerless of the three estates. So long as the elements composing ^ e^^ the estate system remained intact, so long as these elements tjonof the . • 1 -it three es- acted m concert against the monarchy in the national parha- tates, ment to which the estate system gave birth, so long the mon archy lay helpless in the hands of a coalition which could grant or withhold its supplies, which could dictate its policy and punish its ministers, and which, as a last resort, could lay its hands upon the throne and depose the king himself. The causes which, upon the accession of Edward IV, led to the reestablishment of the monarchy, and to the suspension of the system of parliamentary life by which it had been over- 564 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. awed for more than a century, must be found in the processes is emanci- of dissolution and decay which by that time had undermined through the not only the corporate vitality of each of the three estates, estate "sy*6 ^ut wnich had also dissolved that spirit of union and inter- tem. dependence, born of a common oppression, which in the ear lier days had bound them to each other. Decline of The Conqueror, warned by experience in his own duchy, thetaron- an_j enlightened Dy observation of the disruptive tendencies manifested by feudalism in France, where it existed not only as a system of tenure but as a system of government, was careful to fetter its growth in his English kingdom by all the safeguards which could be devised for the protection of Continental the central authority. In the continental system, where feudalism. jarge sections of territory were granted to the greater vas sals, such vassals, through the process of subinfuedation, became powerful local magnates with bands of tenants at their backs bound to them by a tie of fealty which was direct and immediate, while that which bound them to the king as supreme lord was only indirect and mediate. Under this system the tenants of the mesne lords, who owed no direct fealty to the state or the king as its head, were ever ready when occasion required to follow the standards of their im mediate lords even against that of the king himself.1 In William's the hope of changing this aspect of feudalism in England, anti-feudal William was not only careful to so distribute the great estates as to prevent the vesting of large sections of contig uous territory in the hands of any one great magnate, but he was also careful in the great Gemot of Salisbury to impose an anti-feudal restraint upon all landowners by requiring each and all of them, in accordance with the old English practice, to take an oath of fealty directly to the king as the head of the state.2 And yet in spite of all such precautions the feudal element waxed strong upon English soil, and through out the Norman reigns the national authority as embodied in the new kingship was continually menaced by the great vassals of the Conquest, who were ever eager to establish in the new land all the special privileges and jurisdictions to which they had been accustomed in the old. And during the period of anarchy which fills up the greater part of 1 See above, pp. 224, 225. 2 See above, pp. 233, 268, 269. IL] FROM HENRY IV. TO HENRY VII. 565 Stephen's reign, it seemed as if the hopes of the feudal party The feudal in England were to be fully realized. As soon as the royal Itephe^ authority gave way in the struggle for the crown, the land reig"- was rent by strife between baron and baron, who arrogated to themselves all of the powers of petty despots. They forti fied their castles, they engaged in private war, they struck their own coins, they exercised private jurisdiction, — in a word, they reproduced for a time all the evils of continental feudalism which the Conqueror, by his far-sighted policy, had hoped to render impossible in England.1 In the light of these events Henry II., after the restoration of order, made Anti-feudal it the prime object of his policy to strengthen in every pos- ^j^n sible way all anti-feudal restraints, and at the same time to reduce the feudal party, as well as all other orders in the state, to obedience to a uniform system of law which the royal authority could both mould and administer. The most striking single feature of Henry's anti-feudal policy was that embodied in his scheme of commuting personal military ser vice for the money payment called scutage,2 — a scheme Scutage. which made possible the hiring of mercenaries for foreign wars, a kind of warfare to which the feudal array with its short term of service was but illy adapted. And yet, in spite of the foresight of the Conqueror, in spite of the anti-feudal policy of Henry IL, the baronial body held its own as the most powerful order in the state, and as such took the lead and maintained it throughout the prolonged struggle with the crown in which the charters were won. The leadership strength of thus conceded to the baronage rested in the main upon its *eebaas™n" superiority as a military power : the feudal array, composed j""114"? of the greater barons with their vassals at their backs, consti tuted a force with which no other in the kingdom could suc cessfully compete. The bands of mounted and heavily armed knights, who were bound to their baronial chiefs by a sacra mental tie which arose out of the ownership of land, could never be successfully confronted by an array of unarmored footmen until there was first a change in the art of war. As the strength of the feudal array grew out of the power of the great lords to command the services of the trained knights by virtue of their ownership of great estates, and upon the 1 See above, pp. 275, 276. 2 See above, pp. 283, 284. 566 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. superiority of the armored host thus organized to every other military force, the wreck of the baronage as a military body must be found in the operation of two causes, — one of which gradually dissolved its cohesion from within, while the other suddenly destroyed its military prestige from without. By Baronage the breaking up of the great estates, which the process of sub- by^hened infeudation and the elevation of the villein into a freeholder breaking up steadily advanced, the great lords were gradually deprived of estates their military followings, whose numbers depended- upon the subinfeuda- extent of their territorial possessions. So marked had this tion. tendency become in the reign of Edward I., that we then find the baronial body attempting to arrest its progress by special legislation devised in the interest of their order. And yet such legislation certainly failed of its object. It seems to be no more clear that the statute Quia emptores was de signed to protect the baronage against the undermining influ ence of subinfeudation, than it is certain that the practical effect of that act was to advance the progress of the very evil which it was designed to prevent.1 While the expedients of legislation were thus failing to check the growth of the causes which were gradually depriving the baronial body of An attempt their actual vassals, an attempt was made to nourish the J°en°uPh dying feudalism by an artificial process of adoption, which feudalism consisted of the giving of their liveries by the baronial house- ciai process, holds not only to the smaller gentry and farmers of the neigh- Uv»iesng °f borhood, but to the vagrant or the outlaw who was willing to swell the retinue of the great man and to wear his livery in consideration of his maintenance and protection.2 The arti ficial vassalage which thus grew up filled the houses of the 1 As to the design and practical ef- they were held by their tenures. . . . feet of this statute see above, pp. 412, The condition of the times, and the 413, and note 1. The statute De turn of manners which now prevailed, religiosis was also designed to protect made it desirable and necessary for the king and other feudal lords from great lords to supply this defection in the loss of services due them by the their tenants by other expedients. It conveyance of estates to persons or accordingly had become the custom to institutions incapable of discharging retain persons in their service to be at the legal obligations. See above, p. call when their lords' affairs needed 407. their support; and in order to distin- 2 " The feudal bond between lord guish different partisans, as well as to and vassal had been of late years grow- give a splendor to such retinue, they ing weak ; and we find now that vii- used to dress them in liveries and hats leins and land-tenants had begun to of a particular make or color." — break into violent demands for an ex- Reeves, Hist. Eng. Law, vol. iii. pp. emption from the servitude in which 351, 352, Finlason, ed. IL] FROM HENRY IV. TO HENRY VII. 567 greater barons with a riotous force, equally ready for service in time of war and for acts of lawless outrage in times of peace. When the baron could no longer demand the military service of his vassals for private war, " he could, if he chose to pay for it, support a vast household of men armed and liveried as servants, a retinue of pomp and splendor, but ready for any opportunity of disturbance ; he could bring them to the assizes to impress the judges, or to parliament to overawe the king ; or he could lay his hands, through them, on disputed lands and farms, and frighten away those who had a better claim. He could constitute himself the cham pion of all who would accept his championship, maintain their causes in the courts, enable them to resist a hostile judgment, and delay a hazardous issue." 1 This custom of the strong man undertaking to maintain champerty the cause of his weak dependent, although it might be under- tenance!"" taken without pecuniary interest in the result, was so abused to the detriment and disturbance of the common law that, as early as the reign of Edward I., the maintainers of false causes were made the subject of severe repressive legislation, the scope of which was greatly widened by a series of statutes passed in the reign of Edward III.2 When the maintenance of a cause was undertaken upon an agreement that a part of the matter in controversy should be paid to the maintainer as a compensation for his service, it was called champerty,3 — in simple maintenance,4 the question of compensation not enter ing into the account. In this connection may be noted another evil growing out Heraldry. of the giving of liveries, which finally expanded into an elab orate system known as heraldry, whose organization and supervision was committed to a body of heralds, regularly organized under the presidency of the earl marshal. The term " livery," which originally embraced the allowance both of food and clothing given by the lord to his dependent, was gradually restricted to the giving of clothing only, which took the shape of a uniform, or badge of service.5 When these 1 Stubbs, Const Hist, vol. iii. pp. to the distinction between champerty t-m cii and maintenance, see, also, Bell v. "See'stat. Westm., i. cc. 25, 28, 33; Smith, 7 D. & R. 846, ,5 B. 4 C. 188. 1 Edw. III. st. 2, c. 14; 20 Edw. III. 4 Co. Litt, 368b; Blackstone, Comm., re 4 c 6 bk. iy. P- I3^- ' « Co. Litt, 38 b; 2 Inst.,p. 208. As 5 "Livery was originally the allow- 568 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Badges of service be come hered itary. Theheraidsincorporated into a court under the presi dency of the earl marshal. Power of the baron age as a military forcebroken by the discov ery of gun powder. badges of service, which were looked upon as most valuable possessions by those having the right to bestow them, became hereditary, their descent was regulated by a system of com plicated rules designed not only to prevent the use of similar bearings by different families, but also to determine the rela tive rights .to the paternal coat as between different members of the same family.1 The administration of this complicated heraldic system, and the adjudication of the controversies which grew out of it, was committed to the earl marshal, whose jurisdiction was defined by statute in the reign of Richard II.2 Not until the reign of Richard III. were the heralds definitely incorporated into the college of arms3 under the presidency of the earl marshal. This court, which survived the fall of the house of Stuart, and which adjudi cated a few causes as late as the last century, was not finally abolished until very recent times. While the cohesion of the baronial body was thus being weakened by the operation of causes working from within, its strength as a military force was rudely broken from without by a revolution in the art of war. By the discovery of gun powder and its application to actual warfare, which took place during the reigns of the Lancastrian kings, the impreg nable feudal castle and irresistible feudal knights were shorn at once of their terror and their power. " The introduction of gunpowder ruined feudalism. The mounted and heavy- armed knight gave way to the meaner footman. The ' Last of the Barons,' as Warwick has picturesquely been styled, relied mainly on his train of artillery. It was artillery that turned the day at Barnet and Tewkesbury, and that gave Henry the Seventh his victory over the formidable dangers ance (liberatio) in provisions and cloth ing which was made for the servants and officers of the great households. . . . The term livery was, however, gradually restricted to the gift of cloth ing ; . . . the clothing took the charac ter of uniform, or badge of service." — Stubbs, Const. Hist, vol. iii. p. 531. As to the legislation known as the statutes of liveries (1 Rich. II. c. vii. ; 16 Rich. II. c. iv. ; and 20 Rich. II. , c. i.), which were designed to prevent the many evils which grew out of the system, see Reeves, Hist. Eng. Law, vol. iii. pp. 352, 353- 1 " As this right was strongest in the eldest son, he alone bore the paternal arms unaltered (in French heraldry, ' sans brisure ') ; and the other sons were obliged to introduce some suf ficient change, called in heraldry a 'difference.'" — Clark, "Heraldry/' in Enc. Brit., 9th ed. vol. ix. p. 687. 2 13 Richard II. c. 2. As to the limits of the jurisdiction, see Blackstone, Comm., bk. iii. pp. 104, 105; Hale, Hist. Com. Law, vol. i. pp. 52, 53. 8 Cf. Coke, 4 Inst, p. 125. IL] FROM HENRY IV. TO HENRY VII. 569 which assailed him. The strength which the change gave to the crown was in fact almost irresistible. Throughout the middle ages the call of a great baron had been enough to raise a formidable revolt. Yeomen and retainers took down the bow from their chimney corner, knights buckled on their armor, and in a few days a host threatened the throne. Without artillery, however, such a force was now helpless, and the one train of artillery in the kingdom lay at the dis posal of the king." 1 The influences which thus undermined the power of the The church baronage during the period which closes with the accession patriot* of Edward IV. were scarcely more marked in their results sPirit- than those which, during the same period, broke the patriot spirit of the church, and led the clergy to seek shelter and protection for their wealth and their privileges at the feet of the monarchy. How in the struggle for the charters the clergy, as a corporate body organized for action, took an earnest part in behalf of the nation as against the crown, has been explained already.2 In that struggle the church, so far as its own special privileges were concerned, was completely victorious. In the hope of breaking the coalition between the clergy and the lay estates John, a short time prior to the making of the treaty of Runnymede, specially guaranteed to the church free elections, while in the Great Charter itself express provision was made that the Church of England should be free, and should have her whole rights and liberties inviolable.3 By John's surrender of his kingdom to the pope, and by his receiving it back again as a fief,4 all controversy was for the time removed as to the right of the English Church to submit itself to the papal supremacy which was firmly asserted throughout the reign of Henry III. Not struggle until the reign of Edward I. was the papal overlordship as ^Znl*T admitted by John, both in the ecclesiastical and political or- j^pacy der, challenged by the crown and the parliament. When the reign of _ . . ./¦_./_ _-_..__ Edward I. Boniface VIII., claiming to be feudal lord over Scotland, commanded Edward to withdraw his troops from that king dom, the parliament, before whom the bull was laid by the 1 Green, Hist. Eng. People, vol. ii 8 See above, pp. 378, 379, 383. pp. 14, 15. 4 See above, p. 373. 2 See above, pp. 348, 349. 570 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Stat. De asportatis religioso- Stat. of Provisors. Stat, for the protec tion of the king'scourt. Stat. 13th Richard II. Stat, of Praemunire. king, claimed the right to make answer and emphatically de nied the pope's asserted jurisdiction.1 The repudiation thus announced of the feudal supremacy of the pope over the political relations of the crown, was followed by a series of statutes which were designed to cut off to a certain extent papal interference with the church's internal administration. The first of the series, the statute De asportatis religioso- rum (35 Edward I.),2 which forbade the carrying or send ing of "any tax, rent, or talliage imposed by the superiors, or assessed amongst themselves, out of the kingdom," was designed to prevent alien priors from drawing tribute from English religious houses. In the 25th Edward III. was passed the great Statute of Provisors, which, after declaring that the elections of bishops and others should be free as in time past, denied to the pope the right to make nominations to benefices within the kingdom, and also imposed severe penalties upon all " provisors " who should obtain them from him by purchase or otherwise.3 Three years later was passed a statute designed to protect the jurisdiction of the king's court by forbidding, under severe penalties, any person from withdrawing any cause from its cognizance by means of a ci tation to the court of Rome.4 The attempt to defy or evade all such statutes as were designed to hinder the assertion of the papal claims, by procuring excommunications directed against those who dared to obey them, led to an enactment, in 1389, which imposed heavy penalties upon all persons who should bring or send such excommunications into the king dom, or attempt to enforce their mandates.5 In the conflict which then ensued between the crown and the papal court, when Boniface IX. declared all such statutes null and void, the commons stood resolutely by the king. Upon their peti tion was passed the famous Statute of Praemunire (16 Rich. 1 Fadera, ii. pp. 873-875 ; Richan- ger, pp. 208-210; Hemingb., ii. pp. 209-213 ; M. Westminster, pp. 443, 444. See Lingard's account of the transaction, vol. ii. pp. 184-188. plaints of all the commons of the realm." 4 27 Edw. III. st. 1. In order to enforce this and like statutes, it was necessary to obtain a writ pramunire 2 25 Edw. I. st. 1, c. 1-4. As to the facias, commanding the sheriff to warn relation between this statute and the Statute of Provisors, see Reeves, Hist. Eng. Law, vol. ii. p. 452. 8 25 Edw. III. st. 4. This statute was passed upon " the grievous com- the accused to appear and answer for his contempt. In this way the name " praemunire " became fixed to this kind of legislation. See Gibson, Codex, p. 80. 6 13 Rich. II. st. 2. c. 3. IL] FROM HENRY IV. TO HENRY VII. $71 II., c. 5), in which it was provided that if any one shall obtain from the Court of Rome, or elsewhere, any sentence of ex communication, ecclesiastical process, or any other thing touching the rights of the crown, or bring the same within the realm, such a one shall be put out of the king's protec tion, shall be subject to forfeiture and to be attainted, and shall also be subjected to process to "be made against them hy praemunire facias, in manner as it is ordained in other stat utes of provisors against those which do sue in the court of another in derogation of the regality of our lord the king." During the period in which the king and parliament were Growing thus defending by means of penal statutes the rights of the hvfuencTof crown as "against the claims of the papacy, the clergy were the clersy- maturing and strengthening their internal corporate organi zation, and steadily increasing their enormous wealth, which could only be reached for the purposes of taxation through the two legislative bodies or convocations in which the whole clerical order appeared either in person or by representatives. "The clergy as a body were very rich ; the proportion of di rect taxation borne by them amounted to nearly a third of the whole direct taxation of the nation ; they possessed in the constitution of parliament and convocation a great amount of political power, a majority in the house of lords, a recog nized organization as an estate of parliament, two taxing and legislating assemblies in the provincial convocations ; they had on their great estates jurisdictions and franchises equal to those of the great nobles, and in the spiritual courts a whole system of judicature parallel to the temporal judica ture — but more inquisitorial, more deeply penetrating, and taking cognizance of every act and every relation of men's lives." 2 In this terse and graphic statement the master of the history of the middle ages has epitomized the elements which made up the aggregate social and political weight pos sessed by the clergy at the end of the fourteenth century, when the spiritual influence of the church was assailed by the Lollard revolt on the one hand, and its immense wealth The Loi- threatened by a sweeping confiscation on the other. The first of these assaults grew out of the great religious rebel lion which, taking color and form from the teachings of Wyc- 1 Stubbs, Const. Hist., vol. iii. pp. 365, 366. 172 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. liffe, moved under his stirring influence not only large sec tions of the common people, but many among the baronage and the clergy themselves, to break away from the teachings statutes of and authority of the older dogmatism. The response made signecfto^ by the church to this assault was embodied in the series of church's*6 statutes, heretofore described as the Statutes of Heresy,1 spthtu^ which were the equivalent paid by Henry IV., after his ac cession, to the prelates, with Arundel at their head, for their aid and assistance in the revolution which raised to the throne the house of Lancaster. While the clergy by means of these cruel statutes were engaged in crushing out the growing heresy, through which the Lollards were undermin ing the church's spiritual authority, they were startled by a fresh attack made by the commons upon their temporal pos- The church sessions. In the " Unlearned Parliament " 2 which met in with confis- 1404, certain knights of the shire ventured to suggest that cation. ^he jan(j 0£ tjje ciergy be taken into the king's hands for one year as an aid in the prosecution of the war ; 3 and in the par liament of 1410, the knights reasserted this suggestion in the shape of a formal petition addressed to the king and lords recommending a sweeping confiscation of the lands of the bishops and religious houses, and a permanent endowment, out of the proceeds, of fifteen earls, fifteen hundred knights, six thousand esquires, and a hundred hospitals, — with the further suggestion that .£20,000 be reserved for the king.4 This radical proposal, distasteful to the lords, was earnestly opposed by the Prince of Wales and rejected.6 The well- founded alarm thus excited in the minds of the clergy by the assaults made in turn upon their spiritual authority and their temporal possessions was naturally deepened and intensified by the general sense of insecurity which oppressed all classes at the end of the civil war. At the end of the struggle the one political force that seemed to have survived, the one force that stood out above the turbulence of the times with power to guarantee protection and order, was embodied in the royal authority. Moved, therefore, by a sense of insecurity, and 1 See above, pp. 537-540. * Walsingham, ii. pp. 282, 283; 2 So called from the fact that the Fabyan, p. 575. king directed in the writs that no law- 6 Stubbs, Const. Hist, vol. iii. pp. yers should be summoned. 47, 64. 8 Ann. Henr., pp. 393, 394. IL] FROM HENRY IV. TO HENRY VII. <,73 not unmindful of the assistance it had received when as- Alarmed by saulted by heresy on the one hand, and threatened by confis- SLuitfthe cation on the other, the church, which in the charter days had f^tt been the steadfast ally of freedom, turned its back upon its shelter at great traditions, and, upon the accession Edward IV, meekly the mon-° sought shelter and protection at the feet of the monarchy. archy' In the first chapter devoted to the growth of parliament Decline of the attempt was made to draw out the fact that, from the mons°m time of the Conquest down to the establishment of the es tate system in the reign of Edward I., all of the great pow ers of government were centralized in and concentrated around the person of the king acting ordinarily through his continual council, or through that larger body, known as the great council, composed of those tenants-in-chief who won for themselves the right to be personally summoned, and in whom that right became hereditary. Under this highly cen tralized system the main body of the people, upon whom the burden of government ultimately fell, were sternly excluded from all voice in its administration. Only through the per sistent struggles of the thirteenth and fourteenth centuries did the main body of the people finally win for themselves the right first to participate in and then to control both the fiscal and political administration of the kingdom, by build ing up alongside of the older feudal assembly a new cham ber composed of elected representatives chosen by freemen organized for government in the shires and towns. The strength of the new body as originally organized lay in the J^°^r fact that it was truly representative : at the outset the right first I truly to participate in the election of the representative members ^body?" was probably extended to all, or nearly all, of the freemen lflft0 embraced in the corporate organizations of the local commu- through ° _,, , . . . . , limitations nities from which they came. The causes which led to the 0f the fran- decline in the position and influence of the representative ch,se> body thus built up must be found in the processes through which it ceased to be really representative, — through which, in the shires, the franchise, which was the birthright of the many, was finally limited to the few ; through which, in the towns, the suffrage was taken away from the main body of townsmen, to whom it had originally belonged, and vested in official oligarchies. 574 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Electedknightsoriginallychosen by the whole shire com munity. Franchise : fixed upon : a broad popular ".basis by ; Stat. 7th Henry IV. Stat. 8th Henry VI. the first dis franchisingstatute in English history. The weight of authority supports the conclusion that the elected knights were not only representatives of the whole shire community, but that they were chosen by the whole body of freeholders in full county court.1 When in the par liament of 1376 the commons, intent upon correcting the evil practices of the sheriffs, petitioned that the knights of the shire might be chosen by common election of the better folk of the shires, and not nominated by the sheriffs without due election, Edward III. replied that the knights should be elected by the common assent of the whole county? When the first statute (7th Hen. IV. c. 15) was passed regulating the election of the knights, — a statute which is regarded as sim ply confirmatory of the then existing custom, — the franchise was fixed upon a broad popular basis by the provision " that all they that be there present [in the county court], as well suitors duly summoned for the same cause as others, shall attend to the election of the knights for the parliament ; and then, in full county, they shall proceed to the election, freely and indifferently, notwithstanding any request or command to the contrary." This statute — under which the right of suffrage reached its highest point by being recognized as the privilege of all freemen present in the county court, whether freeholders or not — was followed in the eighth year of Henry VI. by the first disfranchising statute of which there is any record in English history.3 By the terms of this statute the suffrage was not only limited to the freeholders, but to such only of them as " have free land or tenement to the value of forty shillings by the year at least, above all charges." Thus before the fall of the house of Lancaster the parliament itself, impelled by the reactionary spirit of the times, consented to the weakening of its own constitution by authorizing a measure that must have resulted in a wide disfranchisement. When the difference in the value of money is taken into account, the forty shillings qualification was equivalent to a modern real property qualification of from thirty to forty pounds annual value. The same general tendency which, before the close of the 1 See above, pp. 466, 467. 2 Rot. Pari., ii. p. 355. See above, p. 527. » 8 Hen. VI. c. 7. IL] FROM HENRY IV. TO HENRY VII. 575 middle ages, must have brought about the disfranchisement Tendency of the landless freemen and the lesser freeholders within the tOwn!f0r shires, likewise pervaded the municipal electoral systems and ahe^wr^te brought about a still more sweeping restriction of the fran- th? fran chise in the cities and towns. In the effort heretofore made which were to ascertain who were the electors of borough representa- rigVof the tives, the general conclusion was reached that the electors in many- a city were the citizens, in a borough the burgesses. Who were citizens and who were burgesses seems to have de pended everywhere upon local custom, and such custom was only uniform in its tendency to take away the suffrage from the main body of townsmen and vest it either in a self-elected governing body, — generally known as the mayor and com mon council, — or in a still smaller circle of " selectmen," nominated and controlled by them.1 This general tendency both in the higher and lower ranges of government has been thus happily described : " While the aristocracy was encroach ing upon popular power in the government of the state, it was making advances, no less sure, in local institutions. The few were gradually appropriating the franchises which were the birthright of the many. . . . The common law, in its grand simplicity, recognized the right of all rated parishion ers to assemble in vestry and administer parochial affairs. But in many parishes the popular principle gradually fell into disuse ; and a few inhabitants — self-elected and irresponsi ble — claimed the right of imposing taxes, administering the parochial funds, and exercising all local authority. This usurpation, long acquiesced in, grew into a custom which the courts recognized as a legal exception from the common law."2 That kind of usurpation, consecrated by custom, which secured the government of parishes to select vestries, likewise took aw.ty the government of the towns from the main body of townsmen and vested it in self-elected governing bodies, who gradually assumed the exercise of the electoral rights which had originally belonged to the whole community. In the charters of incorporation which began to be issued to the municipalities after the accession of the house of Tudor,3 1 See above, pp. 473, 474. tinued by the Stuarts. See Hallam, 2 Sir Thomas Erskine May, Const Const Hist., vol. iii. pp. 74,75; May, Hist, vol. ii. pp. 460, 461. Const. Hist, vol. ii. p. 465. 8 The policy of the Tudors was con- 576 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. the right of electing representatives in parliament was gener ally vested in the municipal governing body usually styled the mayor and common council. When the fact is remembered that these governing bodies were, as a rule, nominated by the crown in the first instance, and then perpetuated by self-elec tion, it is quite possible to understand how the electoral rights of many boroughs passed under royal control, or under that of the* local magnates known as high stewards, in whom the royal or aristocratic influence finally came to be vested. Revival of As tne parliamentary system was the outcome of the es- the mon- tate system, the collapse of the one naturally followed the urcrrv under Edward iv. collapse of the other. The attempt has now been made to draw out in some detail the processes of disintegration and decay which, by the end of the civil war, had not only under mined the corporate vitality of each of the three estates, but which had also broken that spirit of union and interdepend ence which in the earlier days had bound them to each other. In the process of disfranchisement, which gradually with drew the suffrage from the main body of freemen in the shires and towns, can be discovered the chief cause which undermined the growing strength of the house of commons ; in the decay of the baronage, and in the weakening of the prelacy, can be found the causes which broke the power of the house of lords. Only in this way can be explained how it was that the parliamentary system, which had reached its highest point of authority at the accession of the house of Lancaster, touched its lowest point of impotency and exhaus tion at the close of the dynastic struggle which ended in its overthrow. Under the favorable conditions then presented, by the paralysis of the constitutional forces by which it had been so long held in check, the monarchy, upon the accession of Edward IV, lifted up its head, and casting off the fetters by which it had been bound by the parliamentary system on the one hand, and by the system of legal administration on the other, entered upon a fresh career of autocracy which was not destined to be broken until the days of the Stuart Forms of kings. And yet the new system of absolutism thus reestab- constit" lisned by tne house of York, and perpetuated by that of Tu- tionai life dor, did not aim at the abolition of the older forms of legal and constitutional life by which the monarchy had been over- IL] FROM HENRY IV. TO HENRY VII. S77 awed for more than two centuries, — it simply strove to ex tinguish forever the vital spirit which in the better days had made them actual restraints upon the royal authority. With the despotic powers of the crown reorganized and reestab lished in a royal council, which was practically unlimited save by the authority which created it, the monarchy had more to gain than to fear from the perpetuity of a set of lifeless insti tutions which it could override at its pleasure, or manipulate at its convenience. The reestablishment of the monarchy did not end the existence of the parliament ; as a shadow of its former self it lived on as a convenient place in which acts and decrees dictated or permitted by the council could be registered, and business of minor importance transacted. Neither was the ordinary administration of law in the central and local tribunals radically modified or suspended, — the whole judicial system was simply overawed by and made sub servient to the unrestrained and despotic powers of the coun cil, in which the royal will was omnipotent. The forms of the older constitutional life were retained, and yet the monarchy as reestablished by Edward was in substance the monarchy as it had existed under, the Norman and early Angevin kings, — a monarchy still limited by the self-imposed restraints aris ing out of administrative routine and orderly legal procedure, and yet absolutely unlimited by the coercive constitutional restraints which had been put upon it by the patriots an statesmen of the thirteenth and fourteenth centuries. In the reestablishment of the monarchy Edward was care- Edward ful to emphasize the fact that, as the right of the house of thaTthe Lancaster to the throne had rested solely on a parliamentary £?[j^ere election, that of the house of York rested solely upon an in- kings de defeasible hereditary title, — a title which he claimed the Se/un. Lancastrian parliaments had no right to ignore, no power to set aside.1 Upon that assumption, then for the first time practically asserted in English politics, Edward held that the Lancastrian kings were only kings de facto non de jure2 — 1 "The doctrine of indefeasable he- Eng. Const, p. 194- See, also, Sir reditary right, the doctrine that there Michael Foster, Crown Law, p. 403, in was some virtue in a particular line of which the author shows that the only succession which the power of parlia- hope of the house of York was m the ment itself could not overthrow, was assertion of "a title paramount to the first brought forward as the formal jus- power of parliament." fification of the claims of the house of 2 The theory was that Edward IV. York." — Freeman, The Growth of the succeeded to the rights of Richard IL, 578 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. that their judicial acts were valid and binding only so far as he and his parliaments saw fit to ratify them.1 The strength which the monarchy drew from the self-sustaining theory em bodied in this new doctrine of indefeasible hereditary right, Edward was careful to supplement by every practical expe dient which he could devise for its protection against that most dangerous of all the restraining measures to which the parliamentary system had given birth, — the power of the es tates to coerce the crown through the withholding of sup plies. What had given edge to this weapon in the hands of the Lancastrian parliaments was the continual need of the kings of that house of the means with which to carry on strife with Scotland, and at the same time to maintain the never-ending war with France, which was only brought to a close by the final loss of Acquitane late in the reign of Edward's Henry VI. The financial relief which the ending of the peace. ° Hundred Years' War then brought to the monarchy was made permanent by a policy of peace which, throughout the reigns of Edward IV. and Henry VII., remained unbroken. While the treasury was thus protected from the drain of war on the one hand, its coffers were filled on the. other by various expe dients which, although they involved the agency of parlia ment in the first instance, did not involve its annual assent or cooperation. In the flush of victory which followed the a sweeps battle of Towton, Edward obtained the passage of a sweep- tainder,and ing bill of attainder2 through which the crown was enriched rfthe^us* fry forfeiture of the estates of fourteen lords and more than toms. a hundred knights and esquires. Four years later, after the victory at Hexham, he obtained from parliament a grant of tunnage and poundage and the subsidy on wool for life.3 Af ter this life grant of the customs made in 1465, the meetings Meetings of parliament grew less and less frequent. The long estab- of parlia- ...... r . • ¦ ... . ment grow lished right of the nation to express its will at least once a lessfre? year through the national council was first suspended during quent. tne later years of Henry VI., when elections were avoided as and that the three Lancastrian kings 1 Rot. Pari., v. pp. 489 seq. The va- were usurpers : " Henry Usurpour, late lidity of laws passed during the Lancas- called Kyng Henry the sixt," is the trian reigns was not questioned. language of the act of 1461. See 2 Ibid., v. pp. 467-475. Reeves, Hist. Eng. Law, vol. iv. p. 12, 8 Ibid., v. p. 508. note, Finlason ed. IL] FROM HENRY IV. TO HENRY VII. 579 much as possible, and when such parliaments as were called were rather armed assemblies of the greater nobles, with their liveried partisans at their backs, than authoritative meetings of the king's advisers. The blow thus directed at the au thority of parliament during the confusion resulting from civil war was now followed by a studied contempt of its influence in times of peace. During the quarter of a century of York ist rule the nation was but seven times called upon to elect new parliaments, and in the brief periods during which such parliaments sat their deliberations were confined to the regis try of such acts as the king in council saw fit to dictate, or to the enactment of statutes touching the growing commerce of the realm which it was his interest to promote.1 In the No statute words of Hallam : " The reign of Edward IV is the first m^dul during which no statute was passed for the redress of griev- ™!^?~ ances or maintenance of the subject's liberty."2 As a part of reign. the policy through which Edward thus freed the monarchy from all actual dependence upon the parliamentary system must be noted that most despotic of all the expedients of royal taxation through which the crown extorted gifts of . money from particular subjects under the name of benevo- Benevo lences. Although this unconstitutional device, through which ences' the subject's money was taken without parliamentary con sent, may have been practised in substance in preceding reigns,3 its active employment by Edward IV. has put upon him the odium of its authorship.4 To the wealth which the crown thus derived from forfeitures, confiscations, acts of re sumption, from the life grant of the customs, and from be nevolences, must be added the profits which Edward derived from his adventures as a private trader, — adventures which bore the fame of the merchant king as far as the ports of Greece and Italy. While Edward was thus emancipating the monarchy from Expansion the financial and political restraints which the growth of the "fa'powera' parliamentary system had put about it, he was also careful to of the com* 1 " In the reign of Edward IV. the regarded even at the time as an inno- parliament seemed to be principally vation, was perhaps a resuscitated form taken up with the arrangement of the of some of the worst measures of Ed- commercial system." — Reeves, Hist, ward II. and Richard II." — Stubbs, Eng. Law, vol. iv. p. 9. Const. Hist., vol. iii. p. 274. 2 Middle Ages, vol. iii. p. 189. 4 Reeves, Hist. Eng. Law, vol. iv. 8 "The collection of benevolences, pp. 26, 261. 58o THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Such pow ers first re strained, — then ex panded by statute. Scientific perfectionof the law in the reigns of Henry VI. and Ed ward IV. impart a fresh force to the judicial powers of the council which the growth of the law courts and the rise of the equi table jurisdiction of the chancellor had contracted without exhausting. In the explanation heretofore made of the pro cess through which these courts were evolved out of the council, the fact was emphasized that a supreme and unde fined residuum of judicial power still remained after their cre ation.1 The necessity for protecting the ordinary adminis tration of justice, in the subsidiary tribunals thus organized, from encroachment upon the part of the supreme and unde fined judicial power2 retained by the council, led to the enact ment of a series of restraining statutes which extend from the reign of Edward I. to that of Henry IV3 Not until the reign of Henry VI. did a new legislative policy begin whose aim was, not to narrow the judicial powers of the council, but to give to them a wider expansion. The uniformly weak and inefficient system of internal administration which prevailed throughout the Lancastrian reigns, and which even in times of peace could neither preserve order nor guarantee a firm ad ministration of law, almost completely gave way during the protracted confusion of the civil war. And yet at the very time when the peace of the kingdom was most poorly kept, at the very time when the steady enforcement of law was scarcely attempted, the law as a science reached a very high degree of theoretical perfection. During the reigns of Henry VI. and Edward IV. the science of pleading reached the lim its of its mediaeval growth :4 the law schools known as inns of court and of chancery were filled with zealous students, while the bench was adorned by able judges who discussed the law with great learning and elaboration.5 The difficulty lay not in the scientific perfection of the law, but in the want of administrative power adequate to its enforcement. As heretofore explained in connection with the subject of main- 1 See above, p. 249. 2 " This authority had been exercised in two ways : first, by issuing special commissions of ' oyer and terminer ; ' secondly, by summoning accused per sons. The first process had, after re peated remonstrances from parliament, been abandoned, before Richard II. as cended the throne. The second cer tainly survived, and even received ex tension." — Dicey, The Privy Council, p. 69. 8 See above, p. 516 and note 2. 4 Reeves, Hist. Eng. Law, vol. iii. p. 577- 6 Cf. Ibid., pp. 621-627. As to the history of the inns of court, see For tescue, De Laudibus, c. 49. IL] FROM HENRY IV. TO HENRY VII. 58 1 tenance, the provincial administration of justice was para- itspracti- lyzed by the turbulent local magnates, who with their liveried dencyow- retinues at their backs could overawe the judges at the assizes, j^0^, delay a hazardous issue, seize upon the lands in dispute, or °f the even resist the enforcement of a hostile judgment after it was rendered.1 The remedy finally proposed for evils of this char- Extraordi- acter took the form of statutes which authorized the council ""he °oun- to draw before it all persons and all causes which could not £,1rit"™kred_ be dealt with in the ordinary local tribunals. With this end ervationof in view, the Act of 31st Henry VI. c. 2, was passed, enlarging reign of the powers of the council,2 whose "judicial authority had, to Henry VL judge by the minutes of Henry VI. 's reign, been exerted chiefly in cases where, from the might of the offenders, the courts were powerless to enforce justice." 3 The effort thus made in the reign of Henry VI. to Edward iv. strengthen the hands of the council, in order to make it the the council defender of order against anarchy, was followed in the reign jjj£° *" en~ of Edward IV. by an attempt to convert the judicial power tyranny. of the king in council into an irresponsible engine of tyranny. By the patents issued by Edward, first to Tiptoft and then to Rivers, the jurisdiction of the high constable was extended, in contempt of the common law, to cases of high treason. The accused were thus deprived not only of the right of trial by jury, but their acquittal or conviction was committed, Jurisdio without appeal, to the high constable, who, as the king's vice- high°con-e gerent, was authorized to hear, examine, and conclude all stable' such causes, however begun, even summarily and plainly, without noise and show of judgment, on simple inspection of fact.4 Through the judgments of this unconstitutional tri bunal, which in some cases adopted the law of Padua as the rule of its procedure, Edward made way with many of his Lancastrian opponents. During the period in which the high constable, in contempt 1 See above, p. 567. et de piano sine strepitu et figura judi- 2 As to the relation of the council cii, sola facti veritate inspecta." Such as thus invigorated to the body after- are the terms rehearsed in the patent wards called, under the Tudors, the issued by Edward to Rivers, Aug. 24, "Star Chamber," see Reeves, Hist. 1467. Fadera, xii. pp. 581, 654. The Eng. Law, vol. iii. pp. 469, 470, and powers enumerated in the patent had notes, Finlason ed. been originally conferred upon Tiptoft 8 Dicey, The Privy Council, p. 72. in 1462. Cf. Stubbs, Const. Hist, vol. 4 " Audiendum, examinandum et fine iii. p. 282 and note 2. debito terminandum, etiam summarie 582 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. Construc tive treason, Torture. Bills of at tainder. of English precedent, was thus taking. jurisdiction of cases of high treason in his novel tribunal, the English law upon that subject was itself being grossly abused .in the common law courts through an unwarrantable expansion of -the doctrine of constructive treason. Despite the famous Statute of Trea sons (25 Edw. III.),1 which attempted to fix the law upon a definite basis by an explicit enumeration of the cases to which it should be applied, there was a constant tendency upon the part of the courts in these evil times to extend the act to cases not enumerated in it.2 In Edward's reign also appears the first clearly authenticated instance in the history of Eng lish law of the employment of torture as a means of forcing accused persons to confess or to betray their accomplices.3 In connection with the despotic practices which, at this time pervaded the administration of justice in the ordinary tribunals, should also be noted that gravest of all judicial abuses which, during the reigns of Henry VI. and Edward IV, recurred with shocking frequency in the proceedings of the high court of parliament itself. Although bills of at tainder had been employed at a much earlier day,4 it was during the period of passion engendered by the civil war that, the summary power of parliament to punish criminals by statute was for the first time perverted and abused. The calm and deliberate exercise of the judicial power of the whole parliament by process of impeachment, wherein the commons as the grand inquest of the realm were required to maintain their accusations by sufficient evidence adduced before the lords sitting as judges, but illy satisfied the necessities of a dynastic struggle in which the victors were ever eager for the heads of the vanquished. Far better adapted to this condition of things was the proceeding by bills of attainder, in which, if the parliament saw fit to refuse to hear the ac cused in his defence, the validity of the judgment could never be questioned in any court whatsoever.5 The accused, even plices. — W. Worcester, p. 789. For early instances of the use of torture, see first volume of Mr. L. O. Pike's History of Crime ; Coke, 3 Inst, p. 35. 4 Such was the procedure employed by parliament in the banishment of the two Despensers in 1321. See 1 St. Tr. PP- 23, 38- 6 See Coke, 4 Inst, p. 37. 1 The crime of treason, which was first defined in 1352, received a fresh definition in 1397. See above, p. 511. 2 See Blackstone, Comm., bk. iv. pp. 79, 80; Reeves, Hist. Eng. Law, vol. iii. pp. 397-400 ; Hale, P. C.,p. 115. 8 In 1468 an accused person, by the name of Cornelius, was burned in the feet to make him betray his accom- II.] FROM HENRY IV. TO HENRY VII. 583 under a bill of attainder, was, however, as a matter of grace, usually permitted to defend himself both by counsel and witnesses. ""The proceedings of parliament in passing bills The pro of attainder, and of pains and penalties, do not vary from thereunder those adopted in regard' to other bills. They may be intro duced in either house, but ordinarily commence in the house of lords : they pass through the same stages ; and when agreed to by both houses, they receive the royal assent in the usual form. But the parties who are subjected to these pro ceedings are 'admitted to defend themselves by counsel and witnesses, before both houses ; and the solemnity of the proceedings would cause measures to be taken to enforce the attendance of members upon their service in parliament." 1 g. The emancipated monarchy, which under the ruthless Usurpa- leader-ship of Edward had trampled upon the parliament and Richard overawed the entire system of legal administration, passed at m' his death in April, 1483, to his infant son, known in English history as Edward V. The royal authority thus transmitted by the unaided force of the hereditary principle was destined to abide only for a moment in the person of the boy king. Edward, who had dyed his hands in the blood not only of his Lancastrian foes, but in that of his own house, had, through the irony of fate, left his helpless brood as a stumbling-block in the path of his ambitious brother, Richard, Duke of Gloucester, who had been drawn into tempting proximity to the throne through the murder of Clarence. The tragic episode — during which Richard overawed the council and secured the protectorship through the overthrow of Hastings, and then the crown itself through the murder, as all the world believed, of Edward's children — was of but short duration. On the 4th of May Gloucester was declared protector ; on Richard de the 24th of June his right to the crown was proclaimed at tector on°" Guildhall by his co-conspirator, the Duke of Buckingham;2 4n^May' on the next day an informal assembly of notables met at "°w.nfjd Baynard's Castle and presented him a petition,3 in which he 1483. was solicited to accept the crown as the only lawful heir of Richard, Duke of York ; and on the 6th of July 4 he and his 1 May, Pari. Practice, p. 744. All with the authorities, vol. iii. pp. 275- references to this work are to the 9th 282. ed. 8 Rot. Pari., vi. pp. 240, 241. 2 See Lingard, who gives the details * Cont. Croyl., p. 567. 584 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. consort Anne, the daughter of Warwick, were crowned at Westminster. Within three months after that event the crown which Richard had forcibly taken away from his brother's children was challenged by a new and dangerous Henry Tu- pretender, — Henry Tudor, Earl of Richmond, who, in the lenges "the absence of a better claimant, assumed to represent the house £s pedT of Lancaster. With the death of Henry VI. and his son, the gree. legitimate male line of Lancaster had become extinct, — its claims survived only in the bastard branch represented by the house of Beaufort. And the male line of that house had also been extinguished by the fall of the last Duke of Somer set at Tewkesbury. Henry Tudor, who traced his descent through the female line of the house of Beaufort, was the son of Margaret Beaufort — the great-granddaughter of John of Gaunt — and Edmund, Earl of Richmond, the son of Cath erine, widow of Henry V., who had married a Welshman by the name of Owen Tudor. The new claimant, who had found shelter in Brittany during the reign of Edward IV., now His first at- threatened invasion. In October, 1483, Henry sailed with a Oct^i^ neet from Brittany, and at the same time Buckingham, who had broken with Richard, together with the Woodvilles and the Courtenays, raised the standard of revolt in England, But the enterprise was both premature and unfortunate. A storm delayed Henry's arrival ; the confederates failed to join forces ; and Buckingham, the chief of the conspiracy, lost his head. In the proclamation which the new claimant put forth at this time, a fact was announced which until then seemed to have been carefully concealed, — the murder of the princes in the Tower.1 With his popularity menaced by this ghastly disclosure, and with his right to the crown challenged by a resolute though baffled opponent, Richard, in the hope of winning the support of the nation, was not slow in calling Richard's a parliament, which met in January, 1484.2 In this his ment met13" only parliament, the usurper made every effort not only to ™g-^n'' strengthen his hold upon the crown by means of a parlia mentary election, but also to win popular favor by consenting to a series of measures designed in the interest of commerce and reform. In the act passed for the settlement of the 1 See Green, Hist. Eng. People, vol. 2 Rot. Pari., vi. p. 237 ; Cont Croyl, ii. p. 62. p. 570. unfortu nate. It] FROM HENRY IV. TO HENRY VII. 585 succession the attempt was made not only to vest the crown in Richard and his issue, but to restate, as a matter of his tory, the circumstances and the claims under which he had accepted it in the first instance. " This act recites that a statement roll had been presented to Richard, as Duke of Gloucester, ard?t1tie before his coronation, on behalf and in the name of the three in *edafcctr estates of the realm, . . . but that neither the three estates, the settie- nor the persons who presented such roll, were assembled in succession. form of parliament; and therefore it was ordained and estab lished in parliament, that the tenor of the said -roll, and the contents thereof, should, by the three estates then assembled in parliament, and by authority of the same, be ratified, etc., and be of the same force as if the same things had been done in parliament. The roll is then set forth, in which, after stating the right of Richard, as undoubted son and heir of Richard, Duke of York, in right king of England by way of inheritance, and asserting the bastardy of the children of Edward the Fourth, and the disability of the children of the Duke of Clarence by reason of the attainder of their father, it is stated that the persons presenting such roll had chosen in all that in them was, and by that writing chose, Richard unto their king and sovereign lord ; and prayed him, that according to this election by them, as the three estates of the land, and by his true inheritance, he would accept and take the crown and royal dignity, etc., as well by inheritance as by lawful election."1 In this statement, put forward in the first instance by the notables, and then adopted and rati fied in a regular parliament, a studied effort was made to strengthen Richard's title by blending in its support the Blending waning doctrine of elective kingship and the new feudal trine of theory of indefeasible hereditary right. As the represen- kingship tative of the house that impersonated the hereditary theory, with the Richard was compelled to employ every pretence, however ory of he- specious, to remove from his path the prior claims of the right. children of Edward. and of Clarence ; and yet the very weak ness of his pretences drove him to seek shelter under the sanction of a parliamentary election. That the nation, although silent under the despotic policy of Edward IV, did not patiently acquiesce in the result of 1 Lords' Report, vol. i. p. 371. 586 THE GROWTH AND DECLINE OF PARLIAMENT. [Ch. An outcry the revolution through which its liberties had been over exertions6 thrown, clearly appears from a petition addressed by the citi- tionsTfthe zens °^ L°nd°n to Richard III., in which the declaration is preceding made that " We be determined rather to adventure and com mit us to the peril of our lives and jeopardy of death than to live in such thraldom and bondage as we have lived some time heretofore, oppressed and injured by extortions and new impositions against the laws of God and man and the liberty and laws of this realm wherein every Englishman is in herited." 1 In this outcry against "extortions and new impo sitions" can no doubt be found the motive for the statute2 now enacted, in which the evil practice of extorting benevo- Benevo- lences was not only forbidden, but denounced as a new and bidden, and unlawful invention. In addition to the guarantee thus given Isiatioii *n?~ against the most obnoxious form of illegal taxation, other acted. statutes were passed of a popular character, — chief among which may be noted those designed for the promotion of the growing interests of English commerce, for the reform of legal procedure, and for the prevention of the mischief aris ing from secret feoffments which the perils of the civil war statute had greatly multiplied.3 Another statute4 was also passed subject of at this time which bears an important relation to the history uses' of uses. Owing to the fact that the king was incapable of holding to a use, it was enacted that, where Richard was en feoffed to uses jointly with other persons, the land should vest in the co-feoffees ; where he was the sole feoffee, it should vest in the cestui que use, — an early statement of the princi ple, afterwards embodied in the great Statute of Uses (27 Henry VIII. c. 10), that the position of the cestui que use should in all cases be assimilated to that of legal owner.6 As a recognition, no doubt, of the concessions made by the king in the interest of reform, parliament on the last day of the and pound- session granted him tunnage and poundage, and a subsidy on subsidy on wo°l f°r life.6 A few days later Richard by charter confirmed granted for to the clergy the privileges which had been secured to them life. shortly after the accession of Edward IV. __ 1 See Green, Hist. Eng. People, vol. 6 See Gilbert on Uses, ch. i. sect, ij "• P' 63\ Digby, Law of Real Property, p. 291, a * Sc ttt c' 2- note x> and PP' 3I0> 3" ; Blackstone, 8 1 Rich. III. c. 1. Comm., bk. ii. p. 332 4 t Rich. III. c. 5. 6 Rot ParL> vi> pp_ 238_240i II.] FROM HENRY IV. TO HENRY VII. 587 But the boldness, the craft, the subtilty of Richard, who Fall of the under more favorable conditions might have made a great yotI^— it king, were powerless to avert the doom now fast descending ffruf1168 upon him. Not only had he shocked the moral sense of the and yet' nation by a usurpation which had culminated in a ghastly grantee deed of blood, but he was also weighted down by the short- order' comings of a dynasty whose despotic policy had deprived the nation of its liberties without securing in return the one boon which every despotic power was expected to bestow, — admin istrative order. The weakness of the royal authority under the Lancastrian kings, their powerlessness to preserve order, their failure to maintain a steady enforcement of law, had ex hausted the patience of the nation, and had paved the way for their overthrow. In the hope of escaping from this con dition of things, the nation had submitted to a transfer of the crown to the house of York from that of Lancaster. And yet after years of waiting the expected change had not come ; the " want of governance," which had worn out the patience of all classes under one dynasty, remained as a standing re proach to the other. The house of York had broken down all the barriers in favor of liberty which the nation had so patiently built up, and yet it had failed to curb the spirit of lawlessness which had been steadily gaining strength during a long period of foreign and domestic war. It may have been that the administrative machinery, which the monarchy had not yet been able to strengthen and consolidate, was itself in adequate to cope with the chronic disorders which naturally arose out of the decay of an expiring social system. How ever that may have been, the fact remained that the nation was worn out by an experiment which had robbed it of nearly every political right, and which had in return given it practi cally nothing.1 The spirit of discontent which grew out of this condition of things, the disposition to seek relief by still another change of dynasty, the conciliatory proceedings of Richard's parliament had failed either to allay or avert. His 1 "The house of Lancaster had small degree to destroy all that was reigned constitutionally, but had failed destructible in the constitution. . . . by lack of governance. The house of England found no sounder governance York succeeded, and, although they under Edward IV. than under Henry ruled with a stronger will, failed alto- VI." — Stubbs, Const. Hist, vol. 111. p. gether to remedy the evils to which 273. they succeeded, and contributed in no 588 THE GROWTH AND DECLINE OF PARLIAMENT. When inva sion is threatened, Richard re turns to the collectionof benevo lences. Henry lands on 7th Aug., 1485. Battle of Bosworth, 22d Aug. fair promises were no doubt estimated at their true value. As subsequent events' proved, his legislation in the interest of re form was not seriously intended. When in December, 1484, it was known that Henry Tudor was preparing for a second inyasion, Richard began, to collect benevolences,1 in open vio lation of the statute, passed less than a year before, in which they were not only forbidden, but denounced as a new and unlawful invention. The utter faithlessness, the cruelty, the craft, the mistrust, which characterized the conduct of Rich ard," no less in public administration than in private intrigue, sufficiently explain why it was that his bad cause was wrecked at the critical moment by the desertion of the great military chiefs upon whose fidelity he relied. Henry, who had not yet reached his thirtieth year, landed at Milford Haven on the 7th of August, 1485, with a small force, which was in creased through the influence of his Tudor connections among the Welsh, and then by constant adhesions as he ad vanced towards the centre of the kingdom. On the 22d of August he was met by Richard at Market Bosworth, in Leicestershire, where the decisive battle was fought. In the midst of the battle the Stanleys and Northumberland, upon whom the king mainly depended, deserted his standard and went over to the enemy. In his despair Richard, the last representative of a house that had produced more than one tyrant but not a- single coward, threw himself into the thick of the fight, and perished while hewing his way to the pres ence of his opponent. Thus, by the fate of a single battle, lost through treason, the crown of England passed away from the last of the Plantagenets, — from the last king of the great house of Anjou. 1 Cont. Crqyl., p. 572. YALE UNIVERSITY )21A_5Q7_7b