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THE HISTORY

OF THE vJN

W.

maUSE CONSTITUTION. \i

BY

Dr. RUDOLPH GNEIST,

PBOFESSOB or LAW AT THE UNIVEB8ITT OW BEBLIN.

TBANSLATED BY

PHILIP A. ASHWORTH,

or THE INirSS TIMPLB, UQ., BARBI8TKR-AT-LAtr.

IN TWO VOLUMES.
VOL. I.

LONDON:
WILLIAM CLOWES AND SONS, LIMITED,

27, FLEET STREET.

188G.

; • LONDON:

*•**.. • nUlfTKD BT triLUAM CL0WB8 AKD 0ON8, LrVTTKIS
t * • * ' STAMIORD SnUEST AXD CHABIKO Cft063.

AUTHOR'S PREFACE.

-•o*-

The History of the Constitntion of England has hitherto
only been written with regard to the Middle Ages, and separate
centuries since the Beformation. In venturing to draw a
picture of the thousand years* Constitutional History of such
a nation, I must necessarily begin with an apology in order
to explain the shortcomings and inequalities of my work, and
in some measure to justify them in the eyes of the benevolent
reader.

My writings upon the English Constitution did not originate
in a imiform scientific plan; my Soman law professorship
offered few points of connection with this subject, although
I am much indebted, in these writings, to the works upon
the history of Law of my revered teacher, von Savigny. It
was rather the efforts for reform in the German legal pro-
cedure which gave rise to these essays. Brought up in the
laborious and strict school of Prussian Judges, at a time
when the whole task of formulating the matter in litigation
was entailed upon the judge who personally directed the
pleadings of the parties, and having acquired a personal
knowledge of the political and social state of Germany,
England, and France, I had become sufficiently intimate with
the advantages of our nation of officials, as weU as with the
weak points of our system, both in legal procedure and

iv AiUJwrs Preface.

administration. I felt most keenly the necessity of the funda-
mental reforms in this department, which I have for many
years advocated in my academical lectures, at a time when
the majority of my colleagues stood aloof from, and were
opposed to, the reforms that have since been introduced. It
was precisely the differences in opinion upon this subject
which gradually led me to the conviction, that the so-called
philosophical schemes in public law chiefly originate in a lack
of positive knowledge of circumstances. My own work on
" Trial by Jury " (Berlin, 1849) bears witness to the truth of
this statement.

It was the period of storm and stress in 1848 that first led
me from the domain of law to the wider one of politics. A
closer acquaintance with the condition of affairs in France and
England, more especially with the excellent treatises of Loreni
Stein on those of the latter country, made me somewhat re-
served and doubtful in my attitude towards the new con-
stitutional development. I declined a summons to the National
Assemblies of that time, and preferred to take part in the
administration of a great provincial system, which gave to my
political ideas a more practical direction, corresponding to the
experience that the ruling class in England gains every day
in its provincial activity.

The constitutional struggles in Prussia soon took the shape
of a decisive conflict between the old and the new form of
society ; a dispute which was to be finally settled in Prussia
for the whole of Germany. I was led by this struggle to
examine with greater care into the real origin of the social
relations of the various classes in Central Europe, in order to
illustrate the rights and wrongs of Feudalism and Democracy
by the position of classes in England (" Adel und Eitterschaft
in England," 2nd edition, 1853). The recognition this work
obtained in many circles encouraged me to further labour.

Meanwhile the ministerial government in Prussia had

N

Authors Preface.

pTOceeded in a direction which might well be considered a

realizatioii of the theories of Constitutional Government

^bich bad prevailed up to that time ; but its effect in Prussia

was sufficient to demonstrate how utterly inapplicable to

Germany were the French and Belgian models. When this

confusion was at the worst, between 1853 and 1856, I began

my investigations in the domain of English Administrative

Law, the most difficult of the whole series of the labours,

and one that I might well compare to a walk through a

primseval forest. With good, though incomplete sources of

reference at hand, I succeeded in tracing amongst the chaos

of disconnected antiquarian matter piled up around Black-

: stone's Commentaries, a- connected system of laws reaching

^ back into the Middle Ages, while Parliamentary papers enabled

' me to produce as realistic a picture as possible of the adminis-

• • •

tration of to-day (" Geschichte und heutige Gestalt der Amter
in England," 1857). This tract was written not merely in
reference to the Prussian abuses of administration, but was
intended to draw attention to just what the constitutional
theories had forgotten in their long struggle for a suitable
popular representation, viz. that building up of a fair adminis-
tration from the lowest foundation, which is a necessary
element in a popular state. This work has not been without
its influence upon Germany in filling up a material gap, and,
if I am not mistaken, it has in England also influenced some
later views of Constitutional History.

Being dissatisfied with this partial view of the subject, and
having obtained a more complete body of material upon which
to work, I ventured upon the task of writing a history of the
English Parliament. But the task of developing the system
of English polity in its true aspect, led to my intended History
of Parliament becoming a detailed history of the English
administrative law ("Englisches Verwaltungsrecht," 2nd ed.,
1867, vol. i.. Historical pt., 648 pages).

vi Authors Preface.

Meanwhile, in the year 1858, constitutional monarchy was
restored as the form of government in Prussia, with the honest
endeavour to return to an administration according to the
law, and to proceed with the construction of the inner fabric
of the State. Together with many of my political friends
I hoped that the time had arrived for " opposing positive
tendencies to the negative tendency of our national policy,
for exchanging vague and formless efforts for fixed and settled
aims and objects to be gained by attainable means." With
regard to the reorganization itself, every one was satisfied
that a system of "self-government*' was a necessity; but
each of the two political parties in the realm, and the body
of State officials, respectively understood by this term three
very different and wholly incompatible systems. It was the
natural consequence of a state of affairs, in which the official
world and two distinct orders of society had been involved
for a whole generation in a dispute concerning the constitution.
It was no easy matter gradually to reconcile prevailing ideas
to the truth, that in a modem state, parishes and district
unions can no longer be autonomous bodies, but are, primarily,
only the executive organs of our more fully developed admin-
istrative law, and that local rates cannot be severed from
our system of political economy. Hence a legislation that
would rise above all party views was seen to be a vital
necessity; just as in England the inner fabric of the con-
stitution was not the outcome of parliamentary legislation,
but proceeded in its day from the organic laws dictated by
the Privy Council. In order to further these legislative
labours, or at least to prevent an overhasty imitation of the
French model, in the regulation of parishes and districts,
there appeared a work which I had somewhat speedily com-
pleted, entitled "Die Englische Communal- Verfassung oder
das System des Self-government " (1860). Soon afterwards
1 was able to rewrite with greater care my history of "self-

Authors Preface. vii

pYemment " (" Engl. Communal- Verfassung," 2nd ed., 1868),
md to give a description of the modern English mnnicipal
reforms down to the times when the organic legislation in
Prussia really began its work ("Engl. Communal- Verfassung,"
3rd ed., 1871).

After the Prussian and with it the German constitutional
question had been successfully solved, the time for actual con-
struction had arrived, viz. the time for positive reforms of our
administrative system, especially our police laws, local juris-
diction, local taxation, municipal regulations, etc. (" Ver-
waltung, Justiz, Eechtsweg," etc., Berlin, 1869.) For Prussia
I made the principal basis of my work the reformed adminis-
trative and social legislation of Stein and Hardenberg, the
municipal regulations of 1808, and the existing parochial
system in country and town. But whilst I carefully avoided
transferring into our German institutions any name or insti-
tution from English life, yet in all cases where our officials
had no practical experiences at hand to guide them in new
combinations in administrative law or local government, I
made use of parallels taken from England. In subsequent
years there followed essays which dealt with our constitutional
disputes, and with the question of reform in our legal pro-
cedure, as well as in our administration ; among which the
legislative proposals touching the Prussian Ejreisordnung,
school board administration, provincial taxation, the principle
of legality in the administrative (Eechts-staat), the reform of
the legal profession, of the magistracies, of penal procedure,
etc., repeatedly brought me better points of view of and
parallels with the English law.

Thus there gradually arose, in addition to a continuous
history of administrative law and ** self-government,'* a chain
rf parallels for various points of the inner life of the state, in
wrhich, thanks to the energetic development of the royal prero-
gatives, the EngUsh and Prussian constitutions are much
nore intimately related than is generally supposed.

Authors Preface.

It cannot be denied that these writings appeared in an
epoch and in the midst of the most profound political criaig
in my native land (during the last years of Frederick
WiUiam III., under Frederick William IV., during the regency,
and under William I., Emperor and King) ; and appeared,
too, under the pressure imposed upon me hy my academical
duties, as well as that entailed hy a magistracy and a pro-
vincial office, and by a long and active parliamentary life.
Though all this has probably been instrumental in producing
a many-sided appreciation of affairs, it necessarily had an
unfavoiurable effect upon the systematic arrangement of those
writings ; besides which, in a work directed towards an im-
mediate and practical end, the connection of the whole cannot
always bo sufficiently kept in view and expressed. Hencs
arose on my part a natural desire to put together the Englisb
constitutional history in a larger and more coherent form,
UHing an a basis the work most nearly complete in itself, the
hintory of English administrative law, from which I could
retain tho divisions into periods and chapters because it was
originally designed for a history of parliamentary law. Ab
rcgardH this portion, the present work appears as a third
edition. And here I have repeated an old experience gained
on the German judicial bench, namely, that where, after many
interlocutory judgments, the final judgment has been reached
in any litigated ease, many mistakes, one-sided views, and
gaps are discovered, which have arisen in determining the
I separate preliminary and intermediate questions, Forttmately

I such interlocutory judgments are not binding on the historian,

I but allow of tho completion, correction, and modification of

I opinions which once went too far ; and in this I have been

I much helped of late years by the excellent historical works

I of Froude, Freeman, ytuhbs, and others.

B In another direction this history has encountered a grave

■ difficulty, viz. in the copiousness of the matter.

Authors Preface. ix

A constitutional history mnst portray the reciprocal action
continually going on between State and society, Church and
State, constitution and administration, state-life and popular
life, political and private economy, between the greatest and
smallest interests. These are ever acting and reacting one
upon another in such wondrous complications that a picture
of the coherent elements, even when the moments of their
activity are continually brought before the reader, can be
but inadequately represented. In this constitutional history
differs from a history of law, for the latter traces the develop-
ment of the dogmas of private and criminal law, by quoting
from legal documents and authorities, whilst the former deals
with the living body of the State in its origin, its life and its
progress, and the successive and unbroken evolution of enact-
ments which have remained in force until the present day.

But even in this imperfect form, the English constitutional
history is pre-eminently suited to give a picture of the inner
coherence of the various members of the state and society, on
which the history of all constitutions and the fate of all
nations is really based. In these reciprocal relations the
history of former centuries returns to life, and becomes a
mirror wherein are reflected the struggles of the present ; but
above all it must be regarded as manifesting the over -ruling
Providence which guides the destinies of mankind according
to right and towards the right. Every man who, with the
inevitable partiality arising from a political, ecclesiastical or
social standpoint, follows up the development of the British
empire for a thousand years back, and strives in all earnest-
ness to discover the connection of events, will be obliged to
correct or amplify many preconceived opinions. The results
of personal activity and experience are similar in the mani-
fold relations of public life, in narrower and in wider circles ;
and it is just this habit of personal activity that has educated
the English nation and its ruling class in political freedom.

Author's Preface.

and has raised the political parties in tbe coantry to
capacity of ruling parties. Perhaps in later treatises I ma^
Buccetil ill portraying these reciprocal relations in a still
eimpkr and more vivid manner, for in them lies the solntioi
of that tnigma of "-- " world — otherwise incapable

of explanation — oa ;omes that in one conntrj

the iudi^'iduiii men ite and of society appear

be in a state of j et the whole loses groand

wbikt in another, elements appear to be baeki

ward and at times whilst the whole ia mightil;

advancing.

TRANSLATOR'S PREFACE.

The author's world-wide reputation, both as a jurist and
historian, was alone sufficient to justify the appearance of an
English edition of his History of the English Constitution ;
hut the preface to the German original furnishes a still more
cogent reason for presenting this translation to the English
public. The author there tells us that no consecutive history
of the English Constitution has previously been written.
Various epochs have, it is true, been treated by consummate
masters, but there is no treatise extant, that has attempted
in any way to describe the rise of our political system, and to
follow it through all its varying phases down to the present.

It is the author's- express wish that his preface to the
German original, though primarily intended for German
readers only, should likewise preface this translation; as
therein are set out the causes that induced him to commence
and bring his researches to a successful issue.

The work having been compiled fragmentarily and at
different times, and having originally been devised to meet
the practical needs of the German legislature, could not but
exhibit some abnormal features; among them the especial
stress laid upon the administrative institutions of the State,

Translators Preface.

the eoimty aud the parish. The author waB, moreover
(ibliged to esprcss himself according to political and lega
conceptions familiar to German jurists, and which diyergt
more or less widely from Enghab terms. Hence a free trans'
lation of the Englisl trman had first to be made

Q rctranslation of ■ sh is far from easy, and il

many cases might ir explanation, the inBertio)

of which, however, umbered the text.

The author aa .lator must accordingly b^

tliG indulgfucc of' y rooghnesa or unevenneai

of style, which ma; riginal or the translation

ahortcomin^'s that be avoided, as the authoi

could only hastily revise tHe Btieets,

At all cvunts it will be of the grcati'st interest for Enf;lisl
Htudciits of hi^itory to see how a foruif;ii jurist, who luis bour
iiiueli engaged with the reform of the judicial and ailminis-
tntfive institutions of Germany, treats the ancient ami
modern dcvel<ipinent of the " I'arliamcntary Model State."

J'. A. A.

CONTENTS.

FIRST PERIOD.

THE ANGLO-SAXONS.
CHAPTEE I.

PAOB

The Akolo-Saxon Foundation ... ... ... ... 1-13

The original Bettlement (1); B5c1and and Folcland (3); Military
fljBtem (5) ; Judicial Byetem (7) ; The Ghuroh (9).

CHAPTEE n.

The Anglo-Saxon Monabcht ... ... ... ... ... 14-39

Origin (14); Military Supremacy and followers (19) ; Judicial Supre-
macy (23); Police-supremacy, ordaiping power, system of sureties
(26) ; Revenue, Danegeld (30).

CHAPTER III.

The Union op the Kingdoms, and the Divisions of the Realm ... 40-55
The Heptarchy (41) ; Shires (43); Hundreds (47) ; Tithings (50) ; Local
divisions (52).

CHAPTER IV.

The Offices OP Ealdobhan AND Shib-Ger^fa ... ... ... 56-70

Ealdorman, Eorl (56); Shir-ger6& (61) ; Local gerdfas (66).

CHAPTEE V.

The Anglo-Saxon Chubch ... ... ... ... ... 71-87

Bishoprics (72) ; Monasteries (72); Parish churches (74) ; Church .
property (76) ; Tithes (77) ; yfei^i^i p oaition of the clergy (79) ;t
National character (85). ^ ^ *^

^^L^iM^^Ul ' if ^

Contents.

CHATTEB VL

The Avi!l,n-S\\1N CLAB^BBLiTIOVH, AND THB NATIONAL ASSEMBtlW ... 88-10»

(.Im.l lliniun (113): Oonnty thBoea (W); Cei>r!s(95): National aaaem
\Au.'ai.W): WiUntgemlHee (101).

The Decat akd Fall oi

Nntionnl ikutipiithi<

Sliitt(]lU); >fati_.

I

TUF, Am BUDAL STATB.

.1 8t*t» llO-lSli

I-., !>,. ,, -l.iy 11,. .k (1-21); StiliMU-s i.l' 1l»; l>..|>"l;'li.i„ (12;,);

!'ri-J;„ !ii.a' r/'i, m,.(«V,"(i:"il) ; Kvti'ild nf 111,; o.„l,'iry (i:)-!).

T|[E NOHIIAN COUNTV ri.nrllSMIlVT

Npv.- i„.siti.>i. <■( X\w Iv.rl (I:NJ; Tho 17,',«f^.» (111) ; Man
Hiiti<irs(HS); I(iLri;h3 (l.W).

It; DeVKWI'MKNTOFTIIK Nohmas- JIii.ltm^v I'ouijn ... ... !;',4-ii;i

Urri^iiiiiH IIS t'l ]»':>'<' aii'l ^s:lr (l~>4}: i:.|iii|iiiii'iit of troojis (l^lij ;
(V.imii;i..J (1 Ji') ; lkw\!il uf tlii. S;,^un iniliUa (lliJ).

C1I-\1'TKK XI.

■he nrvri.orMF-NTnFT!iE\"iiiniA\ ,Ii i.n i.M. i'.nvKH ... ... lj;,'i--I;-,'{

U,inliniir.ti,.i. ..[■ II,.- I..!,-,- l-:.i,i;,r,li {UliI,; L'.n.i.tv riTui lniTi.lri.,l c„iirl,-i
(lOil); M«M..ti:.lroiiri= (!■:;!) : i;,^ri„^ .,r ,-,-n(i:il,/.iiii..u ,17^) ; OriL-iu
i,f tli,;SI,iriir,<T,.iir,. (I^'^); -lii'i-M'li-in'V HI,- <'-n" /,''■;'» (ITl');
riii.i,sta by mjiil <ir(liiiui,o.-s (ISl) ; ,l,iri,,, in dvil licUnii- (i.-;-).

(■n-\['Ti:i; me,

THi:l'Jvi:n>iMi\Ti>rTiir X..i;vAN r„n'i r.>\'ii!.>i 18-l-'Jul

Sur.li,>(l.-'l); l'n-'-n1„„-,i(l-7); J"o,", !;.■ , „7/. (li'O) ; Stiii,i,i,irv

[,rm-.luK.(li>;;,; S;.i.i,i ,.( -..,u.T,-,.,u.ni. (l-J..)-. Vv\k^ r^sala.vn^

;,uilr.)uK.r.Un,,u.v.(2i"i).

Contents.

XV

CHAPTER Xm.

rv. Th« DxYKLOFMxirr of thi Fikanos Ck>NTBOL ... ... ... 202-217

Demesnes (203) ; Feudal perquimtes (205) ; Fines (206) ; Aids, tallages,
seutages (210) ; Danegeld (213); Transition to a system of land and
property taxation (215).

CHAPTER XIV.

Th« Nobmah Exchequer 218-229 ^

Origin (218) ; Procedore (221) ; Court days (224) ; Staflf (226) ; Exchequer

of Jews (228).

CHAPTE

fl®

V. The Rise and Decay op the Xobmak Chuboh Supbemact ... 230-245

Concessions to Rome (230) ; Separation of the Ecclesiastical Jurisdiction
(231) ; Feudal bonds of the Church (233) : Disputes as to the in-
vestiture (236); Constitutions of Clarendon (237); Freedom of
election (240) ; Progress of the struggle (240).

CHAPTER XVI.

The Curia Regis. The Great Officers of the Realm ... ... 246-271

The Curia considered as the Norman 0)urt Days. Royal power of
ordinance (246) ; the Curia Regis as a Central Law Court (255) ; the
Curia Regis as a Supreme Goyemment Council (260) ; The great
officers of the realm (263).

_CHAPTER_XVIL

Trakbitional Period. Itdherant Justices. Justices in Banco. Origin ^

OF Estates OF the Realm... ... ... ... ...272-293 /

Ongin of itinerant justices (273) ; Origin of a Court of King's Bench ^

in connection with the Exchequer (279); Origin of Estates of the
Reahn(286).

CHAPTER XVra.

Magna C?harta .... .. ... ... ... ... 294-311

Its origin (294); Limitations of the supreme power (301); Clauses

relatin«c to the Estates of the Realm (307) ; its fundamental cha-
racter (310).

CHAPTER XIX.

The First Attempt at a Government ht Estates of the Realm ... 312-332
Confirmations of Magna Charta (313) ; Epochs of the constitutional
struggle (317); the name Parliament (320); the Parliameut of
Oxford (322); the Statute of Marlebridge (325) ; Character of thu
constitutional wars (326) ; Germs of a Lower House (330).

^^^

xvi Contents.

CHAPTEK S3.

The CYiS. Reuti js-^ or tsb A«olo-Noiuia» Pkjw 333-3H

Til:' \it^..t.ir \"„.sftlfl, AwDM Jfa>m (331); the Baro>»w JCfuoret tuid

OD.

TUf: I-KUIOD OF m OF TBE ESTATES

ALU.

XL

The f.iNTii.!- or riRiiisifl km or the Gnmiii, Oo^ms-

«rsT«iTurw;Ow ocsnw 345-«l

Natun- of the oiBM . of the miUtarj ayBtein with
Ibt cour.t7 {350)j store with the oouuty (25'5) ;
C»i.JD (if iLo poliB* atj— Origin of jiutico* of the

Loc^al luiui™ (375): ^^..-s^-.-»^c^l m llie town-" (3S1), "^

CIIAPTEl! SXIi.

TlltrorfiT- ■-■ '■■■ V 1 ...■ 384-397

i:.,uri.i 1. .-I' :-l,: C.rart of Cf-mmin PI.-as(3SS)i Cuurt of
Fi. . 1 ■ ■ ' -.■l..|,itiQii of th^' itmrmni jiislii^ .luJ tlie
Lin.l, ■ .-• . l; - ■ ■'.. l,'L-ii1 llrnfiB-i'.n [?,'.fl) : iIih Lord Clian-
•■,\V;.:r.-ili.-:n.iju-utu t\UA): Spi'cwl o.iurl* i3yij.

ciiArTKi: xxiii.

'^'"''i'irl-ni~^' ■"' ' ' '''"'.'-,' 1 -'"',.'' '.'>"^' ■ ' ''^'<"i'r,ii--^!'r~^'^

CHAPTER XSIV.

■liii: I'aiiLHiilENT OF me Prelates iNT>nAn.jN>- 414-437

TL.. M,io:.n.,. C.j:.<-iHma as uu a.liuiNi,.tmti"> nrg.in (414); Spiriliial
Bud t^iuponil lorJu uod officials (.1^4) ; ucipn of beritublu peiruKi's
t431).

CONSTITUTIONAL

HISTORY OF ENGLAND.

-••-

FIRST PERIOD.
THE ANGLO-SAXONS.

CHAPTER I.

®fie anjlo-Sfeaxon Jfounlratfon.*

:Eogbsrbt, 800-836
JBthblwulf, 836-857
.£thelsald, 857-860

^THBLBEBHT, 860-866
iBTHKLBED, 866-871

MLrBXD, 871-901

Eadwabo the Elder, 901-924

^THKLSTAN, 924-941

Eadmcnd, 941-946
Eabbed, 946-955

Eadwig, 955-959

Eadoab, 959-975

Eadward the Martyr, 975-978

^thelked xl, the unready,978-1016

Eadmund Ironside, 1016

Cnlt, 1016-1035

Habold I., Harkfoot, 1035-1039

Harthaonot, 1039-1042

Eadward the CoNFPifisoR, 1042-10(>6

Harold II., 1066 (January to October)

The conquest of the British Isles by the Saxons, Angles, and
Jates from the middle of the fifth century has the character

* With regard to the sonrces of this
period, Lappenberg (** Geschichte Eng-
landB," vol. i. Introd.) gives the motit
exhaustive information. Compare also
Gneist (** Geschichte der Communal-
Verf." pp. 7-9). The laws in the fol-
lowing pages are quoted as given by
Beinhold Schmid ("Die Gesetze der
Angel-Sacbsen," 2nd ed., 1858). Where
special occasion demands, quotations are
given from the official report of the
fiecord Commission (Thorpe, " Ancient
Laws and Institutes of England,** two

vol*. I.

vols. 8 vo, 1 840). The seveml royal laws
are quoted with the abbreviations used
by Schmid, viz. Athlb. (iEtlielberht),
Whtr. (Wihtraed), In. (lue), Alfr.
(Alfred), Edw. (Eadward the Elder),
Athlst. (-ffitlielstan), Edni. (Eadmund),
Edg. (Ea<lgar), Athlr. (iEthelred), Cn.
CCnut). Frr)m the Norman times the
Leges Gulielmi Conqu. also contain in
the main only a collection of Anglo-
Saxon rules of law. The so-called Leg^s
Ilenrici I. are principally also only
a private compilation from the later

B

Constitutional History of England.

of a gradually advancing occupation. The disunited Britons,
some of them grown effeminate, while othera have become
savage, are overcome aft4?r numerous battles with varyine
issue ; the civic settlements, dating from the days of the Roman
sway, fall into ruins ; the old Koman culture disappears, and
with it Christianity ; the aboriginal population is either driven
into the hills or reduced by oppression to a state of slavery
or to the position of impoverished ^aaants. Hence in Eng-
land those peculiar conditions are wanting which in Western
Europe arose from a mixture of the Germanic races with
a Homanized provincial population, with Itoman culture, and
with the Roman provincial and ecclesiastical constitution.
On the other hand, the coniuest had the effect of destroying
the tribal bond that still prevailed in the home from whicb
the conquerors came. The first settlemeuta, indeed, appear
to have been based upon the exodus of small tribes (notably
the Angli), with wives, children, and servants, from the old
home into the new. As colonization slowly proceeded new
migrations continually took place (as in the colonization o(
the Marks in East Germany), in consequence of which tha
old tribes became mingled together, and the original family
unions were widened by new settlers. The groups of con-
querors thus welded together appear to have found their bontl

■ Palm

^^^^L ToniM

^^^H (1799-^

^^^H plemei

Anglo-Saion le^lBtion, d>tm)r from
llie middle oF the twelttb cectiirj.
The Uget Eduardi Cdu/cmutu ».ha are
M privHt* coinpilBtlnti from various
Boniccs nnd traditioiiB from the legia-
IfttioQ oF the Iiitnr Angln-Saion times,
■ad kpporently dntin); alira (rom the
(weirth century. The An^lo-Snxna
dnoumentg are quoled fron Kemble'ii
ti-lex Dipl.. ™l». i.-Ti. <I839-1816).
or Knglleb hiitoiical worka beoTing
on tliean (imea use has been niBde
pnnoipallj' of Eemhle, "The Aoglo-
SaxonB in England" (1843), two vols.
(tranelated by UrondiB. fmm nhom the
qiiotstionB aib taken); Sir Frani^ie
'algrave, "The Engliah Conimon-
'ealth" (1831, 1632), two vols.: i^haroii
TomM, "HiBlory of the AnK;lo.SaicinB"
(1799-1885), three vt.U. with the bi.]!-
plamenUry volume, "The History of

the Hinincri, Landed Propert;,'* alfc.
New and important contributioiu ttt
thia pcTLixl are alao given bv FreettHA'
"Historv of the Ni.rman Couquefc"
vols, i., ii.. lii. (and edition, ISnQi
Bialiop Stubba, " ConatitutioDal m^
torv," vol. i. oap. 1-8 (1874); and M.
exoecdingly able and lutful MJUi*;
(ion of le|^ ohnrten and bistortsd
dooumentary evidence is furtiighed lif.
hia" Select Cbnrtcre and UluslratiaH
ofConsUlutional History " (Sad ediUoBj
Oxford, 1874). Of German treaUMk
a histniy of Anglo-Sazon law contife p _
ing the principal featuri'B, by OmnC
Maurer, " Hiinol'ener Kritiache U»b^'
arbau." toI. I. p. 47, ff., coDiiniie<I l£
vole. ii. Hnd liL ; Phillipn, "GeKbioMf
dea AngtlaaohBiaolit-n Bii^htB " ( ISSSK
LappcoberE, "GeaohicLte Euglaodv
vol. i. (1838).

The AnglchSaxon Foundation.

of Tmion principally in the greater and lesser military chiefs »
from whose office as leaders in war the royal dignity arose in
later times.

After the occupation of the country a division of lands took
place, in which the htda, familia, mansm, or plough of land
(which, according to Eemble, amounted to thirty-three Saxon,
or forty Norman, acres), was made the unit or smallest
measure of land settlement, and, with certain rights of pas-
turage and woodcutting, was regarded as a sufficient basis for
a peasant's household.

In many places the British population had already a dis-
tinct landed property upon which the conquerors entered. In
later times the continual feuds among the petty kingdoms
everywhere hastened the dissolution of the family bond and
the development of private property, with all its lasting effects
upon the constitution and civilization of nations. Only in
a few tracts of land in North Europe were soil and climate
80 inviting and so productive for the peaceful labour of tUlage
and pasturage, so calculated to produce attachment to hearth
and home. From the beginning of the tenth century the
expressions "boc-land" and "folk-land" appear as the in-
variable equivalent of the ager privatus and the ager publicus.
The rich store of Anglo-Saxon records proves conclusively that
the rights of private property were early established, and that
property could be transferred by title deeds. Just as certainly
was there in early times great inequality in the division of
property. The reason for this is chiefly to be sought in the
existence of small armies which were slowly but steadily
conquering, under their numerous captains and commanders,
who at the division of the land received the greater posses-
sions, which possessions in process of time were managed
by the settlement upon them of smaller people, who rendered
payment in kind. This inequality of property had already
undermined the old position of the freeman. The ancient
inheritance of freedom, the considerable weregeld, and the
personal protection accorded the liber homo, were, indeed,
continued to him, even when he possessed no land, down to

4 Constitutional History of England.

the close of tLc Anglo-Saxon period. But in every other
respect, the rising up of the greater landed proprietors over
the class of the peasant proprietors, and the degradation
below the line of freedom of the free-born men, without
possession of their own, ia increasingly manifest. The con-
ditioas of property among the Anglo-Saxons tended thue tok
state of dependence, by means of loans of land and service,
on the largest scale. The ordinary names for thoso who were
in this aiaia—Folgan, Hldfiiia — include both the settlers upan
the land thus lent or lot and also the personal domestic
servants. But the state of service {gesiih) thus created
proceeds in two widely divergent directions.

This entrance into the sphere of personal service has quite
a different meaning as applied to the household of the inferior
warrior chieftains. When once a settlement has been formed,
the honour attached to this service, and its connection with
military and legal affairs, gives the retinue of the king a
position BO prominent as to be eagerly sought after by the
landless sons of the great proprietors, and even by free land-
lords. The relation of service to the king forms more and
more an especially honoured upper class, increasing with the
growth of the royal privileges and of the realm.

On the other hand, this dependence, brought about by ths
settlement on farms held of private persons, is productive ol
a lower position, which sinks below the level of the old commM
Uberty. This class of settlers are for the most part small
farmers, intermingled even with bondsmen, and it has the
position of a dependent and heavily burdened peasantry-
Extant records show us how manifold were the ways of
granting such a "fief," whether revocahly or irrevocably, bx
years or for life, and with reservation of numerous paymenb
igafol) in kind or in money, in labour, service in the field,
defined or undefined. The great landed proprietorsh^
realized much from such settlements, and supplied them*
selves with the natural products and the services of wbidt
a great household stood in need, for the wants of private
life as well as for the equipment of the troops. The depeib

The Anglo-Saxon Foundation.

dence thus created became in fact hereditary, and increased
in times of war, through the destruction of the free peasant
fannSy and in times of peace through the increase in the
nximber of the landless members of families. In this direction
social order appears in the Anglo-Saxon times to have
advanced with even step. The law of property originating in
later times under the name " rectitudines singularum person-
arumy'' aflfords us in the law affecting the Thane, in the rights
of inheritance, and of those affecting the farm labourers,
a picture of a firmly established state of society, exhibiting
a deeply rooted dependence of the free-bom classes on great
landed proprietorships.** In its forms of armament, adminis-
tration of justice, and Church, the State is constantly acting
and reacting upon these bases of property. Army, Law Court,
and Church remain throughout the whole of the Middle Ages
the three foundations on which the commonwealth is carrying
out its work of change.

I. The first department, tje iWiUtarg SbSStem of the
Anglo-Saxons, is based upon universal service. Under this
is to be understood the duty of every freeman to respond in
person to the summons to arms, to equip himself at his own
expense, and to support himself at his own expense during
the campaign. The impossibility of attaining a uniform fulfil-
ment of this duty is at the root of all the changes in the
social relations, and in the constitution of the Germanic races.
After a fixed settlement has been entered on, the small peasant
farm, barely sufficient to support a family, cannot possibly,
as a rule, answer this duty, and still less can it be fulfilled
by the landless freeman. Among the Anglo-Saxons, as else-
where, after the settlement a division of the militia, according
to Hundreds, was organized, in which arrangement a remedy
was to be found for existing evils. They were obviated in
this way, that the Hundreds, instead of furnishing a hundred

♦ • The lawB of property are treated the older family constitution, see R.

of at length by Conrad Maurer, in the Schmid in "Hermes," vol. 32 (1829),

"Munchencr Kritische IIebers«hau." pp.232-2G4. On the land communities

R. Schmid's "Glossarium" v. Bocland, of the Mid.lle Ages, see Nasse, **Das

Folkland, Hid. Kemble, Anglo-Saxons, Englische Marken-system."
L c. 2, 4, and appendix A, B, C. On

Constitutional History of England.

men, sent smaller contingents, and that in making the divisions
the number of the hides of land was taken into account ; that
a landowner was allowed to send his sons and his followers
to serve in his stead, and that the regulation of the duty of
furnishing troops was left to the resolution of the National
Assembly, and in process of time to the lieutenants of the
king in the County Assembly. The Hundred therefore means,
with regard to the constitution of the army, only an equal
contingent within a greater unity ; and this is the reason that
in various epochs, as for instance under the reign of Alfred
the Great, a new organization of the Hundreds took place.
The Anglo-Saxon times never attained to such fixed and deter-
minate rules of law as were introduced by the capitularies of
the Garlovingians. The sub-distribution was left entirely to
the administration of the county, whence only a very unequal
and faulty form of militia could proceed.

Accordingly, in the times of the Heptarchy, the individual
chieftains were obliged to have recourse to other forces for the
waging of their numerous wars, by detaining and reorganizing
from among their free servants and followers an armed retinue
ready to respond to their personal summons. AU court
offices had originally a warlike character. Prospects of booty,
honour, favour, and reward induced even freemen to join such
trains of followers. Besides the booty, gifts of folkland and
grants of offices of trust were the rewards chiefly paid for
services of this description, and thus there was formed round
each of these little kings a first levy of tried soldiers, whose
existence confined an appeal to the general military service
of the people more and more to cases when the country was
in peril. We first read in the laws of Ine of these warlike
Gesith-men (with or without land of their own), whose
increased weregeld indicates them as belonging to a class
liable to military service in a higher sense; and in process
of development these men become the still more esteemed
class of Thanes. Analogous reasons in later times led to
the greater landed proprietors in the united Saxon kingdom
forming a warlike retinue from among their domestics, their

The Anijh-ScLson Foundation.

under-vassals skilled in arms, and in some meaBore from
unong the free landed proprietorB, At the Ba,ine time the
majority of the freemen were, to a certain extent, practised
in arms, but thia varied according to the position of the
di&tricts. As a rule, the service of the freemen in times of
peace was required by the Hundreds more for guard duties,
the repair of castles, and the makinj^ of roads. The reorgani-
zation of the army by Alfred was not permanent, and after
the lapse of a hundred years sank into a state of utter
weakness, and at the close of the Anglo-Saxon period the
asoendaucy of a few powerful, warlike Thanes, with their
armed followers, produced an oligarchical character in the
whole of the constitution. (1)

n. The second department, the glnglo-|btuon gtlimfnfstia-
tton oE justice, in spite of the numerous accounts handed
down to us, affords no comprehensive picture of the whole.
In the developed constitution of the tenth century, however,
we meet with judicial courts of the two following degrees.

The Hmutred Court or Hundred- gemote, meeting once a
month for the narrow district of a commonalty (Vicinetum),
decides the ordinary civil actions and petty criminal cases,
and is the principal place for the solenm conclusion of
contracts and testamentary dispositions.

The Counly Court Shire-gemote, meeting twice a year,
exercises a fuller criminal jurisdiction^ decides quarrels between
the inhabitants of different hundreds, draws in general within

laDtl, and Ihe rendering ot milifauy
service by the grantee, exinleU nlrcadj
in Aaglo-Saxan timei, as ilid utsn Ihe
legal and police jniiiidictioii of thelanil-
lord over Ma tenantt. In the aame
way tbere was a bond of allegiance
between the king and bis bigber
followers, between every msBter and
Bcrvant, l«tweeu the Hlftfnrd and the
Hlftfacta: bnt tbo growiag together
and the conBolidatian of tbese robitiona
into the Engliah feudal syBlein did
not take place until the Ndddud times.
For tbeir more epecial fonaation under
the iiifluence of the monarohlo power,
HBB cap. ii. sec, 2.

(1) An enifuiry into th(
of tlie umy leiula to the ne^tire result
that tbem was no legal diatribution
or Ifca burdeoB of military urrice in
Attglo-Ckioti timee. Military eertice
nal Uie personal dntv of erery free
uaa. and not n Qxod bnrdon, but one
pertdniog to tlie oommonulty, anil regn-
Ulad aotwidins: to extent of property.
Tha muob-vexed qnestioa, which baa
Kvn diunuaed alraost vrithtn the
meiDory of the pretK-Dt generation, ag
to whether in tliG Anglo-Saxon tJmeB
» "feodal Bye tern " exiBled, has its

igfn in miatoking a few unconnected
for the whole. Grants of

8 Constiiutional History of England.

its jurisdiction matters in dispute between more powerful
parties, and forms a periodical district assembly for the
conduct of all public business in the county.

The parties appear before the court with numerous com-
purgators, t.^. persons prepared to swear to the truth of a
statement; the employment of witnesses in civil actions
was tolerably frequent, and suitors seem to have appeared
frequently taking a part. A regular participation in such
judicial proceedings, with their numerous judges and com-
purgators, presupposes an independent position which must
have been very rare among the small settlers, many of whom
possessed but a single hide of land. And yet a regular
attendance at judicial proceedings is the necessary preliminary
of all legal knowledge \ he who is only present now and then
cannot become and remain the depository of legal knowledge
and of legal custom. Accordingly the great County Courts
were, at their first authentic appearance, assemblies of the
greater proprietors, who, in their capacity of regularly appear-
ing, experienced lawmen, obtained the appellation of " Witan."
A picture of old Germanic peasant communities forming a
court in full assembly, under their chosen presidents, is not
to be found among the Anglo-Saxon records. The inequality
of the proprietorships has thrust back the smaller farmer into
the position of a spectator in the large assemblies, and even
in the small County Courts the judgment is generally left to
a small number of " Witan."

These beginnings of a magisterial constitution are founded
upon the natural basis of the ascendancy of the great pro-
prietors. The Carlovingian institution of select lawmen
(goabini), appointed permanently by a royal oflScer, is foreign
to Anglo-Saxon ideas.

The magisterial office in Anglo-Saxon times is remarkably
vigorous in the matter of punishment. Blood vengeance
appears only to have been permitted against the slayer with
malice aforethought and the adulterer. The privileges and
responsibilities of clan and family kinships assume a subor-
dinate position where a breach of the peace has been com-

The Anglo-Saxon Foundation.

nitted. The system of composition, so far as payment of
weregeld and penalty to the parties is concerned, appears to
have soon become only subsidiary. Serious breaches of the
peace are generally visited with capital or corporal punish-
mentSy while for serious as well as for petty offences, con-
siderable fines under various styles and names were payable
to the magistrates. Penal justice was thus, even in the
Anglo-Saxon times, in intimate connection with the financial
rights of the king, and in course of further development
with the privileges attached to the private jurisdiction of the
landowners. Out of the magisterial authority in criminal
procedure there was formed a system of protective measures
to secure the "maintenance of the peace." The householder
is made responsible for those living with him, the landowner
for aU the occupiers of his soil, especially for their due
appearance in courts of justice. The landless man who did
not belong to the household of an established landed pro-
prietor, was forced to enter a union called a "tithing."
Towards the close of the Anglo-Saxon period, this " tithings
system *' developed into similar small unions consisting both
of free men and of poorer people dependent upon the soil.
At the same time these formed a police system, and acquired
a right of settlement, and thus incorporated the landless
population either with the household of a Thane, or with the
land belonging to a Thane, and to a community dependent
upon him, or forced them into a tithing of free peasantry. (2)
III. The third division of the Anglo-Saxon life is furnished
by t|ie ®f)ristian (!rf)UTCf) — the necessary complement to the
army and the judicial system. Just as the influence of the
heathen priesthood in the new settlements does not appear
to have been anywhere very important, so the conversion
of the separate kingdoms to Christianity in the course of a
single century (591-688) was effected without any material

(2) As to the legal jurisdiction of refers to their various aspects. As to
Aoglo-8axon times, compare Lappen- their further development under the
berg, vol. i. p. 581, et seq. ; Phillips, influence of monarchy, vide cap. ii.,

pp. 166-210. The description of the sees. 2 and 3.
offices and the dintriots (cap. iii. Iv.)

10 Constitutional History of England.

struggles or convulsions. The successful labours of the
Scottish missionaries, who brought down from the north the
faith of the British Church, were met from the times of
Gregory the Great and St. Augustine onwards by the equally
successful propagation of the Roman Catholic ecclesiastical
system advancing from the south. In spite of the disunion
that at first existed, Christianity found a fruitful soil in the
peaceful inclinations of the new colonists; while the early
entrance of the aristocratic classes into the clerical profession
is a characteristic feature in England. The importance of
the Church of the Middle Ages shows itself primarily in its
protection of the weaker classes. The Church created the
first beginnings of a legal protection against the sale and
ill-usage of women, children, and bondsmen. It was the
Church that first secured to the labourer his day of rest,
his earnings, and an effectual liberation from slavery. She
it was that founded the earliest schools for the upper classes,
whilst the lower clergy and the monks were accessible to all
alike for advice and instruction. She was the first to foster
gentle manners, industrial pursuits, peaceful intercourse, and
was the first originator of relief for the poor. The higher
regard for the sanctity of marriage, the raising of the position
of women — first in manners, and then in their private rights —
are due to her influence. In the Law Courts the Church
made her power felt by the frequent application of oaths, and
by conducting the judicial trials by the ordeal of fire and
water, which fell to the Christian clergy in the transition
from heathendom. The Bishop appears in conjunction with
the Lieutenant of the king, as the head of the county adminis-
tration. And so the Church, steadily progressing, enters into
the Commonwealth to fulfil those humane tasks for which
there was as yet no room in the temporal constitutions of
the Middle Ages. In all circles of public administration the
Clerici are the indispensable medium for writing. Bound up
with all classes of the population, and with all the interests
of Ufe, the development of the English Church, as regards its
officials, its doctrines, and dogmas, has been more national in

The Anglo-Saxon Foundation.

11

its character than the Churches of the continent. Neverthe-
less, the internal organization of the Church is true to its
principles, as being an universal school. To perform its
widely extended functions, there was formed a peculiar class
for intellectual labour, which, like every other free labour,
needs property ; and therefore in the Middle Ages it needed
landed property, without which the Church would have re-
mained in a servile position, and incapable of fulfilling its
vocation. The ecclesiastical constitution accordingly assumes
in this most national of all Church institutions the same
external form as in the rest of Christian Europe. A school
far a nation can only be conducted by spiritual superiority,
and this demands, on the part of officials, submissiveness
and devotion to their profession, — the first example in the
Germanic life of a class of professional public functionaries. (3)
Such are the poUtical forces which, continually acting and
reacting upon the inequality of property, remodel those
class relations to which I shall again revert in Chapter
VI. The bearers of arms maintain their dominion over
the spil, and become the landowners. The landless freemen
come into a lasting and actually heritable dependence upon
the land. Throughout all degrees of property there runs a
disposition to create dependences which strives after a legal
recognition, and gains it in the following way.

(3) We shall reyert to the more im-
portant of these relations under the
head of Ecclesiastical Administration
(Chapter V.). As to the outward pro-
gresis of the conversion, vide especially
Lappenherg, 1. 132-205. The pro-
pagation of the new doctrines proceeded
from above to below, making its first
appearance at the court, and then
throoeh resolutions of the national
aBsembly, which was generally appealed
to, and which decided by a majority of
voices. With regard to the main clia-
racteristics of Anglo-Saxon heathen-
dom, see the exhaustive essay of
Kemble, L cap. 12. The effort made
to replace as soon as possible the few
foreign missionaries by native bishops
is worthy of note. ** It is owing entirely
to the admiaaion of natives among the

higher clergy that it became possible
for the Church of the Anglo-Saxons to
become so soon a national one, that the
Liturgy, Ritual, Prayers, and Sermons
were so soon given in the German
tongue, and found their way to the
heart of the people. The retentitm of
the Germanic proper names, the pecu-
liarity of the Anglo-Saxon calendar and
its feasts, the small influence exercised
by the Roman Ecclesiastical Law, the
development of the national language
by the Ecclesiastics, the weakened in-
fluence of Rome upon the princes of
the realm, are the peculiar and in-
timately connected advantages of a
Church, truly richly endowed by reason
of its former deficiencies" (Lappen-
herg, i. 163).

12 Constitutional History of England.

The state of dependence in which the poorer classes
were, was formally recognized by the king and the general
assembly of the realm and became a principle of law. The
relation between Hlaford and Hlafaeta was already a com-
plete portion of the Anglo-Saxon legislation. (In. 89, 50,
Alf. 87, 42 ; Athlr. i. 1, ii. 4, 7, iii. 5, iv. 1 ; Edm. iii. 7 ;
Cn. ii. 29, 82, 78, 79.)

Higher services rendered in the militia and in the Law
. Courts then led to the legal recognition of a higher worth
or station — to the idea of Thanehood. The direct expression
for the " worth ** of a man is the " Weregeld," which was
fixed in the proportion of 200 to 1200 shillings ; that is, the
Thane was estimated at six times the rate of the mere free-
man. By multiplication of these, further sums were arrived
at for the Ealdorman and the Bishop. As the legal system
of these times is primarily based upon the legal protection
that a fine affords, a higher rating was equivalent to the
recognition of the right to a higher class or rank. Hand
in hand with these two relations is developed the foundation
of a manorial system. The householder and landlord has
the actual power to dismiss his gesith, and to take away
from his tenants their grants, whence there results a right
accorded to the lord of deciding upon the disputes of his
gedth and his tenants. Eecognized by the authority of
the State, the domestic Imperium becomes a regular jurisdic-
tion. With the increasing power of the magnates, further
royal privileges pass to the landlords, and in later times
also a petty criminal jurisdiction. Amongst the Thanes,
again, certain greater Thanes are distinguished from the
others, as having large territories and armed retinues, and
being in possession of the high state offices, as well as of
the lay dignities of the Ealdormen. These, together with
the Prelates, compose, in Anglo-Saxon times, the legislative
councils of the realm. Just as the county assembly in its
executive capacity had become limited to Thanes and a few
minor elements, so a similar limitation in a far higher degree
took place in the council of the realm. The Anglo-Saxon

The Anglo-Saxon Foundation.

15

Gemote, the so-called " Witenagemote," is a representation

of the masses of landed proprietors corresponding to the

system by which they fulfil the functions of the State ; that

is, it is determined by property, office, and royal appointment.

In the last century of the Anglo-Saxon period the great

proprietorships had attained such an ascendancy as to make

the position of the throne vary with the period and with the

character of its occupier, and the exercise of all royal rights

often appears, as a matter of fact, to be the right of the

oligarchic Witenagemdte.f

t Aj to the degrees in the different
olaases, a more exhaustive accoant wiU
be found in Chapter YI, I only here
refer to what is necessary for the
nnderstandin^ of the offices. In the
Laws of Ine the C^esithcundman makes
himself at first conspicuous. It is only
since the time of Alfred that the dignity
of a Thane appears in connection with
landed property to the extent of at
least fL-^B hides, which carries with it
a '*Weiegeld" of 1200 shillings, and
the rank of a Tucelfhyndemaru I con-
clude from a combination of numerous
indications that this is connected with
the estahlishment of altered milititry
arrangements, according to which the
king prevailed upon the majority of
the great landlords to pledge them-
selves to him to obey his personal
summons ; for which the honour of a
royal Thane, the appointment to the
ofBce of Shir-gerefa, etc., as well as tlie
further advantages resulting therefrom,
such as favours and honours, were a
sufficient equivalent. The title of
"Thane" now becomes applicable to
the royal servants, and extends from
the highest offices in the court down
to the smaller offices appertaining to
the county administration and the
royal demesnes. Moreover, those hav-
ing the right to exercise a private
jurisdiction, belong by virtue of this
right to the class of Thanes, because
their civil and police powers are now
regarded as royal offices. The pre-
ponderating influence in this arrange-
ment was the regard paid to public
ofiSce and a public calling, and not to

mere amount of property. That this
was the leading idea attached to the
complex notion of Thanehood is shown
by^

1. The etymology of the word,
which expresses (together with the
word derived from it, thegnian^ to
serve) the servienSy or minister. This
last is the usual translation in the
old Saxon records.

2. In later times any kind of official
position was so naturally connected
with the word " Thane," thi\t loss of
Thanehood was used as a synonym for
dismissal from a royal office.

3. Even where the possession of
five hides is mentioned as being the
basis of Thanehood, the reservation is
added that the following things are
further required : a church and a
kitchen, a bell tower, and a seat in
the castle gate (which is equivalent
to a personal jurisdiction, snca et 80ca\
and a special office in the king's hall
(of lay rank, cap. iii., Schmidt, 381).

4. That the stipulated service forms
the decisive point is furtiier shown by
the equality subsisting between all
Thanes until the close of the Anglo-
Saxon period. The great Thane with
princely possessions is a Twelfhynde-
man, and is no more than the simple
county Thane with five hides of land.
The Anglo-Saxon legal phraseology
has no special term for distinguishing
the great Thanes. "When it is necessary
to single out the magnates, the denota-
tion " Royal Thanes " is used with a
certain emphasis, in order to signify the
important royal office they hold.

14 ConstihOional History of England.

CHAPTER 11.

Prom amidst this reconstruction in the system of property
and freedom, we see in England the regal power going forth,
— the most magnificent civil creation of the Middle Ages.
Among the most nearly related continental races, in their
old dwelling-places, among Saxons, Frisians, Holsteiners,
Hadlers, and Dittmarshers, we find in those times no regal
sovereignty. Its appearance among the Anglo-Saxons must
be accounted for, not by national peculiarities, but by social
conditions, which arose from the settlements upon conquered
territory. Among the first generations, too, we do not as
yet find a kingship. The conquering expeditions had cer-
tainly a chieftain at their head, who belonged to the families
famous in war (nobiles) ; and in the conquered country we
find the successful commander at the head of the army which
has seized the territory. His name was associated with
memories of victory, with the acquisition of the present
dwelling-place. When the land was divided the lion's share
fell to him, as well as the spoils of the vanquished British
chiefs. In like manner, as possessions became hereditary,
. the transfer of the ducal dignity to the son was looked upon
as a natural arrangement. Such a condition of things was
found even among the Republican tribes of the continent.
Actual kingship begins to exist — firstly, so soon as the dignity
of the chieftain appears not only in the leadership of the
army, but when it becomes a comprehensive supreme power,

The Angh'Sctxon Monarchy. 15

including the office of magistrate, of protector of the peace,

of defender of the Church, with the highest control of the

Commonwealth in every department; secondly, so soon as

this highest dignity has become recognized by the popular

idea as tlie family right of a high-bom race. Directly both

these conditions co-exist, the new idea shows itself in its new

name. After gaining great victories, £lla, of Sussex (514-

519), was the first to adopt the title of " Cyning;" and this

example was gradually followed by the other chieftains, down

to the petty potentates who ruled over a tract of country

hardly as large as a county of the present day. The step

which exalted the ducal dignity, until then recognized as a

martial title, to the permanent position of supreme power,

was, regarded from without, of no great importance. The

head of the army in time of war, becomes the head of the

government in time of peace; that is, the organization

according to which the soldiers assembled under their leader,

becomes the model for the new monarchical state.

The social conditions which regulated this new state of
affairs have been indicated above. Together with the definite
development of private property, the principal military and
legal offices are transferred to a class of great landlords, which
class in this way gains a predominant influence in the com-
monwealth. The graduated values of the landed properties
gives the upper classes a separate position with regard to
" Weregeld " and fines, puts them on a different footing in
the army and in the Law Courts, puts a different value upon
their oath, and accords them a different share in judicial pro-
ceedings. The ever-increasing difficulty of obtaining justice
against the powerful, the class interests which pervade army,
Law Courts, and the system of the maintenance of the peace
(and later also the Church), create an idea that the old con-
federate constitution is no longer sufficient for the freeman.
Under such conditions the chosen officers of the State become,
wittingly or unwittingly, the representatives of the interests
and the privileges of the upper classes, and develop a tendency
to use their power for the exclusion from justice and oppression

16 Constitutional History of England.

of the lower classes. In the burden which military duty im-
posed upon the small landowners, and in the numerous duties
of tenure and service, means for this oppression were ever
present, and .were increased by manifold circumstances. War
and disaster drove the small independent landowners from
their farms ; the Hundred was broken in upon by the lords of
the manor and by dependent communities, and the separate
allodial peasants became less and less capable of protecting
themselves and bearing the common burden. In such a state
of affairs the weaker classes would necessarily be in a better
position when a higher impartial power appointed and con-
trolled the civil and military officers. Only by such a power
could the initiative be taken for the measures which were now
necessary for the protection of the unrepresented classes. The
exclusion of the small landowners and of the landless from all
the greater assemblies lessens their interest in the life of the
confederacy, and inclines the masses to subject themselves
to one great distant lord, rather than to numerous powerful
neighbours. In this matter the Middle Ages were guided by
an empirical tact. If the supreme ruler of the commonwealth
was to be exalted above these class interests, it was necessary
that his ruling position should be made a permanent dignity
in his family, which should be independent of the favour of
the dominant classes, and devoted to the lasting weKare of the
community ; and as a rule the king was inclined to this from
the feelings inspired by his high calling. In contrast to the
ancient world, in the Germanic world the hereditary kingship
raised the " State " above social interests, and gave the
permanent and highest duties of the State a permanent re-
presentative. And therefore it is that, among the Anglo-
Saxons, kingship was upheld by the attachment of the weaker
classes, and became bound to the whole community by a
mutual bond, which of all the creations of the secular State
has endured longest and most firmly.*

♦ As regards the origin of the Prerogative in England" (1830), in

Anglo-Saxon kingship, sec the clever which the historical dates have been

monograph of Alkn, "Inquiry into carefully collected. But the appearance

the rise and growth of the Koyal of the treatise at the time of the

The Anglo-Saxon Monarchi/.

17

The honorary prerogativea of tlie kingly office are nest
formed in the following way. They resulted from the idea
that the embodied authority of the State, if it is to stand
aboTe the community, must be itself the undisputed head of
the Booiety. Accordingly the king haa the highest grade of
"Wetegeld," viz., in Mercia 80,000 sceatts, equal to 7200
.shillings, or ISOlbs. silver; as high, therefore, as the "Were-
' geld" of sis Thanes or thirty-six Ceorla. In other districts
the simple " Wite " of the king is apparently not higher than
that of the archbishop ; but the amount of the royal " Were-
geld" is doubled by the "Cynebof'of equal amount, which
is demanded, not by the family, but by the wiiole nation for
the life of " its king," thus givmg expression to the idea that
in reciprocal possession the king belongs not merely to his
family and his class, but to the whole community and the
nation at large. The nest-of-km of the king aro also, by the
simple " royalwere " and by larger contributions (Cn. ii. 38,
Appendix iv.), ranked above tlie Prelates and Thanes, and
form, under the name of " -Ethelingi," the only legally recog-
nized hereditary nobility of the Anglo-Sason period. The
early recognized capital punishment for regicide, and for har-
bouring seditious vassalu of the king, belongs pre-eminently to
the class of political or magisterial prerogatives. A higher
degree of " Weregeld." and a fine for the king's vassal, and
the higher position of the vassal as " compurgator," create
at once a social prerogative, and a recognition of magisterial
authority. An especial protection extends even down to the
godchild, the groom, and the man whom the king honours
by deigning to drink in hia house. To the social side of the
kingship belongs fmally the formation of a Boyal Household,

places ill tlie fnrcgrmind. Tamer,
on tho other llaod, ia uaprejadiced,
" Analo-SoiouB," Bappleinent (iv.)
p. 262. For the hiatuneul factfi as to
MUa, o! SuBsex, vide Bteda, "Eccle-
HioBlical 111810(7," i. 15 ; " Saxou
Cliroiiiole," anno i-tEM95; L«ppcn-
b^rg, i. 566. Tho etymology ot Ibo
name ■'King" ii dubious.

noToim Bill, and the abatnct argu-
menttcmplDyc^l, have caused the author
In edlirel; mUUke the authenticated
deTBlopmnut ol' a king from socinl
evuesi. In Uie background one can
perceive is this author the iden of
tunipitioD aud a cnutimuil dislike of
nonarabj : everything that is im-
nnttiuv Bnd nnoDinlonB iu the develop-
mval of kitigly power hi; accordingly
VOL. I.

18 Constitutional History of England.

the four chief offices in which, as in other Germanic king-
doms, are those of the chamberlain, the marshal, the steward,
atid the cupbearer.**

The rights of sovereignty in the State are more slowly
developed than the prerogatives of the king. To designate
him as the highest official in the realm, the terms, " Hlaford "
and " Mundbora " of the whole nation are used (Chron. Sax.
anno 921, and under Eadward the Confessor). Whilst the
word " Hlaford " expresses the lordship over the whole nation,
which has to swear faith and allegiance to him, the term
" Mundbora** expresses a protector and guardian, ^' defensor et
jmtronm.*' The indefiniteness of the appellation is in keep-
ing with the facts. It was indeed a process of slow forma-
tion in which the royal sovereign rights of later times were
not yet sharply defined. An analogy with private lordship
still exists everywhere ; just as the oath of fealty taken to the

♦ ♦ The honorary prerogatives of the
king hclong pre-eminently to the social
aide, and it is accordingly not by mere
chance that among the Celts in Eng-
land, as on the continent, court offi-
cialism plays a more important part.
Nationality, and the strong ascendancy
of the great landed proprietors, com-
bined to make the kingships there find
pleasure in posing as the heads of
great and noble households. The pe-
dantic importance with which the law
of W^ales fixes the rtmk and the per-
quinitcs of the twenty-four court offices,
according to their position at the
king*8 marshal's and yassal's tables is
Tery characteristic. Eemble's " Anglo-
Saxons," ii. cap. 3, contains a chapter
on the king's court and household.
The chamberlain appears under the
name of " Burthcgn " ** Hojdere," ** Cu-
hiculariHs" " Camerarius" and " The-
saurarius." The marshal is known as
*'Steallere," **Hor8thecrn," '' 8t<iJmlaicr;'
" etrator rents.** According to the literal
interpretation of the term, '* overseer of
horses," his duty was to superintend
everything connected with the royal
equipment, and thus he had an especial
authority over the warlike followers;
the frequent mention of it points to a
certain importance attached to this

court office. The steward ("Truchsess")
appears as ** dapifer" " discifer n^rjis ; "
the Anglo-Saxon name was '^Disc-
thegn." The cup-bearer is found only
in Latin records as ** piucemci,** ^pin-
cenius** The smaller offices are so
incidentally mentioned that from this
single fact alone their small impor-
tance can be estimated. But even
the higher offices are only honourable
dignities for the ** great Thanes," to
whom the king, according to circum-
stances, also entrusts the command of
his troops, or to whom he gives some
high position in his council ; but with
no court office, as such, are specified
State duties connected. The position
of the "great Thane," and of the high
official of State or Court, is frequently
united in one person ; but everywhere
the signatures of the Prelates, of Duces
and Minulri (lliancs), appear as the
proper constituent parts. A title de-
rived from a court office only occurs
occasionally in the case of a few Thanes,
and only among such as are not in-
vested with the higher rank of Ealdor-
man (Dux, Conies) in the central
tidministration, the signature of the
Ealdorman always preceding those of
the others.

The Anglo-Sojcon Monarchy.

19

king is word for word the oath of service taken by a private
man to his Hlaford. Nevertheless very important changes
in the social order in the army, and in the court of justice, as
well as in the Church, originate in the power of the Sovereign.
I. 'STj^ inflttatB SbttpremaCQ was already contained in the
old Ducal dignity, as being the highest command in the army,
and is undisputed throughout the whole of the Anglo-Saxon
times. Both before and after the union of the kingdoms the
king fights in person at the head of his army, in the innu-
merable battles recorded in Anglo-Saxon history. Next to
the king, Ealdormen appear most frequently as commanders
representing him ; his place is also often filled by a marshal
isUaUere)j or some other great Thane. A general vicegerency
of an Ealdorman includes also the delegated command of the
army. With this exception, there cannot be found, in the
whole Anglo-Saxon period, any trace of the active command
of the army being attached to any office or possession.
Separated, again, from the leadership of the army is the
power of deciding as to war and peace, and of regulating
the distribution and equipment of the contingents. The
decision on these matters originally rested with the people,
without whose assent no national war could be entered upon.
In later times, too, the king determined on such matters
in the national council, which in the small kingdoms is
identical with the county assembUes. After the consolidation
of the great kingdoms with their subdivisions, the right of
deciding the distribution of the contingents, under the direction
of the royal governor, falls to the county assembly.(l)

(1) The military tovereignty must be
distinguisbcd with regard to its later
deTelopment according to ita three
component parts.

a. The decision touching tear and
peace was from ancient times the con-
cern of the people, wherever a real
■^ national war " was to be undertaken.

b. The decree as to the di$tribution
and equipment of the contingents was
left to the individual shires in which
the governor sat in council with the
«ount J assembly. The administrative

character of these debates, regarding
amount and distribution, appears also
in the laws (Athlr. vi. 32. sec. 3).

c. Tlie personal command of the
national army. From the supreme com-
mand over the army proceeds the right
to appoint all the other leaders. The
punishment for omitting to join the
army varied according ns the king was
present in person or not. In the former
case the disloyal soldier might forfeit
his property and his life (Atlilr. v. 28,
vL 35 ; Cn. ii. 77).

20 Constitutional Histoi^y of England.

The traditional limitations of the military power have na
bearing upon the armed courtiers and personal vassals of the
king ; to summon them to his standard was a personal rights
while their equipment was the business of the " Steallere."
In the place of the old broken-down militia there stood now
a force better versed in arms, equipped, and for the most part
maintained, by the king's household, and by those of a few
great lords who had the means of provisioning their men
during a campaign. They were bound to their lord by a
personal oath, which had not yet any connection with a fief
of land, but which was only taken '* on condition that he keep
me as I am willing to deserve, and fulfil all that was agreed
on when I became his man, and chose his will as mine."
Herein there was only the first step to the later ** feudal
system." The Gesith-man may be a free landed proprietor,
owner of a grant of folkland or loanland under very various
conditions, or he may be landless and dependent solely upon
the maintenance he receives in his lord's household. We
perceive in the numerous feuds of the petty kingdoms with
each other the wars carried on by a retinue of followers, and
consequently these armed followers themselves attained side
by side with the decay of the old land militia a wider extent
and importance. The unsuccessful struggles with the Danes
showed the unwieldiness and occasional uselessness of the old
national array so clearly, that in the combats for deliverance,,
under -Alfred the Great, the personal organization by the
king is throughout a prominent feature. The relation of
personal service to the king, " Thaneship," extends by degrees
to all possessors of five hides and upwards. From these
times we meet with many occasions upon which, without
any resolution on the part of the National Council, the
people willingly followed the personal summons of the
king. (P)

(1°) Originally, the position of the riors, who under their leader or lord
personal followers and of the armed had won the victory, remained, in peace
courtiers was qnitc different from a also, the nearest surroundings and corn-
legal point of view. Immediately after panions {comitef) of their chieftain. As
a conquest, the flower of the war- the kingdom grew, the poaslbiUty, and'

The Anglo-Saj^Pii Mormi'chy.

21

The military constitution of the national army and that of
the royal retinue became in tliis way to a certain extent fused.
DeciBiona touching peace and war could no longer be com-
pletely in the hands of the national council, although that
council was, as a matter of fact, almost always consulted, and
claimed at least the right of giving or withholding its consent
when there was any question of exceeding the customary time
of service, of entering upon winter campaigns, of naval prepa-
rations, and wars of conquest in distant parts, or generally of
any unusual services. Similarly, In the county assemblies,
the disposing powers of the royal officers in etiiiipping the
contingents had to he enlarged. In two generations after
Alfred's day, peaceful inclinations again had the upper hand;
the kingdom again became powerless to resist the Danish
iuTaders. Bold adventurers from among those northern war-
riors soon gain the position of great king's Tiianes. The
landed proprietors are only too ready to abandon the real
war service to the newly formed retinues, who had been gained
over by the gifts of offices and gi'ants of folkland. The
heavy-armed, experienced soldiei-y now consist for the most
part of landless men under the command of groat Danish
Thanes. Already under Cnut a standing guard of three thou-
sand housecarls appears — a class of soldiers with articles of
war of their own, and completely severed from landed pro-
perty. But as this institution, standing as it did in complete
contradiction to the proprietary, financial, and social con-

tho numlicr

with it tho ileHire to incm
of the folloKRre grew also stronger
(KsmMe, i. H2). But seeing that tho
liing ehote liia Enldonoen and QeriS
fu from DJDODgBt bis nearest followers,
and appoiiited theiu to posts of conli-
(leitce, the "folloHet-afBt^m" became
fiiBed with the Boprvma offlcaa, and
fonncd Ibo later " Tbaneehip." la
proocsa of lime tbiti double relntion
wu rare to renct upon the nllered
pMition of tJie popnlur decigionB con-
cerning war and peace. The cnrrying
on of war was in the ninth century no
loDBer compatible with n war syeicm,
depenilent on the resolution ■ of a
national council, and on the innomer-

nMe nnd separate tmnsactions of tho
ntv assemblies. In the complete
ruin o'f the State, out of which jElfred
tha Great raised his people, the obeer-
TBtion of the old conttitutionol forms
becAme impossible. .Alfred introdnoed
n sjetem of suoeessivB service, accord-
ing to which in long campaigns the
soldiers relieved ench other; be built
magazines for the provisiDniDg of tho
urmj, nC tho expense of the Stntc, Bad
framed new TegulntiooB fat the conduct
of marino wnrfuro and fur the defence
of fortresses. But the question of tho
extenl of these urrftngemenls has never
been definitelj aetlled.

22

Constitutional Jliston/ of England.

ditions then existing, could not possess staliility, it soon fell
to pieces. An eyer -recurring feeling of insular security pre-
vented any lasting reforms in the military organization, either
by a, definite diatribntion in proportion to amount of property,
or by regular arrangement and drilling of tlie masses capable
of bearing arms. And this is what finally brought the Anglo-
Saxon kingdom to ruin. The energy which, among the Lau-
gobardi, distributed military service on the principle of the
Roman centuries according to landed and movable property,
or which, as in the Carlovingian constitution, gave the State
an iinmediato right to a fully eyuipped man for every fonr or
five iiidcs, was unknown to the Anglo-Saxons. This state
of things explains the intricacies which in later times arose
whenever a mihtary summons was really issued (as, for
instance, in the fatal year 999), for the allotment of the
contingent in each district and sub-district could be disputed.
Even the grants of folkland were not utilized for the pm-pose
of regulating a certain proportion of men. The Anglo-Saxons
had neither a perfected form of the " beneficial " system nor
a "seniorat" (nVc p. 95). The folkland was partly givaa
away as an Allod, and partly revocfibly granted, with varioiu
burthens attached, but everywhere with the reservation of
defence and guai'd duty, but not charged with suppljing any
fixed number of shields as an actual tax. Very numerous
grants were made to the great Thanes in return for serviceB
done, ami in expectation of services in the future ; they
were an expression of favour, but no basis for fixed war
service. This is the most characteristic expression of the
laxity under which the Saxon military system generally
Buffered.(l'')

(1"> From tlie military rigUli of the
king follnuaalw) the buildiug oeuastleB.
Il was of great imjioTlencii lo atilixe at
stated timeg, fur nuch warlike pur|ii»ee.
the small freomea, nhose aerticea ia
actual iTorrure nere wldola reijuirad.
We Bad ilio same troniitioD m the
Carloritigian legialalioa (ChtoI. ii.
Edict, futcuie, nauo mi, o. Ti. vol. i.

49.^). " f/ ilH qui in lioOan j/crger*
•I'll! potiierini, Jaxta anliquam cl ofi-
nruiM ^cnlt um eaniurlodiiten ad elcitaUt
Rusna si punin an tramilia poJaiifitM
ii/Krealur, H ia etcilale alguii in manAa
leiietiu/aeiajU." The aystem of rorti-
HoutioDs ill the Aaglo-Sason tiiaw
wiiB, iu ounFoqiicnce of the diffioaltf
iif prociding uu adequato ganuoj^

The Anglo-Scucon M(marchy. 23

n. 'Slit 3^^'^^^! Sbupremacg of tj^e Btng was the most

important of the permanent powers which accrued to the
chieftsdns in the transition from the old dukedom to the
regal dignity. As " Mundbora " of the whole nation, the king
was the supreme judge in the land, with power over limb,
life, and property. The royal judicial ofl&ce, however, still
retained the formal character of the Germanic magistracy.
It included the right of "regulating," of "administering,*^
and of " executing,'* but not the right of " pronouncing the
sentence," which belonged to the members of the community.
In the united kingdom it was impossible for the hereditary
supreme magistrate, in consequence of the extent of his
territory, to sit in judgment in the old traditional places
of justice (although instances occur of the exercise of this
right) ; but the legal supremacy in its regular course displays
itself in the ruling power which appoints the Ealdormen and
Shir-gerefas as royal justiciaries in the people's courts, and
commissions these again to appoint the witan who find the
judgment. As protector of the weaker portion of his subjects
and of the general freedom, the king provides a speedy course
of justice, and facilitates the prosecution of rights, by the
frequent holding of court days in the subdivisions of the
counties (Hundreds). The Hundred Court, which exists from
the tenth century, appears in England as a branch of the
County Court instituted by later positive arrangement. In
order to shorten the way for litigants, to dispose of the ever-
increasing mass of legal business, and to render it possible
for the poorer freemen to fulfil their duties without being over-
burthened, the less important matters were delegated to a
local court, held every month, which sufficiently accounts for
the indefiniteness in the limits of the jurisdiction of the
County Court, and its position as a superior tribunal with
respect to the Hundred Court, and for the presidency of the
Shir-gerefa in both. It is further the king who allows the

very faulty, and eventually, when the the king to the buildiug of castles can
times of danger were over, always fell be proved,
into decay. But no exclusive right of

24 Constitutional History of England.

Manor Courts to enlarge their jurisdiction over petty criminal
offences, who extends this jurisdiction to certain free allodial
possessors, and who lends to the Manor Court the character
and authority of magisterial power, besides defining and regu-
lating the relations between private and public courts. The
position of private magistrates as ^'Thanes of the king"
prevents such rights as reside in them from being changed
into mere rights appertaining to property, towards which
result the interests of the landed classes were ever urging
them. It was just these interests of the upper classes and
the attachment to custom which jealously guarded the tra-
ditional jurisdiction of the courts. Though the royal judi-
claries were only representatives of the king, the king was
not allowed to arbitrarily hold his court in rivalry with
theirs ; but his province was merely to act as subsidiary to
the others, supplying deficiencies in cases of a failure of
justice, or where, from the high position of one of the liti-
gants, an impartial administration of justice could not be
obtained or expected from the County Court. This subsidiary
position is most definitely laid down in Eadgar, iii. 2 : *' Let
no one go to the king on account of a suit, except when his
right has been denied him in the court, or he cannot attain to
his right" (so also in Cnut, ii. sec. 17). It is the old prin-
ciple, seen also on the continent, that when the lower magis-
terial powers refuse to do justice, the higher should interfere
to compel its being done. In this sense " the king in the
national assembly" appears as the highest judicial tribunal
in the land, in which capacity he deals with the failure of
justice, and judges powerful litigants; that is, he appoints,
according to custom, a number of impartial " Witan " to find
upon the question of Eight ; analogous to the manner in
which Ealdormen and Shir-gerefas in the Hundred Courts
appoint judges out of the number of those lawmen or suitors
in the county privileged to attend the court. In the later
laws it is laid down as a universal proposition that " no
one has any jurisdiction (socne) over the king's Thane, but
the king alone " (Athlr. iii. 11) ; which, from the numerous

The Anglo-Saxon Monarchy.

25

-significations of the word "socne," may be understood to
mean, that over the great Thanes in the Witenagemote,
against whom it would, moreover, be difficult to obtain justice
in the country, the high jurisdiction of the king in the
TWtenagemote should at once be exercised. — In the province
of criminal jurisdiction especially, the assistance of the legis-
lature was early needed to restrain blood-vengeance and to
improve the method of proof by compurgators, who, after the
tribal constitution had become dissolved, were chosen very
irregularly from amongst neighbours, whom the powerful noble
can find only too speedily, but the poor man only with the
greatest difficulty. At this point the kingly power, at an
«arly period, shows itself active in affording the protection
of the law to the weaker suffering under the oppression
of the stronger. Numerous laws were directed against
private feuds. Certain of the compurgators were nominated
and summoned by the royal baUiff; and thus inequality
in degrees of power were in some measure obviated. For
breaches of the peace we early meet with an extensive
system of punishments inflicted on life and limb. Breaches
of the law led to an extended system of fines for the
protection of the person, of honour, of domestic authority,
tind of property. And here, finally, the royal judicial
supremacy appears in the form of the privilege of pardon,
but only so far as it is opposed by no private right to satis-
faction (Wihtr. 26 ; Ine 6, pr. sec. 1 ; Alfr. 7, pr. ; Athlst.
vi. 1, sees. 4, 5; Edm. ii. 6; Edg. iii. 7; Athlr. iii. 216;
Cnut, ii. 67). In Edg. iii. 2 it is generally laid down that
where any one finds the judgment unduly hard, he may appeal
for clemency to the king. (2)

(2) The legal power of the kings
had become already established in
the small kingdoms long before they
became united into larger principali-
ties. This legal power, however, only
comprises the right to hold a court.
The pronouncement of the sentence by
members of the community constitutes
<luring the whole Anglo-Saxon period
a part of the *^ ordo jwliciorum" The

royal judicial supremacy shows itself in
practice in the following points : —

a. In the right of appointing the
Ealdormen and Shir-gciefas as judi-
ciaries. These officers exercise also a
decisive influence upon the appoint-
ment of tlic judicial committ^s of
the community. In the first place
the agreement of the parties de-
cides; failing that, wo never hear

26

Constitutional History of England.

in. Sj^e ^olice-supremacs of ^z IBtmg proceeds from his.
position as " the highest maintainer of the peace." This peace-
controlling power is the outcome and extension of the military-
command and the criminal jurisdiction, with which latter it
is in England even at the present day allied. By the grant
of the royal protection, special persons, places, and times
became so hallowed that any violence done them was visited
with condign punishment ; and where a breach of the peace
would have been committed, according to the law of custom,
the punishment was increased, because of the *^ special peace
of the king," The special laws concerning peace extend —

(1) To certain places: to the palace of the king and its
surroundings (Athlb. 3, 5 ; Ine, 6 ; Alfr. 7 ; Cn. ii. 69) ; the
residences of the upper classes, and, under other names, those
of the lower classes as well, but more especially as " Cirik-
frith " to churches and monasteries.

(2) To certain times : to the time when the mihtia is sum*
moned (Alfr. 40, sec. 1 ; Cn. ii. 61) ; to the popular and court
assemblies (Athlb. ii. 8 ; Athlr. iii. 1 ; Cn. i. 82) ; to market-
meetings, meetings for taxation, and guild-meetings (Ine, 6^
sec. 5 ; Athlr. iii. 1) ; to the coronation day of the king ; and.

of a selection of judges by the com-
munityf because, by reason of the in-
equality of property possession and
from the class interests which were
dominant in the great courts, there
was no room for it in proceedings in
which the mass of the freemen only
took part as spectators. In criminal
proceedings, however, the accused par-
ticipated in the selection.

6. As supreme judge over ** liberi
homines,** the king allows the Manor
Courts also a judicial power. In this
sense the lord of the manor was royal
** Thane" in his especial capacity of
magistrate. The magistrate himself
is liahlo to a fine for disobedience
(Athlst iv. 7), and is, together with
the Gerdfa, nominated as official re-
corder in quarrels concerning barter
and exchange (Athlst. ii. 10, pr.).
The Land-HUford has to take cnre of
stolen cattle until the owner is found
(Edg. iv. 11; Athlr. i. 3, etc.). The

socne of the private individual cannot
extend over a royal Tliane as a royal
officer ; at least this may be the dubi-
ous sense of the passage referred to-
above (Athlr. iii. 11, **ndn man nige
sucne o/er cynges pegen, huton cyng
infJf'*).

c. As a matter of course the king
Appoints the local justices on the royal
demesnes, as well as on those portions
of the folkland which have remained
under his immediate control, and in
privileged districts also, whilst he ac-
cords many exemptions in his capacity
of supreme magistrate.

d. The king as magistrate directly
interferes where his appointed judge
has neglected his duty (Cn. ii. sec. 17,
oit. ; £dg. iii. sec. 2, cit ; Athlst ii. 3).
The purely subsidiary position of the
royal right of decision was still recog-
nized at the beginning of the Norman
epoch ns customary law (Will. i. 43,.
Legg. Hen. i. 34, 6).

The Anglo-Saxon Monarchy. 27

wiih regard to the Churchy to fast-times and fast-days (Alfr.

5y sec. 5, etc.)*

(8) To certain persons : widows (Athlr. v. 21 ; vi. 26) ;

nuns (Alf. viii. 18) and the whole clergy ; apparently also to

the possessions and personal property of the clergy (Athlb. 1 ;

Edw. Conf. 1, sec. 1). Moreover, the king was accustomed,
oB ascending the throne, and on special occasions, to proclaim
*• general peace orders," which primarily were nothing but a
confirmation of the lex teme, according to which breaches
of the peace were punishable in the popular courts by custom-
ary law. The consent of the National Assembly, which
usually accompanied it, the solemn vow taken by the powerful
nobles present, the enjoining of their official duties upon the

* royal governors, bailiffs, and lords of manors, gave to these
proclamations of peace a heightened power, which was never-
theless again forgotten in troublous times, thus necessitating
perpetual repetitions. In the course of the Anglo-Saxon
period the king's peace took the place of the common, or
people's peace (volksfricdc), which once proved the basis of
social order. The king was thereby authorized, with the
consent of the National Assembly, to reform the old system
of composition, to threaten heavier offences with punishment
of life and limb, outlawry, and forfeiture of estate ; to abolish
blood-vengeance, and, by means of bail, to secure the appear-
ance of the guilty parties before the court. In all these
directions the Anglo-Saxon period makes comparatively speedy
progress. From the position of the highest maintainer of the
peace was deduced a regulating power, which, without the con-
sent of the National Assembly, created (beyond the province
of ordinary breaches of the peace and breaches of right) new
offences. For these heavy fines were fixed, whenever the
judges recognized in them a breach of the proclamation of
the royal peace.(3)

(3) The police power is a de- tainiiig to the maintonance of the

▼elopment of tlie legal and military i)eace. From the power of pimish:

powers combined, out of which latter iiig is develo])ed first the idea of u

proceed the legal grounds, the formSf preventative ])ower. The right to com-

and the means of constraint apper- maud peace by means of personal orders

28

Constitutional Ilistori/ of England.

The blending of the office of supreme maintainer of the peace
with that of commander -in-cbief leads further to a union of
the organization of the militia, its institutions, its districte,
and its ofiicers, with the objecta pursued by " maintenance of
the peace." The summons of the array may take place in
the counties, even in times of peace, for the purpose of pur-
suing and apprehending peace-breakera (Edw. et. G., see. 6;
Cn. ii. 2, 29; ii. 48, sec. 6). The hundreds and tithings of
the national militia are made responsible in the person of
their prieposlli for tbo maintenance of the peace ; that is,
for the arrest, safe-keeping, pursuit, and denunciation of
peace -breakers. An important institution of this character
was, moreOTer, that which compelled dangerous characten
to find security for their good behaviour {Edm._^ iii. 7, sec. 1;
Edg. iii. 7; Athlr. i. 4; Cn. ii. 25, 30, 33)., Further still,
landless persons were obliged, under threat of the withhold-
ing of legal protection, to join a "tithing," i.e., a small
commimity with a responsible head, " priejMsitus," " head-
borough," or to seek some landowner as their lord, who would
guarantee their appearance before the court. As a genera)
principle of law this is first laid down in Edg. iii. G: "And
every man shall find security, and the surety shall lead him
and hold him to all right, and if any such do wroug and
break out, then shall the surety bear what be should bear.
But if it be a thief, and the surety can lay hold on him
within twelve mouths, he shall deliver him over to justice,
and shall receive back what he has paid."

laj in tho militory eotuiuand of Ibe
ting. Among tho wariitc trilicB of
tlie coDtiiicnt tbe notinn of tnilitarf
Berrico and puniBbment in default,
irhich vna part &ad {larcel of the
military orgBniiation, wiia citanded to
the proviocH of law, and led to an en-
JiXTgcinent of tbe powera nf Ibo magia-
tracy. In England peacc-jurJEdiction ia
primarily tho autcome of the jadioiul
power and tbe doty of protection
(munrfium) combined, and "niimrf"
tittd "frith" appear to have the aalno
fignifli;a1ian ; and, an tbe other bund,
tbe ioatituticii;* of tho militia are

utilized for carrjing-ont then

dictated by the peace-juriadJction. __
general pmclamation uf pcttce WM
UBUally issued by tho kinga on ibnr
nnM^MioQ. In the course of gcneiBtioiia

Eeoplo became accuatamcd to nfiir
urlt the rules of tbe civil law in Cbeaa
proclamaliona of peace, ao oft repeated,
BO fraiincntly ronhrmed in the Natiimsl
ABaemblies, and bo continuously em-
ployed by the conrtg of law— ao that
the old " folkspeace " paaeea into a
" liinK's-peaco," which include! tbe
sanction to puniEb uU the heavier
crimen and offeDceB.

The Anglo-Saxon Monarchy. 29

For snch as are not established in the household or on the
iud of a Thane, the tithings of the military organization are
LOW made use of, and the man without a surety has to join
Jiese in such a way that either a special surety or the "|?r«-
po«itM«" is answerable for him. This is insisted upon in
Cn. ii. 20 as an universal institution of the coimtry : — "And
we will that every freeman be brought into a Hundred and a
tithing, whoever will be entitled to purgation by oath, and to
where, if any one kills him after he is more than twelve winters
old, or be he no longer worthy of the rights of a freeman,
be he one of the household or servant. And let every one
be brought into a Hundred and under security, and let the
surety constringe and lead him to all his rights."

The system of police security appears thus to have been
definitely worked out. Every Thane is responsible for his
household, and his village Gerefa for the peasantry who
were settled on his lands. The other independent freemen
had to endeavour to gain so much confidence among the
free peasantry that these latter through their headborough
would undertake the security for them. The money-responsi-
bility fell finally upon the community as a common duty,
which in Norman times was inaccurately (from an external
point of view) described as a " mutual security." Of course
this system made it diflScult for any landless man to change
his habitation. A right of free migration was certainly
recognized as an established principle ; and all Hlafords are
ordered by law not to prevent any " liber homo " from looking
for another lord or Hlaford-socn (Athlst. iii. 4, iv. 5, v. 1).
But the departing freeman had first to prove that he had com-
pletely fulfilled aU his duties to his former lord, and that ho
had obtained permission of the latter to leave his service ;
otherwise the new master cannot receive him (Edw. ii. 7 ;
Athlst. ii. 22, iii. 4, v. i. ; Edm. iii. 8 ; Cn. ii. 28). In con-
nection with this system of a local police was a further re-
sponsibility of the Hundred for the due pursuit of thieves and
for the production of their members before the court. Accord-
ing to an isolated document, it was attempted to create, as on

30

Constitutional History of England.

the continent, a presentment making it the duty of the
Hundred to give information on oath (Atheh*. iii. c. 3., sec.
3) ; but the exact form of this cannot be gathered from
the Anglo-Saxon laws. The insular position of the country,
and the pre-eminently peaceable character of the later Anglo-
Saxon times, developed the maintenance of the peace to such
a perfection, that the chroniclers give an almost Arcadian
picture of the peacefulness and security of the land in the
time of iElfred the Great and at some subsequent periods. (3*)
IV. W^t laebenue of tje anglo-Sbaxon icings has, primarily,
the same foundation as that of every great landowner, in
the private property of the king; which is acquired, pos-

(3») The system of "mutual sure-
ties" has fonnerly, in a very exaggerated
manner, been made the basis of the
whole Anglo-Saxon constitution by
arbitrarily referring maxims of the
Norman period to former centuries.
This is the case with Maurer's treatise
on the "Freipflege" (1848). As
against this it is necessary to review
all the information wo possess as to the
Anglo-Saxon surety, as, for instance,
that given by Schmid in his "Glos-
sariuni " (pp. G-14-649). Of verj' de-
cided merit in clearing up doubts is
Marquardsen*s work, " Ueber Haft und
Biirgschftft bei den Angel-Sachson "
<1851), with the results of which
Konrad Maurer ("Krit. Zeitschrift,"
vol. i. pp. 87-06) agrees, after careful
investigation. A still fuller review
of the numerous opinions on the sub-
ject is given by Waitz (** Vcrfassungs-
Gc8chichU\" 1. pp. 424-473). The
meaning of all this legislation is that,
as on tlie continent (in the '^ Edictum
Pistcnse" and the "Capitula Lango-
bardoriun"), those without any pro-
perty — ''^ sine proprietatilms in regno
noatro defjentet, atque non hahentes res
aut suhstantiam, quihua comtringi
pomnt " — should be brought before
the court by some resident, and
vouched for — "«< eos priesentent aut
pro eorum malefactisrationem reddant "
(cf. Waitz, "Die Verfassung," iv. p.
803). Where a village has under-
taken to find bail, the opponent only
comes upon the praspositus, who, in

case he cannot bring the baUce before
the court, has to pay the fine himself,
which he if possible recovered from the
guilty party or eventually from his
peasantry. This proceeding, so far as
its consequences are concerned, led to
the tithing being made answerable,
which in Norman times was described in-
correctly as ** mutual security." This
state of things I also find Indicated
in the Leges Edw. Conf., cap. 20, sec.
4 (Harley's text): *^Quod si facere
non poterit " (if the prxpositxts cannot
clear himself)" resfauraret dampnum,
quod ipse fecerat, de proprio /oris-
factoris quantum duraverit, et de suo ;
et erga Justitiam emendent, secundum
quod legaJiier judicatum fuerit eis;"
and, according to Hoveden's text, cap.
19, sec. 4, " Quod si facere non possit^
ipse cum Frifliborgo suo dximnum res-
tauraret de proprio malefactoris quan-
tum durareU Quo deficieniey de suo et
Frithborgi sui perficeret et erga Justitiam
emendaret,** With reference to the
further responsibility of the inqiiisi-
torial duty of the Hundred, the Anglo-
Saxon laws mention the pursuit of
thieves and the production of members
of the community before the court
(Edg. i. 5; Cn. ii. 20; Hen. 8, sec. 2;
Will. i. 22, iii. 3, etc.). The Hundred
is responsible in subsidium for the villa
for the non-discovered murdrum (Edw.
Conf. c 15, 16). The principal passage
relative to the presentment is that in
Athlrd. iii., c. 3, sec. 3, certainly only
an isolated one.

The Anglo-Suxon Monarchy. 31

sessedy enjoyed, and is subject to alienations and testa-
mentary dispositions, in the same manner as other Bocland.
Besides the king, the queen also (and here is a difference
from the usual matrimonial property law) can possess,
manage, and dispose of estates in land in her own name.
The king's rights of usufruct in the folkland, and in all the
land that had not been assigned to individuals, on the
occupation after the conquest (either because it was, from
the nature of it, not suitable for grants, or that it chanced
not to have been distributed), were originally much more im-
I>ortant. These estates, which remained at the disposition of
the community at large, fell to the disposition of the highest
Hlaford ; but with the reservation that the National Assembly
retained its right to give or refuse its consent, whenever Folk-
land was to be converted into Bocland, i.e. to be irrevocably
granted away. Large portions of the folkland were, indeed,
in most parts of the country made over to the Ealdormen,
Shir-gerefas, and other royal officials in lieu of a salaiy,
and certain portions formed, until the close of the Anglo-
Saxon period, the customary endowment of various offices.
Great portions of the folkland, again, were lost by gifts to.
churches, monasteries, and foundations. A large part of
what remained was utilized in maintaining the armed retinues
of courtiers, and the personal servants of the king, in reward-
ing services rendered, and in bestowing marks of favour.
Although they were legally revocable, yet such grants were
for the most part permanent ; with the exception of rents and
services occasionally reserved, the immediate enjoyment was
thus lost to the king. In the course of time, the universal
eagerness for the acquisition of land, the power of the great
nobles, and the influence of the favourites, led more and
more to that allodification, which is chronicled in many
existing records. From this time, accordingly, only single
and separated rights of usufruct flow to the king from these
sources. Especially springing from the original position of
the conquered land, and from the right of disposition over
unappropriated property, there arose a royal right extending

32

Constitutional Jlistoiy of England.

over harbours, landing-places, and military roads, vhiM
became tbe source of customs and dues ; also a right to salt-
works and lead-mineH, to flotsam and jetsam, and treasure-
trove. A royal right with ill-dehned Umits attaching to
forests is also probably deducible from the same principle.
In Cnut's time, pohce regulations coucei-mng forest and the
chase appear, in which were included important rights of
usufruct. (4)

The profits derived from the control of matters of war,
justice, and police became more important to the kings, as in
course of time their private enjoyment of the folkland and
unoccupied land ceased.

From the military power of the sovereign, first arose tbe
right to tbe services of the people in the building and keeping
in repair of the royal residences and castles, which services
were rendered by the small freemen of tbe national mihtia,
as a common bm'den. From the system of personal vassalage
springs, again, the right of heriot, by vu'tue of which, on the
death of the vassal, the armour or a pecuniary equivalent
falls to tbe king. In the time of Cnut, when the position of
the public officers as Thanes had become more developed.
there appeared a general statute (Cnut. ii. see. 72) which fixed
the heriot of the eai-1 at eight horses, four suits of armour.

<4) The finsnciDil rights atb dealt
with nt length by Keuible, ii. pp. i2-
87. The kiog-fl rishtfl of uemnict <a
the agtr pMima, or fulkland, vers im-
{Mrtaat up to the later Anglo-Saxon
tlmei. From the original circum-
•tancea coaoected wilh the conquust,
aniflo further n rofiil right over tbe
high roade, harbours, and lenditig-
plHceB, wliich was the modium for
especial peaca procIamalionB. and for
the tolls pafablu b; Bbips aod fnrciEn
nerchaota. I'ropertj Ihroiro up b; the
HBa WEU regarded as abandoned, nnd
was the aubject of a re-grant ("Cod.
Dipl.," No. 809). or formed an im-
mediate »ouroa of revenue under tlie

ilriginnlly i

Ibrough which tbe existing w
came folkland, '

subjcot of common onjojmenl. In
course of time, with the asEUtanee of
the police control, n eoK of forest
royalty arose, the ancient form of whifh
woR doubtful, hut which in the oom-

EiehetiBive ConilUiitionet de /ortUa of
nut is iodicnled hy an extensile
system of forest and hunting laws, re-
serving importnnl privileges to ths
sport - lovin;; rulers of the land.
The forest laws of Cnnt alraodr
distingniahed Uie " higher ohue
as re^, from tbe loner chose. The
existing text is, however, meretf a later
Latin translation and revision, wbioh
afTords no reliablo evidence of the age
of many of the rules contalnod tn lU
All these sources of revenua mar b»
described db "direct,"
the foUnwini;. which [
the magisterial righla.

1 proceeded 4^^^|

tnd two hnndred tn'tniiig of gold ; and bo on in descending
Jiioportioos was fixed the heriot of the greater and smaller
Thanes. In Cn. ii. sec. 74, eeq., a usufructory right of ward-
eliip and mon-iage was recognized, which was, however, cer-
tainly only intended to affect the widow and children of the
Tassal who had been directly equipped hy the kmg, (4")

From hia judicial authority arises the right of the king
to forfeited property. Boeland, as weU as niuvableB, accord-
ing to the later laws of the kingdom, fall to the king in
consequence of treason, theft, and other offences. Much more
considerable are the numeroua fines, which in the manorial
courts are payable to the private magistrates, and in the
royal couiis are reduced by the fixed portions reser\-ed to
the Ealdorman and Shir-gerefa. (4°)

From the police control, besides the extensive system of
fines, there proceeded a privilege of market, which was turned
to profit by means of the rtservation of certain payments.
Tlie police conti-ol led further to an increase in the system of
tolls, which were levied in harbours and navigable rivers ; and

<i') From tbe constitution of the
mtmj proceeded the right to acqaira
the aoutsiuge of tho nBtional milEIia,
vbaerer k reriduooo oi » cnstle of tbo
Ung was to be built or vailed roam].
The pCTforuBDoo of tbeee duties, as a
part of tbe Mitoila neeatitiu, woa, ns a
rale, icMcveil in all deeila of tcntnt,
•Ten of tbo Treest description. From
UUfpeeiBtriglitof Tasuloge prooeeded,
■abhlheriehttoheriota. The heriols
M Biibop«,B*ldorine[],aDd Thuaevart)
fngqnnmy mentioned in the records of
tbe tenth centurj (> Codet Dipt," 493,
399, tt9,7I«, 937. 9C7, 37SI, 1173, 122,1).
Il is donbtrul, however, wtiether thev
wtre ■ ^^nunil iocident of (he rif,'tit o'f
Ihutealiip, or Kcre onl<r dutoanded of
tfueL rollDwviB aa had aeliially received
llieiitrquipiiJt'TiL tram the king. In tho
■aire of Cuut .Co. ii. lec. Ti) tho hcrioC
appears ut firmly fixed for the carl, fnr
the higher Thane nho ■■ atood near tbe
kiuK." ui'I ill tho lesser Thane. It
il Siao mentioned in Domesduj liook
M a settled source of reveone. As to
the [irofili orhsiug from nurdehip imd
VOL. I.

Kemble, iL 80.
(4°) From the judicial authority flowA
a considerable right to foifeiled pro-
perty. As early as Uie loua of Ine, the
forreitttic ofgDods and chattels followed
upon lighting within the king's piilaeu
(Ine. Bcc. ti), treason (Alfr. sec. 4 :
Athlst. ii, 1 : Athlr. v. 30, vi. :f7 ; Cn.
ii. 57) ; and harbouring and suocourint;
thieves (Athlst. i. hoc 3, and other
laws). Tlie Anglo-Saxon reooids gif?
mnny instances of Ibrfeitttro both of
Ilooland and of moTobles for robber]'
and other oOeDCoti. Much more iiu-
portant were the profits arising from thu
□nmeroasfinestEdg.ii. 3; Alhlr. vii.
8 : Cd. i. 6). In later times the whole
□f the royiil fine* were granted to the
laodowneri. Tliu laws □[ Cuut already
shnw a reversion of tlie old rule, and
enumerate six offences as a royal mono-
poly, the fines accruing from whioh are
still reserved talho king(Cn. ii. 12-15).
In. Wessex and Merciu tbe suine prin-
ciples are applied : accocdipg to the-
Dane hiw, tliL-ae priTilcgea were sonie-
wtiat circumsciibed.

34

Constitutional History of England.

to the raising of protection moneys from merchants, Jews,
and other foreigners who needed protection. (4")

On the other hand the right of tlirect taxation was in the
heginning unlmown to the Anglo-Saxons. The Germanic
chieftain might exact tribute from vanquished peoples, but
" from his o^ra people he only received presents, especially
cattle and fruits." Such honorary gifts were presented on
the occasion of the meeting of the popular assemblies. Like-
wise, when the king journeyed in the district over which his
military and legal jm'isdiction extended, lie and bis suite were
entertained free of expense; and this custom became extended
to the journeys of the royal governors and messengers and
their trains. It is equally erroneous to regai'd as taxes ths
duties and payments, Cuniiujcs Gufol, which accrued to
the ting from his demesnes, from the folklaud, or frgni
conceded rights, or as protection -money paid to the proprietor
of the soil, although they were so regarded by Kemble and
others. The Germanic community, great and small, state
as well as parish, was based upon a personal relationship
in the military and legal functions, and retained this character
with more tenacity than we find in the structure of the Soman
or Celtic states. Only in a condition of the deepest degrada-
tion, under .Ethelred the Unready, could the National Assem-
bly be induced to levy a tribute upon the country, "to buy off
the horde of Danish pirates. This tax, which was apportioned
to the several bides, was then repeatedly paid as tribute to
the invader, and from time to time also to the king, under
the colour of protection-money, to enable him to guard against

(4') From tlip police control was de- dociimenla of enEranchiaement, uwunl-
veloped h market right The dcuely ing to nhich an njuivaJent or a pema-
i^oDDectt'd Tiglit to raise tolls in bur- nent revenue mi^ht a«crua to the king.

bours, nnd from the transport on the "^ — "•- — =-' -' "^

nmin roads and navigable streami
brought tho king indirectly cnnBider-
»b1e revenue. Wilbont doubt the kins
decided vliich landing-places ahould
bu opened to all, gefrilhcil; whence
aroM the privilege of a free harbour.
The right to raise lolls waa more fro-
i|nent1y tbe subject of grants to private
persons, and ;et more bequenllf of

From the n . . ,

arese unduubt«31y ttio ri^ht to pn)teo-
tion accorded to foreign uerehaiiti. and
later extended to t£o Jews (L^es.
Edw. OoDf., aoc. 25) as the aouree of
tlie protection tax. This right it pro-
tection, with a claim to 'Wetegeld, it
accorded only to aatoal foreigncmi(Eid«.
and G. 12, Atlilr. viii. 33; Cn. ii. 40:
Uea. 10., sec ^J, TS, sec T;.

The AnglO'Sdxon Monarchy.

35

fresh inyasions. The tax became finally fixed as danegeld
at twelvepence for each hida. It was, however, merely a
sign of the decline in the last century of the Anglo-Saxon
state. Its origin, its name, the irregular manner of levy, and
the exemption of the clergy from it, all make this danegeld
appear as an anomaly. (4'^)

Of course there was no such thing known in the Anglo-
Saxon times as an exchequer administration. The free right
of disposal of the king over all the State revenues is shown
by an account given by Asser, according to which Alfred
devoted one half of his revenues to the Church and the other
half to civil purposes. Out of the civil half he allowed one
third for his warriors and followers, one third for hospitality,
and one third for the innumerable artists and builders whom
he had collected around him from foreign parts.

V. ^5^ protectorate of tjb^ ®f)urc]b forms the last important
right of the crown. It originated in the fact that the recep-
tion of the new faith and of the priesthood throughout the
whole country was decided by edicts of the kings and the
National Assembly. Hence, even in later times, the contro-
versies among the clergy touching the time of celebration
of Easter and other ecclesiastical differences were settled by
the king. Among the original insignificant kingdoms in the

(4*) It is weU known that a riglit of
tajiatioQ did not exist in the Germanic
kingdom. Tacitus speaks of gifts of
catUe and frnits of the earth. Lodg-
ing and entertainment on progresses
through the realm were extended from
the person of tlie sovereign' to those
of his retinue, and, after the fashion
of aU honorary gifts, from being a mere
matter of oonrtesy became a kind of
right. And this soon led to the right
of lodeiug and entertainment being ex-
tended to the royal messengers and
fierrants, and came to include the pro-
Tiding of horses, tlie transport of bag-
gage, and the maintaining of the train
of followers. Blany possessions and
profitable rights belonging to the king
were granted to monasteries and landed
proprietors with the express reserva-
tion of such honorary giftk In process

of time the confusion of mere ciistom
with these reserved rightB caused many
a mischievous extension of them.
Against these abuses, which are so fre-
quently referred to in later times, the
well-meant provision ^'of Cnut was di-
rected (Cn. ii. G9, sec. 1). With refer-
ence to the historical circumstances of
the first Danegeld, see Lappenberg, i.
423. Tliese shameful tributes had
risen in 1018, to 82,5001b8. of silver.
The apportionment according to hides
was also acted upon in making naval
preparations. In the year 1008, by an
express resolution of the Government,
a ship of war was fiuTiished by every
310 hides. With regard to the im-
munity of the clergy, see Leg. Edw.
Conf. cap. 11. Under, Eadward the
Anglo-Saxon Chronicle mentions the
Danegeld as abolished.

36 Constitutional History of England.

British Isle it cotdd not easily be forgotten that the Churcli
owed its toleration, its reception, and its dominion to the
authority of the king; and that the rich endowment of
bishoprics and monasteries was due in great measure to his
liberality in granting Bocland and in gifts of private property.
The papal throne was too far distant to be able to raise
pretensions to rule in a community which was neither wont
nor inclined to dissociate authority from the personal presence
of the ruler. The native prelates, again, in these small Anglo-
Saxon states, stood so near the indigenous population, that
it was difficult for them to raise exaggerated hierarchical pre-
tensions. On the other hand the Church was obliged, as
throughout the world in the Middle Ages, to endeavour to
attain an independent position for its servants, if its official
organization was not to be confused with the miUtary, legal,
and police constitution of the laity. The royal protectorate,
therefore, applies rather to the outward framework of the
Church, and does not interfere with its inner life and adminis-
tration of details. The Anglo-Saxon king exercised the right
of appointing the Bishops ; in the face of which, the right
of election which the Church aspired to in its canon law, could
not practically assert itself any more than the occasional
attempts at nomination by the papal throne. And again,
in the monasteries, the manner of their foundation frequently
led to a royal right of appointing the abbots. Just as indis-
putable is the right which resides in the king of sanctioning
the resolutions of the Ecclesiastical Councils. A further
imion between the ecclesiastical and temporal community
arose from the association of the prelates with the Thanes
in the Witenagemote, and from the appearance of the Bishop
and the Ealdormen together in the County Assembly. In
an insular seclusion the idea of the close bond of com-
munion between Church and State is fostered and kept
alive. (5)

(5) The protectorate by the king of impartial manner by Lingard,"Histoiy

the Church comprifles in the first place of the Anglo-Saxon Church," i. 89.

the royal right of appointing prelates. The great majority of precedents proTes

This has been recognized in a fairly that the bi^ops especiaUy were ap-

The Amjlo'Saxon Monarchy.

37

The Bum total of these honoorB, powers, and prohts formed
itself under the Anglo-SaxoD Bovereigns into an hereditary
family right. It is certain that the royal landed property
contribat«d at first to this conception ; yet this element of
hereditary descent does not Iiy any means preponderate in the
Anglo-Saxon kingship. Eut more decisive was probably the
feeling that a permanent personal authority was necessary for
the present form of the community, as a counterpoise to the
claes-privileges which were growing up. The first object to
be attained was the abolition of tlje strugglo of the powerful
families and their dependants for the possession of the supreme
power. This end was attained so soon as the right of one
of the princely families that sprang from Wodan was estab-
lished beyond all question. The unity of the succession, and
a certain precedence accorded the firstborn, was a natural
though not an absolutely necessary deduction. The rule that
in the case of private property the last will of the owner is

iMtnted and itupliu^ed at the Tree will
•nd opticn uf tlic king. ItUnlaoaajg-
niBcKfrt fact Uint so tamaj royal chnp-
laniB wcte tidteA to episccpitl Bests
(PklCMre. L I7D. 171). According to
BtnbW view, the ohoice b; the clergy
Ibe role in pcoceral timeB. and for
Ie*B impoTtHut leat*. On tlic other
i^ipointmcnt bj the king iu tha
n&l Anwmblf ia frequent in the
oMe of archbiahopiica and the lai^er
dioceacs, wben tbe conaent or the
National AsBeinbl; to the Ddmisnion of
«Delr member WHS regarded as a matter
of coBTse, OS was piovml by tlieir
ooDBecTatioD by their feltDW-bialioiia.
The right of the king to give Us
noent to the rcsolntiona of the clergy
originally date* from the fact of tho
~~~ rptiuaof theuewfiiitbat court, with
coiMCtit i>f Uie National Aeoembly.
In oUen time* Lho king eTen appeurs
in tbe opacity of president, at lus^iu-
UicB whioA bear ItiD cbarBcter of proper
«oeleala»t)c«l cvnucils (Cod. Dipl. No.
Jie,WmiUtdTitaI)oDiracii.ii. p.33g).
Vrben Chnrch nnd State becaiue sonie-
«lmt more sepurated, thu priociple
otTtainly adhered to, tbivt any
•famgc in tbe cxtemal institatiouB c^

tbe Cliurob. iuoli us tbe reflations
for the observance of the Sabbath,
fnsta. feasls, and Church does, should
be uanctioned by the king and Wit«u-
agcmrjtc. The great question of nion-
aeticism in the tenth contury was
repeatedly deliberated upon in the
Witan (Kemblu. ii. 189). The enaot-
manta of the General Conncil in tlio
Anglo^SaioQ legislation oftea form two
estegories ; firBt. Bcclceiaatical. and
second ly. Temporal. (Leges ^thelslau,
Eadmiuid, Cnut, etc.) Both oategories
were, however, published as "King*!!
Laws," and then contents show it to
have been generally received that new
obligalions oonld only be imposed upon
laymen by the king ia the National
AsBembly. The tnigbt of tbe sovereign
is seen n;<ain in ceclesiasticnl dispntes.
Id the first two epochs of a straggle
between the kingand the eccteBiastioal
hierajcby.al the time uf Bishop Wilfrid
and ArchLiohnp Dnnstan, the King tri-
lunpliantly sasiTts a control over tho
rcBoIutiouB of tbe Church, and over tbo
right of appointing and dismissing pre-
lates, against Some as well as agtdnst
tba ecclcaiaatical oouocils at home.

38

Constitutional History of England.

final, ^-aa observed also in the case of tlie succession to the
throne. As in the old folk-law, martial prowess was regarded
as the necessary condition of complete fitness in the com-
mnnity, bo it remained in the highest degree the necessary
condition of the Anglo-Saxon kingly dignity. The times of
the "boy Mnga" could not come until the West-Saxon dynasty
had been consolidated by the unbroken succession of three
glorious rulers. But just as the old Germanic village com-
munity tested the prowess of the youth in times of yore, 80
now the voice of the people could not be excluded in considering
the question, whether the monai-ch to be appointed was worthy
to lead the martial array of the nation. The Church also,
from the time when it decided the preliminary question,
whether a Christian marriage in accordance with God's laws
had been concluded, and whether a legitimate heir had sprung
from the union, laid claim to a share in recognizing the new
ruler from this point of -v-iew. Accordingly it resulted that
in the succession to the throne, the younger son was not
unfrequently preferred to the elder, and the martial brother
of the monarch to the immature and physically or mentally

A further result was the retention of a form of election
at the enthronement of the new king, when not only the
upper classes, but the whole nation, represented by the
numerous libi-ri homines who were present, recognized hy
acclamation tbo new sovereign as their rightful ruler. But
allowing for this, the character of an hereditary family right
was decidedly maintained in the Anglo-Saxon time. " The
royal authority was never allowed to be separated from the
royal race." The elevation of Cnut to be king of the entire
nation of Danes and Saxons, to the exclusion of the youth-
ful sons of King Eadmund {1016), was an act of necessity and
of military force, for which amends were made twenty-aix
years later by the unanimouB proclamation of Eadward the
Confessor, the last king of the race of Cerdic (1042-1066).
Bat the Anglo-Saxon sovereignty still remained a "personal"
dignity and authority over the Angles, Saxons, and Danes.

The Anglo-Saxon Monarchy.

30

1 dates only from bis corouation ; bia ordinaij
t of king " of the land, " but " of tbe people."

The feudal notion of a lord of the soil over both land and

people is tbe later creation of tbe Norman sovereignty.

" Kings irere the leaders of tbe people, not the lords of the

soil " (PalgTBTe, i. 62).t

t The hcreditnty nntnro of the
Aaglo-SaloD lOTereigotf is treated
ftvnt a on«-Bided point of vieir, if tbs
fcndal piinf iplB of primo^niture in
boded propcny is taken as ttio iturtiiig-
paiat, whence it woold appcor Ibnt out
ti nineteen sueccuions to the throne
io the nnited Dunumby, nnt Il'ss tliau
Mght were irregular. Erea Mt the
senilh of tht) Anglo-Saxon dynaet;
MUteA lakes pti«edenc« of Inn cld^
brothen. and j£lhelstaii rif hie legiti-
mate brotlicie. Uut in the loiter coae
a legilinutioii by the reigning kiug,
witli tbe Bpprovul of the Natjunnl Ab-
•emblj and tho clergy, bud <«rtainly
pKcedcd the aoceaurm. Every su-
Mlled irrognlnrlty in the West Saxon
■aMession may be referred to teitament-
arj diipoaition, to agreements respect-
jug clauua of inheritance, or to the
perBoiul inpapncity of the [WTBon
poucd over, ^fft'd tlie Oreot, ia liia
will. espTossly makes his title to tbe
tbtnoe dependent upon (1) the will of
his father, (2) an arrangement with liis
brother ^thelred, (3) theament of the
Witan of VTeasiM. Eiprcsrioni io-
diootiTeofpopulurelection ororeUiined
for oentoriea Hflerwards, euch as in the
phrase ** chosen and raised " to be king,
which recalls the very ancient popnhir
cnstom of raising upon the shield. In
oonmation ceremonies there is always
k tendeney to retain old ronnnloH, even
when the original meaning bus van-
ished. There ia in them something
analogona to the assent of the "by-
staoden" in tbe later popular courtB.
PalgTBTe (L 562) describes them as a
eonfirmstion of the iuchouto title of tlie
u How firmly the heieditury
the fiimily stood, is proved

beyond doubt by the period of the sis
»a-callod boy kings and by the solemn
recall of jli:thelrt.il the Unready (who
bail been expellud by the Danes) cvun
art«r tlio TuUeBt proot'ii of his incupoplty.
Still mom unjustifiable is it, whoa
ocftalu older iuatances of the dethrone-
ment of the king by the dismnlented
nobles, as in the coses of Siegebert of
Wessei and Beomred of Mereio, are
ciled tm precedents for cstablisbing a,
ODQstitutional ri(;ht residing in the
Witeiiagemijte to depose the king.
(See Pulgrave i. 653, 655.) The
q^ucstioti If hetbcr an Angto-Soion king
is to be regarded as " rulor of the
people " or ■' lord of tlie soil " cannot be
determined from single records, in
which tho clergy, nriling in Latin, ex-
press themselies vorionsly according to
their iodividual tastes. Appellations,
such as toliat Britannia liloaarchim,
Htz, Bector, BaaiUiu, occur already in
tbo records of the tenth century. .Alfred
the Great in his vrill culls himself
merely "king of the West Baions,"
his son Eodward on his coins "Itex
AiujloTam." Cnut's style, who colls
himself "King of all England" {Eatlaa
EnnlalaTuleti, "King ef tho Danes
and Northmen," with on intelligible
alluiion to the idea of a catiquered
country, is sin<^lHr. Eadward tbe
Confessor calls liimself again "Sex
AngUimm" or "lord of the AngU"
(Soxon Chron. 106G). The early
Norman kings coll themselves on
their coins "litx Aaijlomm," in their
cliurters sometimes " Sex Angliie."
Upon the great seal the title "iter
Angtix" appears first under King
John (Allen, Frorogntive, p. 5U, 5).

I
I

I

CHAPTER m.

^H

®St 9!lnion of tijt ISinglioins, nrt» ttf Bitii!
of tl)£ Hcalin.

The social conditions out of which the Anglo-Saxon kingdom
arose, led firstly to a plurality of small states. In the separate
territories, in which ,the petty tribea and followers under
their chiefs had settled, that system of property had also
arisen which led to the rise of the royal dignity. The chiefs,
although wielding power of various degrees, regarded tbem-
Belves all alike as descendants of Wodan. A similar striving
after independent authority animated them and their fol-
lowers, their petty national and legal assembhes. Closely
crowded togetlier, they felt a keen longing after new acqui-
sitions of territory, and jeJirned to satisfy their wonted last
for strife and booty, and thus soon became involved in
countless quarrels and feuds, to which no natural limit set
bounds. Mingled with these civil feuds were serious and
endless struggles with their ancestral neighbouring foes in
the west and north, the Britons and Scots. The constant
state of readiness for war, which such a condition of things
demanded, gave the skilled and better equipped retinues an
increasing superiority over the humbler peasantry, who
became more and more reluctant to forsake home and
hearth, to engage in a profitless warfare with their kindi'ed
neighbours. In the course of the earlier generations of Saxon
settlement, these petty wars had destroyed a number of small

f chiefs and kingdoms, of which history has not even preserved

I to us the names.

Union of the Kingdoms, and Dimsions of the Realm. 41

Aiter the territorial boandarleB bad become more settled,
there appeared at the commencement of the seventh century,
seven or eight greater and smaller kingdoms : KjBnt, SiiBses,
Esses, Wessex, East Anglia, Mercia. Deira, Bernicia ; the two
Jast became early united and formed the original Nortbnmher-
land. Historians have described this condition of things as
the "Heptarchy," disregarding the early disappearance of
fiussex, and the existence of still smaller kingdoms. But this
gronping was neither based upon equality, nor destined to
last for any length of time. It was the common interest
of these smaller states to withstand the sudden and often
dangerous invasions of their western and northern neighbours ;
and, accordingly, whichever king was capable of successfully
combating the common foe, acquired for the time a certain
BUperior rank, which some historians denote by the title of
*' Bretwalda." By this name can only be understood an
Actual and recognized temporary superiority; first ascribed
to -Ella of Sussex, and later passing to Northumbria, until
Wessex finally attains a real and lasting supremacy. It was
geographical position which determined these relations of
superiority. The small kingdoms in the west were shielded
by the greater ones of Northumberland, Mercia, and Wessex,
as though by crescent-shaped forelands — which in their strug-
gles with the Welsh kmgdoms, with Strathclyde and Cumbria,
with Piets and Scots, were continually in a state of martial
activity. .\nd so the smaller western kingdoms followed the
three warlike ones ; and round these Anglo-Saxon history
rerolves for two whole centuries until in Wesses we find a
combination of most of the conditions, which are necessary to
the existence of a great State.*

* A> to the principal fcatuiaB of tlio
•kcalln] Eeptaralij, compare Lappen-
)wrg, i- p- 203 tl ttq., ZVl leq., 27T im.
Kcmbl^ " ADglo-Saioas," cnp. 1. A
di-lnileil sketch of the partioul&rB of
the tufanXa states is given by PaJ-
gmvD C Commoiiwculth," Cap. ii.).
■nvngeit la chran<>logiea1 tftblea : ami
hj tlio tabloB of kings affixed to tlio
£nit Toliune of Iiappeuberg'a historf.

The sranllcr kinsdoniB which bsTs
been nHtDi;[1, in ndditLon to the Hep-
tarchy, aro tlie kingdom of the Jutes
in the iBle of Wight, SuthriEf, or
Surrey, Hwiinii, or Hurefonl, Middle-
imgliii, KliJitln, the luiid nf the Huri-
niB, (hti Inml of the LiuiIiHwuien, uad
olliers. 'i'hc^ " DretwaldaBhip," at tba
ti]ni> of tlie IlGptarcliy, has been the
iubjtsjt of TuriuuH misconoeptiuns, the

42

Constitutional History of England.

Fairly well and evenly populated, protected by no natoral
boundaries, and ever obliged to be in a constant state of
mDitary prepai-ation against the Welsh, Wesses exhibits iu
ita development some similarity to the great Marks of
Germany. Military discipline, a legal succession, and a
tolerably well-regulated internal administration, kept tbe
Anglo-Saxon military organization here iu better order than
elsewhere, until, at the commencement of a new century, a
king (Ecgberht, 800-836), who had been brought up at the
court of Charlemagne, took the reins of government into liift
hand. Sagacious and energetic, be subjected tbe Mercian
group of states, and won a recognized sovereignty over the
whole country of the Angles and Saxons south of the Humber.

Under Ecgberbt, the kingdom of the Anglo-Saxons first takes
its position among the European states. With him begins
a period of internal peace, beneficial for the consolidation of
the constitution, and for the intellectual development of the
people. Soon, however, recurs a period of unfortunate
struggles with Damsh and Norwegian pirates, whose mode of
warfare brings tbe military array of the United Kingdom into
disorder. But the common misfortune which befell the
country at tbe same time strengthened the feeling of unity
in the West Saxon portion of the land. Under Alfred the
Great, the Saxon people rise to throw off the yoke of the

i ward liag been i

ncouely brougli
tb<] BritoDS, nbilet it et}-inDlogi(^H,lly
BXpresssaoDl; the " poverfulfnr-rulilis
ODe." Biedu ^ves a di-tailed Met of
BeTen Btetwaldni ; M\W of BuKaex,
Cenwlin of Wessex, ^iLelbeiUt of
Kent, BedwBld of Enit An^lift, End-
win, Oswald, and Oewi of Nor(li«io-
brio. The Anftlo-StizoTi Clironicle
Nyi nothtDg further about tUe enrUer
timsB tbnn that MWa bad first ex-
ercUed an extensive Bwaf. Later,
tbe Anglo SoxoD CbroDiale, a.d. 827,
(mils Kins Ecgberht " the eightb king
wbo wu BrBtw&liln." ThJa Uretw&liln-
Bhlp baa Terj correctty been ri'torred
to its Ttal aigniflcalion by ICi-mbla
(•■ Anglo-Sax oni," ii. c I. pp. 7-19), oa
Ming an actual Hegemony (<■/. also

Freeman " Conquest," i. Appendis B>
Tbe uniou of the kiagcloiDa uuder
Ei'gborht eaneed the introdnction of
the name " England " na tbe eoUeotila
denomination. An old register of Uia
Abbey of St Leonard in York (cited
in Dugdale'a " Monasticou "J coDtMoa
tlie somewhat euriona notice : " nMtno-
randum quod anno domini S30 E^fiiBrt»a
Tcx totuf Britannim in i'artianwKfo
apui Wiidanlam mulavit nomm r«nj
[de conaetMu jw^uli fui), tt Jutnt tand
lie CKtero voairi Aagliain." Wltli&m of
Mul mesbury aayi that Ecgberht brou^t
the kingdoiQa into a " tutiforme dmni-
ni'uTn."and that hecalled tbia "Anglia."
Bnt Eogberbt only calls binueir in one
single charter of the year 828 "King
of tlie KoBlish." plEewhere, generally,
"Kiiigof WL-mtx."

^^Tnion of the Kingdoms, and Divisions of the Realm. 43 1

invaders, and tii regulate by treaty their relations i^ith the 1
Norsemen. A generation later the brilliant govei-nment of I
^tbelston brings the Danish jiortions of the country into I
complete subjection. The realm and dyuasty have now 1
attained the pinnacle of that peculiar development vrbicb I
later times have associated with the name of Alfred. He, I
the deliverer of his fatherland from the Danish yoke, the I
monarch in whose person the noblest moral and intellectual I
qualities of his race were combined with martial prowess, I
appeared in later generations to a grateful people as the I
aothor of all that \vas honourable and good, extending firom I
ancient to later times. Three Buccessive governments, those 1
of £l&ed, Eadward, and iEthelstan, supplemented somewhat "
later by the fortnnate government of Eadgar, have irrevocably
foDoded monarchy as the personifieation of the poHtical unity
of the British Isle ; after that, indeed, follows a second period
of struggles with the Danes, in which the ancient royal race j
shows itself at times almost as degenerate as the Merovingians '
and the Cai'lo\-ingians of later times. After a generation of j
incredible weakness and humiliation, under iEthelred XL the
nation exchanges its old royal race for the energetic rule
of Cnut, the Dane, whose line quicUy dies out, and is followed J
by Eadward the Confessor, the last legitimate heir of the West |
Saxon royal house.

The centnry from the accession of Alfred the Great to the ]
death of Eadgar (871-975) is accordingly the era of con- I
soUdation, in which the country and people form a group, the
framework of which has endured with marvellous stability
nntil the present day. The formation of the Enghsh counties,
and in great measure of their subdivisions also, dates from
this century, in which tlie Anglo-Saxon laws have expressly
called the county and hundred districts divisions of the realm, |
of which the tithings, although erroneously, are considered
the lowest member.

I. ^Ijr ;jfotmation of ttc ^nglts^ QTountits oi ^Iiircs was j
the product of the later unity of the kingdom. Ecgberht's j
kingdom had certainly not yet attained to any unity in the i

political administration, but only to a recognized suzerainty,
under which the former kings continue as mediatized under-
kings. But after the dying out or removal of these mediatized
chieftains, uear kinsmen of the ruling house (.Ethelingi), or
other nearly related or connected great Thanes, succeeded
to the place of these under-bings, until the advancing unity
of the realm gradually brought all these rulers down to the
position of mere government officials, Besides this, in the
greater kingdoms, which had early attained a stricter unity,
a division was made into districts, which were newly formed
by the executive. The periodical assembling of the Witan
for holding the gi-eat central court of justice, appeared im-
practicable in districts that had become of too great an area.
Similarly, the organization of the militia required to be
arranged according to divisions of the land, of not too wide
an extent. This want was satisfied by the formation of ad-
ministrative divisions under the name of " Scire " (derived
from Scyran, to divide), which, at the time of their origin,
were just as much an arbitrary formation as are our new
"divisions" of counties. The abstract name "Scire" (not
f/ait, nil, which does not occur in the Anglo-Saxon laws) ia
accordingly used also for the greater districts of the ecele-
siastical administration, the bishops' dioceses, etc. In
Wessex, where at a comparatively early date an organized
administration existed, we find mentioned among Ina's laws a
prefect of the shire (Ine, 3G, sec. 8), and the change of
residence Ii'om one Scire to another (Ina, 39). Similarly
in the great Mark known as Mercia, an administrative sub-
division must soon have become necessary, IneidentaUy,
too, even before the time of .Alfred, certain names denoting
"scires" are mentioned, as 6uch "Hamtfinseir" (in 755),
" Defeuascir " (in 851), When after the deluge of Danish
invasion, and the uimtterable confusion under Alfred (after
8S0), tbe kingdom came to be divided with the Nortbmen, a
thorough territorial division appears to have been made for
the purposes of the army, of law, and for the system of the
maintenance of the peace ; which we might have conjectured

Union of the Kingdoms, and Divisions of the Realm. 45

from internal reasons would have been the case, even if it
were not substantiated by proofs. Although under iEthelstan,
£adgar, and Cnut, principally in consequence of the union
and subsequent separation of the territory surrendered to
the Danes, many modifications may have been introduced,
the century of the zenith of the Anglo-Saxon monarchy is the
period in which was laid the foundation of the division into
counties. Owing to the preponderance of the northern in-
vaders, who returned after ^thelred's time, a permanent
portion of the Danish element was retained, so that from
thenceforth the coiDities were formed into the three great
groups of the Saxon Law, the Dane Law, and the Law of
Mercia. At the close of the Anglo-Saxon period, Simon of
Durham, and Aldhelm, Abbot of Malmesbury, give the follow-
ing list of thirty-two counties, which forms a safe basis upon
which to proceed.

'^Anglia habet triginta duo Sciras extra Cumberland et Com-
walas, (In Comwalas sunt septem parvsB Scirm.J Sunt hse
triginta duo Seine divisse per tres leges : West Sexenalaga,
Denelaga, Marchenelaga.

1. West Sexenalaga hahet novem Sciras : Suthsexia, Suthwai,
Kent, Berocscira, Wiltescira, Suthamtescira, Somersetescira,
Dorsetescira, Devenascira.

2. Denelaga liabet quindecim Sciras : Eborascira, Snoting-
hamscira, Dcarbiscira, Leorcestrescira, Lincolnescira, NorUam-
tunscira, Huntedu7iescira, Grantebrigescira, Northfolc, Sudfolc,
Eastsaxe, Bedefordscira, Hertfordscira, Midlesexa, Bukingeham-
scira.

3. Merchenelaga liabet acta Sciras: Herefordscira, Glouces-
trescira, Wircestrescira, Scrobscira, Cestrescira, Steadfordscira ,
Wareicicsciraf Oxenefordscira,**

According to the position of the territorial divisions these
thirty-two permanent counties form the following three
groups : —

a. The historical distribution into coimties prevails on the
southern and eastern borders of the kingdom, which, at first
conquered from the sea, became thickly populated by Angles

46 C'onstifutioiial Illstori/ of England.

H

and StvxonB and early attained to a political organization.
Here were formed from the two kingdoms of Kent and Sussex,
the later counties of the Bame name. The kingdom of the
East Sasona formed the connties of Essex and Middlese:c.
East Anglia is split up into the territory of the North-folk
and the South-folk, and in later times into the counties of
Norfolk and Suffolk. In Wcssex the settlements of the Wil-
saetan, Dormsaetan, and Samorsaetan form the later counties
of Wilts, Dorset, and Somerset, which retained the ancient
names of old independent kingdoms.

h. The second great territory is formed of Mercia, the old
great Mark against the Britons, and of the interior of the
country. Here the administrative formation of the shires is
shown by the fact that all counties were called after the name
of some place which had acquired a certain importance, and
was suitable for the meeting place and the centre of the
administration. All names of counties here have an Anglian,
Saxon, or northern nomenclature, denoting a place; such as
-ham, -ford, -ton, -byrig, -wick, -by, -cestre {mslrnm) ; Hert-
ford-shire, Buckingham-shii-e, Northampton-shire, etc.

c. The great Northumbrian kingdom, tlie northern jrartion
of the laud, after stormy and varying fortunes, became in
some parts colonized at a later period, and unequally formed.
The more northern part (Bemicia and others) belonged later
to Scotland; in the southern portion Lincoln, York, and
Durham formed counties called after a principal town ; Rut-
land and Cumherlaud are, on the other band, clamsh names ;
Northumberland and Westmoreland were named from geo-
gi-aphical peculiarities, and were not received into the rank of
the counties until a later period.

After these events great ilifferenees must for a long
have subsisted between a governorship, formed out of an oH'
mediatized kingdom, and one that proceeded from the admini-
strative di'viaion of a greater kingdom ; differences which
only in process of time were adjusted by legislation and con-
tinuous practice. The laws regulating the rights and duties
of the royal Ealdorman and Shir-gerefa must be regarded

akof^^

also in the light of such adjUBtments. All adjustments must
have the eame tendency, to make these territorial divisions
fta iUvisions of the jurisdiction of the king, in war, law, and
police, dependent on his will. Heuce the traditional principlfi
— " Divisioiiea scirarum regis jiropriiB sunt," (Edw. cap.
13.) (1)

II. 'STije ^unJrtDs appear in the statutes as the regular
Enh-districts of the county only after the tenth century, under
Eadgar. They must, bowevor, be anterior to this date, for
the Ilunilred is the old Germanic division of the military
system, which recurs among all Germanic races, as also
among the Saxons on the continent. That the name soon
became applied to a district, which after the settlement had

(I) Tlic> division inin connties or
ahirns tiDij bf Inter li^ipil tradllior.
been directly attributed to .Eirred.nnd
t^ diffcronce in origin between the
iiiatnrical»ii(ladminiBtnitivciihireglx-<'ii
i^Doreil. To what on extent tbo vford
"thire" or "(liviiion " is u*cd to denote
n public gnremment diilriot, i» abovn
hj thu ffti-l that the earlint tnontlon of
k Ehite in the Snxm Chionide rel«t£B
(o K biallop'i dJoc«Ni. "UHDpwiiln"
<Chr. Sax. 70Q). And in the Uitb of
the Anglo-Saxoo kiogB " diire '' often
ntcaaa kn eccledutico) dioeeso. (Edm.
ii. 4; Eig. iii.3, 9: Athhr. v. 6: vl. I,

eS.21.) Otadiully ttle"Bblre"bc-
- mcs tbe exolusiro appelUtlon for tho
git»t oniinl; diatrictB Tor tlio porpoici
of niUitu7 and legal organiialion.
Among tb^ lawi this meaning flrat
ooennln InBtSii.Bec. 1,39; Alf.STpr.,
MB. 1. That under .^Ifrud a thoroneh
Ittritorikl division took plnoo ia cr«libiy
MKlted bjr William of llalrotfabury (Da
0«at AngU ii. 4), but he only spealia
of * dinnoa " fii (M^if uWn( i{uiu humired
dvHnt." Ingulf (" Hiitorin Croyland,"
(. 41) sBjB rery pnsitiTely ; " loliut An-
fUt pagot ft provlnctiu ■'» amilattu
vrimut omnium anmniilavU ; cvmitiU'i*
iM eenturiat, id «f hwulrfUu, «( in rf'-
anM«,Le. IriUugiu diiMl." B; later
ailietX inoeotij^lions (Pal^iaTB. Qva<--
Mj) JUrieie. 1829. vol. CT, pp. U89—
SS), II has now been eatnbUslicd (hat
III '« writfT was not the old Anglo-Saxon
abbot, but a paeodo-Iitgalf ot the end

of the Ihirleentli or oommen dement of
tlio fourteenth oeotiiry, who, however,
drew his information from the old
clinmides. In point of foot bis asser-
tion agrees with alt the rest. Tho
Saxon chroniclcB before the timo of .Al-
fred know only of the old diviaions
after olan Dninei, and territories: Cant-
woralaad (Kent), WoBttenxaii, Buth-
EBnian, EastMaian, Middcleeaxan,
Eristenple. Northanhymbmland, Suth-
nobyiubralaQd, Myronaland, elc.; but
after ^llied'sdaya the ciutoniary terms
beoame altered, and the various mann-
■oripts UBO onlytbewoiil Boir (Kemble,
i. G3). The most {jrobable date of a
tborongh division into provinces is
Eboitl; after 880, i.r. after tlie peace
between Jilfrcd and Gnlt^an. A
proof of this is furnished by William
of Malmesbiiry, and others in the list
quoted in the text. Quito identionl
with it, only with different ortbo-
grapby, is the list Riven by Bromton
(X Script ad. Twysden. p. 966). The
oounlry between the Kibblo and the
Horsey, the Lancnsliire of modem
liroea, does not appear in Aoglo-Saxon
tiroes as a separate deparlment. A few
■mall shirea, which Ub<1 been for some
time independent, nere in later times
incorporated with others, as Winchel-
t^cnnbuahire with Gloucester. As to the
system of the division into cuuntif
compare Falgruve. i. 117, and the ii
troductioQ to the Census of ISSl.

48 Constitutional lUstonj of England.

to provide one hundred men for the militia, can be deduced
from the variously interpreted passage of Tacitus {Germ. cap.
6), " quod ■prima mimcrus fitit jam ni/vieii ef honor ent ; " but it
follows with greater certainty from the nature of the case
and from later indisputable circum stances. Certain it is
that, BOon after the settlement, the militia was organized
as far as possible in equal contingents, which became a
territorial division, so soon as it became necessary to apportion
the duty of furnishing the contingents according to extent of
landed possessions. As, however, legal rule on this point was
never establishedj as necessity and abihty to supply it were
continually producing changes, owing to the viciaaitudes of
the times, the diversity of tenures, and later to the frightfol
ravages of the Danes, the distribution of land remained even
in still later times a matter of arrangement, and was left to
the decision of the county under its royal goveniora and
baililfs.

The rule in this case which has been preserved to us
was, " Divisioncs hiindrcdonnn et u-apeiitaiiwriim comitibits ct
vicecamitihvs cum jiuiido comitatiis" (Eadw. C'onf. 13). And
hence it is clear why the Hundred is recognized so com-
paratively late as a fixed territorial division, why the Saxon
Chronicle does not mention the Hundreds, and why the Saxon
documents concerning property so seldom describe the position
of estates with reference to the Eundi-ede. As districts of
the early militia organization, and consequently of the peace-
control, the Hundi-eda were certainly in existence long before
Alfred's time. As to the universal appearance of the
Hundreds in the Germanic militia system, the work of V.
Peucker {" Das Kriegswesen der Germanen ") gives a new
and convincing proof. The silence of the Anglo-Saxon legal
authorities of the early centuries cannot be entitled to any
regard, on account of the extreme rarity of their allusions to
the military system. But it may be taken as certain that at
the reorganization of the State by Alfred, a thorough revision,
or redistribution, was made of the districts furnishing con-
tingents. William of Malmesbury (ii. 4) espresaly describes

Union of tite Kingdoms, and Divisitms of the Realm. 49

tiiese new divisions made bj Alfred, as " Centurhs, gitas
hundred dii'iiiif." In the Itinguage of Wales and Hibemia,
the word "cantral" is used instead of Hundred, and in the
north we find the term " Wapentake," derived from a military
usage in musterinp the troops. When the monarchy was
at its prime, the Hnndi-ed in the Anglo-Saxon statutes denotes
a sob-district of the shire, geographically limited, with its
separate assembhcs for the purposes of army, justice, and
maintenance of peace. In these later times tho Hundred
Court is the ordinary court for freemen, and holds its sittings
every month. Tho division into Hundreds in the form which
it assumed at that time remained in existence almost to
our own day. As in the division into counties, here also an
historical and an administrative principle worked in different
directions, and created great inequalities. In the southern
portions of the country, which early became thickly populated,
the number of Hundreds was very large : — in Kent, sixty-
two ; in Susses, sixty-four. The midland counties are to a
certain extent different, Dorset having forty-three, Suffolk
twenty-one, and Essex twenty Hundreds. In the north,
where the population was thinner, the cultivation more de-
fective, the laud poorer, and the organization developed at a>
later period, the numbers are remarkably small: in Warwick,
four Hundreds ; in Cumberland and Westmoreland, four
Wards ; in Stafford, Worcester, Eutland, five Hnndi-eds ; in
Leicester, Nottingham, Derby, Lancaster, six; in Durham
and Northumberiaud, six Wards ; in Cornwall, nine Hundreds.
In large provinces sometimes an intermediate division between
Comity and Hundred arose, as the "Trithinga" (or third
portions) of Torkshiie. (2)

(2) Tho divUinn into HumlreOa U
often ntemd to in old records as a
union nf a banilrcd liidK, or families ;
fmax enoDBBUB mnfnBiou with tlie«e. a
hnliHied ri'U* ure BQinelimea nmde out
nT them, aa ia fiiamkiD (ed. TwyBd. p.
ftSex aivt Banulphus Cestr. (i. 5U).
Spebnui (p. MS) says on lliis point,
-NHVputui (quod leio) rtpetinntHf 10(1
aim in ali-iuo Uutuiredo per Menu
VOL. I.

Angliant. Neicin aa judicial. Magni
babimlttT qui vel 40 vet S<0 numerant.
Multi ne 10 : qiiidam duati (antuui rt
nanniJlJ (ul Enndredi de OitHiaui,
Warden, tie. in Oimilalu Gatdii) untnt
itint Donlenfi." Tbe correct view pto-
bitlily iB,tl>uttiieoc(iupiero[apeaBaut'fl
\\iie. familia, Bhould rumiah one nisn
to tliQ origiual Belllement of sidbU
pcttiautriea; bo thlit freqneutly at the
F-

Co7istituiional History of England.

r

III. ^ I)ibififon into ^illjinQS, ^coittngs, Becanirc, has been

erroneously held to be a general territorial divisioa of the
Anglo-Saxon period. This mistake was caused by the account
given by the paeudo-Ingulf, ivbo informs us that Alfred
divided the counties "in ccnUirias, id est hundrndaa ct i»t
decimas, id est triihiu^aa ; " in this a mistake la already
apparent in the word "trithing." The division into tithings
for the purposes of the old military array, in which the
numbers ten and one hundred can be proved to have been
nearly everywhere the units of the organization, was indeed
very ancient. The national militia bad likewise always had
its " tithings," but these did not lead to a division of territory,
for the apportionment of the contingents remained a shifting
matter of administration for the smallest divisions, mnch
more than for the greater ones. What the Anglo-Saxon
statutes really contain touching the Tithings (dccaitix, or
theotings) is limited to the following :— According to Atheist.

L

time »r the first ralonizatianaHiindied
contaiueil b, hundred Mdcs under the
plbU(;h. But as the districts for con-
tingents irere mnre pennanent than
the state of cultiration, the Hundreda,
in their later stale, ooutaiaed much
more than a buudred hides nnder the
plough; sonietimca te»B, where there
had been a falling off iu prosperity.
Tlie great HuodiodB in the nortl^
which Dad been formed later, are, taking
the one hundred hide standard, dia-
proportionatelj targe (in Lnncaahire, on
the averapn three hundred English

gUBTu miles), whilst munj a small
undred contains scarcely more than
a quarter of a mile. Hence it is that
later hiatorians eipTessly assert the in-
iletlniteness of the hide-nieaBnrement
(cf. Qervaa, Tilb. i. cop. pen., " Diulog.
(le Scaccario," "hundrediu ez hydarttm
iliguod -centenii, ted nan determinaii»
rtniilat ; qnidara eaiia ex J^urifiui,
'juidam ex paueiorilmi coHilani. ") This
iuequalit)' led, in the later Middle
Ages, tn the dilieion in some counties
of Hundreds into half- Hundreds:
whilst, on the other hand, two Hnn-
ilrcdf, or one and u half, vfi-re some-
times united for the piirposee of ad-
aiinislntion. Thopersisteiitreteutiouof

redaisexpliii

b; the fact that the Hundred Oonrt
was held otctj four weeks as a regular
courtfEdw. ii. 8; Edg. i. l.iiL 5).uid
thus the conacrrativQ eharaot«r<if nil
judicial sjstems became oomminiicated
to the Hundred. That udmiuistiatlTo
convenience was largely considered in
the curlicBt divisions, is proved ln> the
fact tliut, wheucver possible, the Hiin>
dred grouped itself round a given plaoe,
suitable for a centre. Of the 799
names of Hundreds, Wapentakes, or
Liberties, which are in existence at
the present day, no fewer Uian 3tlS aro
idcuticsl with a towu lying within them
(" Introduction to the Census of Great
Britain." 1851; also as to the Hundrola
geuerally, see Landau, " Territorien,"
^15,216). Id certain counties a middle
diviiion occurs. In Kent there ure to
be found several Hundreds nuilni
under the name of Lathea, which exer-
cised the some judicial powers an the
Hnndreds. In Sussex is found a
division into Rapes, without any juris-
diction, whioh remained with the Hun-
dreds. York and Liuooln were divided
into nirithingfl (third parts), which
(till exist under the name of Bidings.

Unim of the Kingdoms, and Divisions of the Realm. 5 1

vi. 4, the members of the Tithing should, on summons, join

in pnrsuing criminals. According to Athlst. vi. 8, sec. 1,

those who rule the Tithing (the heads) should meet the

Hyndemen in London every month to maintain the peace.

According to Edg. i. 1, 2, notice of a theft should be given

to the Hundred men and Tithing men. According to Edg.

i. 1, 4, no one was allowed to possess chattels (cattle) unless

he had the certificate of a Hundred man, or a Tithing man.

According to Cn. ii. 26, every free man shall be brought

into a Hundred or Tithing, for the purpose of police sureties.

It is evident that these quotations refer to police institutions

and constabulary societies formed of the inhabitants, but not to

local districts, or village marks. In numerous records of this

period, the position of estates is determined by reference

iio the Hundred, but never to the Tithing-district. Among

the innumerable details contained in Domesday Book, the

words " decania, decenna, teothing, tything," do not once

occur. The local districts of the Anglo-Saxon administration

were, for the most part, determined according to the tenures

of the properties. The numerous settlements made by

*' colonW upon loan-land, the submissions of the allodial

peasants to a Hlaford, as well as the subsequent extension of

the jurisdiction of manorial courts over the allodial peasants,

rendered the type of dependent communities the prevailing

one, and a territorial division according to free peasant

villages impossible. DiflScult as it is to obtain a reliable

picture of the local organization of the kingdom, at this,

its lowest stage, it is perfectly clear that the nature of the

existing societies absolutely excluded a territorial division into

** Tithings." (3) The existing local societies, on the other

hand, are as follows : —

(3) The local divisions of the Anglo-
Si^on territory can never be clearly
understood from historical sources. The
old error that the Anglo-Saxon " Theo-
thine ** is a geographical local district,
has, however, become established owing
to a passage in the psendo-Ingulf, who
connects the matter with a register of

landed property which iElfred is said
to have drawn up, "tidem rotulnm
edideraty in quo totam terrain Anglias
in comitatus, centurias, et deeurias de-
scripterai ; " whilst William of Malmcs-
bnry only says that it had been ordered,
" ut omnis Anglua haberet et centuriam
et dedmam" Ingulf makes of this.

Lordships with their tenants and dependents. First in
importance were the roj-al demesnes, on which a royal bailiff
combined the management of the estate with the levy of the
royal dues, with the legal jurisdiction over the tenants, and
with other functions of militia and police, A similar position
belonged to the Gerefa of great private estates. These villoing
and servants do not exactly live in regular villages, but are
settled in the vicinity of the lord's seat (afterwards the
"manor"), and increase in numbers as landless wanderers
come and settle amongst them and put themselves under the
police protection of the lord of the soil. Ten families form
the Bmalleat community recognized for police purposes, and
for the appointment of a provost (prxpositiia). As such, under
the later system of police sureties, they form their own police
union as a manorial Tithing, as well as a court for the settle-
ment of local disputes ; by later grants of land this was
extended even to the allodial peasantry settled among them,
"super omncs nllodiarios, qiios cis habeo datns" (Codex Dipl.
No. 902).

Incidentally, too, the parishes under the spiritual office of
the parson were associated with these, though the former
were formed independently, embracing both freeholders and
villeins, servants and landless settlers, and were therefore
bodies suitable for initiating the separate local government
system in England in later centm-ies.

Larger unions of more independent folk, united for the
administration of justice under a royal or manorial Gerefa,

" ul omnU iniilgena in aliqiia centuria
ct dea'ma exUtrret ; '' the lormer words
espresB an association of pt^reona, tlio
latler contain a deaciiptioTi of a local
district. As the militia a^stem of the
foiirlwatli century bad introJuccd local
tilhings under a petty oonstablc, the
pseudn-lDgulf thnught that this state
of thiiii'a was already ciistiDg in Auglo-
Sbiod times; and he brought tlie system
of police sureties (in the eonfusod way
in nhich the author nf the Leges Edw.
Conf. £0. describes it) into connection
with it, faatostioal ly portraying the
" deeenna " under its tenth man, as a

dred under its Hundred -man, and the
county under its Bhir-gerfifa; which
gives the idea of a Bygtem of manj
thooBacda of judg;es choeen h; tlia
poople I InsLend of this chimerical uet-
work of amaller Hod smaller oourls
of Idv, we can only find in reliable
authoriti™ that pirture of local admin-
istration which I have dclinoated ;
within which no free Tilta^e oontis
nnil villaeos can poasiblj be fonned of
a mere militia system.

and often freed from the duty of appearing as lawmen in the
Handred, were for the most part entirely or partially co-
ordinated with the Hundred. This was an advantage for
those who participated, and their legal duty was lightened
in that, under the guidance of a magistrate, they formed
a separate judicial district, with the powers of a Hundred.
Of equally vital importance to the freeholders in their relation
to the ncighbonring Thanes, was the protection of a powerful
ma^ate ; to which were sometimes added certain advantages
ot wood and pasture. The question here is not one of Bub-
mission of person and property, but of a magistracy (soca),
nnder which the heritable property of the " socmanni," and
their immediate obligation to serve in the military array,
remained anchanged. Towards the close of the Anglo-Saxon
period the grant of a whole Hundred sometimes occurs. For
instance, under Eadward the Confessor, a certain Hundred
in Berkshire was granted to the Abbot of Abingdon, and a
Hundred in Surrey to the Abbot of Chertsey, with the coin-
mand " that no royal Shir-gerefa bold court there," or interfere
in legal matters (Cod. Dipl., 840-849),

An analogous but more compact creation is found in the
nomerous royal or manorial Jinrlis, which constitate, under
a separate Gerefa, a special jurisdiction, in which a Burh-
gemote, held three times a year, is combined with the Hundred
Coort (Edg. iii. 5 ; Cn. ii. 18). The origin of the Burh is ap-
parently due to the need of a military protection in the Danish
times. A hill with a rampart of earth or a strong wall, was
sofficient protection against the sudden attacks of robber
bands. In the statutes "Burh" or "Byrig" signifies also
a single fortified building (Edm. ii. 2; App. iv. 15; Athlr.
iii. 6), as well as a town (Athlst. ii. 20, sees. 1-4 ; Edg. iv. 2,
pr. 8, 4, 5; Athlr. ii. 5, sec. 2; ii. 6; Cn. 84). Discerning
rulers like iElfred made use of the remains of old " civitates "
and "castra" and other advantageous positions for sueh
fortifications, and the protection which these afforded was
readily sought by the neighbouring freeholders, tenants, and
vassals, and also by landless men and small tradespeople

54

Constitutional History of England.

s

who veie living amongst the servants and followers of the
landlords. The differences in the legal position of the people
thos crowded together rendered expedient the appointment
of a special royal magistrate (Gerefs), vho vas also endowed
with extraordinary miUtary, poliee, and financial fnnctions.
At the close of the Anglo-Saxon period the Bur^cnsrs, and
in later times the constitution of the English monicipal
boroQghs, arose &om these beginnings.'

Wedged in among these nnmerons degrees of property and

I power came the rest of the freemen, who on their heritable

I possesBions preserved intact their independent position in

[ the military, legal, and poUce institntions. In many parts

of the comitry these peasant commtinities lay close enough

I together to enable a free teolkhig to be formed out of ten or

more households. Bnt often where the free peasants were

scattered about at great distances, it was with diffiealty that

they were bronght together into a " teothing," while the

greater part of them bad akeady been incorporated into the

system of lordships, magisterial, and bailiff jurisdictions.

In the inner administration of the country these varioas

local groups clash with each other and are not kept distinct.

I Most of them have no esclusire local jurisdiction; the mtijority

do not form exclusive local districts. A separate magistracy

of the ting or of a landowner does not exclude mihtary duty

' The fomuitioD of the BtlibH is,
Kcordinf; to tbc conviDcing reosoniDg
of Kemble, not in any way imme-
dlntoly connected with tlie Britieh-
Bomsn towns of the fifth ceoturj, which
Oildaa,in the flixth centnry, representA
u being already roreaken and in decay.
Btill the existitig ruins would in kitcr
■ timea be utiliMd for tlie purposes of
Y fiirtiflcatioQ. In certain pliKCB the
le "city" vaa rctnined in memory
of nn old " eivilat." The peoulinr life
of tbc Burhs is due to the fact tliat
the free teoanls, lenanta on granted
land, dependants, st^rvimlB, and boods-
Btea of the king, as well as of private
lords, lived dtnacly crowded together,
. and thst under the Burh-gercfa the
I IcgKl, police, and floaace adttiinistra-
' ' B were united in ona penton. That

the Bargtnta as such were not released
from military doty is shown by many
accounts given by the Domesday Book
(e-p. Bury St. Edmunds, 371). But
many Buiha were favoured by being
rated for the purpose of fnmithing tha
contingent at a small hrnded pinpertjr
scale of 5 hidie, 15 hide, or W hid»
(Chester at 50, Slirewsbury at Iffll
hidro}. Of oourM the royal dnea were
proportionately mised, and hence the
burhs became more important for Iba
finance control than for the defence
of the country, aa the fortreEses had
again been allowed to fsJl into miaa.
Kcmblo (ii., pp. 470-478) has selected
from the Aoglo-Sazon Chronicle the
1 of eiglity-eight phtcea, all of

gaided as forliSed.

Kingdoms,

in the Hundred. The tenants within the jurisdiction of
private courts, in quarrels with outsiders, come under the
jurisdiction of the Hundred Court. The police organization is
arranged partly according to the military and partly accord-
ing to the legal districts. Thus within the narrow limits of a
castle, and in the vicinity of a lord's " mansus,'' freebom men
might be living close together under manifold legal conditions,
having very different duties to fulfil towards the king or their
own mesne lord.

Hence we are led finally to the negative conclusion that
there existed iio systematic formation of local districts, and,
moreover, that the Tithing was no such local division.**

** AU these local distinctions cross
mud oTerlap in the most Taried fashion.
But it remains firmly established that
the personal liability to military service
eontinnes independently of the sub-
jection to a magistrate's jurisdiction,
and that the peasant farmers, who were
actual tenants, in case of disputes with
third persons, appeared before the royal
Hondred Gonrt. The legislation ao-
eordingly remains based upon the old
constitution; that is, upon the free
community. Comity and Hundred
assemblies are now, as formerly, active
in all matters affecting military, legal,

and peace control, even above the
interests of property. This legal rule,
however, does not exclude the fact
that dependence on property is the
most important element in regulating
the conditions of life, and that the
division into separate estates with their
tenants represents the prevailing local
division. ** Instead of the earlier
division into free landowners and Icmd-
less freemen, a division of the people
into landlords and tenants has been
introduced" (K. Maurer, '*Munchener
Krit. Ueberschau," ii. 59, 60).

Constitutional History of England.

CHAPTER IV.

^^t Offices of l^allioiman aitti ^^it-Caticfa.

A MDTUAL bond of union connects the districts witli the arrange-
ment of the offices of the Anglo-Saxon kingdom, namely, the
two principal offices of Ealdorman and Shir-gerefa. In them,
as in the diatiicts, an historical and an administrative principle
clash together. The former is predominant in the origin of
the Ealdorman, the latter in that of the Shir-gerefa,

I. Vi\)t lEnHjornian, Bui, GToniES, is the highest civil official
of Anglo-Saxon times. When the union of the smaller king-
doms with the greater began, the sovereignty of the new

[ common ruler was confined at first to privileges and profits,
whilst the former petty state retained its own General
Assembly, and, with a sub-king at its head, preserved its
military and legal system. The oldest Ealdorman was actu-
ally a Viceroy, " mthre^uliia," which title often occurs in the
signatures to Anglo-Saxon documents. In his decrees he
used the royal style: "cum otmilio cpUcopnrum, opliniatnm-
que nieorum." The province of such Ealdormen embraced, in
fact, a former independent state. He was not unfrequently
the subjected king in person, or a member of his family, or
else " /Ethelinfii," near kinsmen of the reigning Over-king,
were appointed to such places of trust. The name " Ealdor,"
too, is a reminiscence of patriarchal chieftain-lineage of a
former period. It does not signify a man old in years, but

r the "superior," "senior" in a higher, more exalted position.

■ Even in the times of the Heptarchy the military, legal, and

77ie OJtces of Enldonnan and Shir-Gen-fa. 57 i

police organization draw cloeer together. The Ealdorman
iiecomes more dependent upon tho central adminiBtration.
The new odminiBtrative division of tho great kingdoms into
shires causes the appointment of new governors, who are
at first merely the highest district oHicials, and whose district
assemblies do not involve any customary right of indepen-
dence. The mention of Ealdormen with such official positiona
mns side hy side with the gradual rise of the division of the
kingdom into shii'es. In the early organized kingdom of
Wessex the Ealdorman is mentioned in Ine's laws, which the
king promulgated with the advice "of all his Ealdormen"
(Ine, pr.), and in which also the disobedient Ealdorman ia
already threatened with tho loss of his shire {Ina, 36). The
small kingdom of Kent appears at the commencement of the
eighth century to have had as yet no Ealdormen, whilst on the
other hand, in a National Assembly, held in 814, the names
of three Duca of Kent and sixteen I.hiccs of Mercia are found
among the signatures. Hence it is clear that even before
Alfred's day necessity had led in the greater kingdoms to
administrative governorships. The confusion caused in the
original state of affairs by the invasion of the Danes and
the reorganization of the whole land by jElfred led to
a greater uniformity in the administrative character of the
Ealdormen. This assumption is confirmed by the Eigils-
saga of Iceland, c. 21 (K. Maiu-er, " Krit. Ucbcrechau," i. 86),
which tells us, "Alfred tho mighty had taken away from all
Sfatteonuri'je" {i.e. viceroys) "their name and their power.
Jarls, those were called from lieneeforth who had been called
kings, or kings' sons," In the flourishing period of the
Anglo-Saxon monarchy the Ealdorman now appears as the
governor appointed by the king in a threefold capacity.

(a) Together with his County Assembly he directs the
equipment of the mititia and the apportionment of the con-
tingents, and brings them to the royal army. He may also,
when commissioned by the king, take tho command of the
whole army, in which capacity he is mentioned on important
occasions in the Anglo-Saxon Chronicle, which speaks of

58 Cotistitutional History of England.

Ealdormen aa commanders of single coonties {in the years
837, 845, 851, 853, 905), or Ealdormen simply as commanders
of a whole army (iu 851, 871, 804, 992, 993, etc.). In the
fltatutes this capacity is regarded as bemg a matter of course.

{h) He presides at his Comity Assembly, as at the ordinary
National Court (Ine, 50; Alfi-. 38; Edg. iii. 5). "Let there
be held . . . twice a year, a Shii--gemute, and let there be
present at the Shir -gemote, the Bishop and the Ealdorman,
and both shall here administer spiritual and temporal rights ; "
which is almost word for word repeated in On. ii., sec. 16.

(c) As guardian of the peace within his district, he exercises
the royal police jm-isdiction. To him the peace proclama-
tions of the king are, in the first instance, directed. The
right of supplementing ordinances, which lie3 in the royal
maintenance of the peace, gives Lini also a derivative licence
to issue peace proclamations within his district. The breach
of his peace is punishable by the infliction of a special peace
fine (Athlr. iii., c. 1). Any man who intends to change his
master, must give notice to him (Alfr. 37). After a breach
of the peace has taken place, his duty is to prevent feud, and
■ to protect the weaker party (Alfr. xlii, sec. 3) ; to take surety
from men accused as breakers of the peace (Edm, iii, 7,
see. 1) ; and to assist the inhabitants of royal burghs to the
utmost, in securing breakers of the peace (Athlr. ii. 6),

The combined position which proceeded from these various
functions was one of the highest dignity and the highest rank,
which, according to the legal system of the times, found
expression in a weregeld, as high as that of the bishop, and
four times as high as that of the common Thane (App. \-ii. 2,
sec. 3) ; in an increased punishment for breach of the Burg-
peace (Ine, 6, 45 ; Alfr. 40) ; in an increased Burgbrycc and
Mundfyrd (Alfr. 3, ; Cn. ii. 58 ; App. iv. 11) ; in au increased
fighting Wite (Alfr. 15, 88; App. iv. 12); and in a special
I right of asylum (Athlst. iv. G, sec. 9 ; v. 4, sec. 1 ; App. iv. 5).
For oflicial income ho had the use of considerable portions
of the folklaud, and a third of the forfeits, fines, and other
royal dues which fell to the king. The Ealdorman in thia

The Ojjices of Ealdorvian and Shir-Gerrfa. fi9

position is the most eminent oflicial in the kingdom, and has
the fii'st place in tbe temporftl council of the king ; but only
in faiB capacity of governor, whose right depends upon the
king^s commission, and whose office expires as soon as this
is withdrawn. In the beginning the Ealdorman had certainly
been a successor of the king of tbe country, and at his appoint-
ment the form of election by the popular assembly probably
continued for a long time. But a free right of election could
not possibly be recognized, if tbe incorporation of the media-
tized kingdom was to last ; indeed, the kingship asserted aa
a principle a right of deposition (Ine, cap. 30). It is told of
£lfred, that he emphatically reminded hia state officers
" that they had their office from God and from the long." (1)
Certain changes were brought about during the last century

(Xi On the office of Euldurmaii and
EaiI. Hejwood " On EftnliK," pp. 55-
117, conUinB tk lengthy expKHiition.
The latin teriuB, Dux, ^ncnii, and
eonva, MeTeif nrbibsrilyintetcbanged,
•• kin ore eonn', palrieiui', prxftiiut,
kccordiugto the f]Uicy of the clenc who
diow un the record. The introduction
of atauoeieB of the owmei, rfux, and
MttHT of the Cnilovingian coDstitutioQ
!• alM eanfiuiDg, for th«3C digniticH
bad diflttnnt temtnrial, pnueBeortal,
•Bid DBtioDoI foimdatioiiB, and an early
hlctary of another, type. It was qnita
nanus] that ia tha arlatoorntio develop-
menl irhich tbe politics! orgaDtzalion
took, the cIiiBB of K]i]<iormcn should be
ideDtit«l vith a small number of the
mater landoiniers. The office of
Ealdomuui appears at an early period
attacked to llis great famiiiee, but is
not hereditary. AmoDgBt Ealdorraea
whoM ViBiDea have been handed down
to na, itutances occur of fathur and
•oa following iminediately one another,
bat this IB very seldom; on the other
hand, the depoaition of an Ealdoruian
}■ Tery rare; and intcrmarria^s be-
tween (he Ealdorman and the families
of Ibe Anglo-Soion kings are very
oommon. All these oonditiona arc the
■sprenion of the pawtir wielded by
OBTtain great families, and of d strongly
Buuh«d claw privilege, bnt not as yet

the offlw of Elaldorman be elective, of
vrhicli even Kemble speaks erroneouBly
<ii. 126). Among the etututes of Ead-
ward the Confessor (cap. 32a, seo. 2, in
Liuuburd's telt), ths followuig iMoluted
and extraordinary notice appears de
heroloclUU. " Eratd el oltai potatatea
tl dignilaUi coTatitulr, qui Iltretuchea
apud ATiglot voeabanluTtiriticrt baroaa,
luibiUi, etc. Lalint vera direbaalur lina-
torei earcitv; apud Gallo; aipitala
eoaitabularii, vtl maTeckatli exereitiu,
Itli <e«TO viri digAantar per nnnmuns
eonnliuTn — el per lingtilot comilatut i*
jiUno fotcmoU, lieut it riaconiltt pT6-
fiRnnratn e( eojnUolaam d.igi dehtat,"
etc This pretended eleotion. as veil aa
thu name "HEFretoches," isquitu foreign
lo Auglo-Saxon ideas. It must not be
forgoUen thot these statutes are a privata
work dating from the twelfth century,
in which ^o learned author iutro-
duces, in a hundred plaoea, his own
knonledge of the continental popular
rights, a knowledge accessible to tho
clergy. Boeing the heavy weight of
Mormon officialism, at tbe time that
Mork noB written, nothing would be
inoro popular than the idea of a &eo
general election of the highest officials
■n tho county. Not merely the right
of deposition, which woe n recogniied
right (lua, 0. 36, Cod. Dipl., No. 1078),
but oU the monmnenta of Aoelo-Saion
law and bibtory, ore opposed I"
idea of elected Ealdormen.

I

I
I

60

Constitutional History of England.

a.

I

L

by tbe induence of the Danish element. Among the northern
pirates, we find, besides the Mngs, commanders-in-chief called
Jarls. This northern term was related to the Anglo-Saxon
Eorl, ■which from time immemorial signified a man of great
ranlc, and was well adapted to be blended with the Eorl or
Earl. For some time accomits of battles speak of Ealdor-
men on the Sason, and Earl9 on the Danish side. As
early as the statute of Eadward and Guthrum there occurs
(in e, 12) the common name Earl (also in Edg. iv. 15).
The influence of the Danish element naturally gained strength
in the second period of the Danish rule after ^thelred (Athlr.
iii. 12). Under the reign of Cnut, history records only
the appointment of new "Earls." Cnut's law touching the
amount of the heriot (sec. 7), only speaks of "Eorl;" in
the 8hir-gem6te (Cn. ii. 18) we again find the term " Ealdor-
man." More important still was tbe breach wbieh was at
that time made in the ancient position of tbe noblest Anglo-
Saxon families. Danish families, and sometimes also bold
warrior upstarts, in a great measure supplant tbe old race of
the Ealdormen, and with the varying fortunes of battle the
governorships also become thoroughly altered in character.
In times anterior to these it had been often found advisable,
for the protection of the country, to imite several shii-es under
one Ealdorman. Under ^thelred this tendency to centralize
the commander's office increases, evidently in order that the
whole army of a district may be more speedily massed, and
employed with greater efi'ect, at the points threatened by the
enemy.

With this idea Cnut formed four great provinces, at the
head of each of which a great Eorl was placed, whose rank
answered to a ducal rank, even according to the higher
standard of the Continent. Under Eadward tbe Confessor,
this grouping of tbe counties is again altered, and for a
short time we hear once more of Ealdormen and Eorls side
by side. But as since Cnut's day the idea of a higher and
greater governorship had been attached to the appellation of
"Eorl," the title which was considered the higher, became,

as is uBuallj" the case, the dominant one. The Anglo-Saxon
Chronicle After 1048 speaks only of KorU. In tho language
of Iftt«r times, the old honourable title of "Alderman" waa
only retained for the authorities in inferior local administra-
tions. (Leges Henr.,vii. sec. 2 ; viii. sec. 1; xcii. sec. 1.) (1")
II. Srtit ®fttce of ^^ftit-gerEfn appears to have been a
second official position under tho Ealdorman, instituted for
the administration of the whole county. In rank coming
next after the Ealdorman (EaUloniKiniics ijiiuira, Alf, xssviii.
sec. 2), the sheriff attained iu process of time an increased
importance, and at the close of the Anglo-Saxon period had
become the most important official of the active adminis-
tration. In marked difference to that of the Ealdorman, the
office contained no remains of the old royal dignity, but had a
purely administrative, even a pre-eminently economic charac-
ter, -which was caused by its financial connection with the
great landed properties. Every Anglo-Saxon magnate bad to
collect rents, payments in kind, protection moneys, and dues ;
to superintend the fier\*ico of hia followers, to settle then-
disputes, and to satisfy tho royal demands relative to the
military array and the legal and police duties. The officer
appointed with full power to fulfil these functions was called
Geri'fa, a name which includes also the ordinary estate-bailiff.
In a higher degree, however, the king needed in the different
districts of bis kingdom a bead-gerefa for the exercise of his
rights of nsufruct and to undertake the varying duties of the
royal administration. This gerefaship so thoroughly pervaded
the whole hfe of the Anglo-Saxon times that in tbe Norman
period the collections of private law found occasion to remind

I

<!■) The allemlion of lillc jb the
flnt chong:*) rtfcntble to Uie Dosisb
tfioea. The Bubalantial change mwlo
hj Cnnt ia of mote importance, wlien
he divided the country into four coa-
■idarabte proTinceii, in 1017. Weegfi
IM reaetved by Cnut for himself: Eiut
Anelia is enlrtmled to Thnrkill;
HckU to Enilrii.' Strerno (who, »8 an
AnKlo-Saion, elill beiim the title of
EoUonnon); XDrlliiimlitiii to Kric. m
Ml i^iprr goTcmonhip. Tliia allcra-

tioii must have only materially af-
^|^cted tho couetitution of the anuy-
The holdiDR: of the coantj coiut in
Buch an extensive district wu prao-
ticuUj jmpoBBiblc. Tbo old Bnuller
cunnly districts remained in eiistence.
Ha ODDrt Bwemblieti, in nhioh now tbe
SblT-gerJraregulurly pTcsided, Heoce,
with Ibis cbnugi>, u Bt'parntion of tbe

h

their contemporaries of its original signification. Thus, in
lihe laws of Eadward the Confessor v,e read (cap. 82). " Grece
.mitem nomen est potcsUitis ; apiid nos iititcm nihil meUtts videttir
quam prmfrctiira. Eat enim multiplex nomen: Greve

iim diatur de scire, de waejientagiis, dc kundredo, de hargis,
dc vilUs."

In tlie statutes the appellation ci/ninijcs-fierefa is acconl-
ingly not nnfreijuentlj carefully added to distinguish the royal
gerefa in the popular court from private gerefas (Alfr. 22,
Cn, i. 8, ii. 38). The county administration of the united
'klDgdoni afforded, as the royal rights were increasingly de-
Teloped, the most urgent occasion for the appointment of such
an official, who was called by the king in his pnbhc edicts
" his gerefa : " " If one of my gerefas will not do this, he is
guilty of disohedieuee towards me, and I will find another
who will " (AtWr. ii. 26). Equally significant In relation to
the official status of the gerefa is the official penalty or
punishment for disobedience, with which he is summarily
threatened in ease he allows himself to be bribed (Athlst. v.
1, see. 3) ; if in his office of judge he passes an imjust sentence
{Edg. iii. 3) ; if he does not keep the proper court day (Edw.
ii, 7, 8) ; if he does not collect the fine for refusal of justice
(Edw. ii. 2) ; and if he neglects his duty in maintaining the
peace (Athlst. ii. 26, pr. v. 1, sec. 2 ; vi. 8, sees. 4, 11). The
frequent mention of the punishment for disobedience {ofer-
hyrnes) and deposition in case of non-fulfilment of duty,
mark the personal position of this powerful officer. Although
with the ever- increasing importance of the office an eminent
local man was generally chosen to fill it, and at times and
in certain localities regard might be paid to the wishes of the
county assembly, yet there is hero even less appearance of
an elective office than in the case of the Ealdorman.

In the official business of the Shir -gerefa his financial duties
and the management of details of business stand in the fore-
ground. Whenever royal demesnes (Athlst. ii. pr.), folkland,
usufruct, and other royal dues, have to be superintended in
a county district, the Shir-gerefa is the controlHng official.

Tlie Offices of Ealdorman and Shir-Gerefa. 63

unless a more special administration has been organized.
"Without prejudice to the Ealdorman's office, he was always
regarded as the responsible officer of accounts. The same
intimate connection with the royal revenues brings the Shir-
gerefa also within the sphere of the military, legal, and
police jurisdictions.

1. When the military array was called out, the first duty
-was to collect the fines for neglecting to appear, and money
contributions for the equipment of the soldiers, which came
in when the contingents were apportioned (" Trihuta expedi-
tioiwliay' Cod. Dipl., No. 362). In the whole business of
equipping and apportioning the contingents the Shir-gerefa
acted as the Ealdorman's assistant. Where delay would be
dangerous, he occasionally leads his troops in person against
the invading pirates. For like reasons he heads the hastily
summoned soldiery for the pursuit of peace-breakers (Athlst.
vi. 8, sec. 4). The employment of the militia organization
for police purposes necessarily required a local officer. In
later times, when the Earl more and more retired into the
position of an upper governor, the Shir-gerefa, sitting with
the Thanes in the county court, probably conducted the current
business of the militia and police administration as completely
and as regularly as he certainly did the legal business.

2. In the legal department the getting in of fines (Edw. ii.
2) and the confiscation of forfeited estates (Codex Dipl., No.
328, 1258) was without doubt the primary business of the Shir-
gerefa. A further duty was to carry out the various sentences
of the court (Athir. i. 4, pr. sec. 1 ; Cn. ii. 33).

In his presence contracts of sale and exchange bargains
were concluded (Athlst. ii. 10; Edm. iii. 5). The Ealdorman
and the bishop are the regular presidents of the great county
court ; but even here the Shir-gerefa, according to the records,
is the assistant of the Ealdorman (Codex Dipl., No. 765),
and his presence in the capacity of financial officer is
indispensable.

But we find him already in the older statutes as the sole
justiciary of the king in the popular court, especially in trans-

64

Constitutional Historj/ of England.

^

aetiona touching fines and forfeits CWithr. 22; Alfr. 22, 34;
Edw. i. pr. ; Athlst, ii. 32). In later times, the more the
Ealdorman is restricted to the military command of the greater
provinces, the more entirely does the Shir-gerefa hecome the
regular leader of the Shir -gemote, and down into the Norman
times there exists a condition of things, in which the holding
of the county court hy the Shir-gerefa is regarded as a time-
honoured custom.

3. In the business of maintaining the peace, the gerefa is
again the coadjutor of the Ealdorman. He must in his shire
" before all else undertake the responsibihty that all keep the
peace " (Athlst. Ti. 10). Police functions especially are allotted
to him, which would be hardly suitable to the Ealdorman in
his high and princely position, such as tracking cattle-stealers
{Athlst. vi. 8, sec. 4) ; taking steps against the harbourera of
thieves (Athlst. vi. 8, sec. 2), the control over the completion
of bargains of sale and exchange, etc. "If there be a man
there who is untrustworthy towards the people generally, the
lung's gerefa shall go foi-th and take surety for him " (Athlr.
i, 4). As royal executive oJKcer he had also to assist the
Chiurch iu getting in its dues and in other civil matters (Athl&t.
i. pr., sec. 4 ; Edg. i. 3 ; Athbr. viii. 8, 32 ; Cn. i. 8). (2J

(2) As to tlio poiltion of the Bhir-
gerSra BpeliuBD'e Glossoriuni, nndet
the noid "graSo" contains Bbundniit
uuitenal, v1>ioh is the bivsia of all tlie
English bailitioual exphuiations of the
Bubject (Bee also Kenble, "Anglo-
Saxoni," it. c. 5, espGciall^r the list
of nameB of the Bliir-ger^raa in tlie
eleventh century, Eemble, ii. 141-143).
The disputed points aro the foUon--
ing:—

1. As to the derivation of the word
mre/a (u of the German "graC"). The
aerivatioQ from " grau," or " grnvio " in
the ecnee of leiiibr has been sot aside by
Onuiin. The dcrifalion attempted hy
Grimm from -rfiVo," lignum, Uelum,
domju, anlu, eccoiding to which it
should mean a"eomr»" or "fociii*"
(Deulfiche Gnunmutik, ii. 73G; Becht-
wlterthnmer, p, 753), is quite as far-
fetched and inoredible an timt uf Lain-
benlfrom"gcreofiaa" regeressmd that

of Kerable from " r6f" or "rffen," (to-
mor, cluiwire, ImiiHirt, baiinitiir. SfnU
maii derives it bom " reftfun," to rob. in
the aense of tLe later feudal " d istren "
OH applyino; (o the collector of Uie ropd
Ansa. With this would agree the lutar
usual form, "reeve," as would also tho
real position of the gertfa, wbioli is
rendered into Latin bj txaettr. This
corresponds also to tlie etymology of
the word " SchultheJBS," in CJermany
(BOO Hnx HQIler. l^ectures, ii. 231).

3. Whetbei. in addition to the »hir-
gcr£fa, there existed other priiioipBl
offtcers of the shiro, is a doubtful point
BUgg^ted by the fact tliat in the Btatut«B
BOiuetimes a ''ebirmon" in mentioued,
UB ill Lob, oup. 6, wbero Ihe sbtrmkn
or otlier judge (Deman) is iutcnded.
In the Codci Dipl. an ".Gthelwiua
Bclruuin" occur* (No. 761); bnt in
Bnother place bi.> is called " .^thelwioo
8bir-ger6ra." la these samo statntea

The Offices of EcUdomian and Shir-Gerefa. 65

If the administration of the county in these points was
centred more and more in the hands of the Shir-gerefa, this
ninst certainly be true, in a still greater degree, of the inferior
local jurisdiction in the Hundreds. In the most prosperous
period of the Anglo-Saxon kingdom, the Hundred Court was
held twelve times a year as the common court for ordinary
disputes between the freemen (Edw. ii. 8 ; Edg. i. 1 ; Cn. ii.
17). By degrees the more special obligations to be fulfilled
by the Hundreds accumulate — to maintain the police control,
to bring their members before the court, and to pursue
thieves (Edg. i. 5 ; Cn. ii. 20 ; Hen. i. 8, sec. 2 ; Will. i. 22,
iii. 8, etc.) It might have been supposed that, in view of
this, each Hundred had a Hundred-gerefa appointed by the
king, but this is not anywhere mentioned in the records.
In the '' Constitutio de Hundredis" (Edg. i. 2, 4, 5), a
** hundredes-man " is named, but in intimate connection with
the tithing-man of the militia, and appointed for special
police-business, and it appears that by this name a special
officer of the militia is intended, who may be compared with
the " chief constable " of later centuries. But on the other
handy where the presidents of the Hundred Assembly gene-
rally are referred to, the ** Shir-gerefa '* is not definitely
mentioned, but the "king's gerefa.'* **I will that every
gerefa hold a gemot every four weeks " (Edw. ii. 8) ; '* that a
gemot be holden in every Wapentake, and that the twelve
oldest Thanes go thither and the gerefa with them '* (Athlr.
iii. 8). In the general regulations for magistrates, gerefas
are, as a rule, mentioned (Edw. i. 1 ; Edw. ii. 2 ; Athlst. ii.
26, iv. 7, V. 1, vi. 11). We can only conclude from such

ooear the forme " scirigman," " soires- no other foundation than the paBsapjo

maii,''"8cireman;"(Nos.761, 732, 929, quoted above (Leges Edw. Con f. do

972,1288). By these names may simply Huretochiis, o. 32a), ^'•firnt et r/Vv-

be meant the Shir-^erdfa, as Kemole comitesprovinciarumetcomitatuumtlhji

and Schmidt conclude ; but it is also deJtent ; " the style alono of which

possible that there was a special ^^seir- suthciently deaignatoH it as exprcHi^ini::

man " for military organization, and for merely the opinion of the private author.

certain police functions, as an elective The Anglo-Saxon accounts taken from

officer of the old onler. statutes, documentu, and historians all

3. The opinion formerly current in indicate a free appointment and dy-

England that the Shir-fi:er£fa was ori- position of the Shir-gerefa at the will

ginally an elected popular officer, has of the king.

VOL. I. F

HiMtary «^ England.

t^ililiMli I

atioB of the Htmdreda was not
!■( &e caanti; ; as some Hun-
■Ained whh Uie Haadreds, had

YtA 9faA from this, the officii bosiness
[ af Uie Sdr-flBrifa, Us c^eosl financnJ, lesal, and police
I Adiw tH. 10 boond 19 «illi the Hnodred Assembly, that
[ &• ■■■( bsi« beat tbe acbnl pn^Bci of all Hundreds which

» Bot iTr~|r*'^ fran fais OHifaoL This is identical, too,
«ith the state ctf tkia^i skieli in the \orman period we find
to be the I imliiiniry and ■ndwit qoe. (9-)

nL JBifri Ac^B for maows districts and townships,

and £» qwdal adwimHtratiw porposes, in addition to the

I fihir-geie£a, arose &an the Conn which the royal rights and

the teoibKial cooditkoa bad taken, all which have been

deeeiibed aboTe (Ch^ 10. aec S).

Firstly, in Hundreds, and even in stiD greater snh-distriots
of a eonnty. special magtstiates might be appointed, as the
royal gereEa in the Thing of the fire bni^ (Atblr. iii. c. 1),
which was a special district of Danish colonists, where he
was ereu appointod to sit side by side with the Ealdorman.
According to another principle, the great royal forest-districts
led to the appoiiiiment of the Swan-gerefas, who occar as eaily
as Ecgberbt's time (Codex DipL, 219), bat who io the later
" Constitntio de foresta " of Cnnt are the chief officers for the

(3*> Wketii€r tbe Shir-grrefa w«>
th« regolni presideiit of the Hnndnd
Conrt, or whether tbeie wne b«cu1
undeT'^nBgutntes in Uie Btmdioli,
cannot be nlegoricall; decided. But
the negntire prapuiition can be nuin-
taJoed, tbat the vetj freqnoit mentun
I of the HnndrBdi and thmr BemOtes
I In later times mmt have led lo the
> liientioD of the Hundreil-serelk, had
■neh an officer beIi>Qg:ed to the oon-
■tittitiuii of the Handled. Uoabts
might ariie, in view ot the lor^
nnmber of Uutidreda, in enoh of which
a (ingle man could not h^ld n mart
everj tout weeliB, Init in the mnjorily
of enunties tbe number was so moilemte
that there would be do inipediiiuuTit.
In Ktmt the nmacroua smull Hundreds

were anited inta " Lathes ' for the od-
miniatnlioD of juliw. Later timea
ptvre that the sittings of seTentl Hnn-
di«da were gentrallj taken togetlier,
and held at one and the same time;
BDd io lite manner later conditiona of
thing* show Da thai the aheHff eonld
appoint anbatitntM, on hia own re-
niondbilitj. The lecnl culleations of
the Norman period do not afford re-
liable proof on this question. In Uw
Legea Hen. i. S, tee. 1, we reul. " Pronl
fluniimlo una* At BielioHbia «i mcntitr
aUnvumim*;" 91, sec. l,"Alilremamtmt
hunilredi," An Ealdor of u Unndred
only occurs in Edg. i». 8, 10. and o»i-
denlly sipiiflea the magistnte, and not
a putticoW title of office.

M

The Offices of Ealdonnan and Shir- Gere fa. 67

administration of forests. The gerefa system extends also to
townships; Burh-gerefas, or simply gerefas, are found in
towns which had formed round a burg, on old demesne lands,
folkland, or under special royal protection ; a Port-gerefa in
towns which, as commercial centres, were of special impor-
tance for the collection of the royal dues, as in London and
Canterbury. In London he has the position of a Shir-gerefa.
The royal letters were addressed to " the Ealdormen, Bishop,
and Port-gerefa ; " and high officers of the royal household,
as weU as great Thanes, are mentioned as holding these
lucrative posts. A Wic-gerefa is found as royal magistrate in
smaller townships. In many considerable towns the royal
magistrate of the Burh-gemote retained even in later times
this less pretentious title. Even in London in the seventh
century the king's Wic-gerefa is mentioned, whose place was
in later times taken by the Port-gerefas.

A similar system of gerefas existed, as we have mentioned,
for the great private landed estates. Bishops, Ealdormen,
and greater and lesser Thanes had to raise dues from their
estates, to settle the disputes of their dependants, and to take
upon themselves the responsibility in the numerous pro-
clamations of the military array, and of the maintenance of
the peace. Such lords' " Tungerefas " might be simple
bailiffs. In greater townships, and where an extended juris-
diction (zaca et soca) had been accorded them by royal grant,
they might actually have the importance of a royal Wic-
gerefa. The term " socn-gerefa," however, only occurs once
in the old Corporation Statutes of London. The landed
Thane, too, is himself regarded as the responsible wielder
of an official authority (Athlst. iv. 7). (3)

(3) As to the special gerdfas for dis-
tricts, 10^018, and administrative func-
tions, see Kcmble ("Anglo-Saxons,'*
iL c. 5, pp. 144-154).

The Burh-ger6fa is less frequently
mentioned in statutes and reoorils than
the importance of the Burh-gemote
would leeA us to expect. Some names
of ger^faa in royal Burhs are given by

Kerablo (ii. 146). A Port-gerefa is
met with in Ix)U(ion, Canterbury, Bath,
and Bodmin (Kemble ii. 148). In
London the two Port-gerefas appear
in early times in a certain conncotion
with the Shir-gerefa of Middlesex
(in the 80-oalled libertas civitatuin,
appendix, xxiii. 4).

The Wic-gerefa is met with also in

u rally ;.■ i-,-
:i. i. o4. .^0. 1

tf wofd getSSm iperr&defi the Anglo-

K al AeetioBB, and forms a remark-

fn^ the 'qs cf .flfred Dtimerous

teA, aD of whieb names

■ vord of iride aignificatiou

Us farms a anlform whole,

tiro's time the King con-

■f his fathi^r's officials

ite sod the general derelop-

d to tliia ejste™ o' royal

I Chronicle makes King

tUj at Baccaneeld in G94:

lint EcH-U, (?) Ealdormen,

in. Hist. Britt. i. p. S34).

i. iHf.. Wfi' we find the same :

;.iccii. not penuiue,
thr most of those
rry iucie::: Jiitr. and expr^ssts the con-
rt^iirJici a; irAJitionii. The tipressiou
rnil-rtice? I'reiStnt'.T iu this si^iise the
rial on:ce>. UCeucei of officials are
:;eJ with liiit ami loss of thegusLip
:m •:. uVi'iri-i .i";.;i(i ;■(,'■■ prinitiir." Leges
Iq iLjic tounectioD wiih lauiled property
i over the wh^'le country, and aupphtnteii
olii(.'es aud popular eltretions of the ancient con-
I'f elections iu the modtru sense of the term
Liial'le trace t'.i he f^mnd. neiiht-r in the imperial
■ui.iv administration i^ralgrave i. US).

-■ Ti-i.

TTie Offices of Ealdorman and Shir-Gerefa. 69

The fully developed Anglo-Saxon political State is a joint
creation of great landed interests and a royal prefeetural
system, scarcely containing any of the characteristics of a
Germanic constitution snch as Tacitus describes. The
actual State is embodied in comparatively few persons,
namely, the Bishops, Ealdormen, and Shir-gerefas, appointed
by the King. The local administration ramifies into a system
of gerefas in narrower circles, interwoven with a similar
system of manorial magistrates. A lowering of the political
importance of the freehold tenants, of the landless freemen,
and of the whole labouring population in consequence, is
tinmistakable. But the constitution of the courts jffodifies
this character. In the Hundred Court, and even in the
Manorial Courts, the passing of sentences is not an individual
act of the magistrate, but is a determination of the freemen
acting in the capacity of judges and compurgators. In the
County Court the royal magistrate is surrounded by still more
influential Witan as Judges. Similarly the coimty adminis-
tration in military affairs and the maintenance of the peace is
carried on in active co-operation with the Thanes of the county,
and probably too with deputations from the Hundreds and
analogous districts. On a higher level the King administers
justice in the Witenagemote with the counsel and consent of
still more powerful prelates and great Thanes. That this
strong aristocratic element still co-exists with an universal
system of royal magistrates is explained by the general
composition of the State. There existed a number of powerful
landowners, but their landed interests were not concentrated
at one point. Originally there were no great estates, which
might be compared to the '' possessiones " which existed in the
old Boman provincial soil. In the territory of the small king-
doms of former days a numerous middle Thanehood had grown
up with an average possession of five hides each ; but there
were no separate great estates, whence a territorial supremacy
could have proceeded. After the union of the kingdoms the
royal possession and the royal power towered so far above the
most powerful great Thane as to render it practicable to

loiiuutiiiu a central administratioii by means of governors
ami appointcil magistrates. But on the other hand the
Prelates and tbo Thanes were, as a body, so numerous, so
richly endowed \\ith eBtates, and bo firmly established in their
landed rights, that as a class they almost engrossed the
magisterial offices. th this condition of things

is the concentration authority, "the King in

the Witenagemote ** bly of landlords invested

with offices and ofB of land (below, cap, VI.).

Its composition is le right of appointing, of

BUUimiming, and of the King exercises within

the army, law, poll i constitution; and which

again ministers to ence of Prelates and great

Thanes at court and mote. The preponderance

i)i these families, oibeu moseij i,unnected with each other,
compels the King more and more to iill the important offices
" with their assistance," and thus at an earlj- period a state
of things is established in which the powi-r of the great
landed interests does not show itself in the form of con-
centrated feudal small states, but in a corporate form with
a eoiitryliiug influence upon the exercise of royal powers.

( 71 )

CHAPTEE V.

The conversion of the heathen Anglo-Saxons by resolutions
of the King in the National Assembly had led to the foundation
of a bishopric in each of the several kingdoms. Towards the
close of the seventh century these bishoprics were united
under an Archbishop Theodore, upon whom the Pope's choice
had fortunately fallen, and became in consequence an element
of centralization which wrought powerfully in preparing the
way for the subsequent union of the kingdoms* The Church
thus bound together was and remained a national Church, of
an essentially different nature from that existing among the
Britons and in Eoman countries. Her origin, her institu-
tions, and her establishment were the free act of the organized
powers of the State. Her clergy belonged, with few exceptions,
to the native families. Her constitution did not originate in
an adoption of foreign institutions, but in national necessities.
In this Church also, the wise and the ignorant, the teacher
and the disciple, certainly stand in relations to each other, to
which the organization of the militia, the courts, and the
maintenance of the peace are inapplicable. As a school for
the people, the Church must at all times be organized from
above downwards ; she performs her functions only by means
of officials who are dedicated entirely and solely to her service,
and independent of birth and property. The union of the
kingdom only affected the constitution of the Church so far
as to gradually remove undue inequalities in the formation

72

Constitutional History of England.

porai

4

of the dioceses, and to bring the ecclesiastical districts into
as much harmony with the division into shires aB appeared
necessary for a common transaction of spiritual and temporal
affairs.

I. ^i)e InstitutfonK of tjr (Tfiurtf) comprise the three gri
tions next mentioned,

1. The htJtlioprics, which originally were identical with the
territory of the separate kingdoms, remained nncfaanged in
the smaller ones, whilst in the greater kingdoms of Wessex
and Mercia the administrative principle of division into shires
led to a corresponding increase in the ecclesiastical districts
hy a division into eight dioceses. And so at the close of the
Anglo-Saxon period there were in existence, with some changes,
seventeen dioceses, the majority of which began as early as
the time of Theodore to unite and form provincial synods
under the direction of the Metropolitan of Canterbury. A
second archbishopric for the group of northern dioceses became
consolidated after many vicissitudes, but it was unable, in the
disordered condition of affairs in the north, to attain, either
externally or internally, to perfect equality with Canterbury.

■ Every Archbishop and Bishop is, according to Anglo-Saxon
H ideas, the original holder of ecolesiastical authority. In tem-
I poral matters, too, he was "to take part in the sittings of
H the coiu^, adjust differences, and restore peace in conjunc-

■ tion with the temporal judges, prevent wrong-doing in taking
L of oaths and in trials by ordeal, connive at no unjust measure
^^^^1 or false weight ; in short, to keep watch over the maintenance
^^^^H of spiritual and of temporal law." (Thorpe, "Institutes
^^^B of Ecclesiastical Polity," ii. 312.) (I)

^^^H 2. The mtm'isterics and religious corporations were of special

(1) Aetn tbeformatinnofthe Aoglo-
BaioQ C'hurob. rei' eaiieciallj Palgmve.
" ComiuonireiilUi." cap. zi. j Kcmble
Bud Henry Soarae^ " The
- Anglo-Sttxon Church" {1845-6J: Lin-
fnril, "HiatoTj or the Anglo-Saxon
Chiireh" (1W5): DuEdnle, "Mona*-
tioon A n gl ican uni " (Edited by CaUty,
&c, Lomirni, 1817): lAppenbetg, i.,
pp. leS-ISS. ("Die Kiichliche Qeo-

RTBpliie der Angel-Sliohsisclieii Zeil.")
The bistnri'.'al gniiipiiig ia u» follows: —
In Ihe little kingdom of Kent (1) Ui«
BKbbisljnpric of C&nteTbury was and
continued to be the mother-bishopric
of the whole of England, besidef which,
in quite eaiJy times, (2) tlie biahopria
of Boclicater had arisen. For Eaex
aioae (3) that of LoDclon : for Sussex
(4) BeUen, in later time* Chichester.

Tlie Anglo-Saxon Church.

73

ImportaQce in this epoch. A monasterial institution was
tbe tiret need of Christianity, as a gatheriiig-plaoe and Bbelter
for missionaries, teachers and scholars. The exigencies of
sustenance, personal safety, and mutual help in their mission-
work, kept on foot for a long time this mode of living in
conunou ; the late origin and very diverse organization of the
parish Churches was favourable to it. The number and
endowment of monasteries, and especially of nunneries, is
ever on the increase. At an early period men and women,
even of royal lineage and from the families of the great
Thanes, show a predilection for entering upon monastic life.
Tbe clergy of the great catheilral churches retain in later
times their original monasterial connections and institutions,
according to which the prebendaries continue to bear the
title of "monks." According to the conditions of society
of those days, the foundation of superior schools could be
effected only by a miion with the members and possessions
of such corporations ; just as the beginnings of charitable

In Eut Anglia (5) tbe faiabnprto of
DiiDiiich in Bultblt «u llret TouDiled,
from whipli iit!uin for Norfalk (6) tbnt
of Elhain, laler Narwicb. wu acppinited
off. For tbe great territory of WcBiiex
H) the bisbnpric of DoTcbeeter was
nnt fbonded. fraia Thich (8) that of
Wiocliealer waa seveied; then kdb
filTtber fotindtrda third (U) biehopric at
Sbetbonie, later removed to Old Sarnin
md tbon to Salisbnrl. From tbe bitt
nMned npiin were f eporated off ( 10) the
^ihoprie of Welle, and (11) of Kiiton,
»fl«rwards at Exeter. Tho odminiii-
tmtiTTi priopipie of tho Bhire*, ncoording
to which these dioceses eontoiued oae,
two, or three counlloa eooh, waa here
the rule. In Mctcia from the (12)
bead biahnpric of Lichfield (id Inter
tnUM Chester aod later CaTcntiy)
wen MTercd the biBhuprioi tif (1.1)
Woro8.tct,(i4) Hctefonl.and(15)Liii.
oolo. Tbe noitliern kingdooi of Deira
had rctaini'd lu itacliiuf bubopric, tbnt
oTYork (IS), wbiob citemled atso over
Scmieiai, »nd after the fonnntiim of
the RKiit IcinRilou of NoitbuiubrJa,
Hiet«he>l itill further. Aa a aepurnle
buhopric. atosa llmt of Lindiiifariie

(17), later Durham. A conBideiable
puitioQ of the great diocese of York
■went over lo tbo Seotflb Biabope. In
Dti uiiomalous pusitiou atood the Biehnp
of the lales of Sodor and Man, who
uRer the Norman period was euhject to
the Archbiebnp of Droutbeiia, and
FJime Inter under private patroDBge.
Tbore is here tobelouod oocuDiiectiaa
of anj sort betweeD these and ths
biehoprics of the old Britisli Chnroh.
(PalgniTe, i. 152-154.) The abbacy of
Kly was iia late as tbe reign of Henry I.
first raised to tbe rank of a bishopiic ;
nod in 1109, tbe buhopiio of Carlitle
was fouiidcd for Cumberland. Tlio four
biabopricB of WotoB, by the oonquost
of (he camtry some TOuturiea Inter,
vers Ineorporate^l with tbe English
Church system. Tbe formation of the
oCBces here was exactly opposite lo
the process of fotUBtion in tbe State
— S/st the fonnation ot the BishopB'
»i!f«, then that of the pari>bee; in
o mncb later period that of the areb-
deacoDries and rural deaneries. The
BrcbdoaooDries lire associated with the
county districts, and the rur»l deaueriea
with the fluudreda of luter times.

I

I

74

Coristitutional History of England.

and piouH foundations could only gain stability and endurance
in the permanent conditions of property aflForded by sncb
corporations. " In the neigUbourhood of the cathedrals were
gathered together the maimed, the lame, the blind, the home-
lesH and friendless, to he fed, clothed, and cared for for God's
sake" (Kemble, ii. 440). This may explain the dispropor-
tionate favouritism shown to these corporations by the most
enlightened monarcbs, such as iEifred the Great, espe-
cially under the heavy visitations of the Danish period. The
Anglo-Saxon period concludes with a great number of perma-
nently endowed monastic cathedral corporations, irregularly
scattered throughout the kingdom, and with very unequal, and
in some places over-wealtby possessions. (2)

3. The foundation of parish churches in England took
place slowly and imperfectly. For a great length of time,
according to Bada, the bishops still wandered about their
dioceses with tbeir assistant clergy ; and even in the middle
of the seventh century Saint Cuthbert journeyed from \Tllage
to village. But from the days of Archbishop Theodore the
creation of settled parishes began in greater numbers, slowly
extending from the southern parts of the country towards
the north ; endowed often with parcels of land by generous
Thanes, they became after the introduction of the system of
church-tithes more uniformly enriclied by the tithes of their

L

pramoteil by the oaatoinB of the
early wiMionarieB. The clergy lived
in com miini ties, even when Uivy were
not monks, nnd followed theruleof the
BeneiUcUneor Aomeotberocdar. Cnder
the protectidii of the kingB th:a spirit of
oommuDitj, especially id tlic btghly
boDiianiiliiQDneriw. assumed a national
character. The Teal oeed of tlie times
WB most eHtimatoBOcarding l« t!iB views
of an Alfred, and not (nun the later
and changed poeitiaa nf affairs, Asacr
tells DB tliat Alfred was wont to dedi-
cate a full half of bU royal reveunes
to ccclesiiutical purpoaos : of this he
lusicnod a fourth to the poor, a fourth
to the tiro monoateriea he bed fouudtid,

another fourth was aet apart for the
school founded by him, and the re-
maining fonrth for the neigbbonrlDg
cburchea and moDaitericB and their
niinieters. Bothapirituni and temporal
uoblea spent considerable suma in
charity, in its primary ai gn IS cation :
a liotUon of Ihe booly made in war.HDi)
a portion of the Ihies payable to the
Chnrch, was also ordered to be paid to
the poor. All surb fuiindationa, how-
ever, found no stability in the ayiteni
of temporal adminiBtiation, lor suoh
contributions were speedily spent and
Torgotten ; hospitals and almihousea
belonging to the monnslerleH and oathe-
draU fonuni juet lliose perninuent iiisti-
tutions on which the systuu depended.
(Kemble, ii. c. 11.)

The Anglo-Saxon Church.

75

parochial districts. The Canons of Archbishop Ecgberht (Ex-
cerpta Ecgberhti, Thorpe ii. 100) show us what the early
Church of those days aimed at. The parish church was to,
be endowed with a hide {mansus) of land, and this hida should
remain free from all public burthens, whilst all property
beyond this amount should be subject to manorial dues and
State burthens. The laws of Eadgar and Cnut of a later
period contain the rule that every landowner may endow a
church situate on his Bocland, with a third of the tithes,
provided there be a graveyard united with it; where there
is no graveyard, the tithes are payable as before to the
" parent " Church, and a new income is to be provided by its
founder for the chapelry.

These attempts, similar in character to the ordinances of
the Emperor Louis (Pertz ii. 626), were, however, only partially
successful, and even at the close of the Anglo-Saxon period
the endowments were somewhat scanty compared with the
possessions of the cathedral churches and abbeys. Mean-
while, the Church income, which was at first centralized,
becomes more and more distributed amongst and firmly
attached to the bishops' sees, monasteries, and parsonages.
A settled endowment of the parsonages became the rule in the
ninth century. In Domesday Book an *' Ecclesia sine terra''
is a rarity. From the manner of the foimdation there resulted
an extensive right of patronage over the benefices. The
Norman Domesday Book, in which the list of them is imper-
fect, specifies hardly more than 1700 churches, endowed with
parcels of land of from five to fifty acres, and showing a very
unequal distribution of the ecclesiastical benefices in the
various parts of the kingdom. (3)

(3) Ab to the nature of the eccle-
siastical benefices, Domesday Book
alone gives ns reliable information
(Ellis, totrod. i. pp. 286, 295). Glebes
of more than 50 acres (as one of 83,
one of 100, and another of 120 acres of
pasture land) are solitary instances ; on
the other hand, a church without land
is also a rarity in the great register
of land. Bat churches without land

appear to have been omitted, owing to
the original object of the book. In the
legislation, the continual increase in
the number of parish churches is visible
in the distinction of various classea In
a principal church (hllfod mynsler)
breach of the peace is vLsitod with a
penalty of £5 ; in ordinary churches of
120 shillings ; in still smaller of GO
shilliugs, and in chapels of 30 shillings

76

Constitutional History of England.

These mstitutione of the Church, as regards her property
as well as her miniBters, are firmly bound up with the
eeeular state.

II. STfiE ^roptrlll of tfie CfiHrtS attained an extent which,
at the close of the Anglo-Sfison period, towers far above the
importance of the royal revenues. Intellectual and industrial
labour alike require property for their maintenance and de-
velopment ; but intellectual labour has been always compelled
to associate itself with the existing system of property. In
the Middle Ages it was obliged to acquire great landed estates
iu order to keep on terms of equality with freehold owners.
The amount of Church property, as a whole, long retained
that relative importance which the intellectual life, centred
in the Church, might well claim, in comparison with military
life or industrial pursuits. The separate elements may be
grouped in the following order : —

1. The la niled property of the Church had to maintain itself
on an equal footing with the fully secured allodial estate, at
e time when such property was a necessary condition of full
legal capacity and equality- But it is an old experience that
recently converted races know no bounds in their liberality
towards the Church, Following the example of King ^thel-
bert, who bestowed bis palace with its lands upon St. Augustine,
the Anglo-Saxon kings and magnates also made rich gifts.
The manifold Anglo-Saxon records lead one to suppose that
almost every princely personage bestowed some such gift on
departing this life. A person entering a monastery not un-
frequently brought his whole forlnue with him ; the children
of distinguished parents brought at least a donation of lands.
Recovery from severe illness and escape from disasters, as

(Atblt. viii 5 : On. i. 3, bmb 1, 2 ; Hen.
79, Bt-c. «: App. IT. 3). The maintt-
aaiiL'eoC tlio puriBli cbarch nflbrded tba
flnt reaaoD for tbo purticipalioD of
the oommunitjr in Ota oontrol uf tlie
Churoli proporty. The unalngj of the
pftrochial Byatoin of norllicrn countries
nod of tbc liitur rit-bts of tbe purUb-
ioDon in England Jiistif; the uuii-

the m „

wbiuh had been farmed from tl
tribntions. The Chori^h of the later
Middle Ages, wlieii her pretetulona
nere at ilie highe«t, would acarcal*
have reoogaUcit auoh partipipalion, had
it ui>t been founded on onoieal cuBtom.

The Anglo-Saxon Church.

77

well as joyous events, were commemorated by donations,
which the clergy, whose co-operation at the making of wills
was indispensable, commended to the consciences of rich
sinners agitated by the fear of death. Even the severe losses
which the Church experienced through the destructive frenzy
of the Danish pirates were soon made good by donations
from converted Danish magnates. According to the manner
of property in those days, to landed estates were attached
reserved dues, services, and rights of protection over tenants.
Profitable rights of this description might also be the im-
mediate subject of the bounty. Boyal donations especially
include tolls and market dues, forests, harbours, fisheries,
mines, and rights of pasturage. There are further attached
to great landed estates, the magisterial rights which had
become extended by grants, and the whole lordship over the
soil in its Anglo-Saxon conception. Thus arose the landed
property of the Church, almost continually growing and
increasing, until, in the case of many cathedrals and monas-
teries, it was equal to that of the temporal great Thanes ;
and compared with it, the single parcels of land belonging to
the parish churches bore about the same proportion as the
small yeoman freeholds of that time bore to the lordships of
the Thaini regis, (a)

2. The payment of tithes was almost as important for the
permanent and uniform endowment of the ecclesiastical insti-
tutions as the possession of landed property. As in the whole

(a) The landed property of the
Church is dealt with by Kemble, iL
c 10. To grive an instance of the
unequal distribution of landed pro-
perty, it will be sufficient to mention
that the district of Chilcoml>e (a part
of the possessions of the bishopric of
Winchester) is reckoned at 100 hides
(Cod. Dipl. G42). However, such a
concentration of estate's, which might
have led to separate territories was just
as little possible with ecclesiastical
estates as with temporal niaguates,
from whose grants thoy principally
arose. It is true that King Withred
of Kent and ^thelbald of Mcrcia

declared their wish to free the eccle-
siastical estates within their realms
from " temporal burthens, labours,
duties, and contributions," but hereby
only burthens attached to land were
meant, and it is expressly declared
that the three common burthens, ** ex-
pediito exercituSt burgorum constructio,
jtontium refectio^* are not included.
Few grants to the Church can be
cited without the reservation of these
common burthens, which later juris-
prudents have styled the " trinoda
neccssitas " (Palgrave, i. 156, 157, 100,
101).

78

Constitutional History of En;/land.

of Christendom, so in England as early as tlie end of the
eighth century, the united esertions of the clergy led to a
recognition of the right to tithes by the National Assemblies
of Mercia and Northumberland, A decided legal recognition
was first made in /Ethelstan's " Conntitutio de Decimis," since
which time the temporal power agreed likewise to these taxes
being raised by the royal gerefas. One third part of the tithes
was to be expended on repairing the church, a second for the
ministers of God, the remaining part for God's poor and for
needy labourers (Athlrd. viii. 6). Nearly every subsequent
reign confirmed afresh the legal liability to tithes with the
assent of the Witan. The Church accordingly gained a right
of direct taxation much earlier than the temporal State, (b)

3. Besides the tithes there were periodical contributions of
minor importance, as burial-seryice fees, candle-duee, and
plough-alms, contributions ■which, at first depending on liber-
ality, became local customs, and were at last recognized
in the decrees of the National Assembly. To such belongs
also a Church rate {Ciric sccat), which was to he paid on St.
Martin's day by every free household, and regulated in a
certain proportion to the produce of houaeboM and farm ; but
a general carrying out of this measure, in spite of legal recog-
nition, was not achieved, and in Nonnan times it is only
met with as a customary tribute paid by certain individual
estates. As occasional sources of income may be mentioned
the numerous gifts made by believers, consisting of movable
goods, such as crosses, rings and jewels, provisions, etc. ;

(b) The Clinroh tithes nrc Gret men-
tionod in the written law in n synodal
decree of tbe jesr 786 (Selden, c. 8,
sea. 2), wbicli proves tlieir oonfiimatioii

land ill their National Asseinblita.
Liability to tilbua ia neit reoogniwd
in the Iiiw of King Eadwari! and
Qnthram ubont the year 900 (K. et. O.
c 6). hriefly mentioDed in Athlat. iii.
1, bal at full length in an ordinnnre
respectiDg tltbea (AthUt. i. setH. 1-5}
with two rather different teita. The
ordinmioe speaks oolj of the " asaia-

tBDae"of the biBhopa,aad is tuldreased
to tbe gerefiis as au official aotic«L
Lati-r recognilioDs are to be found in
Edw. i. 2 1 Edg. ii. 1, 2. S ; ir. 1. mux.
3. 1; Athlr. v. 11 : vL 17; vii. J.aeoa.
2, 1. 7 ; viii. 6-9, H. 15 j On. i. 9,11:
Kdw. Conf. 7. 8, That n third of tba
titbeB ia to bo expi-nded on reptunug
the oliurcli is refieated by Athlr. viL
6 : but tbe fines paj'sble tn the Churcli
shall also bo uued for the uuno pnrpose
(Athlr. V. 57), that the bishop especially
(Edm. i. 5), and every one gouonkUy.
sboald contribute to the repair of tho
church, by Co. ii. 6S.

Tfte Anglo-Saxon Church.

79

vbicb, in the wills of tbe Anglo-Saxon magaateB, are extended
to presents of whole herds of horses, oxen, sheep, and pigs —
"pro auhtte imimx." (c)

III. ^{)t ^oUiical position of tte ffittlesiasittal ifVltnisieis

shows a more complete and eloBer union between the Charob
and the laity than in most countries of tbe continent. Whilst
Christiamty in other countries took its rise in the poorer
classes of the population, in England the conversion began its
work with tbe kings, their households and followers, their
Witan and Comites, and spread downwards from them into
the communal and family life of tbe people. It was natural,
therefore, that the resalt should be a close connection with
family, community, and government. The clergy belonged to
tbe nation's " family-life," for, from the very first, they were
taken from all classes of society, from tbe king's son down to
the bond-tbeow. Monastic life, with its strict observance of
the rules of the order, certainly demanded the sacrifice of
family ties ; but, on the other hand, the secular clergy were,
and continued to he, to a great extent, in tbe married state.
The injudicious zeal of Dunstan, indeed, endeavoured to
bend even the secular clergy under the rules of the order.
In a time of great abuses and a threatened alienation of the
Cborcb, tbe clergy should belong exclusively to tbe spiritual
profession. The force of custom was, however, so strong in

(e^ Anon^ the amitll periixlieiil cnn-
tTinutioQg. the Cirid-Keat baa boen the
nubject at a prolix diHiuiion. cbioh
ia counected with the diApuled poei-
tlon of the " Church-rale" of lo-iiay.
lU nkturi- htu lieru nowhere oxacliy
(le«orlU»l, jet there are mniij' roationa
for bellvnui; that it km inteoded to
be m sift of tho Gnt-fjuits of the field
ttttn the model of the Uosoio law.
The weDlion of it in the etatiites is
axooedingl]' frequent (Ine, t, S; Edg.
ft. 2, 3; it. 1; Mhl. vi. 18; »ij. 4;
riii. tl: Cn. I 10: iL U). The col-
iwlinn of it wiu etnraially [neulcnted
upm the gurefoa (AtbUt. i. 1), under
tliivkt nf eiooniiiiiiiiieatiO(](Edni.i. 2).
It oan Ibertifore liordly ho donieil that
the legialatioQ iutundeil t<

eiinpful Church mntrihutii>n. hut that
iN loving (bund an obstinate resle-
tanoe in the opposition the yuomun
BApBCially showed towurda it, and wm
nccordiugly, in spitu of ull ordiaanaes,
onir partially onrrioil out. Kemblo
(li.'jUO. Boppl, D.) endesfniira to main-
tain a thoroughly fiotitioua vinw. A
Rood disaosalon of tbe qneation it fotmd
in 8chm id (Oloaaorium, 515-517). Prom
the sucoeaa that ntteoded tbi'Jr impoei-
tiou, the innamemble Bb«olittion moneys
Toi fuaU and pmiitenoos muv he included
iti theperiodioalCbnroh tnbut«a. From
the multiplication of these meana of
grore the ponitentlnry books of this
pcrinl give an eltraolJinary piotnre of
the abuse of an idea originally proper
aud nionil.

the national Church that a score or two of years later the
eeclesiaBtical rdi/ime was not materially changed, and celibacy
did not become an established rule of the Anglo-Saxon
Church. The clergy belong to the civil community through
the liabihty of their corporate estates to the payment of
common burdeua. With unimportant eseeptiona, the deeds
of grant even to the most favoured monasteries declare their
ever-recurring " trinoiia ner.essitas " — the perpetual liability to
" Brycgbote, Burhbote, and Fyrd " — to which are joined many
other serviceB reserved to the King ; whilst on the other
hand the Church participated in all rights and privileges of
landed property. Hence was preserved a feeling of common
interests and rights bound up in a close bond of union. The
Canons show that on the part of the Church there was no
attempt to obtain fundamental immunities in this respect,
even though a monastery here and there endeavoured in its
deeds of grant to acquire some special benefit. As an
established principle, the clergy remained subject to the
secular authority, viz. the royal mihtary, legal, police, and
finance control; subjeet, however, to the following general
rules : —

I. The obligation of the clergy to military eeiTice was not
abolished by any Anglo-Saxon statute, although no compulsion
was used towards the higher ordirfs. The latitude of ad-
ministrative arrangement of the militia in the County and
Hundred Asserablies readily allowed of substitution ; the
interests of neighbours, however, took care that the eccle-
siastical estates furnished contingents for the national defence
as nearly as possible pro rata, and that the favour shown to
the Church should at all events not increase their own oblij
tions. (1)

(1) Imcdunity from military serriee
vaa DBTBT dirGotly stated (Palgrtive, i.
156, 157). We find in timea of dunger
the higbfT oloricB froquontly amongat
the vuniors and nmotigst the alain :
jet a psieonal BummpnH of ttie clorgy
{■ ncrec spnken of. An obligation to
Airniab soldiurs Dcoording to tho pro-

ibli^B

portion of c«lesiftBlicftl property to
expresily metitioTiod, and aooiBtimeB
even the oustonutry nmnbet of Uid
troops, aa in a large grant to a mon-
QStery, '• expedtliiiKrm eitm dvodaim
catallia ct cum tavlit Knli* taerrtaM"
(in 821; Cod. Dipl. 27a). To look
to this va« the duty of the Shii-gerifa.

The Anglo-Saxon Church.

81

2. The judicial duties of the clergy were as follows: in a,
dispate with the laity they must seek justice in the Hundred
imd Shir-geraote, to the criminal jurisdiction of which they
were subjected, equally with the layman. Clergy appear
amongst the judging Witan (Alfr. 38, soe. 2). They appeal*
especially active in the administration of oaths, and in con-
dncting the ordeals (Edw. Conf. c. 9). Clerics perform the
functions of notaries in cases of contract, grants, and wills,
*' quoniam tabelUoniim vsiis in rriino AnijUte wn huhetur "
(Mattb. Paris, Hist. Hen. iii.), and appca.r also as taking
depositions (Edm. iii. 5; Atblst. ii. 10) ; under their super-
intendence marriages are contracted (App. vi. 8). They are
consulted as arbiters and councillors in actions at law. They
are employed everywhere as clerks of the court. Even the
office of Shir-gerefa was, in certain cases, filled by clerics,
and if the ecclesiastical canons in general forbid their exercise
of that office, it is only a proof that such an occupation
was legally permissible. A privilege is accorded the clerics
only in the case of taking of oaths, in which the apphcation
of the ordinary principles would have led to hardships ; but
here at the same time the special credibility of a sei-vant
of God was taken into consideration. This purgation by
oath was regulated and facihtated by the passing of special
law6 (Athlr, viii. 15). Of more importance than such moderate
fsTonrs, appears the peculiar legal jurisdiction, which was
formed in the interests of the Church, in causis vcdedaeliciB,
and for clerical delinquencies. This was without detriment
to the secular legal jurisdiction, and only applied to the new
relations which arose from the ecclesiastical ordinances,
and which could not be considered as suitable objects for the
judgment of the national courts in the form they then had
(Edw. et G, 12 ; Cn. ii. 48, 53). Beyond this an exemption
of the ecclesiastics from the secular judicial jurisdiction was
never established dm-ing the Anglo-Saxon period. (2)

(2) Ai regBide jurisdiEtioD, Kcmble
(ii. 378) rightlj remntka Ibut tliu
iiumerouB precaiilinDiiry niGasures eon-
taiiiec] in tLu atatutes a^ to tlie Dinuiitr

of condartiDg luw HnitB by clerioi,
affonl II ("oiDploto proof of their sub-
jertion to (lie K-cular jariulic^tioii, na
un establitbcd piinoiple. (He ciles

82 Constitutional History of England.

3. The principle by vrliich they were Bubjected to the secular
criminal juriadietion brought the ecclesiastics also under the
police juriBdictiou of the Crown. The duty of maintaiDing
the peace was extended naturally and particularly to clerics.
On their landed estates they were responsible for their tenants,
servants, and depeudants, with all the strict obligations that
later legislation imposed for the maintenance of the peace-
From the system of special peace proclamations, there resulted
a further co-operation of the ecclesiastical and secular
authorities to secure the peace of ecclesiastical persons,,
possessions, and seasons, but this was founded upon the
"King's peace" (Will. i. 20). (3)

This imiveraal intei-weaving of the clergy with the seeulai'
community led fui-ther to their employment in the o£&cea
of the middle and higher grades of the administration. In
the County Assembly the Bishop, Ealdorman, and Sheriff
preside together, but with this proviso, that matters of a
purely ecclesiastical character are generally determined
separately. Under these circumstances the Bishop could also
take cognizance of purely secular matters, such as the
control over weights and measures, the rules of inheritance,
and other affairs, which appeal' in later times in England
as remarkable extensions of the ecclesiastical jurisdiction.

Athlr. 18, 19; Alhir. viii. 19-24, 27;
Cd. i. aeo. 5; il. sea. 41 ; Ben. L
tU, »«a. S : 5, sec, 7 ft teq. ; 57, sec. 9).
Theii enduuTaurB to gain immunitj
frora the scoolur jomdiction can be
perceived, honcTer, u the foDoniag
pomts. In diepnles of the clerics
otnong one tknother, the Churcli in
early times ineiBted that the parties
should Kfor tlie mntter eiclusiTely to
the ecclesiastical aupeiior (CaQoa, Edg.
7). The priest found piil ly of murder
1FBS deprirod hj tLe ecclesinstical
nuthoritiea of hia priostlj consecration,
and handed over as a layiDim to the
criminal jnrisdiotiDa (Alfr, 21; Athlr.
■viii.26: Cn.ii.il). Clerics were sub-
ject, in addition lo the ftnee or pennlties
•<l the secular aulhoiitles, to a special
Church penally (Edw. ct G. 3 : AUilr.
viii. 27; Cn. ii. 5, boo. 2). In the aaae

of cftpitnl offenoes they wero to be
confined in priaon, until the sentence
of the liisbop had been passed (Edw.
ct G. 4, see. 2; Cn. ii. 43). Itut it
Tecog:nized eccleBiastieiil court is not
foHod unUl the Nonnon period (Legei
Will. I. SCO. 4 ; Hen. i. 57, sec 9).

, .. thoBishops of rostorinfi; order,

and, in oonjunction with the aecular
judges, of preventing wrong ("Insti-
tutes of Eeclos. Polity. Tborpcii. 312).
The Bishops «ojny a special right uf
asylum in auoloKy to Ihnt of the Ealdor-
man. In addition lo thu King's
l>eace the Chnrcli-poacQ is especially
mentioned as God's command (Athlr.
V. 10, 21 ; vi. IS, 26): and is even set
above tlie Kin|;*B penoo (Co. ii. 1, see.
1 ; App. ir. 1, 31).

The Anglo-Saxon Church,

83'

As the support of the ecclesiastical authorities is a duty of
the Shir-gerefa (Atblat. i. pr. sec. 4 ; Eilg. i. 3 ; Athh-. viii. 8,
32 ; Cn. i. 8), so also it is made the Bishop's duty to superin-
tend and support the Shir-gerefas. The punishments for dis-
obedience inflicted upon the gcrefa who neglects his official
daties, or deUverg an unjust sentence, are to be enforced by
the Bishop (Athlst. i. 2G; Edg. iii. sec. 3). It is not clear
whether, and if so how far, these divided oEELciol functiona,
which mutually acted and reacted on each other, extended
downwards into the Hundreds, But upwards they meet in
the general National Assembly, in the appearance of the
Bishops and greater abbots in the Witenagemote among the
King's Thanes, of whom they always take precedence.

The bringing of the clerics under the duties of the com-
monity led immediately to ranking the clergy according to
the class relations of those times. As in the Anglo-Saxon
thaneship public duty and office combine with possession of
property to form a class privilege, so do they also among
the higher ranks of the clergy. In the civil State, property
leads to office ; in the eeclesiaBtical, office leads to property,
and places the Bishops and greater abbots upon an cquahty
with the great Thanes, and the beneficed clergy with the
ordinary Tiianes of the county. The equahzation of the
Bishops with the Ealdormen — that is, with the highest digni-
taries of the civil State — was brought about with complete-
ness, and knew no exceptions. This was done in the
matter of the Woregelt {App. vii. 2. sec. 3; Hen. i. 68, sec.
G) ; of the compensation for murder (Edw. Conf. 12, sec. 5) ;
of the Bishop's Borg and Slundfyrd (Alfr. 3 ; Cn. ii. 58 ;
App. iv. 11) ; of the Burhbryce (Ine, -15 ; Alfr. 48) ; of the
gage of battle (Alfr. 15; App. iv. 12); the Bishop's right of
asylum (.\thlBt. v. 4; App. iy. 5); and the punishment for dis-
obedience (Hon. 35, see. 1; 87, sec. 5). In the same manjier
the position of the priest as " Mass-thane " was in word and
deed established by law. He is worthy of the rights and the
Weregelt of a Thane (Athh-. t. 9 ; vi. 5 ; viii. 28 ; Cn. i. 6,
sec. 2). The Weregelt was fixed among the northmen alike

84 Constitutional History of England.

for the Mass-thane ami the secular Tliaiie at 2000 thrjinsas
(App. vii. 2, sec. 5), and in proportion to it was the higher
valae of the prie3t's oath (Wihtr. 16, 17, 18; App. \-ii. 21.
The amonnt of the Weregelt, however, was a matter of
dispute (Dialogus Ecgb. 12; Thorpe ii. 92), the later opinion
being that it was decided by hirth-rank (Hen. i. 68, sec. 3).
The lower orders of clergy had in the scheme of penalties
the ordinary position of the liber homo or ceorl.

The National Assembly, finally, forms the central point in,
which the civil State becomes hound up with the ecclesiastical.
Under the personal direction of the King, affairs of ecclesias-
tical polity were here in the first place discussed mostly by
the Prelates exclusively ; but all the secular decrees of the
so-called Legislature of this time were framed by Thanes and
Prelates in common. The profession of the Church forms
herein a eountorpoiae to the preponderating influence of
property. In the decrees of the National Assembly this .co-
operation of the clergy is as perceptible in its leaning towards
the side of humanity, as the governing power of the kingship
is seen in its defence of the liberty of the subject. This
periodical personal meeting of the King with Prelates and
Thanes kept alive the idea of a final unity of civil and
ecclesiastical authority in human affairs. The two powers
strove, by harmonious co-operation, to realize the hi^er
calling of the State. The ever -renewed and ever-enlarged
protection which the royal power bestowed to the Chui'ch was
requited by the clergy by repeated admonitions to respect
and obedience to the sacred and inviolable person of the

LKing, " the hallowed lieutenant of Christ," as he is called
in a Saxon homily, the " Cbristus Domini," as an eccle-
siastical assembly at Cealchyth, in 785, styles him. In
conformity with this the secular laws regard the King aa
Christ's representative, " Cristes gespeha " (Athlr. viii. 2, -12),
aa the " ricarivs Siimmi Ee;iis " (Edw. Conf. 17). Even Ine
of Wessex calls himself " mid Codes gife "West Seaxena
Cyning " (Ine pr.). On the other hand, kings, whose aira
was the civilization of their people, the introduction of soieiioa ,

The Anglo-Saxon Church.

85

and art, the peace of the realm, and improvements in the
administratiOD, were obliged to foster the Church and obey
her judgment and her counsel, as was done by iEUred and
Charlemagnii."

The Anglo-Saxon Church was certainly not a perfect ex-
pression of the doctrines of the Holy Scripture, but a form
of Chriatianity, with a strong admixture of superstition and
formalism. Of course the worship of saints and relics, sub-
mission and liberality towards the clergy, due observance of
imposed penances and fasts, were her chief doctrines, and for
these ignorance, superstition, and an evil conscience afforded
more scope than for any other doctrine. But the Church
•existed, and existed as a great moral power, in a period in
^^hich physical strength and possession of property were
almost the only recognized forces. She contained within her
that kind of Christianity of which the times were capable ;
jast as the secular State embodied that idea of liberty which
the times could understand. This Christianity, beyond all
dispute, had blended together the Saxons, Angles, and Jutea
of the sixth century, and welded them into one peace-loving
and law-abiding people, had humanized their manners, en-
couraged habits of industry, stamped upon all the institutions
of the community a milder and kindlier character, had elevated
the intellect, and produced in men like Bseda and Alcuin

" The aainber of the olergy, aspe-
eUUj of the inferior orderR. uiid oC the
monb ITU very grt>nt. The pMCcfal
iBoIlDBtiaiu of tiie Anglo-Soxob popu-
iBtiap, &flcr thny h&d become flnoly
■cttlcd, aod had devoted themaelres to
Iha iodastiioua cultivatioD or the Boil,
tiie diasppenrance of the adyentnrouB
«pirit of euter^Tue, and of the prospect
of bootj, the mcreosEog iDfluence and
rich pouesaiODB of the Chnrob, at-
tiMtea the loner cloBacs ia slmoat in-
credible yetwell^athenticated nniubers
lo her Herricc The VoDernhlct Biedn
liilliMlf aIIoob that hy tho immodemle
^oanderinK of State propertv the de-
tenta of tliw country was etiiuingored,
and (he Khig lendenid iucapnhle of re-

wardiog hie bravo warriora aocoiding
to tlieir merits. With regard to the
poeilioa of the olergy (of. below, Oop.
VL), the amount of the Worogelt was,
according to the law of the tmrthemen,
fixed expressly at two thousand thrym-
iaa, the mme as thut of the oiril
Thane (App. vii. 2, tec. a), that of
the Biebop and Archbishop at eight
thonsand and fifteen thousand thrymaas
(App. vii. 2, «ecB. 2, 'i). Aa regards
the marriago of clerRv, we find even
that of Biehop Wilfrid (Eemble, ii.
3S3). As agnitist the dantjei of the
ubuBe and the ulieoalion of the Church,
the picture given by Eemhle (iL 32G)
wlU Apply alM to this period.

86

Constitutional History of Eiifjland.

geniuses of the first order. Bach as can only arise from similar
surroundings.

Wiien, then, for two long epochs the kingdom was inundated
by hordes of northern pirates, when the newly consolidated
kingdom, labouring under unspeakable distresB and disorder,
seemed likely to suceumb once more to the fate attending the
migration of nations, then for a second time the Chureli
accomplished a great work of conversion, which, effecting a
marvellous change, brought the barbarian hordes of pirates
into peaceable relations with the land and the people, and
effected, with surprising rapidity, the blending of the two
nations into one.

This position of the Church and her popular internal organi-
zation determined likewise the relation of the Anglo-Saxon
Church to the papal chair. The national exclusiveness which
is shown in the retention of the mother tongue in the Liturgy
and the Prayers, prevented the Pope from obtaining any
considerable influence. The zealous endeavours of Wilfrid
brought about, indeed, a conformity in some important doc-
trines, but no enduring influence of the Curia upon the English
Church government. It was only in the times of Arch-
bishops Dunstan and Odo that a Romanizing tendency sprang
up, in the face of the resistajice of the majority of the clergy,
a tendency that conceded to the head of the Roman Church
a supreme authority, and in certain cases put it into actual
practice. This tendency was, in the last century of this
period, the prevailing one ; but more in aims than in resalts.
When the gi-eat number of Anglo-Saxou statutes is considered,
the close of the period can point to only a very small influence
exercised by the Papal Decretals. The Anglo-Saxon eccle-
siastical law remained a national one in a fuller measure
than in any other country of Europe.

NotbtoChapteiiV.— C^E rtlatuin
(a tf)C pajial ctjair had been for D long
time bat littla more than ono of piety,
combined with a respwjtful remem-
farance of tho tnisBioiiary luboiira of
Gregory the Great unci St. Augustine.
The British Cliiu^b, on tbe other bond,

vhich had been spread from the north
bf the Scotch misuonaries, did not
recognize the anpremaoy of the Bishop
of Bome, nnd the binding: power of
counoil^ which hoalone hod convoked :
aod ahe had also other iiotioni u Vi
ttio time of the Eaat«r FcstiTuI, tbe

The Anglo-Saxon Church.

87

priertly BoloiDDueatioa of watrimooy,
iAc Tlie work and inSuenco of this
GliuToh within the Ueplarchy neni
qoite lu dgniflcoot oa those of ILo
Bonwn Cbnrch. It was only at the
vud of the eighth century that Wilfriil,
with all the epitit ami energy uf hia
cbu«cter, liTBt repce«eated the Roman
{■rimikte in the Aaglo-Saion Cliurch,
and in bohio mnttsrs. lurh as in the
oclehnlicm <:if the Easter Fuetival,
gtiovd u Dotnble Tictorj. The Auglo-
Saxon Chnreh has to tbBiik the reatless
rtntxg^ of this man, ouricd on often
bj wjectionable meani, for iUiLdheEion
lo the religious syitein of Europe, viih
•11 its weigbtj conaequeoce*. As early
as the ninth century a contiacDtnt
writer calls the English "moaime
Jamiliartt apodolicas ifdi»," and the
AD^lu-Saxoua beciune the most actlTC
and aueocasful of Soman misBtoaaitea.
Bat thu relation ever remained merely
an antbority at a coniideruble distanoo,
and one which contented it«ir with
the fnnctioiis of arbiter on upeoinl m-
Cknona. when the opinion of the Apoa-
tolic chair was aoagbt in conacquenpi'
of intcnml diMensione. The bcrl
prooh of tliis ore the lometils nhicli
fhtmtime to timr the clerical profeuiOLi
LtDita, that DO Church was in a woree
■(Bt« of bondage than the EnglisU
(r£ic Kemble, ii. 324).

A naw epoch oommenceB with the
iarasicina ot the Danes. Once again
the irreconcilablebatreii of the vagrant
narrion directed Itself asHinat Uiu
peaovable settlements of the Anglo-
Bftxon*. and with especial fury against
therichseatsof the "lazj" monks, who
were held in contempt by the wotriora.
But as the most evil days have pro-
daeed tho beat Christiana, the Church
r«iwd ituclf triumphant from unutter-
ablo mm to the work of converting the
Danes, who, aflur they had accepted

lity, ontercd into relations of
Old fellowship with the Anglo-
With their c"

Chriatiai
loyalty n

Boxon population.

version not oiilydld the selflsh, faithless
spirit of the old wonhippera of Oilin
appear to bo overcome, hat from the
midst of tho Dauea themselves went
forth the moat zealoi;9 priests and the
liigbest prelates of tlie Anglo-Sumu
Church. In this period it in Duiiatan
who, with hia well-known Btriviugs
aJter the elevation of apirilunl power,
represents subjection to tho papal sec.
With the Danish element n new spirit
was also brought into eocUsiastical
coDtroTsraioa, aiiil with chamcteriatlo
eoprgy the clcacendants of the old
Vikiuga throw IhcniBQivGG into the die-
piiti's eonccrniug the new faith. The
spirit of asceticism in the progressiva
portion of tho Church is an eipresaioa
of the deep dlasension in the national
spirit, which hod its origin in the in-
vasion of the Danes, and in the growing
ciintniBt bctn-rcii poverty and wealth.

I) l^:-,.rl„,,ilv 1,1. lo nicety .-li.npj. Hint,

\ Vilfrid , not oujya

4

ten^nov. The wretched condition a
tMngrtthlchshnwcliUclfahortlynfter-
nuriXj under .^Ethelred 11. proves to the
unbiassed judgment that in Chur^
as well asinSlatc.]lccntLouaneda,rade-
iiess, and sensuality called aloud for
energctio interference. The hierar-
chical tendency in this period advanced
a step further. But the formal ad-
herence to the Curial system wa^ Qrst
bnnigbt about by the Norman conqnesL

Constitutional History of Englaiid.

Saxo

title,
I in til

I

■ reco;

I fami

I relat

CHAPTER \1.

^!)E anglo-^aion Class.rtlntions, anfi tijc K.itional
asstmblics.

The mutual relationsliip betweon property and the perform-
ance of duties to the State, wliicli has its origin in the duties
we have described, forma the first basis of tbo English class-
relations. The military, legal, and police systems, and even
the Church, are so dependent upon the performance of dutiea
attached to property, that, so far as regai'ds the immediate
claims of the community, the landless man is as good aa
non-existent ; and the small one-hide property is only capable
of satisfying those claims in an incomplete and scanty manner.
With the development of private property, the number of
subjects capable of performance of duty to the State decreases ;
the majority of the free-born subjects appear only capable of
performing such duty in the service of the propertied classes,
and in this sense lose their position of national independence.
The whole nature of landed property contains a progressive
tendency towards dependence, which continually strives after
a legal recognition. I proceed to show how in the Anglo-
Saxon period the power given by possession and the legal
title, arising by the performance of State services, operate
in the formation of classes.

1. The dependence of the landless classes upon property ia
recognized by King and National Assembly ; the kind of
family relations which have hitherto subsisted become Slate
relations. Attachment and fealty to the lord ia seen to be

Anijlo-Soj-'on Class-relations.

89

a duty that can be enforeetl. To defend the lord becomes a
recognized right and the duty of the vassal ; treason on his
part against his lord becomes, like treason against the King,
an inexpiable offence. The oath of allegiance taken to the
lord is worded like that taken to the King: — " Siciit homo
debet eaaeJidclU domino stio, sine omni coniroi-ersta et seditione,
in manifesto, in occidto, in amand'i quod amiibit, nolendo qxiod
noltt." Personal service is conBidered a lasting necessity.
When a man has been slain, his lord receives the penalty an
a legal compensation, as the King does where independent
persons have been killed. The man stands under the special
" peace " of bis lord. And any person, too, who bas a claim
against the man, must appeal in the first place to the lord,
and afterwards to the King's court. For this tbe lord must
admonish his man to fulfil his legal obligations towards third
parties as well as towards the State, though bow far this re-
sponsibility for, and quasi-represcntation of, the man went, in
respect of reparation for wrong committed, and of penalties,
cannot he quite clearly ascertained from tbe passages in tbe
statutes. These principles are primarily mentioned as ap-
plicable only to tbo personal followers, but it appears to be
understood that they were equally applicable to settlers upon
the soil, "cosailen," " tirhiiren," and tenants upon mesne-land
(amongst whom there might be even slaves). The power of
arrest residing with the lord, was certainly extended over all
dwellers upon the soil of the landlord, whether they were
personal servants, tenants, or their belongings.*

2. The higher duties in the military and legal systems
led to tbe legal recognition of a higher class, to the notion
of Thaneship, the Anglo-Saxon gentry, and to further grada-
tions. Even before the time of Alfred, tbe retinue which
the King and the magnates employed in tbo service of war,

* Aa to tbo lecoguilion of a legal
conditiou of (lEpciuleni^o of tbe serviiic
elaises, and lEiose wlio wete aetllfd
BPOQ grouted larnl, oompare eapcoiall;
K, Hanrei. "Krit. ZeitBchrift,"' ii. pp.
331-3G5. Tbe purely pn^nsl onlljB
«( the Saxon period (foi tlio Foruiula

of which. Bfip Bclimid, App. p. 40B)

Those iQlfltiona of dependence are »UU
regarded aa penoual, and may be oum-
pnred Willi the modern regulatioM for
juecial eervaiitH.

90

Constitutional History of England.

and appointed to the royal military offices, are distinguisbed
in the ranks of the Ceorls, as a more honoured class. "NMiether
the Thane was a landed proprietor, or only a grantee of folk-
land, or land held of a euperior, or whether be obtained his
Bnbsistenee only in the royal household, raihtary hononr and
the expensive service of the heavy-armed soldier caused the
vhole clasE of Thanes to stand higher in the social scale than
the possessors of one hide, and the landless man. The higher
character of the services performed appears now as a sufficient
reason for the higher legal Etatus of the man in the scale of
punishment, in giving credible evidence, and in participation
in legal proceedings. The immediate standkrd for estimating
a man's worth is the weregeld, which has been fixed in a pro-
portion of two hundred shillings to twelve hundred; that is,
it places the Thane six times as high as the ordinary free
Among the North Angles the scale is as 266 thrymaas
I (= 200 sbilUngs) to 2000 thrjmsas. The last-named sum
I is doubled for the gerefa, and doubled again for the Ealdorman
lor the Bishop.

Bat since imder iElfrod and his successors every estate of

five hides is reckoned in the mihtia system as one heav^'-

armed man, the rank of a Thane becomes the right (as such)

of the possessor cf five hides ; and the dignity of Thane

is an accumulation of rank and possession, service and office,

like the later title of the Bunmc». Where two degrees of ^

the higher rank occur, as a twelve hundred man (thane) I

and six hundred man (gesithcundman), the former may

denote the man bound to mihtary service with an estate of

five hides, the latter the warrior without such free posses-

I Bions. The fine or compensation which the Iving, or the lord

I of a murdered man receives, is graduated in a similar manner

[(thirty, eighty, or an hundred and twenty shillings). In the

Ipame manner was calculated the protection of the house-right

^Vhere the peace of the township has been infringed (five,

fteen, or thirty shillings, and in the case of a bishop sixty,

RlUid archbishop ninety shillings). Analogous again are the

ines for violating chastity and the muudium of widows-

Anglo-Saxon Class-relations. 91

Ab the whole legal system of this period primarily rests upoQ
the legal protection which is affoi'ded by fines, the higher -
rate of compensation being invariably a recognition of a higher
clasB privilege. Where landed property has become a i
dition precedent to performance of service to the State, a
larger property becomes a title to a higher position in t
commonity. And where a higher standard for the normal
performance has been fixed, the smaller freeboru man, on
the other hand, no longer appears as a "full man." The
majority of the freebom sink down to incomplete subjects in ■
respect of the community — to a lower class. The primitive
origin of this maxim in the practice of the national courts
proves that we are here concerned with legal conceptions.*

3. From the co-operation of both these conditions the
notion of territorial lordships is developed. The master and
landlord was in possession of the actual power to dismiss his
gesitb, and deprive his tenants of the land they held from
him. From this position of authority follows dc fucta the
right of the lord to decide disputes among his gesith and
tenants. An appeal to the King's court against the will of
the lord, would have immediately jeopardized the economic
position of the " man." But the claims of third parties
also were first to be brought before the lord ; in fact, tbey
were generally settled through his mediation. That portion
of the fine (wite) which is paid by independent persons

** The gmlAlioiw of claeses accord- becD macli diBpute as to tlio poaiEion at

ing Id llio irercgeld, the appiication oi the " ajxhynde uqu," who in Wessex

•iinilar gniilfltiouB to Iha whole syBlpm ocoupieB a raidillo placo hetween the

rf pcnoIticB oBd to the value ot Uie *'twelfhjndemaD"and the"coorl,"aud

ootnibomtiti(;oatJi,iBOammou to Anglo- ftppearflalao later to be Identical with

Suoii law and tn the luitional laws oa the " ficeithoundmau.'' Apporcctl]' this

the Dontinent. But the idde aod oailj inteTmedmte grade did not niaintajn

ineqnalitj in property is seco amoog )t«e1f loDg. (Sm Schiaid, Olnas, v.

the Anglo-SaxoDBlD the groat distance 0(»Hha,-aA Thcjn: Maurer, Kiit. Zeit-

hetween the olaasea (two handn-d to sohritt, ii. 60, <)2, 30G, 510; Lappcu-

twdTe hundred shilUagB, for inelaoco) ; berg, i. 5G9-57.1.J In ooDcluBioD I may

wfallat on tliG cootjoeot the ooiitruatB gcDcmlly refDr to the vrcU-ktiown

us puportinnBtely lesB^ The nonnal maxims of the Germau popular lawa.

ttuiaord of two hundred shillinga Tor end to the digoit of them in Lappeii-

UiBceOTl(B»BqQiTalanttothelwjfiyndu berg.i. p. GOl et Hq. : Sehiuid, Gloasa-

man) ia round at first in Alfrpd. z. 18, Tium; and K. Maurer, Ucbvc daa

see*. I, 2, 20, W, 40, nnd later as u Weeen dcs iLllesten dentechea Adeli,

tolerably aniform ataudarJ. 'f heru hua (MuuicL, 184(1), pp. 123-198.

92

Constitutional History of England.

to the royal aheriff, falls in this caBo to the lord, as an
analogous recognition of hia rights as a mediator. When
thereupon the extended responsibility of the lord for all the
settlers on his soil became added, police duties brought with
them corresponding police rights, and responsibility for his
" man " (for which again the lord himself was allowed to de-
mand security) led to a right of arrest and other preventive
measures. Through the recognition of the State, there arose
out of a domestic " inqKrium" a " juried k-tio," which was
I the real and effectual court of law for the dependants. As
: the power of these magnates increased, further royal privileges
passed gradually to the territorial lordships ; and from the
time of Cnut even an inferior criminal jurisdiction. Where
within such close lordships free allodial peasants were still
found scattered as settlers, there was at last practically no
other way of subjecting them also to the lord's court, than by
royal grant. (Cod, Dipl. No. 902.) Now when we consider
that the greatest landlords possessed, in the person of their
armed followers, effectual means for the maintenance of the
peace in their immediate neighbourhood, and that their
powers as landlords and masters and their legal and police
jurisdictiou became more interwoven in each succeeding gene-
ration, there were present here the germs of a system of small
states, analogous to those on the continent. The great lord-
ships with their numerous magistrates now ranked alongside
the Hundi-eds. Nominally, indeed, the county jurisdiction
includes in itself all these lordships, hut in the face of a
compact " saca ft sora" the interference of the Shii'-ger6fa
was now merely an exception, and a royal reservation.""
Through the effect of this legislation the classes which have

■■■ Ab lo the importance of the
Aneln-Siixoii liiudlonliBin, euetliooBaay
of ZopQ. "AltiTtbiimer des deuUcben
lieidieB uiid Kcchts," vol. i. No. v.
pp. nil-211, in vvliiclj, howQTtr, tlie
aoalogioB drawn with the atsta of
nffairs on the contiuent ure tu be used
witli caution. (See fnrtlicr Iho wc-11-
grouQili--d trcntiae of K. Manrer, ii.
pp. ia-SO ; LDppenbctg, L ST2 ; Schniid,

GIosH. V. (ocii.) The blending of those
cmanmic and legal conditions vaB so
unnvoidabla that even the poweiful
personal influence of Cnut coald not
change anything therein, and it ia
Bince Cnul's time that the T0711I
rights of Bovereignty appear mere
TCEorvationa in luforeuce to the lord-
sliipa. (C'n, i. wp. 12.)

Anglo-Saxon Class-relations.

93

been formed by the varying scale of property appear now also

in a legal gradation of ranks, which afford numerous parallels

to the clasH-fonnationB of the continent."*"
In the first class are the great Thanes, i.e. the owners

of great lordships, and with armed followers. We gather
from the records, as also from the nature of the case, that
their numher was small, and may be compared with that.of
the later " haroncs mojores." They are, as a rule, distinguish-
»ble hy the exercise of a separate jurisdiction " sncu et saca"
to the extent of a Hundred Court. According to a passage in the
Chroitk'uiii EUcnue, an estate of about forty hides was in those
days regarded as the minimum of landed property for such
a gtfat Thane. They fill the high offices of State, and the
secular dignities of Ealdormen, and appear as the actual
leaders of armed retinues. But the incompleteness of this
class privilege is demonstrated by the fact that in regard to
their "Wcregeld they are twelf-hyudemen, like the smaller
Thanes, and only have a higher Were in their capacity as
Ealdormen, or by virtue of some special official dignity. On
& par with them stand in the ecclesiastical hierarchy the
Bishops and certain great abbots, but the Bishops, raised both
by dignity and property, stand on a higher grade of Were than *
the other Thanes. (1)

On the Anglo-Saion olasi dis-
iB, which reenlt rrom this oom-
bioation, there is a oomprehendTe
nonogTftpli bj Sara). Heywood, " Dis-
tertfttioii npoD the DiBtinotion in
Soeiety anil iiaoks of the People under
UiB AuKlO'iJu^'"^ Government," (Lon-
Acax, 1818, 8yo); c/. Hallam, -Middle
Agw," "PP- iu-; K. Manrer, "Uober
doB Wesen dea allsBten deatechea
Adalt" (Himirh, 1846), pp. 123-190;
■nd "Ktit. ZeiUchr." ii. 415, 31; ii.
30-68, 388, f( «g. ,- Ketnble. "Anglo-
Btxona." o. 7 ; Stubbi, " Const. HU-
t«y," i. e. 8.
(1) The position of the leculiir

rt Thanta in Uie civil gradation ol'
Weiegeld and the legal compoDsa-
tton i» not different from thai of the
cI«M beneath Ihem. In like manner
their lordghip (laca el §ocu) over a
gtesteT dialrict, ao far a« the consCitu-

different From the aaat H tora of an
ordinary Thime over a aingle eitnte.
The inheritance of an Ealdanuan'R
digoit; id (nith pcrhu]ifl tlie exceptien
of the catiDtj of Che«hiro) only ut
aotunl and not o lognlly recognized
inBtitntioo. Even at tiio cloge of this
Anglo-Saion period, in the family of
the Mi^erdomuB Godwinc there is as
yet DO inlieritnble dignity to be diM-
coTered. The Iroubloud times Ihnt fol-
lowed, especially the Danlgb gtraggles,
were in lliis purtioular also favourable
to the nristocratJf clement. The
reoson nhy the Danish period leaves
behind it in tho aonstitution bo few
traces, ia that it brought about only
a partial atleratlDii in the peraons of
the Thaneg, and a local coloQtzaliuu.

94

Constitutional JJistory of Enfjhiml.

A middle rank (to a certain extent the "middle class" oE
the period) is formed by the thouHanda of " county Thanes,"
possessors of more than five Iiidea of land and of martial
retinues (twelf-hyndemen and sis-hyndemen). The first
named, as Witan, constitute the regular County Assembly,
and, where they are numerous enough, the Hundred Court
also.

The appointment of Thanes to royal offices is, moreover, so
much a matter of course, that the term Thane is used promis-
cuously to denote a royal officer, royal warrior, and a greater
landowner. Outside the ecclesiastical hierarchy the ordained
priests are included in this class as "Mass-thanes," whose
Weregeld was, however, in later times, variously determined
according to their birth-rank (Leges Hen. i. c. C8). (2)

The third class is formed by the smaller landowners, who
still form an active element of the Hmidi'ed Court. Next

(2) Ab to the position of the coooty
TliBuea, sec Soliniid (Qlossar.. pp. lil!4-
666). TbeapporeDtlf unsurmoitntabli)
(lifDcalties are salved by the Inter form
d Die militia, vliich after Alfred's
days iududes (1} tlie posaesHiraof five
faiaea, as such, (2) tlie bcavj-araied
VBiaalB in tlie sarvice of the King or
of a great iBudowoer independeatly of
tLair own freeliolds ; and again by the
faut that the state and couit offlrea iu
tile hciusebold of the King, and of the

t tbe a

toiy olGoee. TbnneBhip is acoordingly
B miiture of Ilie a>DditionB of pn>-
porty, of a mdilary profession, aad of
an office, for which the general appel-
lation Thane ia ob suitable an cifnes-
■inn OB the later word ''Baro." This
denolatinn of the "Men" embraces to a
certain e:itent the full active citizen-
■hip of the timeB. Ueoce, and Trom
other souicTB, tlio express mention nf
" Thanes without land of their own "
(Alhelaton, vi. 11; ef. In. 45,51) fa
Teadiiy accounted for, as weU ss the
sarinna niootioo of Thnini withont poa-
Besaion or niih Tery BmuU pOHBCssianB,
in tho*DomeadB; Book.

Til e ha I f -developed heredileiy q unlily
of Tliauohood ia further nocounled for,
wbtoh, to far tu it waa dependent upon
property, waa a mutter of course, but

so far as it wita dopcaiient npon nuli-
tary rasGBlage w.ia oa yet in tlie be^-
ning of ita development. The ides of
a ruling ehiss ia ehown in tbe fact liiat
tlie eeorl no longer becomes at onoe
a Thane from the mere auquiaition cf
fire hides, but only " when he bu a
church and a kitchen, a bellbouse and
a seat in the coalle gale und n special
office (sunder-uole) in tbe Kin^a hall '*
(Schmid, npp. v. Of secular rant, tee.
2). On the other hand, in the essay
upon Weregeld (cup. ii.) posseasioii
alone Bcems to be indicated as a oob-
dition precedent; "And when a ceori
cornea to have five liides of land far
the Ring's airay. and he be alain, let
him be compeusnted for two thoiunnd
Uirymsaa" (aeo. 9). "And if he even
comes to bare helmet and armour and
a sword inlaid with gold, if lie liaii mi
land he i» atSl a eeorl [according to
Lambord's text — "although hehaanot
the land, he ia still sithcnnd") (aee.
10}. The«e stages of transition and
mixed conditions occur also in tbe de-
velopment of the loner nobUity upon
the Continent An express mention of
the fact thai Thanes conid have other
ThancB us " Toasala," is to be found in
the treatise upon the secular ranks
(Sehmid, opp. v. sec. 3; cf. Edg. ii. 3;
Athlr. viii 8; Cn. i.-a. c. if. 32, wo. I>

Anglo'Saxon Class^relations.

!)5

to tlieee come, hifni clasgnm, the landless jjeople, who were .
in the sen-ice of the household, or settled upon a lord's lands
and forced by law to put themselves under the "peace-
security" of a Tbane, or of a tithing- confederacy. They are
all libcri homiiirs, but only in a technical senso, in contrast
to the serfs. They still perform military services, but mostly
in the train of greater proprietors ; -whilst the common military
duty of the small proprietors exists chiefly in name and in
case of need. From these common characteristics the whole
class in the later Anglo-Saxon period is comprehended under
the term ceorls. On account of the normal Weregeld of two
hmidred shillings they are called " twyhyndemen." And here
it is especially cbaractcristic of England that the general
dependence of the lower classes upon great landed proprietor-
ships does not, as in France, rest upon the " scniorat " ().<;.
the recognized representation of the small man in the matter
of military burdens by the greater landed estates), bat upon
the police protection of the Hlaford over all the settlers on
his soil. The comparative neglect of the military system
bad already in those days caused the class distinctions to he
determined more by the pohce than by the military constitu-
tion, and gave the ariBtocraey more the political position
of police magistrates than of " seigneurs " in the continental
sense of the term. (3)

These class-gradations are regulated by quasi-mntual
■engagements, partly by property and partly by profession.

(3) The poeition of the free cenrl
ia now ooly (-oDDected with politiciil
lighlB by the fact that the ceorl may
p^onn the duties of a judge in [lie
Hnndred CooH, icberc local ciroum-
■luoea penult. In oUicr respects the
suuB of Uie ceorls have already annk
to the potitioii of psaeive members of
the Slate. So mach the more are tfaa
landkss men, WeUhinen, Ibo freed-
men, and the villeina iii/ra elaaem.
<Sae Stabbe, Const. Hist., i. SO.) The
whole of the third taak, as regards its ^
political imporunce, at the close of the
J _-_ y_,__ .... jj„j ,j|p ...„.,

imporunc
period is dytag o
fncdom of the eenrl at the cloite of 11

5<kxon period hiu beco fci;queatly nud

wrongly denied; Kemble, for iBatance,
fnlla into Uio fundaniontal onur of
regarding utl civil dependence aa
"aliivery." The eeorl has Ms were-
geld in hia oivn right, is capable of
bearing arniB, of poBseasinB freehold
property, and also of rising to a higher
rank by the ooquisltion of n flvc-liida
estate. The later law of soltlement
certainly binds the masfl of the labour-
ing claaeea tie fiiclo to the soil, with-
oot on that aoeount creating slarery in
n legal sense. But It is certainly tme
that the name of the eeorl had n
somewhat contemptible secondary lig-
nification.

Like property, they too are inheritable by birth, and -with each
generation approacli nearer to the character of bii'th-ranks.
The great offices and prelates' places are not inheritable : but
as a matter of fact they are, under ordinary circumstances,
regranted to the heir of the great Thane. Tbe lesser Thanes
appear in still greater numbers as hereditary classes through
property and the entrance of their sons into the same relation
of service; the sons also have "Thane-right" even before
they succeed to the paternal possessions. This hereditary
division into grades affected most the ceorls in their low posi-
tion, which was becoming by degrees almost despised. In
contradistinction to the ceorls, the higher and politically influ-
ential classes are grouped together as "eorls." And already
espressions appear signifying hereditability, as " ceorhscman,"
' ceorlborn," " thegenborn," " ethelborn," In considering
t these class -distinct ions two views are met with ; the some-
' TThat older of the two regards the ordinary freeman as the
normal basis of the State, and the higher class as an increase
of honour. After Cnut's day, on the other hand, the Thane
is looked upon as the Uheralis homo properly speaking, in
contradistinction to whom the ceorl is described as iUiberali»
(Leges Cnuti, iii. 21, 25), without intending thereby to call
in question the ceorl's character of freedom as regards civil
rights. Compared to the liln'raHs homo the Thane thus
again appears as liheralior. And beyond all dispute in this
lies the bright side of the Anglo-Saxon foundations. It was
the Church which left it open to all classes to mount up, an
their right, to the highest dignities ia the land. But in the
secular state also the right to rise into the higher ranks was
kept open to all. Firstly, in the case of the hereditaiy servant,
by the laws relating to emancipation. In the case of Welsh-
men by a law enacting that a stranger also should rank as a
Thane, if ho possessed five hides of land. In tbe case of the
ceorl, by a law that he also gained Thane-right on the acquisi-
tion of five hides of land, etc. A merchant was to rank as
a Thane if he had thrice crossed the seas. By royal grant
of a high office {and the consequent endowment with an

An^lo-Saxon Class-relations.

97

estate), the ordinary Thane might rise up to be a King's Thane
and an Earl. Aa at the Carlovingian Court, liere aleo court
offices were the direct way of putting new families on an
equality with older ones ; with regard to this the laws say,
"let it be an incitement to worthy deeds that through God's
grace a slavish villein can become a Tbane, and a ceorl an
Borl, in the same way that a singing man can become a
Priest, and a clerk a Bishop."

The elements of property that bave hitherto been described,
and their gradations according to legally recognized classes,
when taken together, show the possible participation of the
people in the collective will, and the political constitution of
the Anglo-Saxon state. But this national representation dis-
plays, in the following degrees, the same stages of development,
by which on the continent the original popular assemblies of
the German! were transformed into the later assemblies of the
optimateg.*

• AMording to the teHlimony of
Taciliu there was among tlie GermaDi
a time during: which the Berrice for
tb« MiDf and daciei Id the law court
oere, as au establiabed principle, the
■Moe tor BTery rreeman, and eauie-
qnentlj the deliberation on mrtttera of
ooinman ioterett wna pnrticipated in
br *11 the IVefmen under equiil con-
dltJooa. Aniong tho smali tribes Ibe
gmA jadicial aeHeiublj ualuraJIj be-
oune identital ititli tliis deliberatinn
on common malterB. But this oondi-
tioa of things tnuat neoeisnril]' change,
■o aoon u a number o( aaall con-
fadenlimui united und formed a larger

in oonaequenoo of oomman warlike ei-
peditiuDi and commiiD defence of terri-
tnj. The great nndertukingg of tbo
nstioDal migrations which wera dc-
psndeni opou joint operatioaa of var
on B Ter; large acale. must have been
preoeded bj nuiuerouB oombinatinns
bnmog greater onnfederueies. Aa a
rule Ibese greater uuiodh vvtb bnaeii
onlT upon the rLOognilJon of a common
Inder in war anil upon a council formed

logetlicr of the aub-tnl>ea to fTm a
comruon legiHlatire aBSembly was for
local reasona na yot impractiooble, and
preauppoaed a closer union than was
sapirad to an^ivhere. Henoe, in the
nbole range of authentic hietorj wa
find only a single mention of Buch a
joint parliament anjoag the Saiona on
the ofintinenC, in vhicli tbirty-aii de-

Suties (twelve each from EaBlphulia,
nm Eugem, and from 'WeBtphalin)
took part (Ex Vita S. liUbuiui auctore
Hucbaldo Elnonenai. Pertz, il. iiei.)
Among the Anglo-Saions a ri^pnblican
Bsseiublyof del^ateBof sucba deaorip-
ticiu oould not originaio in the lame
njunner. Tbeir expedition! in learofa
of conquest were from the flrat ds-
pendent upon a permanent poaitian
accorded to the minor cUiofCaint.
Hence the early origiu of bereditary
principalitiea, which, after eudlcea
atrugglea. submit themielvra lo greater
kinga and afuir Ecgberht (821) and
Eaciwurd the Elder to one king, under
whom, however, the sprcial National
AHserabliea of each of the former
Beparalu kingdoms live on for a long
limp. Bill it ia only after the time of
Eodward the Elder that the periodical

98 Constitutional History of England.

(1) The oldest form of the popular assembly is a consequence
of the fundamental Germanic idea of law and law-courts,
according to which the mere ordinances of the magistrate
could not alter the customary law established by tradition
(i.e. the traditional procediu-es in civil and criminal law),
being as they were rights inherent in every free-born man.
This conception and the constitution of the tribunals act and
react upon each other ; as justice is dealt by free fellow-men,
no despotic command from without can compel the judges to
swerve from the legal usage. To effect a change in the lex
terrm, the higher authority of the whole people must be
required to induce the judges to accept the new law. In this
sphere the German regarded those in authority over him
merely as the head of a decreeing assembly.

(2) This original basis of a legislative assembly becomes
modified, shortly after the settlement of the tribes, by the
influence of property. The regular military service, as well
as the practice of judging in the courts, gradually becomes
concentrated in the middle and upper classes of landowners.
As the result of their usual independent activity in military
and legal matters, participation is confined in a narrower circle
to the Witan, the boni, probi, leijtiles homines as they are termed
in the Latin oiEcial language, before whom the smaller
common freemeu recede into the position of mere bj'standers.
It is the habit of activity in details, which nourishes the
interest and establishes a higher right to participate in action
for the common good. Shortly after the migration of nations
popular assembhes even of smaller tribes appear everywhere
to be essentially assemblies of the " Imni homines," who, under
various national appellations, form not the whole, but yet the
leading clement of the assembly.

(3) With the union of the smaller tribes (dvitates) into
greater confederacies and kingdoms (such as Franks, Gotha,
etc.), the general popular assembhes altogether cease. Assem-

exiatenee of united parliBinents of the ore round rather
OpHmalft ia in nnj measure snlheati- ChulumogDO.
dated. The analogicB applicuhle here

] the mouui^^l

Anglo-Saxon Class-relations.

bliea of such a description would for geographical and econo-
mical reasons, owing to the mode of communication and
travelling in those days, have been utterly impracticable, and,
aa a fact, never did exist. The representation of the collective
people by the "boni homint-s" was accordingly limited to a
narrower circle of " meliores sai- optimali's terrse," who included
the most eminent members of the army, the Law Courts and
the Church.

(4) Hand in hand with the ever increasing power of property,
the hereditary family kingship comes into being, as the head
of the ciincilU-um opttinatum described above. But to the king-
ship falls not only the right of fixing the place and time of the
Assembly, but also that of its inseparable incident, the personal
eommons of the meVuirei terree- In this, due regard was paid
both to ancestral dignity and also to the objects of deliberation
on military, l^gol, and ecclesiastical affairs, for which their
ready co-operation was essential. The popular Assembly has
now become the " Consilium Regis," the King, the " arbiter"
as to the persons to be summoned ; in which functions the
inflaence of those who were customarily Bummoned, and
the effectual result of the deliberation, materially limited
the exercise of choice. It certainly was nnderstood that be-
yond the circle of those specially simimoned, persons residing
in the neighbourhood, and when the militia was called out,
those summoned to compose it, and in coronation and court
festivities a still larger circle, should participate, not as
equally privileged members of tlie conaHium, but merely as
" bystanders," Only when the continuous line of the family
kingship was broken, or when the kingship showed itself in-
capable, or fell into dissension owing to usurpation, a riglit
of wider circles to join in deliberation revived as a reserved
right of tlie collective [teople.

Such was also the course of the Anglo-Saxon folk-motes ;
after the union into larger kingdoms the National Assemblies
{cimcilia) are gathered round the person of the King. In the
smallest kingdoms, as in Kent, the ordinary Law Court
Assemblies remained identical with the popular Assembly. In

I

the larger kingdoms, the National Assembly could only include a
narrower circle of " vielioma t'^rrge." In a still greater measiire
was this the case after the union of the so-called Heptarchy.
It was then the lung's right not merely to fix the place, but
to pereonally summon the " nptimateB terra?," according to the
parpose of their deUberation, touching common war opera-
tions, common institutions or changes in the military aud
legal system, or in the Church. Common regulations aa to
the militia and operations of war were necessarily deliberated
upon with the leaders. The leadership which was acquired
by ownership of land is now lodged in the great Thanes, who
with their numerous anned retinues form the active army.
The legal leadership is based on the office of the Ealdorman
appointed by the King from among the great Thanes. Prom
this point of view the Ealdormen and the other great Thanes
were to be summoned to attend the National Assembly, as
well as those Thanes who had been appointed to command
in consequence of their military experience.

Common alterations and changes in the lex terra and
the legal system were necessarily discussed with those who
habitually presided in the tribunals. These are again, the
Ealdormen appointed by the King, and with them the Bhir-
gerefas ; the great Thanes also, apart from these ofifices, as
having special courts of their own over their own people.
Since the diminished influence of the military element the
legal system mainly infiueuced the constitution, and the term
"Witan" (Juriglor, Recktskundigi:} from this point of view
is regularly used to denote the members of the National

Upon ecclesiastical affairs those were necessarily eonsnlted
whose province is doctrine and the cure of souls. These were
the Bishops appointed by the King, aud when great monasteries
sprang up, certain abbots with them. The great landed pro-
perty of the Prelates put tbem upon an equality with the
great Thanes, and, coupled with their ecclesiastical dignity,
gave them the first place. From the nature of its organiza-
tion the Church is less connected with the individual ooiml^

Anglo'Saxon Class-relations.

assemblies than with the central national aseemblies, where
the ecclesiastical influence hecomes concentrated, and the
spiritual and temporal estates are bound together. The
bond of the clerjiy is distinctly Yisible in the numeroas de-
crees for moderating class -privileges. Ecclesiastical matters
are discussed in the first ioBtance, and as a mle esclusivel;,
by the prelates."*

These premises are corroborated by all the accounts touch-
ing Anglo-Saxon national assemblies, which after the time of
Gadward the Elder appear in great numbers. The Witen-
agemotes are formed out of the prominent elements in
army, court, and Church. They meet from time to time,
to settle the dieputea between the various elements in the
community, and to discuss and enact in common the most
important measures for the present and the future. The
summoning of the members takes place by royal writ. But
as an acknowledged capital did not exist for the customary
place of assembly, the King determines such place of meeting,
Tarying his choice extensively, according to time and circum-
stances — which necessitate a call by express summons. As
property is a condition of all the chief positions in the
Commonwealth (with this difference, that in the secular con-

•" PttrticnbirB as to 147 Wileiiage-
nitlee fioui Iha year 638 to IWHi ar«
giTcD liy Krmble, vol. i. pp. 207-230.
Tli« nBmt; Witenugemute is a ouoveD-
liaiiBl one. In the reconU tbej wtre
atyled, like nil the Shioq Ijim Court
AHembliea, K«R><>teii " Commune ooneC-
' magna, atfita generiM;

m UberuruM t. ._. .._... _. .

■abjecU For delibention inclnded, as
WB MO rmm the citaiit Angln-Suon
law*, dccrues at to war aod peace, noil
iiMolntiuns B8 Ui tlie lopal ayaleiu, but
eepeciBlly as to the mftioietuDce of the
pemle, aud police reffolatlraifl. In gddi-
tiun to thcM, va bare tbe Bepamte
gtoDp of MclcBuulical sffuirB. The
reoDTiled decree* of coune t«im oiil?
the poHUin wliich appeared to be cif
n«nn»iient iiupottance. Tlio ourrotit
ba^ecB included (ettlcniBiit of lias-

pirtea between powerful Thanes and
prebitcB, and popular (trievauces of
all BortB. esjiecially oomplainU of the
deiiiiU of jualice. The WiieoBgem5te
is Dot 80 niuoli B Court of Appeal u
a BupplemtnUry resource Inz thoce
whu vtie unable to obtain justioe in
the county. The enacting chancier
of I be AsKnibl; is vxptnued in
the »tyle :— " (Ina) jwr Aminmne eoiiei-
Hum rt lUKiMum wm'iiBm efinaiporuin
ti jiriiieipmii, amiiltim, et emnivm ta-
jiimttua tt pofmloruni toliut regnii"
"Edgurdui nx ooiitilio tapimt»mi"
"^apienUit eomilio regit Alhtlttani in-
tliVucmnt," " Rei Edmvndiu cl tpitayii
iiii aim aapimilibtti eoTUtUnemnt." Ita
conwut u eiptessly mentioned in the
couolusion of contracts, sutnmoniiig
the army, in eocleaiatlicul ofdinnneeB,
hilt nioHt friquently in the aUoJiflni-
tiou of Folkiiind.

stitution property leads to office, and in the ecclesiastical
constitution office to property), a representation of property
is also inherent in the Assembly; but not of bare possession,
but of property according to the duties it performed to the
State : of property in proportion as it effectually fulfils civil
functions. And therefore it is that ^'e find no trace of elected
members ; for neither in the army, the tribunals, nor the
Church is the principle of election, in tlie modem sense,
applied. No trace occurs of a special representation of the
cities, since they have no independent existence, either for
the tribunals, the army, or the Church, but are absorbed in the
county. No trace is visible of the representation of manors as
such ; for the great Thanes actually form for the purpose of
the militia their own divisions, and in the legal system their
own manorial courts ; but military and legal duties are eiill
legally incumbent upon the individual under Thanes. Hence
we find also no trace of a recognized hereditary nobility,
neither a higher one for the great Thanes, nor a lower one
for the other Thanes ; but an actual inheritance of property
and influence, which both actually and in the common per-
ception must begin to appear like a " burth rank." "'

•'• As to the oomponent parts of
tile WitsDugemolfl, Ibo eigiuiturea of
■111! decree! which havo been [ireeerved
louBigiteauOieutioinfonimtion. They
hegin gcnemllj villi Ihe namea of tlie
tuyal famil; and the binhopa; then
follow those of dome pri-ieipe>, diKes,
niid ooart officialB. i.e. UMLIormeu, and
other great Thanes. Then those of
"mniiei," i.e. ThaneB. thirty, forty, or
more in number, who have raceived a
writ of anminous. The ereBtest uumbfr
of aignatures that han been hitherto
discovered auiDuiitii to odu hundred and
six; fiequuutly wa meet with niuubeni
betwoou niooiy aud a huudred ; aad
more frequently BHuUler numbers oocur
dowu to tnent; and leu; in couuec-
tion with which we uuBt particularly
otwerve that very often Bpedal aawm-
bliea were boldeu for the ancient divi-
aions of the kingdom. As in the caae
of the county asacmliliag there were
alao bystanderB. The "intu" of the
cuonty were nearly alwaya preieDt,Dad
. sfill more regularly Ihe magnates

brouglit with them a . . _ ..

of Thiinee, priesta, aud others. The
ascendency of tho UiaUup* aud Ihe
great Tliautw silenced the voice of the
freemen and the retinue. Only where
a new King was to bo aokDowle>l);ed,
was the iio.'laiHalion or dishatisfactioa
of the bystanders regardeil as of any
mouient, and this was a raminiscenoe
of aid times. An elective princiipja
exists only among the suburdiuBt«
spheres. In all the impnrtaut offloea,
on the one side tlie neeiiii of nnny,
law courts, and Church, far nn cxten-
sive political ■yelem, have eatalilishod
the principle oF royal appointment*,
and on the other side the soi^l law
prerails, which modiHes the over-
weening power of property by royal ap-
poiutmoul, without which Ihe offices,
aa ou the coutiuent, would have Iwen
appropriMed to thebmelveB by the
nipignalea on acoouui of their property.
The judgment of Pal grave (vol. i. 118)
is historieally correct.

Anglo-Saxon Class-relations. 103

The mdefiniteness of these conditions and the intermingling
of later institutions has attached various fictions to the Saxon
Witenagemote. Sometimes it is described as a House of
Lords, sometimes as a House of Commons, and at any rate
as a legislative and tax-granting assembly. As a matter of
fact, it was neither of the first two, nor was it, again, in the
later sense of the term, a tax-granting body ; it was rather
a Consilium Regis, formed out of the leading elements in
the army, in the law court, and in the Church, a representa-
tion, so to speak, of the masses of property according as they
actually fulfil their political functions. But the decided
ascendency of the great Thanes in these assemblies is un-
mistakable, and this ascendency compels the weaker kings
to fill the great offices according to their advice, and to enact
the most important measures according to their counsel. This
appears the more distinctly, as with the decay of the common
military array, the armed force becomes concentrated in the
great Thanes and their skilled soldiery. The counterpoise
which the ecclesiastical constitution at first afforded, after-
wards loses its power. Especially after the conversion of the
Danes to Christianity, the prelates' sees pass even more com-
pletely to members of the same distinguished families, which
on the secular side of the State dominate as great Thanes.
Persons and tendencies became on both sides more homo-
geneous. In the aimless confusion of the political system
under iEthelred, this aristocratic character of the constitution
becomes established ; under Cnut it is an accomplished fact ;
under Eadward the Confessor the highest dignity in the realm
is but a shadow kingship.

Constitutional Htatory of England.

CHAPTER VII.

^])t Bcian ani) Jpall of tijc ^nglo-^axon HmQbom.

State and Cliureh should knit together what society sej
rates. The vital etreDgth of a political aystem is there-
fore to be measared according to the antipathies which it has
been able to surmoimt. These were in Eugland lesa antago-
nistic than those which the dangerous soil of the Roman
provinces presented to the Germanic settlers : yet the Saxons,
Angles, and Jutes, had also to struggle on the British Isle
with considerable national, social, and ecclesiastical discord-
ances, over which at last they were unable to gain the
mastery.

I. As a national antipatSp that of the Keltic-British element
was first to be overcome. The barbarous warfare of the early
centuries had partially annihilated the Romanized Britons,
partially ousted and driven them back, but to some extent
had also incorporated them. The haughty conquerors now
called them "the strangers," "waelen." The formation of
the Enghsh language, in which many words relating, to
domestic life and the occupations of women are of British
origin, proves that the Sason settlers also took to themseheB
native women for wives, without giving up their own stronger
tribal peculiarities; a certain number of the Britons were
also kept as servants. Where the Germanic settlements were
only partially able to people the district, even British land-
owners remained in possession of their peasant farms, or at
least retained a holding on granted land. The incorporation
of British provinces in the Christian times was brought about

f

The Decay and Fall of the Anglo-Saxon Kingdom, 105

generally under better coDditions. Later times recognized
even a higher class-privilege in the ease of "waelen" pos-
seaBtng five hides of land. Christianity, and a life led side
by side for centuries, triumphed over national animosity.
consequence of this intermingling, however, was that in the
great province of Mercia, the Germanic nationality eould
not form its political system with the same uniformity and
durability aa elsewhere.

A farther antipathy arose from the tribal diversities existing
among the Germanic settlers themselves. Angles, Saxons,
and Jutes originally hardly differed in their language, their
law, and their customs. But the contrasts became somewhat
more sharply defined, after the individual chieftains with their
followers and soldiery had formed small states upon their
own possessions. For more than two centuries the so-called
Heptarchy displays a picture of a struggle full of vicissitudes,
in which the chronicles mention not less than a hundred
battles and campaigns; in consequence of which the more
peaceable small states became subject to the three larger and
more warUke ones. It was highly important in this crisis
that as early as the end of the seventh century, the larger
portion of the Anglo-Saxon Church should have become
united under Archbishop Theodore. After the ecclesiastical
anity had worked powerfully for a eentiu^ and a half, and
prepared the way for political unity, the country, at all events
as far as the Humber, is united under the supreme sovereignty
of Ecgberht (827). The common calamity of the Danish
wars, and the common dehverance by .3ilfred, completed the
internal blending of the peoples. The brilliant reign of
£thelstan shows us the old tribal diversities truly removed :
the differences of the Heptarchy have ceased to exist. After
E ad ward the Elder, the union of the formerly separate
National AssembUes has been successfully achieved.

But meanwhile a new antipathy had arisen through the
invasions of the Danish and Norwegian pirates, who, with ever
larger armies, succeeded, after endless ravagings, in becoming
masters of the country about the year- S78. The sow

I

)

L

portion of the kingdom, it is true, rouses itself under ;Elfred
to victorious struggles. But the hard-woo peace between
Alfred and Guthrun leads only to a division of tlie kingdom,
in which Norfolk, Suffolk, Ca,mbridge, Ely, a part of Bedford,
and great districts in Mercia subject to Wessex, were given
over to the Danes, A relatively small number of the foreign
warriors sought to establish themselveB here in the military
settlement of the " five Danish burgs," Lincoln, Nottingham,
Derby, Leicester, and Stamford, with which were at times
reckoned York and Chester. In other districts the more
scattered invaders took possession wherever possible of the
greater estates. As usual, the proprietary class was espe-
cially affacted by the conquest. Still on the whole this first
stratum of Danish settlement showed itself so uustable, that
before the death of Eadgar the dj-naaty of the Cerdics had
again become lords of the Danish provinces, The influence
of peaceful settlement, marriage, and above all, the unceasing
labours of the Church in this the prime of the Anglo-Saxon
kingdom, effected, except in a few places, an assimilation of
the Danish element. The independent confederation of the
Danish cities was again dissolved after the subjection of
Leicester and York (918). But under ^Ethelred the Unready
there was a second period of invasion by Danes, who
were superior both in importance and civilization to the
rude hordes of the eorUer epoch. The result of varying
engagements leads (1016) to a division of the kingdom
between Eadmund Ironside and Cnut, in which the northern
portion of the country is abandoned to the Danes. After the
murder of Eadmund the southern portion also submits to the
powerful Danish king, not indeed as to a conqueror, but as
to " one chosen " by the Witan to he head of the whole
kingdom. The quarter of a century of this Danish dynasty
certainly left behind it weighty consequences. Though the
total number of tlie northern invaders did not perhaps amount
to one-tenth of the whole population of the country, yet a
deeply rooted dis-union had arisen in the leading class, a dis-
uoi^rcwhich was all the more fatal in its consequences, as Cnut

The Decay and Fall of the Anglo-Saxon Kingdom. 107

knew no other mcaua of consolidating his rnle, than by mur-
dering, banishing, and supplaiiting the popular old famiUeB.
The great assembly of the Witan of the kingdom exhibits
&om that time forward a curious mixture of Danish great
Thanes with Saxon Lords and PreSatas, whoae respective
ideas and intereata, although not deacribod by the laconic his-
torians of the times, can be gathered from the events of the
period. This internal disunion divided the old mother country
of the dynasty of Wessex leaa than the rest ; but the great
territory of Mercia, owing to its always mixed population,
and to the Anglo-Danish Thaneship, became a region upon
which no reliance was to he placed in times of serious danger.
Things were worst in the northern districts, in which there
was an almost undistinguishable blending of tribes which
might easily lead ambitious governors to declare tliemselvea
independent. Under Eadward tho Confessor the prominent
Danish clement, coupled with the opposition against the
hierarchical tendency of the Church, appears in the family
of Earl Godwine, which, being in possession of the great
governorships, had now reduced the kingship to a mere
shadow of sovereignty. (1) The antipathy of the nationalities,

(I)TbeantipBthyor tlienattnnalities
IB pritnanly dupeudeut upon the oaa-
tinniuirti of tlie BtitiBh-Keltto natianal
element (Litppftibert;. i. 122, it leq..
m »tq). A stBtistical proof of tlie
■trenglli of the Keiiie eli:nient U no-
mUetv to lie found. In Iho litngunga.
in whicit H'tiibiker winsiikre Uiut
there kn> still thrte thouaanii words of
Britmh origin, it is evident that the
oamettiiis Uiurlio wordu relntiug to
domertie life and amali domeHtio ocou-
pMiODS, p<na[ to marriBge wiUj Britisb
wooKin, or to Brilisli domeatia scnaiQla.
In goiieml it vaa the weslorn oountiee.
towitds the borders of Wales, which
•bowed Ku inlenuiiture with the Kf lltn
elcDicnt. It is especially prumiiietit iu
the oountiev of Di>rset. Somonet, Wilu,
Mill Devoti. which i^lfred the Gitat
,«iis the Sr«t to iDcorpotate, and also
' in Ounibeitand. The tnbul diTeisttios
of the Anglui. f^uons. and Jutes, Hre
clbaualivei)' trealtid by l.appeubtr^, L

85-103. Ill the An^lo-SikxoD stiitules,
the traoes of it sro liarJl; diKoemiblfl,
The tribal ooutrnsl in the kingiluin of
the Aoglo-SaxDriB and DuDi-a appeals
of no great imiKirtanae in the treat;
botwBoti Eudward aiid Oulhrun (Eldir.
ct G. 3, fi-9). In Gnufs day a dif-
ferent tine is mentioned for the
" tHaoda neetttitiu," Cn. ii. S5 ; tnt '
denial of justice, Cn. ii. 15, see. i. ; for
Miiinwloii, Cq, iL 62; differences ex- ■
isted in the royal privileges, On. ii. 19:
and iu the purgation fn>m accusation
of treason against the hing, ^thlr.ij.
87: for security in the case of thefli,
Willi, i. 3.Bec3;L2t,iac.2. Already
in the earlier Daniih period Eadgnr
boil seoured to the DtineB tbe preser-
vation of their lav (EJg. iv. 12, 13).
Ill still greater meaeure was thii the
case in the second perioili notably iu
Cimt's reign, in which a Dane Uw
'■ Danelage." an a eoUective elpreasion
for certain siKcial legal miiii"i» (Prt>

108

ConstittUional History of England.

however, became alike injurious to both dynasty and kingdom,
when it coincided with another disintegrating force.

II. This was the Socfal contrast of the propertied classes,
■which for centuries bad been undermining the Anglo-Saxon
commonwealth in its very foundations. In many districts the
first settlement had laid the foundation of a free peasantry in
a comparatively weak manner. The customary forms of the
military and judicial system, under the feuds of the Heptarchy
had, in almost equal degrees, contributed to the degradation
of the smaller landowners. Ecgherht's kingdom was already in
great districts entirely portioned out into estates and majioriol
possessions. The great misery which both epochs of the
Danish invasion spread over the country brought about the
almost universal ruin of the small freeholds which then
existed, the result of which was seen in Cnut's -laws and
manorial grants. The strength of the freedom of the common
people, the self-respect and the martial excellence of the
Anglo-Saxon Ceorl, diminished from century to century, in
spite of the guardian power which the King wielded. Even
the prosperous times of the monarchy only delayed hut did

rinclal l&w) U diatioguiabad from tba
" Weet BtLienulage." iinil from the
" Merchenalago." Tlml Uipbb were not
thoroDghlj different B)'Hl«ms of lbs
whole Oivil Law it proved b; atata-
tneala as to the reul meBning of these
differenoes, A further tribul sBinity
between the invaderB from the Souidi-
navion hknda aod the Angles and Jutea
of the first Bettlement, existed frotn
the very first. Id Intel tiiaos this
question has become the subject of a
party couiroversy. in which an attempt
woB mEidu to prove that the Genaanlo
foundation of England was not attri-
butable to the Angles and Saxons (Ls.
the former inhabitants of Scbltswig;-
HoUtein), but to the Danes and Den-
mark (E. L H. Wotaaae " An aooount
of the Danes and Norwegiuns in Eug-
laod," 1852). The Notsann-n who from
the eighth to the elnveotli ci'titury di*-
qnieted Eumpo are hordes of tho great
TeatoniD fauiil;, who, coming from
Norway. Denmmk, and Sweden, in-
feitedthecontuieat. The Anglo-Saxon

population called them " Danes," from
llm nearest coRst from whiob they
sailed, nitbont inqniiing conoerning
the more distaat lands from which they
started. Wera all the forlDutioni of
words and syllables, which tn proper
namefl and names of places are quite
«s much "Angliah" as "Danish^* to
he taken as evideiioe of Danish origin,
quite half of England could be da-
scribed as Danish, and the Anglo-
Saxon element repteeented as the
declining and sahonlinate one. (fy.
amtra: DoDulilsOD, "English Ethno-
graphy," CaEubiidge E^ys, 1856.)
The Danish element certaiiilv prepon-
derated in Norfolk and Suffolk, and
along the coast line between the
HumUer and the Forth : it moy divide
the north and north-west fairly equally
with the Anglo-Saxon. Tlie coiupnta-
tion which gives the number uf the
Norsemeii who stayed in the oonutry
at two hundred thousand, is probaJily
rather too high than too low.

The Decay and Fall of the Anfflo'Saxon Kingdom. 109

not prevent thia process of dissolution. As yet no civic and
indastrial life was able to develop itself, to raise the ancient
freedom to new strength and new honour upon the foundation
of new modes of property. No new principle of miJitary
sarrice had been discovered, which should prevent it from
exercising a destructive influence upon the smaller landowners.
Thorough reforms, snch as the Carlovingian laws attempted,
appeared in England less urgent, because its insular position
coDtinually induced carelessness. The mild sway of the royal
race of Cerdic, under the advice of their spiritual and secular
Thanes, was ever averse to violent aggression, and only cared
for a well ordered administration, without touching the legal
basis of the military system, viz. vassalage and a popular
army. Cnut'a energetic nature preferred, when in peril, to
rely for the support of the royal throne upon a mercenary
gnild of three thousand Huscarls, which could find no per-
manence among the popular customs, the conditions of pro-
perty, and the finances of the time. The militia, however,
continued in its wonted groove. Cnut had also found it advis-
able to conclude a peace with the Church. In Ute manner
he allowed the accumulation of landed property to go on
without interruption. Lilie a meteor, therefore, the pheno-
menon of the powerful Norse king passed by, without solving
any one of the problems of this political government. Still
loss capable of such a task was the weak rule of the last heir
of the old royal house of Wessex. (2) Under the feeble rule
of Eadward a third antipathetic force comes into great pro-

(2) For the social forces oppoeed to
tlie ocmstitutiDD I miut refer mf
reftdcra l<i the picture given in cap. iii.
oT the loeal Nnd distribution. This
wu the primary evil which tbe Aoglo-
Sason Stale, in spite of its nnmeroua
exoellelit auppuTts. rould not hope to
eimd1cnt« (nda Eemble, i. 252). Wil-
liam of Mb Imtsbury says oF the DalioniU
Maemblies of ttaia timo, that as often
M the EdtIs ruuembled iti oouncil, the
one cboae this nod the other that U>pic :
the; were soldom agreed in an; good
opinioD; thoi dilibcnil<"d morn ood-
oemiiig domestic IruaaoQ than coQccm-

1

ing public needs. The same picture
is drawn by Lappeuberg, i. 460 : ef. aJso
Stubbs, Cuoiit. Hiat., i. 211, "The oo-
hesicm of the natiaa was grealost in
the Inwent raligea. Family, township,
hundred, coimty held together when
Ekldorman was BtmggliniT with EnldoT-
man, and tho K.ing vtu left in isolated
dimity, Kent, UeioDsljire, Northum-
bna had a corporate life wbioh Eng-
land had not. or whitb she oould nut
bring to action in the grontcst omor-
geucies. The Witenagemdte represented
the wisdom, but coiin?ntruteil ntitheF
tho poner noi the will, of the natio:

110

ConstittitioJial History of England.

minence, the way for which was prepared in the course of
the preceding generations.

III. Thi§ was the opposition of the ctcltsfastt'taf to tf)E rogal
power. From the earliest times the Church had been the
recoDciiing element among national antipathies; she had
helped the triamph over the smaller dynastic states ; she
) bad shown herself in the early Danish times once more as the
) reconciling polity-creating power. But the Church could
never have attained to this powerful position, except upon the
broad basis of landed property ; this property to the extent
of about one-third in the kingdom was, in the later Anglo-
Saxon times, in her hands. Her higher tasks were thence-
forth entangled with interests of property, which in two
directions opposed the demands of the State. First of all,
the Church was the chief impediment in the way of changes
in the military system, which were every day more urgently
needed, for she absorbed through her expansion the posses-
sions of the State in the Folkland, and so deprived the sove-
reign of the means of keeping on foot the reijuisite number
of skilled warriors ; this was admitted by Bteda even in his
time. The modest share borne by the Church in the decayed
militia was not sufficient ; there was needed besides for the
military requirements of the day a very great increase in
the numbers of the Thanes. But the powerful interest of the
Church was antagonistic to any fresh distribution of the mili-
tary burdens; for every firm and more just distribution on
the landed property affected first of all the possessions of the
clergy, who were little inclined to make sacrifices for such
ends, and still less to allow a secularization of Church lands.
And yet no permanent military constitution was possible with-
out serious demands upon Church property. It would have
required a violent reformer to beat down the opposition the
spiritual Witan would make to such changes ; iu short, the
monarchy in this critical century lacked its Pepin or Charles
Martel. — In another direction, the Church assisted still further
I the expansion of " landlordism " in the legal system. Being
I lieiself in possession of privileged lordships and estates, she

The Decay and Fall of the Anglo-Soj^on Kingdom. Ill

eontrived to gain before all else an extension of the power of
private jariBdictioQ ; and in conjunction with the secular mag-
nates she thrust down the free people deeper and deeper into
the condition of a dependent tenantry. The entry of the most
noble classes into the Church had been a bleseing in those
times, during which she had to accomplish, in the face of
violent selfishnesB, the great taek of educating the people.
But after she had herself become the greatest propertied
power, and especially after Danish times, she appears ever
more deeply bound up with the interests and the dissensions
of the order of Thanes, in whose factions she took part in a
Tery worldly manner. This worldly mindedness is indeed
opposed in the Church by a strong ascetic tendency. But this
new tendency is a Romanizing one, which finds its ideal head
in Eome, and in the struggle between Dunstan and Eadwig
does not shrink from humblmg the power of the King, The
Church, in the reigns of Eadgar and Cnut, had become already
a buttress of the temporal power. Romish views and Romish
proclivities, the traditions of the Roman empire and a capital
of the world, the legislation of the emperors and the popes,
have all become part and parcel of the aims of the Anglo-
Saxon clergy — aims which, from personal inclinations, Ead-
ward the Confessor was only too ready to further. About the
tniddle of the eleventh century all these hostile elements in
the State presented themselves in such a combination that a
strong will alone would have been able to cope with them.
The reign of ^Elfred the Great and his immediate successors
had pointed out in all departments the direction reforms must
take in order to restore to the State its waning power. But
the dynasty of Cerdic was not destined to remain the creative
power in England beyond the single century of its glory.
Whilst want of public spirit, disputes, and open violence were
conspicuous at all points, the Anglo-Saxons in this critical
period experienced the misfortune of having a. personally
incapable royal family. The settlement of the warlike Danish
Thanes had severed the ties which once bound the Anglo-
Saxon magnates to the royal house. Beside them stands a

112

Constitutional History of England.

powerful and intriguing band of Prelates, who, associated with
the families and proprietary interests of the nobles, are bent
on the consolidation of their own power internally, and the
insuring of their own privileges, whilst esternaUy they aim at
extending the sphere of their power, partly by a closer union
with Rome, and partly by an alliance with the Norman duke.
"With the decay of the old county constitution, with the ever
stronger oppreBsion and deeper bumiliation of the freemen,
national feeling and national strength sink down, and the
country is prepared for becoming the prey of the foreign
conqueror. It is always the military constitution which is the
weakest point in this organization of the Anglo-Saxon State,
a weakness which shows itself in the fact that the united
kingdom could never entirely obtain the mastery over its
British and Scotch neighbours on the borders. All the good
I institutions fall into decay, the burghs and strongholds are
' neglected, and the soldiers' guild of Cnut is soon dissolved.
A few decades of peace, and the non-appearance of any foreign
foe, appear sufficient to cause a relapse into the old state of
carelessness in which men's minds are only occupied with the
struggles of the nobles, and with the Church. From Church
and State harmony and self-dependence have disappeared. (3)

(3) Ab lo the oecleaiaBtical anti-

Kthiw of lalfT timea, ef. Chnpter V.,
ite **. Under King Ekdgor internal
peace and order are eerlainlj restored,
bnt this ia apparently due to the fact
that Archbishop Danataii rules in the
King-'B name. During the long misei^
able period of ^tbelred IT. the prelates
in general appear devniil oi' chatsoter
and aDtmatworlbj. In the Btatulea of
these timia tho moral ooodition ia
viiible in the seriDus warnings which
nre eBpeaiall; addressed la the clergy
(^thlr. T. 4. Kq. : iv. 2; Cn. i, 6, 26).
In Eadnard the Confeaeor, as irolJ aa in
Oodwine and hia military di^pi'DdentH,
are embodieil two )>reat conlmsls in the
life of the later Auglu-Buon i-eriod.
The EiuK, educated in exile upon the
soil of Fmnca, ia disgusted nith the
diinklDg buuts Hnd mannera of the Au-
glo-Daniah magnaloB; and the clirii^al
obroniolen with their Norman lesnuiga

loTe to describe the rough national
mnntiers, the drnukenncsa and coarse
debauchery of the nation. Eadnard
ttica to escape from the accular high
life of bis times into quiet monastio
rest; bat theie again the national
Anglo-Hozon feeling of the clergy in
tlieir deviation (ram tlie Roman Ohurch
auuuya him. Ho is a foreijper in hia
raouner of life, and he aurrounda him-
self with tlje friends of his youth, and
with French obaplains. whom he makes
Biahopa. Thi'court-lauguage isalrcady
Fruokish. Frankiah l>Di1y giuirds and
Frankish gcrSfas of tlie faurgha at last
drive the Daciish Tbanea into open
oppDsitiiin, whirb ends kiiL the rictoir
oi'Oodwinsi ami the Kin^ is henceforth
phLced under the ^ardiau&hip of the
secular magnntoB. According to b
orediblo reaird. in his lusl liour the
childless Krulward nppotnti'd his
brother-iD-luw Harold to be hi* ano-

F

7T5c Decay and Fall of the Anglo-Saxon Kingdom. 113

Dismal indeed as the picture of the last generation appears
to an historian, yet out of the confusion of this epoch two
bright features gleam forth, features -which the changes
wrought by time have not been able to efface. The first is
the preaer^'ation of the Germanic judicial fiystem wliich still
BtUTounded personal freedom with protecting barriers. Judg-
ment delivered by peers (pares) and the forms of compurgation
might fail the weak man as against the powerful man ; but
they remained a strong bulwark against the arbitrary action
of royal and manorial magistrates. Even in the beginning
cS its decay the Anglo-Saxon judicial procedure still gave the
impressioQ of a fair trial ; accordingly it was for this reason
that the fundamental principle of "trial by peers "was ever
je^ously clang to by the heavily burthened ceorl, as the point
which aldne lends value to the legal conception of freedom.
Even in the greater lords' courts the old ordo jiulidomin
appears to have kept its place. A formal court asBembly of
the Boccagers (theningmanna gemot) is indeed mentioned in
the case of royal soccagers (Cod. Dipl. 125S). The feelings of
the Anglo-Saxon Tlianea did not incline towards arbitrariness
and severity, and the later accounts show us at least that iu
the private courts a regular practice had become formed, as

GGMor. But NormaD miten suppress
t» deny Uiia dL'ciHve fnct. On tbo
Mhef Ride a former vorbal promiso is
qtiot«d, which Kadword ie supposed to
h»Ta ^jren in fovour of tho Konnau
INike wilUnm, and vhirh HaroI<l is
Mid to have ucknoirleged nith weighty
(wlb»i when ho found himsBir by chance
fa tbo power of the Norman duko.
Tbo latter pEU-t of Eodwanl's roign is a
network nF iutrieues wiihia lite oli-
nieby. amoag which a portion of the
Ugh bom clergy already regarded with
hope tbu Norman duke oud the new
Tnnkiah cultore. A number of tlie

XLritnal lordahad loDgslnco liinted tu
6 TiBing sun, and prepared for tlie
<ip«n GBMiUKiil of the Conqiiemr'B cnuic.
In (he dcciaivp strugsle for the nntionnl
•xistence of the reiilai, Hiirold found
himself almMt entirely dependent
opoD the atronglh of the old kingdom
of Weeeox, in whieh Statu and Cliurch,
VOL. I.

Thanes and people, still held (ngother
more than elBOwherc. When tlio greul.
army nf the Nnnnan duke hud already
Bet foot upon Eneliah soil, the military
array of Merciu, and tlie greater
number of tho secular mngmitcs still
lield ulnof frem tlie (K)UJliet iu liiitbleiM
neutrality. Tho decieive hntllo of
Hastings (Senlao) was only a ntntgglo
made by the peasant army of Wessex,
with niuneraui followers nnd nier-
cenaries. Tho men of Kent, the
national army, in the coDScioa^oess of
fighting for the national czistoncc,
Btrugglud with a pemistenee and
bravery which seem to show that with
sll the dissoDsions and degencmey of
the ruling cIssbfb, the heart of the
Saxon peoplo genotally was lieallby,
A striking picture of this di^oisive
struggle id givtn by Freeman (" Nor-
man Conquest," iii. 450-507).

114

Co7istitit( tonal History of England.

well as a manorial system, which differed according to the
locality. The confederate element in the tithings, and in the
TarioTiB Tolnntary unions or guilds into which the inhahitants
round the burghs entered, preserved some vigour to the institu-
tion for maintaining the public peace. The second permanent
legacy was the development of family life and of the character
of the people by the national Church, It is true, that in no
other European country had the conTersion to Christianity left
behind it such deeply rooted and enduring effects as here.
This fact is only apparently concealed by the later attitude of
the superior clergy, and by the faithlessness of Danish Thanes,
in whom the new Christian dogmas had not yet overcome the
old spirit of Odin-worship. But so far as the Christian
element was permanently blended with the national Anglo-
Saxon, there was manifest in high and low a moral core of
benevolence, truth, and faith, which found expression in the
mild sway of the Anglo-Saxon lords as contrasted with the
rule of their greedy successors. On these foundations it was
possible to build up afresh a vigorous monarchical Bystem.
But what the weak and expiring dynasty of the CerdicB was
unable to compass was, through the dispensation of Pro-
vidence, to be vouchsafed to this country by tbe hand of a
foreign conqueror.

( 115 )

SECOND PEEIOD.
THE ANGLO-NOBMAN FEUDAL STATE.

CHAPTEE VIII.

S]^e ^roperts ^ases of x^t 2^orman ;{ptu&al ^tatt/

William I., 1060-1087
WiLLL/iM n., 1087-1100
Henry L, 1100-1135
Stephen, 1135-1154

Henry H., 115^1189
Richard L, 1189-1199
John, 1199-1216
Henry UI., 1216-1272

With this period State and society enter into new relations.
The Anglo-Saxon Commonwealth appears suddenly invaded
by a conquest, by the thrusting in of a tribe originally

* From the sources and literature I
may specially mention — (1) (a) The
so-called ^* Leges ei connietudines quas
Wilkelmtu rex post adquisitionemAnglim
cmni popvlo Anglorum concessit tenen-
dtu" for the most part not new de-
crees, but Anglo-Saxon law, in so far
as it was recognized by the Conqueror
(with certain additions, for example,
c 22, 31) in a Latin and French text.
To these is added (h) a short statute
having reference to the criminal pro-
cedure between English and Franks
in an Anglo-Saxoa and Latin text;
(c) ** Carta Wilhelmi Conquistoris de
quibusdam statutist* ^ etc., in Latin text,
with distinct traces of interpolation;
{d) Carta Willielmi conceminj? the
separation of the spiritual jurisdiction
from the temporal, which, according to
Spelman, must be placed about the
year 1085 (c/. Schmid, "Geaetze der
Angelsachscn," Ivi. to Ixi. and the
copy pp. 322-357). Without doubt the

first-named, ** Leges Wilhdmi " contain
real ordinances, which have only in
later times been brought into the form
of a continuous statute. The genuine
originals are to be found reprinted in
Stubbs' "Select Charters," pp. 83-85.
The so-called ^* Leges Ilenrici L et
Eduardi Confessoris" are private works
dating from the twelfth century, con-
taining Anglo-Saxon law aa applied
under Norman rule, and hence given
under the Anglo-Saxon records of law.
(2) The legal works of Norman
jurisprudence are, Glanvill, " Tra^
tatus de Legibus et consuetudinibus
AngliiB tempore Henrici IL compositus "
upon the procedure in the Curia
Regis, printed among others in
Phillips' " History of English Law,"
vol. ii. ; BractOD, " De Legibus et con-
suetudinibus Angliss" (London, 1610),
an exhaustive exposition of the private
law and procedure of the period from
1240-1255 (a now edition by Traver»

116

Constitutional History of England.

northern, which, on the soil of Normandy, had adopted French
language and customs, and brought over with it a peculiar
mihtary and legal system. The Duke of Normandy ia recog-
nized as King of England by a formally summoned National
Assembly. The old controversy, whether William the Bastai'd
conquered England, or under what other title he acquired
possession of the country, may be considered as decided by
the Conqueror himself, who declared that he had entered
upon the possession of the country as the designated testa-
mentary heir and legitimate successor of King Eadward.

Twira); Britton (Ed. by NLcbolls.
186S) and Flctti, two abridged law-
boobs dating from the time uf Edward I.
A general anrrey of the legal aoutoos
of this period Dccura in Biener, "Engl.
Oeaohworuen-Ger.," toL it App. vL,
pp, B3-99. A copious enrTe; of tbe
hutory of the French, NnmuLii, BT>d
English ionicea'of law is given \>j
Bmnoer in Von HoltzendorfTs " Eney-
kloTKsdle." ii. 4. A new contributioa
to tlio colleotion of the bohtcgh ia M. M.
Bigolow's -Hacita AaglimiirmaiiiUca
from WUl, I. to Bich. I." (Loudon,
1879).

(3) State TreatioB and Administra-
tire Heoords of the Norman times iu
Bymcr's "Fitdera, eoaptnlionei. litterm
etc." (new ©d. 181G to 1830: 3 toU. iu
6 parts, i.D. 106G-1391). The odmi-
uittrativo reoords, which from King
John downwards were chronologically
enrolled, and lately iu port described,
and in {urt published bv the Kccord
ComuiisBioii, fall into the followios
principal groups: (I) Patent-rolls from
1200-148a, formerly preserved ia the
Tower, containing the Kgular acts of
Ooiernmcst inclusive of foreign tica-

in the Tower of Iiondon," by Duffos
Hardy, (1835). " Roluli lilterarum
etauMtrtim in turn Lottdinmn ataer-
«ifi,"2vols. (3) Law Court records and
pleas since Hen. IL, printed in part,
"Ptaeitarim M/rervitio" (London,
1811); "liotali eiiriai regii," ed. Pal-
gtave. ('A) Catnulationt and TienMuv
tions of tne Eiobi^qucr, partly in print
(liatuli Mationiim tt finiarn, Magnvi
intuitu Pipa, etc.). In addition the
" Dialngiu de Scaecario " in Madoz ;
"The Hiatory and Antiqnitiee of tha

Exchequer of the Kings ol
'i vols. (London. 1769) ia. through tho
reliable reprint of tho Bccorda, a book
of great general valne. As to the
Stale land Eegister, Domesday Book,

(4) Trealises on the History of
English Law : Sir M. Hale'a ** Historf
of the Common Law," 2 vols. ed. Rim-
mington (1794); tteeva's "History of
the English Law" (3rd ed.,l!JI4). A.
ouriooB, bat much used and uaofiil
eolleotion is tn be found in " Bmriei
Spelmanni Codex Ugum vfterum ilatn-
toruia rryni Angtiie ah ingmm Oui-
Idmi I. Hsqw ad annum 9 H-nr. III."
Printeil from Spelmnn's popew bj
Wilkine, p. 284 et leq^ and in Hovoid,
" Anciennei loix des Franfois," Bouen,
1766, vol. ii. pp. 120-428. An excel-
lent exposition of the soorccs with
introdnotiouBis thnt by Bishop Stubba,
"Select Chartcra" (1874), pp. 79-425.
For the legal procedure, ef. U. H. Bige-
low, "HLitory of tho FroMduro in
England from the CN}uquobt" (Lonilon,
1880): Fomyth." History of the Trial
by Jury" (new Oil., 1857); Bninacr,
" Entstehung der Schwnrgetichts "
(1872).

(5) General History of England:
Lytlleton, ■' History of Henry IL"
(London, 1767), 8 vols.; HaUam,
"Middle Ages,*' cap. Tiii.; Loppen-
berg-Pauli, "GescMshtevonEnglaud,"
vols. ii. aud iii. The principal work
on this period is Freoman'a "History
of the Nornmn Conquest of England,"
vols, i.-vi. (the first two volumes in
tlio 3rd edition). Important additiona
Ibr the Morman period arc also given
by Stubbs, " CouBtitntional Uietorv,"
vols, i., ii. (1B7*).

The Property Bases of the Norma7i Feudal State, 117

Tbia was the only maimer in wbicli the new monarch could
gain the pel'manent obedience of his new subjects and make
a stand against immoderate pretensions on the part of his
followers.' It was not, therefore, the tribe of the Normans,
bat Duke TiVilliam who had got poBsession of the country,
with a title from the pretended will of Eadward, with the
consent of the highest authority in the Church, and with the
consent of the National Assembly, by means of numerous
allies and paid soldiers. As a matter of fact, as well as of
right, it was possible to treat the country in this way as a
personal acquisition, as the " Seigneury," "Dominion," "terra
regis Anijlica" " terra inca" — a designation frequently found
in the records : " Gulielmua I. conqtustor dicitur, qui Ajigliam
eonquisivit, i.e. nrquisivit (purchased), iion quod suhcgit"
(Spelman, Glossary). The mutual relations of the Saxons
and Franci'jaife, however, remained for many generations
bostile. The conquered people repaid the haughtiness of the
victors by attempts at rebellion ; and when these failed, by
silent animosity towards the ncwlords and their French customs.
The beat way of considering the period is therefore that of
a permanent military occupation which {with its numerous
fortifications and the maintenance of paid soldiery) led to a
thoroughly new mihtary organization. But the same change
was aiso founded on the needs of the country. The Anglo-
Baxon Oommonwealth had fallen through internal dissension,
a defective organization of its military array, and the faulty
distribution of the militaiy burthens. To regain the unity
and power that was lost, in the place of a discordant system
of national militia and personal vassalage, the whole of the
landed property in the country, so far as it was able to bear
the necessary burden of heavy armed troops, had to adopt the
principle of a standing army based upon the revenue derived
from the land. This was almost a common need with all the
Germanic states that bad risen on the ruins of the old world;
and in the centuries of striving after it, isolated elements of
the feudal system appear akeady in the Anglo-Saxon period.
But there was still wanting such a permanent and uniform.

a

118 Constitutional History of England.

bond of service as was compatible ivith the personal freedom
of the obeymg party and the honour of a freeholder ; hence
the manifold preliminary arrangements, attempts, and re-
lapses. The period of the feudal system dates from the time
when the feature of military burthens becomes predominant
in landed property, and the grants, to which the character of
military pay is attached, give the -warrior a permanently
dependent position. England is the only state in which,
through special circumstances, a systematic application of
this system was possible, which made the State in some
measure the sole proprietor, thence proceeding to a fresh
distribution. It was the position taken up by William as
the legitimate successor to King Eadward which settled this
question also. In treating as rebels King Harold and those
who fought on his side, and the Saxons who afterwards
opposed WiUiam, a legal justification was found for a general

Confiscation of landed estates. The inheritance of Eadward,
the possessions of the family of Hai'old, and the remainder of
the^old FoMand were immediately seized as royal demesnes.
By virtue of grants, the leaders of the conquering host entered
into the possessions of the rebel great Thanes, and in like
manner the warriors serving immediately under the Duke
were endowed with estates that had become vacant in the
different parts of the country. The great feodaries could
either immediately furnish their contingents or do so by sub-
infeudation, by which means a portion of the Baxon Thanes,
who had not been compromised in the war, could remain as
under-vassals upon theii* old estates. In like manner the
possessions of the churches and the monasteries were re-
tained to them, and in some instances even increased. The
object that the royal administration now pursued for a century
was to impose, upon the whole mass of old and new possessors,

^ an equal obligation to do service for reward. The standard
adopted in carrying out this system was approximately that
of the five hides possession of the Anglo-Saxon period; yet
ifitb a stricter rating according to the value of the produce.
At that period an estate of such a productive value would be

The Property Bases of the Norman Feudal Slate. 119

bound, at tlie royal command, to famish one heavy-armed horee-
num for a forty days' 8er\'ice in the year (sen-it'tiiiu uniiia ?n ilitis).

The legal incidents of these newly-organized modes of
property" -were only definitely eBtablished in the reign of
Henry II. ; bnt conclusions and interpolations show us that
the royal administration adapted the feudal customs that had
been formed in Normandy to the territorial conditions which
existed among the Saxons : " illis (that is to the Anglo-Sason
laws) (rumnuirinas leges Nemdia; qu/B ad rcgni pacem, luendam
e0icacissimee videliantur adjcctt" ("Dialogns de Seaccario").
The English feudal systeni is made up of these two elements.
Five legal incidents stand out here sharply defined, which in
some measure differ from the continental feudal system.

I. ®!ii GionOiifonal ^t^trEWtaiiilltp of tite CSrant. According
to Komian-Frencli custom, euoh hereditability has been con-
sidered the rule in Anglo-Norman liefs, (1) Yet the form of
grant "dedi et conecesi tibi ct ki-rcdUms has," only means a
eonceseioQ amounting to a continuous military pay. The

•" Ah to Ihe Inw iccidenta proper
bi tbe feudal Bjslem, llie yiewa of
liitileloD, Selden, Coko, and Bluoliatone
Mni elcMl; condeiiseil in the rompnt-
heuiiTU Dote of IlurgruTC to Coke oa
XdltletoD. 11>1- The piocef dings nt tha
pmt Mt oF homage in ttie court held
«t Salubary sre recorded in the Anglo-
Suton ohrouicle in llie xnniB terms as
tber are nurated io tbe " Anntdea
WaverUemcs," *.D. 108G ; '■ ftijue wmf-
nin< (Oram to haront* nU, rl oianei ler-
rarii kajui rtgni, qui alicujnt prelii
«w(i cuj'iucungue feodi fuiaval, U
omnei homaiet ml tfftcti mn/, tt jura-
■eriMf mi fidditatitm enntra omjuii fto.
nfaM" (I. Keport on Pear-a Dlgnitj,
31), The technical terou of rendal-lnw,
■■Ibod, (tndum, bsranea, larvamoTtm,
felony teller," etc., appear \o the Domea-
&y Book here and there mingled with
the older expreBflioiiB. The word "/wti-
dvm " had hltlierto oocurred in no uon-
tempornT; uurce of the Anglo-Suxnn
Imw. Tbe term "baron" i» wid to
oooni for the firil timo in a letter frvm
Pon NieboLui II. to Eodnard tlieCon-
l^uor (Ueywond on Itnnka, 210).

(1} The heieililubtlity ol'llio English

fiefs donn to King John is doubted by
Palgnive (i. SS5). He sayi it wna at
that time tliat the writ de territ liber-
amlii first wan framed, that until that
day the invcsliture of tbe now feoffee
woa regarded ea tliD subject of a freah
eompocL It ie true (bat the ao-oJled
Carta Withelmi (iii. 6) eontains Iho
espreae ssBuranoe : " Praal ttahUum
mt Ri'a, et itUi a neiii (laiutum at oon-
eonujii jure heredUario iii perpetavm,
pw pommuno Dotutiiujn tod'u* regni
noatri." But tbia pasaugo belcitlga to
the spuiioUB addilioiis,nhicb inBtubba*
"Cburters" have been rightly repu-
diate!!. NeTerthelcaa la the NnrmaD-
IfrankiBh feudal lawlbe beroditabilitj
of the Uef bud become ao far eBtablislied
thiit the Eiag eould not di-ny it wilboat
driving the whole of Ihe vaas&ls to te-
siatanoe, beaidea the great Taaaala vho
wore at all limea ready for ravoll. The
hereditability has tiever from the Qnt
been serionaly disputed. The ncak
point luy nnly in tlie defects of the
nilminietrntion of justice, eaporialiy in
the want of a rightof nclion tocotDpel
the King to renew the fief.

1
I

I

120

ConstitutiOTial History of Enijlavd.

^

enfeoflfment of the heir only took place comlitioiially upon
hia being s. man capable of fighting ; and that ot tlie heii-ess
only where there was a failure of males, and in order that she
might marry a warrior and one acceptable to tlie military
chief. Accordingly it was natural that the feoffee could neither
sell nor mortgage the estate, nor make it a security for hia
debts, nor dispose of it by will ; and hence follow these further
legal incidents :

2. ^tc S^clcbfttm, HtUef. As an acknowledgment that
the feudatory only possessed the estate on condition of doing
military service, a certain quantity of weapons and accoutre-
ments or a sum of money were rendered by Norman custom,
when a change of the person hound to service took place ;
out of which proceeded at last a fixed recognition-money of
one hundred shillings for each knight's fee. In a certain
sense the Prima Smina, Primer Seisin, is an addition to thiG.
For greater security the King, as lord of the fee, could take
possession of the estate after the death of the vassal until
Cie successor proved his title, or, where necessary, pleaded
tod obtained his right, and bound himself to pay the rt-
levium. According to old feudal custom the lord could in this
way claim a whole year's income. (2)

3. ^fpcubal SStartiSbip antr jUlanfaQC. As it is an act of
favour on the part of the feudal lord, to give the fee to one
personally incapable of military service, so he can take back
the estate, when the heir is a minor, and can exercise in

(2> The Telieft nre hassd upon Nor-
imin-Freoch cuBtomAi? law. With re-
gard to Ihe SiuoQ IhitDea the King
(ffiuld >1bo icret to the Ittwg,Dt C'nat ii.
70,71 ; niidprobubiT this ia tbe mean-
ing o( thti Lp^pb Willielmi I. 20. in
which with nnimportant doviutiona
&om the originiil, the law of Cniit is
Imnalaled; aimilnriy in Ugii, I. c. 14.
The qTiPHtion hiia been mnli'iioUy ein.
«idBled lij FrcemuD and Stiibbi. The
"hcriot" in tlio Allglo-Soion aeaao
poatinnei! aa an oblignlory duly of
the heir to "malre payment," but yet
therciu wftg recognaed an liereditaiy
right of poaaeedoD tutdiug in the

TRssal, Now ttio Exchequer auhsti-
tulcd for thia poaitioB Uio pWnco-
Kormiin feudal idea, BGcordiDg (o
whirh the lord ia from tbo first the
ooIdsI owner, and ^ranti by inveati-
tura to 1ht> new feoffee a "dominimn
rfe now" <8tubb», i. 261). The pay-
meat of tlie beriot in boraea und
weapotiH censed nilh tbe Assize of
Aruia (27 Henry 110. accordiDg to
vliieb the wenpuna of the deceaaorl
ahould alnfiyB Ih^ ]>re»urvcd to tbe heir.
Since then a snin of Dinney, nmonuting
to 100 ell., was lixed for encU kuigbt'a

p

The Property Bases of the Norman Feudal State. 121-

person or through a citstos the rights belonging to it,
and continue this -wardship, enjoying the profits, until the
completion of the heir's twenty-first year, without rendering
any account (Crlanvill, vii. 9, sec. 6), As Intor Icifaimus of
the ward's person he might also give the heir in marriage
Then the latter has arrived at a. proper age, and on such an
occasion can esact money payments ; a custom which arose
nnder circumstances when the nearest agnate was wont to
drive a bargain concerning the marriage of the ward. In
failure of sons, the heiress remained under this profitable ward-
ship until her majority, and when she had come of age, was
married by the feudal lord to a liuahand, who now became the
real feodary. In the spirit of the old wardship the marriage
of the female ward was also regarded as a money business.
The revenue rolls show us how, in Normandy also, female
wards were given away for 100, 600, and 700 livres of Anjou
(Madox, i. 520; Glanvill, vii. 12, see. 1). (3)

4. 30)5, auxilfa. The original destination of the fief aa
a means of obtaining service for the lord binds the vassal to
an extraordinary contribution in extraordinary cases of honour
and necessity, notably to ransom the lord who has been taken
prisoner, to endow the lord's eldest daughter, and when his
eldest son is made a knight (pur /aire Fitz-Chevnler). Thesa
three cases are mentioned in the Grand Coutumier and
amongst the Normans in Naples and Sicily as the customary
ones, but do not absolutely exclude other urgent cases, espe-
cially contributions made by the under-vassala towards the
xehefs and aids which their lord pays to his feudal over-
lord, and for the payment of his debts. (4)

(3) FeDdal wardaliip aad marringo
are certninly ili^ivoil from Nonnau-
3<^ch foudEiI cUBtanis. tor to bavo
fannded them upon Ctiut'a ThaiLu-law
<Cn., ii. 72-75) would hnve lieen loss
adTBUtsgeoiuroribeEicliequer. More
caact iufommtiou is givon by Glntl-
tQI, Tii. 12, according to which the
marriage of the daiigiiters of llie

of cQnsentins to tbo nmtriago of every
heirosB, from tho circuniatunc« that
■itlierwiae the feudal lord rould have
a vassal fon^ed upon him. Tb9 asseut
was not to be refusuj without "yuab)
douia," but neglect in obtaining it i«
jiutiiabed with llio loss of the fief.

C4) Tho Auxilin will be treated of
more fully uuder tho beiul of Flnui-
dal AdiuiuJBtmtion.

5

122 Constitutional History of England.

5. ^fiJ 3Ssti)Eal, JpoiffiniW of tfec jftef, ia the last decisive
point in whicli tlie conditional value of the grant appears.
The formtr takea place ■when the feudatory dies without heii-s
capable of succeeding to the fief ; a case that must frequently
have occurred, inasmuch as, until the time of Henry VIII.,
there was no right of disposing of lauds by will. Still more
frequent was forfeiture on account of "fclouy," which includes
almost all important crimes, regarding them from the point
of view of disobedience towards the feudal lord. The especial
harshnesH of the English feudal law adds to the formal at-
tainder on account of "treason and felony," a corruption of
the blood or disability of the descendants to succeed to the
inheritance. (5)

These are the five points of the feudal system, round which
for centuries the most important dealings with the vassals
revolve. As to theu: origin the oldest authorities are remark-
ably silent ; no statute introduced the feudal system into
England, or in any way regulated its details. The charters
of William contain merely a general recognition of the con-
ditions of property. Nor is there any trace of bestowals of
fiefs through ivhich the Saxon Thanes either sought after or
received a re-grant of lands to bo held "according to feudal
law ; " and it cannot have originated in the framing of the
deeds of feoffment, for these were only expressly formulated
in much later times. It was ratht-r the practice of the finance
control and of the courts which in coui-se of time developed
its details bom the following combination of circumstances.

When the Conqueror conferred investiture upon one of his
faithful followers, there lay in the use of the customary words
a reference to customary legal relations on the side of the
grantee, and of tha thing granted.

1. The grantee subjects himself through the words " dcvenio

(5) Tha riglit to property for irhioli Farfeitiiro on nccount of crimes {■

no bein cau bo [oniid was alreiidy even in tbo Aiiglo-Snxoa period not

found in Dig Anglo-Saxon law (Cod. oonflnnd murelj to treosoD, ai ia geoe-

Dipl., No. lli:-'5), but, in consequence mllj auppoaeJ, but rIbo took place iu

of the wHtit of n ri;:lit nf diepoaiDg hj tlio case of other goriiiua crimes. But

will in the rase of the feudatory, U- in the fendal Inw still MkUr prlo-

tninod new and unheoid-ordimenMoue, ciplea of felony veie also applied.

The Property Bases of the Norman Feudal State. 123

homo vester " to the law, as established in Normandy, and as
it ia administered accortling to the custom there ; and the
Anglo-Saxon cannot in this matter claim a right different
from that of the Norman.

2. The thing granted ia, as a matter of course, granted
according to the rights which the preceding possessor had ;
that ia, with all the burthens and duties which originated in
the conditions of the Anglo-Saxon Folliland and land granted
to tenants, and in the conditions attached to the alienation
of Bocland : the Norman also was in these matters to have
no greater right than the Saxon. Where these two relations
were not in cougruity, the Crown was naturally inclined to
pot in force whichever right was more favourable to itself.
But in other respects it was necessary that the feoffees should
be treated as nearly as possible alike. Hence in the Ex-
chequer and the Curia Eegis (that is, from a financial as well
as a legal point of view) new principles were formed which
kept the middle path between Norman and Saxon customs,
and blending both together produced after some fluctuation a
uniform law. And from these points of view all the details
of the feudal law can be esplained.

The most important deviation from the continental system
Ues in the institution of arriere-vassalB. The Conquest itself
and the mixture of nationalities had rent asunder tlie natural
bond subsisting between the great vassals and their foUowers,
80 that the Conqueror could successfully put in practice the
maxim that every under-vassal and gi-eater freeholder must
take the oath of allegiance to the King immediatelr/, by which
means, as regards military service, all subjects of the realm
should be immediately under the King. Consequently every
oath of fealty, which is sworn to the private feudal lord,
excepts allegiance to the King, " salva fide dchita domino et
Iteredibua fjus " (Braeton, ii. 35, sec, 8). By this maxim which
came into complete operation in England, the key-stone waa
inserted in the edifice of the feudal state ; and a final sanction
was added towards the end of the Conqueror's reign, at a
great extraordinary com't and muster of the feudal militia.

I

I

held at Salisbury ; with regard to which the Saxon Chronicle

uses the words : " Omnes jiriedia tenentes, quotquot cssetit itotte
melioris per totam Aiigliam, tjas homines fact't sunt, et omnes
ee ilU stibdidere ejugque J'acli sunt vtisalli, ae ei JitlelitatU jara-
mcnta 2>r<Bititerunt, ee contra, alios qiioscnnqtie illi fides futaros"
(Chron. Sax., a.d. 1086). By a great act of homage the
infeutlation of the whole of the landed property in the country
was here proclaimed as a law of the kingdom. It was,
indeed, an important event in English historj', when William
made his faithful followers, from the greatest magnates dowi
to the squireless knights and the freeholders, kneel down
before him, and placing their folded hands in the hands of
^ their royal master, swear to him the oath of fealty on
account of their possessions. This act alone necessarily gave
the English political life a different direction from that of the
continental states.

Connected with this systematic introduction of the feudal
system, in the years 1083-1086 a comprehensive property-
register of the kingdom, i\ie" Domesday Book," "* was drawn
up with unexampled completeness and accuracy ; a register
invaluable to the Norman political administration, and
equally so, as a trustworthy groundwork, to the historian. A
division of the laud into knights' fees does not appear in this
land register ; but a perfect foundation for a future list of fiefs
was laid in it by the registration of townships and hides,
embracing not only agricultural soil, but lauded property,
with all its appurtenances in the shape of customary services,
dues, and safe-conduct money. The existing conditions of the
land and soil remain in the lower stratum unchanged, but

••• The origin of tho Domeedoy
Boob 18 drscribed in LnripealnTg, ii.
, H3-1J4. It waa offlciaUy printed in

L the ytar 1783. in two folio vol*.: to

I wbidi ■wen added Toar eupplemeutnry

I registcre Riid indices, lu two additioaal

I ToIulDci of the Kecord CoiiimiBaion,

■ leiS (EsplnnBtorv treatisLi hj Kel-

■ Mm, 1T8B; Sir H, Ellis, "iDtrodne-
I tion to llie Domewlay Book," 1S33).
H Ltttely, thu Latin text has also iHKm
H fffinted for certain counties in extento.

without the abbreviations (Londui

umberlaud. Cumberland,
land, and Durhaoi, wiiicli were as jet
not in the aecure poBiessioD of the
Normaris; LanciiBter does not appmr
to have been organized oa a ooonty
until Henry in.; Iwmdou, Wincheater,
aad certain other cities nro also ixexA-
Itig. The attested buqi total of the
luen wni 283,242; tbnt of the regia-
tercd " taidea " about 225,000.

The Property Bases of the Noi^man Feudal State. 125

henceforth they form material for new tenures in accordance
-with feudal law.

At the head of these masses of property stands the King,
with a reservation of more than one thousand manors, to-
gether with numerous chases, parks and forests, formed out of
possessions, for the reservation of which the old relations
between the Saxon royal house and the Folkland gave a good
title. The former possessions of the great Anglo-Saxon
Thanes, and county Thanes, which had become vacant by
death, flight, and outlawry, form the principal material for
providing for the vassals of the King; the Saxon Thanes
who still remained in possession are to be found principally
among the subtenentes of the Norman magnates. The
possessions of the Bishops and the monasteries are incor-
porated into the new system of property, with the proviso
of a duty to furnish their contingent to the feudal miUtia.
The freeholders who still existed, the landowners bound
to magisterial duties (sochemanni), and the hurgenses kept
their places almost unchanged. In like manner the Anglo-
Saxon peasants, ceorls, villani, remain as they were ; also the
farm labourers (bordarii), although these also were partially
supplanted by servants whom the Norman lords had brought
with them. In the still remaining serfs (sem), who were
few in number, no change can be seen. As Domesday Boot
states the several modes of property existing at the close of
the Anglo-Saxon period {tempore Regis Eduardi), as well as
those at the accession of William, and when this land-register
was framed, the changes which had taken place in these
descriptions of property may be surveyed from the following
table : —

Tempore Eduardi.

Chief proprietors and others

King's Thanes .

Milites

Tenentcs et snbtcDentes

Ecclesiostioi

Sochemanni

Bnrgenses .

ViUani

Bordarii

Gottarii

Servi ....

1,599)

326

213

2,899J

1,564

23,404

17,105

102,704

74,823

5,497

26,552

Tempore

WOhelmi.

Vassals of the Grown .

600

Subtenentes .

7,871

Liberi homines

10,097

Eoclcsiastici .

994

Sochemanni .

23,072

Burgenses

7,968

Villani ,

108,407

Bordarii

82,119

Gottarii .

6,054

Servi .

25,156

Hence we perceive that extensive changes have only taken
■*>p]ac6 in the great landed estates, and that iu the course of
the Conqueror's reign the last Saxons have been ousted from
the lands and from the position of great Thanes and Bishops.
The grades of landed proprietors at this time are therefore as
follows : —

1. About six hundred persons and corporations appear as
Becular and ecclesiastical Crown vassals (tenentcs in capHe),
but in very different degrees. About forty lords (the later
Barones majores) are enfeoffed of an aggregate of estates,
■which may be compared with the lordships of the Saxon
great Thanes, but they are scattered about in different
counties. About four hundred warriors (the later BaTona
minores) who served immediately under the Duke, were
enfeoffed of single knights' fees or manors. The line of
demarcation between the two is in this period merely one
founded on fact, and a changing one. Among the spiritual
lords the landed possessions of the majority of the Bishops
and certain great abbots may be compared with those of the
great secular feudatories ; the great majority of fees are also,
li'om this point of view, small. It is only when many small
and doubtful forms of possession are added to these that the
number of 1400 tencntcs in capite appears, as given by Ellis. (1)

2. The second rank ie formed by 7871 subtcncntes. As the
greatest feoffees had to furnish a whole company of heavy
armed soldiers, subinfeudation was a suitable, if not a neces-
Bary, method of famishing the contingent due. For the

(1) The number of tbo lenenUi in
eapila ie given by Ellis at 1400, but
maixj ver; obiicure elements nre reck-
oned ftmong tliia number. The ex-
tntcta lerened to in Kelbam, give ai
follows ; —

(a) Bcclesinatical entries; 19 Arch-
bishops and Biflhopa (among them a
few Normnnft}: 20 Cunon/Lt'; aO Abbots,
AbbfsseB and Abbeys; ^8 EceUtim ; 11
rmhylerii 2 Diacimi: 3 CapeUani;
atto)!etber 153 siagle entrii^.

(b) Becnlm lord«: 10 Comilti; 394
other lords (among -whom 214 tua

registered in one wnoty, 180 in two
or more places) ; 10 ComiHtlx ; 20
other women and dnugliters, snd u
faw collective appellations, Hominet
Lihm JtMii, etc.

I Bcmrdingly assume the exiBtcnoe
of nt least GttO Crown viussls in round
numbers. The Anglo-Saxons liod nl-
ready been ousted from tbo greater
posaoBsionB; AViiltbeof is mentioned ea
beiug the lust Ealdorman, ttnd Wulf-
sUo OM the hut Uisiiop. Among the
small Cio^n vassals, however, we find
many with Saion names.

TJie Property Bases of the. Norvian Feudal State. 127

Norman soldier this Bignified a fresh grant on the part of hia
chieftain ; for tho Saxon Thane, who was left in pos
it meant a limited recognition of his poBBession with fresh
burthens. At the time of Domesday Book the partition
of great estates into Buhfees had only been hcgun in a
limited degree. But Crown vflssals and corporations are
even then both met with as ander- vassals. (2)

8. The rest of the population, who were not subject to
military service, were mostly, though not entirely, incorpo-
r&ted with the great estates in which they had for the most
part a precarious or heavily burdened possession, to which
were added also certain other burdens by reason of the feudal
dnties of the lord of the soil. As a constant companion of
the feudal system is now added a tax duty (taUnijium), to
which all inhabitants of town and country were subject, who
■were not bound to the feudal mihtary service. The chief
groups are : —

10,097 liberi homines, among whom, however, the names did
not yet imply posseaeion of freehold estates. {3}

I

(2) Amonp the 7871 talUnmtf»,
about one-bair of the uiLmes are itill
Saicm; Ui« DiimestlEif Book mnkea
ineittiDa of "toiiii" id ni^arly all
cotmliex ((■/. Hoywood, pp. 85, 120.
IBS. 200. 206; geo also Ellis, i. 143).
DiTiaioii of la^o eetates b; «ubia-
fendatiaii pentinneiitly dopriTed tha
great vassal of the enioymcDt of pro-
prietor&Lip, and was therefore avoided
as mnph na possible. Only tor the
■piritoal rorporatians tharo existed
from the firet a certain iicacBsitT far
this oourae. It is eiprosslj dealared
of Archbiahop LunOnno thut by oriitr
of tbe King lio cnfooffed the Sinaatt
on hi* lorclfthipi (the "Uireiigea") ub
nnder-viuwalB : praofpit rex, ut de eii
niliUt fierait ad teiram defendendam.
Eipedall; for tho laniled estates of the
eatbodral chupterH ten kuighla wore
eDfeofTed, and for tbia pai^ioeo laiida
of the value of £200 were ouigned.
Oo the other hand, Itoder Willinm

It a apparent from maaj iQituioM
tlint euuIeaiasticB and great vnaaali,
trith the royal liccnuL', freed their
■whole estat<!8 from ruruialiiog fendj
troops, by creating b; gubinreudation
ft certnia number of Bub-msEaU unoe ■
nnd for all. LaDdo<l estatea lielongillK
to abboya ara frequently meDtianed,
xvhich,DDeeDrante<ltnEngIiBllThaDea,
became under William anbinfeudated
in anwrdnnoe with Norman fondal law
(Freeman, iv. 479).

(3) Of the 10,097 lUvri homiaei ond
S04t tiberi hoMina eommendaU, itSl
are met with in Norfolk, and 7470 in
Buflblk, that ie in DuniBh trountiea.
According to the Dune law the
compenaation for the Uher homo una
three marks, that of the trxtmauHiu oaly
tvelro oraa. Hence the appellation
iTould seem to eipre^ a somewhat
liigher grade than that of tha wki-
monnua. although otbec pasaiges aeem
to make thia duublful. The old eom-
mendalio nas aim interpreted by the
Normans as a subinreuilntion. Ihoogh
it merely signilied tho finding of ■
landlord as an act of agreemt-nt '

128

ConstHutional History of England.

23,072 sochcmanni, hereditary posBeasors, who are only
subject to the magisterial jurisdiction (sura) of a landed
proprietor without being incorporated with an estate a»
tenants. (4)

7968 Biirgemcs, the great deercase in whose numbeiB
explainable from the desolation caused by the war. (6)

108,407 villani, the new term for settled ceorls or the
proper villeins. (6)

82,119 Bordarii, that is, agricultural servants, workmen,
and labourers, but who were often in. possession of houses
and small plots of land. (7)

a»

i

tween tlie lord and the " Dommended."
In the land regiater thifl ri'latioo is
treated of as an ablatio /eudi. and onn-
tKquently as a traDaferable " real
riRhC' residing in the feudal lord
(Freeman, v. 463, and Index, i.v.,
" Commendalio '").

(1) The 2.1,072 Mcmannt are recorded
in altDOBt csacllj' the aaine number as
exIstiDg at Oie time of Kdward. Ttje
inatitution mart acoordinglf be baaed
□n a £zed legal roaception, and this
can onlj be the Saion legal juiisdic-
tion. In the trentieo of Spelman, " De
Natara Brtvium." they are mentioned
u bDTing B title vfith spcciflud aei-
vioeE, a» aaiUin ciempt Trom the
common papular couite, and only
Teally bnund iit their own court, and
capable of baving others in viUenoffio
under them. Cetfain aucmcn are met
vith again eib

of a whole a

I (EUis, ii.

(5) The Burgrtua lind bean redaced
by war from their original numbers
07,105); DoniPsdny Book dpHcribcs
the condition of demy and thu nutnber
of forsaken honsea in many individual

(6) The uiiluni (108,107) embrace the
hhus of the Anglo-Sason ceorls in the
pod tion of peaeanlB on the lord's
twtaieB, DB well as a nnmber of the
old peasant proprietors and hereditary
posjesBors, at the time of Doniesdny
Book. It is difScult to believe lliBt
among the still doiiglily arrny of the
poasinta of Wcaaex and the "moo of
Kent," an hereditary proprietorship

abould have wholly vanished. As to
the degradation of the vitlant in this
period, sue below in cap, ii., para-
graph iii. For the rank of the " tibtr
home," the possessionof a peasant form
was without any decisive inQuence :
" Item teaeiiKniam non tnulat tlalnm
liberi tion maiiii quam «enn. Potrril
enim liber homo lejiert purum vHUna-
gium, faciendo qiiiequii ad vilUnagium

Ctiruibit, (1 Hihilominut liber eiit, cum
facial ratione viUenagii, et non
ratuHM iwrwnui! nic" (BracL, ii. □. 8).

(7) The t<2,119 Bordoni ore regu-
larly mentioned in the Domesday Book
after the villani, ns beiujt still inferior
to these. According to Du Cange, Iho
term answers to our "oottuger," that
is, denotes the labouring eloraes, to
whom, in addition to their dwelling, a
garden and n few acres of laud htid
trequeotly been given.

A BUTTcy of these condttiona is ren-
dered more diffieult by the fact that
the Latin text of Domesday Book
very frequently translated the Anglo-
Saxon terms in an arbitrary manner ;
that the eommissionera in the different
counties did not make use of a uniform
rule of expression, that one and tha
same term might embrace locally dif-
ferent legal rffitioiis ; that on the other
hand similar conditions were denoted
in different plaocs by different legal
terms ; and, fiunlly, that our knowledge
of the smaller kinds of property is e:
occdingly dofoctiTe. As to tho '
of things at the close of this p
vide below, cap, Xl.

The Property Bases of the Norman Feudal State. 129

The rule whicli determined the further development of
these conditions was manifest : namely, that the Saxon conld
not claim more than the Norman, and that the lower dassea
(apart from the obligation to feudal military service) must
sabject tbemeelveB to the limitations and burdens laid upon
them by the upper classes.

By the extension to these elasaes of the oath of fealty, the
reliefs, escheats, and forfeitures, it came to pass that after
many generations the maxim of jurisprudence was formulated
"that the King is the. universal lord and original proprietor [
of all the lands in his realm, and that no one possesses or can!
possess any portion of Diam, which is not derived mediately or(
immediately from a grant by him." The new order is a
thorough arrangement of society into ranks according to
military service, an immediate and eETectual subordination of
the upper classes in military obedience to the King, and con-
sequently a still stricter subordination of the lower classes.
The whole landed property became thus uniformly subservient
to the State, and has remained so to this day.

The legal construction of the English Feudal System was
deduced by the author of this work in the second edition of
hifl "Engliache Communal- Verfassung," and his "Englisches
Verwaltungs-recht " (1863-1867), from the legal sources and
printed records then available, hut has been since that time
completed and rectified by the copious investigations of Free-
man, " Norman Conquest," vols, iv., v., and vi. (1871-1879)(
and Stubbs, "Constitutional History," vols. i. and ii. The
material result of these valuable investigations (with a few
supplementary additions on my part) are aa follows :^

The belief which has come down to us from Selden and the
antiquarian school, a belief which was hitherto universally
received, that William I. divided the English lauded property
into military fees, is erroneous, and results from the dating
back of an earlier condition of things. Equally erroneous is
the statement which has been repeated for centuries, that the
English real property was at a certain period distributed into
60,215 knights' fees, of which 28,015 were in the possession

VOL. t. K

130

ConstittUional History of England.

of the Church, and the rest in the hands of ^ecalar yassals.
These computations were arbitrarily set up by later anti-
quarians, by reference to the number of the hides, and are at
least twice as high as they should be. The figures in this
case are among the many numerical exaggerations of the older
historians.*

Domesday Book does not contain a "fee-roll," but a
"property-roll," upon which in later times the fee-rolls were
framed. Palgrave rightly maintained that in that great
register there is nothing to be found about " knights'-fees " as
a special kind of tenure of landed property. The term feudum
is, in the language of the land-register, a general expres-
sion for landed property under the new ruler. The term
miles appears, as a rule, to be merely a translation of the
Anglo-Saxon " thegn." Domesday Book simply describes
the real property with its customary burdens and services,
without making any mention at all of new burdens and
services resulting from the new feudal bond, and even without
any intimation that the new military service is different from
the old. The land is not divided into knights' fees, but into
hidsB : where the '* men " of one or other great landlord are
spoken of, the expression evidently refers, as a rule, only to
the old Anglo-Saxon vassalage, or to the commendatio to a
Hlaford as an institution of the Anglo-Saxon police control.
It. was only in the succeeding generations that the feudal
military service was definitely apportioned on the basis of this
register, and that the claims of the royal feudal lord in the
exchequer were consistently enforced.

The occupation of the country after the battle of Hastings
began with those counties from whose levies Harold's army

((

* The estimate of Higden in the
Polychronicon " (i. c. 49) of 60,015
knights* fees is contradictory of the fact
that the Treasury itself could at no
time give a correct estimate of the
number of knights' fees. From Higden
that number passed into the so-called
**Eulogium/* out of which again
Selden, ixi his notes to Fortescae, has

accepted the quotation, and has made
of it a tralatitium. Cf. Stubbs, i. 424.
At the close of the period, Stephen
Segrave, a minister of Henry IIL
computes the number of kniglits' fee
at 32,000, and even from such a numbe
the knights* soutage could never 1
raised.

The Property Bases of the Norman Feudal Siate. 131

bad been formed. In these a general conSacation of tbo
landed property of the " rebels " took place, bo that among the
tenentes in cajnte scarcely a single Saxon name can be found.
From thence the Conqneat spread further towards the West
and the North, until in 1070 the occupation was mainly
completed. In this further occupation the principle is still
adhered to, that participation in the struggle against William,
as the legal heir to the crown, entailed as a legal consequence,
not indeed, outlawry, but forfeiture of landed property ; as the
result of which re-grants were at once made to Normans and
to certain favoured Angli. Those Angli, on the other hand,
who had not taken part against him, or who had compromised
themselves less, were allowed, by "redemption," to receive
back their possessions from the King, as an act of his favour ;
accordingly, those who partieipated in his grace, received a
royal writ {breve), which appears from that time necessary
and sufficient for all purposes as a title of poBseseion. The
technical term for this is " inbreviare." According to the
diversity of various eases, the inbreviatio is bestowed in
consideration of small, greater, and often very large dues,
and the "redemption" is granted either for the whole or
only for a part ; widows and poorer members of a family are
Bometimes allowed a small portion as a charitable provision.
The theory and manner of expression of this " redemption,"
which are consistently maintained throughout Domesday
Book, make it appear as a royal gift, by which the new lord
of the whole coimtry allows the former possessor a certain
share in the soil. Later jurisprudence was able, accordingly,
to deduce, with plausible reasons, from tbese " redemptions "
the characttr of a conditional grant (tenure). The ecclesi-
astical estates alone were conceded to the corporations who
were in possession of them, without the humiliating form
ot iuhreviiUw, because the theory of personal forfeiture ap-
peared not to he applicable to them. Yet in the next reign,
the system of tenures in all its bearings was extended even
to these.

The landed property thus granted or redeemed was, accord-

132

Consi'ilutional History of England.

ing to the Conqueror's plan, to be uniformly employed In
forming the heavy-armed feudal militia. To the newly en-
feoffed Norman lords this was the natural feudal custom of
their country. To the newly enfeoffed Angli and to those
who had redeemed their posHeBsions, it appeared in the light
of a juat equalization. Yet the accomplishment of thia
scheme was not effected under William I. In the carrying
out of it the difficulty with which the Anglo-Saxon adminis-
tration had struggled for centuries immediately returned : a
fixed standard for the apportionment of the soldiery was
wanting. Since iElfred's time, indeed, the general rule had
been observed that a fully equipped man should be furnished
for every five bids; but it had never been established as a
rule of law as in the Carlovingian legislation ; the apportion-
ment had remained a matter of administration, regard being
had to the state of the income at the time and to other con-
ditions, and hence it was for the sheriff and the county ad-
ministration an object of continual claims. Only in a few
places a local legal ctistora had become established, which
accordingly was carefully noted in Domesday Book/"

" In my "Geschichto der Crnnmu-
BBl-Vetfaaeuui;,'' p. 17, 1 have pointed
nut that the fixing of militarjr KeTvice
acoordioe to the stand nrd of tlie
Lide had not in tbo ADglo-Saion
period beromo a rule of law. It occurs
BccordioKly only inciden tally in Oamet-
day Bonk. In n few obhpb in the ipyal
«ranta Ihe number or the wuniors to
be furnlBhed waa determined by {irivi-
U'g;«, which nutnl'pr vas therefore not
to be eioeeded. Tliua in tlie case of
an important grBnt about the year
goo : " Vetvm etiam in txpedilionis

duod^m votnUU rl rwm lantii teiiiU
ertntant" (idem, 821). lu the Utter
case it was u matter of a grunt uf >ome
twenty tnwnBblpB to a RioDoilpry (Cod.
Dipl., i. 272 .. That whcru great gtanta
wore made to cburehea and moDasIeriea
B deOuitB OQubot of warrior* sbauld

be eipresalf reserred was natural, bo*-
ing tljat the oonlingent fumiibed by
tbd himdredB remained the Bnme,BO thU
the deficit would have fallen npon
their ueighboura. In like manner
the privileKea of the towns in the later
Anglo-Saxon times must be regarded;
the militnry serrice of nhicb is fixed
at flro, ten. BftecD, and twenty hides,
and in wInVh we also meet wilU a
money discharEti, Chester paying a
sum equal to 50, and Shrewsbury 100
bides (Lappenbcrg, i. 613). After thn
Conquest this institution appears ■■ a
local costom, n« in Berkthira (I. S6. 6) :
" si rex mittebat alieubi exetcitum de fi
hidis tantum unus miles ibat,et ad t^JDs
vtcium Tcl stipendium de onaquaquo
hidadflbenturei iv.Bolidindii.meoMa."
BopBuse tliD rate of the live hidei wu
only a principle of administration, it
was in praelica much modified, and
maintainrd itself ns an est^bliBhed
ougtom only in certain counties.

The Property Bases of the Norman Feudal State. 133

Apart from this, the apportionment of the cavalry service
{which had now become more expensive) nndor the new
Bchemes of property, and the valuation of the real estatea
according to their productive worth, was cer|8iii| after bo
many changes and desolating struggles, to lead to more violent
disputes than ever. On the earnest endeavour made to carry
out the plan at the time of threatened invasion in the year
1085, the King abandoned the scheme, in coneequenee of the
probability of endless diaputea ; but he imjiosed a high tax
{kydagium) upon the hides, and hurriedly collected a paid
army with the other means at the disposal of his exchequer.
Connected with this event was the well-considered plan to
determine for the future, by means of a land-register of the
realm, all the factors according to which, in case of future
levies, the number of " shields " to he famished should be fixed,
and the other feudal dues exacted. Upon this basis, after the
year 1086, the shares of the great landed proprietors were
settled, according to which a heavy-armed man (sem(i«m unius
myitis) should he furnished for each share. The/eutia militum
thus computed are no knights' fees of a limited area, but real
portions of the profitable free estate. " The knight's fee is
no manor, and no hide of a fixed imiform extent, hut a unit
of possession which imposes upon the owner the obligation
of furnishing a fully equipped man for the usual period of a
campaign. These ■ units of property ' comprise not only
agricultural land but buildings, rights of cutting timber,
mills, tisheries, salt and other mines, tolls, market dues,
tithes, etc. ; and also, as the furniture as it were of the aoil,
the mass of tenants, the greatest cities as well as the smallest
villages, and single farms, the formerly allodially free peasant,
as well as the serf who had settled on the land, with all
customary services, dues, and protection moneys. Through-
oat the whole of the Middle Ages the normal standard of a
knight's fee is not the acre-measure but a ground-rent of 15,
and in later times generally of 20 lbs. of silver." "" The

i;m

Cmstittaumeil Sistoty of England.

judicial and police ayatem appertaining to a manor are inde-
pi^ndcnt of tbis ; a manor may be estimated at either more or
less tlian a kuight's fee, and as such has no connection with
knights' serrice. It was only after a lapse of time, and in a
limited degree, that knights' fees began to be settled on certain
and deti'rniinate ei

Accordingly, afb
the factors for the
generatimis, Williai
of his system, by t
obligation to allegi
own immediate eitK
well as all the gi
jirjt'iJiii U-n(ntfs, \
AHijluim ,- " and his c
ill its fulWM extonl. " i

whioh follow i'on>t\iuir

Th.- N.^y:--::i!i Cro-.v.

iter of the realm had settled

f war burdens for the later

f enabled to fix the keystone

indamental and immediate

he included not merely his

their nnder-Tassals also, as

rs in the country, "omnet

itotte melioru per totam

.w. iee haTe nnd^^tood his act

•onrn pihi n.UhUUm contra omnes

Li"i'\ Puring the N.^rman reigns

I all dirtClicms proceed from this

f Jhe kv.zl

>aion, re-
ie:-;ffOr5. and
t :-■> these tLo
lu? ■."■[•tJienct',
.^ra.^ier?: all
*:• Li; army.
.-:— i:; re?pect

^1t".v? nii^ht
, ::. sfr^r the
;^:- ^3.1 not

*Tke Property Bases of the Norman Feudal State. 135 I

arisen in another direction tlirougli the circumstance that all
royal governments of this period began with a dubious or dis-
patable title, and had to struggle with dangerous risings on
the part of the great vassals, which took place either alter-
nately or aitnultanoonsly in England and on the Continent.
Immediately after the occupation of England begins the
dangerous insurrection of Kalph Guader and Koger, the son ol
Fitz-Oabome. For a whole century, until the death
Henry II., these revolts continued on the part of the greal
Taeeols against the English feudal lordship, which they coU'
sidered insupportable ; they end with the removal or degrada-
tion of all the great families which at the time of the Gonquesi
stood at the head of the martial nobility. In all these
struggles the national Anglo-Saxon element cleaves with
ouahaken loyalty to the lloyal house, and gains accordingly
the most material concessions from moral, as well as from
political considerations. The vouchsafing to all a Hke legal
protection, the established system of the central administra-
tion, the consolidation of the constitution of the counties,
cities, guilds, and all the elements which afford a counterpoise
to the " groat vasBalage," spontaneously urge themselvea
upon the Anglo-Norman King as the policy which this state
qf affairs requires, without partiality either for the one or for
the other nationality.f

WilUam Eufus already makes his " Angli " significant pro-
mises, in order with the help of their faithful soldiery to
humble the insurgent magnates, though he certainly does
not keep his word. Indeed, the Royal feudal suzerainty was
turned to account in this reign rather with a display of savage
brute force and of greed for money. A quick-witted cleria,
Ranulph Flambard, as Great Justiciary, unscrupulously
utilized the fiscal part of the royal suierainty against
ecclesiastical and secular estates, and was the first to bring
into operation the grasping fiscal principles of the English
Exchequer.

136

Constitutional History of England.

k landi

I orde]

I confi

Henry I. begins hia reign with a fair-promising Charter, hy
wliich he gains the sympathies of the nation for his defective
title to the crown. Every sentence of this charter throws an
unmistakable hght upon tli€ maxims of the preceding adminis-
tration ; and the promises which the King here made he also
kept in the main, by returning to the prudent principles of
government of the Conijueror. Like the latter, he avoids the
re-grant of territory and judicial powers to the great vassals
on any large scale. He centralizes the financiaJ control in the
Exchequer, facilitates the access to the Curia Regis, in other
directions enlarges the competency of the county courts, and
amplifies the charters of freedom of the cities and guilds. By
the circuits of his Justiciary and the Commissaries of the
Exchequer he brings the royal jurisdiction into immediate
connection with the provincial administration, in a manner
which obviates the danger of a territorial eeparation of the
manors.

Next follows the reign of the usurper Stephen, to the eicln-
sion of Henry's daughter, the Empress Maud, who had been
formally appointed to the succession. Stephen's cavalier-
hke frivohty endeavours to gain the favour of the vassals
by extravagant grants of Crown lands, and hy laxity in
administering the laws of the land. But so soon as the
possibility of winning more adherents by this means is ex-
hausted, the defiant opposition of the Barons begins. Even
the peaceable magnates and Bishops saw themselves forced
in self-defence to fortify their castles, and to prepare for war.
In this critical moment Stephen commits the folly of arresting
his Grand Justiciary and Bishop Alexander, hy which act
the clergy are provoked to opposition, and at the same time
an orderly political administration altogether ceases. Neither
Stephen nor the Empress has any real support in the popular
feeling, whilst barons and knights fight nominally under the
flag of one of the two claimants, but in reality for their own
landed interests. From this time, instead of the former well-
ordered administration of the realm, there is seen all the
confusion of the continental feudal system — private wars.

The Property Bases of the Norman Feudal State. 137

fortified castles, the forcible exercise by greater and lesser
barons of self-arrogated judicial functions, and of the privilege
of coinage — a wild struggle of warriors among themselves,
under pretence of siding with Stephen or with Maud, until, by
the mediation of the clergy, a compromise is effected in
favour of the succession to the throne of Henry, son of Maud.

Henry H. ascends the throne without opposition, and with-
out any obligation towards either party, with the resolve to
rule England as an English King, together with his great
possessions on French soil. The basis of government and of
the county administration created by William I. and Henry I.
now received a systematic form. By the union of the royal
central administration with the national county courts, the
power of the great vassals was driven back into proper limits,
and with the support of an energetic and loyal ofiQcial nobility,
the formation of which had begun as early as the reign of
Henry I., with the appointment of Roger, Bishop of Salisbury,
the Norman administrative system attains its unequalled
systematic development. Even amidst the unfortunate family
relations and unfavourable external conjunctures which
characterized the latter years of Henry the Second's reign,
the internal organization of the Exchequer and the Curia
Begis, and that of the legal, military, and financial system
makes consistent progress. And so also under that knight-
errant, Eichard I., the internal government, under the conduct
of sagacious officers, pursued a course that was in the main
orderly ; until under the worthless rule of his successor,
John, the crisis supervened, which led to the signing of
Magna Gharta.

Within this framework is accomplished the internal con-
solidation of a political system, which stands unmatched in
Europe in the Middle Ages.

Constitutional History of England.

CHAPTER IX.

^fie Normnn Ql^ount;! 6Gobcmment.

The Conqueror found on his arrival, a well-ordered division of
the country into Shires, Hundreds, and Manorial districts, and
a corresponding official system of Earls, Bhir-gerefas, royal
and private Gerefas, For King Eadward's legitimate successor
the retention of this system was a natural condition, and a few
years' residence in England must have sufficed to convince
the Conqueror that his rule could have no more advantageous
basis than the Gerefa-system he found there. The outward
fabric of the government of the country thus remained un-
changed, but it was enlarged by the now powers that had their
origin in the feudal system, whilst in many points it was at
the same time limited by the centrahzation which soon began.
I. The office of ti)C ISorl had, in the last two generations
of the Anglo-Saxon period, been reduced into the position of
an upper governorship, with an ever changing combination
of shires, and a frequent change of ofBcials. According to
the custom of the country, it involved the highest secular
rank, corresponding to the ducal title of the Continent, and
continued to do so until the reign of Edward 111., for the
"duces" of Normandy naturally avoided giving their Bubjecta |
the title of " f/itx," A few Anglo-Saxon Eorls retained their i
earldoms for a considerable period. In the place of the rebel-
lious Eorls, Norman great -feodaries were appointed. Certain
lords apparently received the title of Eorl, only because, in
Normandy, they bad already been Coimts. Usually, though

The Norman County Government.

133

not always, a bigh military rank was attached to the office,
which was conferred by a Bpeeial ceremony, that of girding
with the sword {gtadio comitatus dniii), but no active com-
mand was attached. The rights and profits of the Eorl, i.e.
the customary third of the revenues of the county, were at
first usually combined with it. But the conspiracy of the
Earls in the year 1074, showed plainly enough how
dangerous an administration by Earls was to the royal
rule. From that time onwards the appointments were made
with great reserve ; only such persons received them as had
already borne the title of "count" in Normandy; in later
times mostly members of the royal family ; and in such
a manner that the Eorl was removed as far as might be
from the actual administration of county affairs. The former
administrative office passed into one of the highest dignity,
with many honours, but with as few duties as possible.
In Domesday Book are recorded the names of ten comites,
and a like number of comitissss. The gi-eater number of
counties accordingly had no amies. Wherever we meet with
one, no juiisdiction is attached to his person, no command
in the army, no authority in the county court, and no special
magisterial power of any kind. The Eorl is connected with
the county, whence he has his name, in no other way than
through the " tertim denarius" under the sheriff's yearly
lease. The earliest Treasury accounts show the payment of
such sums, amounting to J;ll, £16, £20, £33, etc., under the
head of tertius dcnurius. But it is only a donatio sub modo,
the grant of a permanent income " for the better support of
the dignity of an Eorl ; " it consiats in a mere order for pay-
ment or precept addressed to the sheriff, and is therefore a
right of demand, but no feudal right, and is accompanied by
no investiture. Occasionally the Eorl is also appointed as
sheriff, even in his own county, as Cospatrick was under
WiUiam I. An Eorl of this character must render his
accounts to the Exchequer, like any other sheriff, and he
is only permitted by warrant to retain the tertius dmariux
(Mados, ii. 164). An Earldom has thus already the character

140

Constitutional History of England.

of the later titles of nobility ; the same vaguenesB in the
names, which are sometimeB taken from a county, and some-
times from a city (such aa Salisbury, Winchester, Carlisle),
aometimea from a township (Striguil, Clare), sometimes from
family names (Warenne, De Ferrers). The newly created
earl was sometimes allowed a tertias denarius, sometimes
a fixed annuity, and in later times neither the one nor the
other. The dignity sometimes descended to women, and
eometimes not, according to the wording of the grant ; which
from the first appears to rest upon patent. To this rule of
government only a few exceptions were made in the border
counties (the so-called counties Palatine) which had no
influence upon the system of county administration. (1)
After the withdrawal of the Eorl, the Anglo-Saxon Shir-gerefa

(1) A* to the dignity of tbe Norman
Einl, Bee Speluian's " GloBS&iiuin," i.e.
Coma; Beldoa, "Title* of Houour,"
iii. 638, tt tq. i Hejwood, "Banfca,"
p. oa, el irq. ; Madox, " Exchequer," ii.
iOO, e(Kg. ; "Baroniii Auglica," L o. 1 ;
Hallmn, " MidJls Ages ; '^ Ellis. ■' In-
troduotioD : " "Peerage Reports," iii.
178, 211, uq. Tbe diflpule ot tbe
■ntiquarian authorities as to wben the
dlgmtj of Borl b<«aiua nierel.v titular
ii rather a oootroTiny ot words. We
certainly oaauot speak or a mere titular
digDily in the ouso of Iboso comilei, to
whom a third part of the court duea.
Hum and otiiet rerenueB, had heeu
granted. {\» to (heir citeul, seo Hey-
wood, 100, 101, 108.) The deoisive
queatioQ is, hon fur the Gomes as sudl,
had a mititory command, and how fur
he controlled the county onembly. and
the pea»e of the county. That lie ha<l
these powers, upon refeienee to the

Kvernoientul dnouments, must be moat
ciiledly denisd; aa lo the iDalaurei
in which a Comes goToms Ihe county as
Vicecomos, see Mndox, ii. 400. A local
GXMiition is made after tbe Coaqneal,
In the county of Charter, in which,
having regani to the oeoessity of de-
fending the frontier, a gpneral eovenror
WDi intrnited wiib tlin immediate rx-
ercise of the jurn rtgalia. After tbe
ti:ign of Henry II., such oxcoptianal
were not unfrequently called

" palatinates," Extended powers of
this kind were furlbor pT»ntod in
Shrewsbury, on the Welsh borders, in
Durham, on the Scottish boandary,
and in Kent, in consideration of the
threatened iuvaBiona from Pioardy,
Two (if these palatinates were iulen-
tiooally combined with ecelesiostioal
dignities which were not capable of
establishing an hereditary family sac-
cession. Suoh governors are generally
called EttrU,but frequently otherwise,
an in the case oftbe Marchers of Wales;
and where they bear the title of Earl.
it Is only the latter that is hereditary,
whilst tlie governorsbip is regarded as
a perfer^ly separate grant ("Peerage
Report." ii. 255). Dnier Stephen, new
dimifes appear to be created in
great namhers, and with extended
pnwers ; but these pseudo-earls ware
dcjuMed under Henry II. For the
origin of the Inter Palatiuate of lAn-
caater, there were personal reasons in
the atriving of this bonae to preaerre
to itself a family possession, in addition
to the crown it had usurped. All
these variation B, of comparatively
small extent, had no determinate bear-
ing upon the oonatitution of the
country. The character of the Elorl,
as an originally porsnnfll dignity, is
reeogniieil by the " Prurage Report,"
iii. 178, 211, 212, eto.

The Norman County Government.

Ul

becftme the regalar governor of the county, who was hence-
forth DO longer dependent upon the Eorl, but upon the
personal ortlers of the King, and upon the organs of the
Norman central adminiBtration,

II. The important office of t|)e Norman KitftomtS is identical
■with the old ofBce of Shir-gerefa, now filled by trustworthy
Konnan lords. Upon French soil there existed a similar
system of government under Bailiffs ; who as representa-
tives of the duke, himself invested with the Carlovingian
dignity of count, bore the title of " Vicccomiies." The official
Latin in Norman England adopted the title Vieecomes, but
this did not become naturalized in the Saxon vernacular.
The Norman term " bailiiT," which nearly corresponded to the
Saxon "gerefa," was in later times applied rather to the
under stewards of the Vieecomes. For the governor of the
county, on the other hand, the native population retained the
usual name, Shir-gerefa, Sheriff, which consequently, in later
times became the prevailing one. Corresponding as it did to
the Anglo-Saxon administrative system, the office of Vice-
comes was a four-fold one.

1. As the King's military representative his duty was, in
conjunction with the county assembly, to regulate the appor-
tionment of the contingents, and conduct the detail business
of the military organization. This business became somewhat
simplified after registers could be kept with the help of
Domesday Book. The sheriff's duty is accordingly, with the
aid of such registers, to carry out the royal orders summon-
ing the vassals, which orders are issued to him as executive
officer. Where a royal castle belongs to the county, he looks
to the equipment of the knights, the Serjeants, and foot soldiers,
as well as to their auppliee, debiting the treasury with all the
disbursements. In case of need he also manages the fitting
out of ships. In the border provinces he conducts the dofenea
of the county, in case no governor with larger powers has been
appointed. After the revival of the old militia system under
Henry II., he becomes also leader of the county militia.
Wherever for military, judicial, or finance purposes, military

142

Constitutional History of England.

administration becomeB necessary, it is the sheriff who does
the work.

2. As Royal Jvsliciary, the Vieecomes is the Bncceasor of
the Anglo-Saxon SMr-gerefa ; he presidea in the county court,
and holds the customary court-days at stated periods in the
county as well as in the hundreds. The judges are the county
freeholders. Insteiid of Thanes and freeholders, we now find
vassals, under-vassals, and freeholders ; and Normans instead
of Saxons. So far the judicial administration was able to
survive with its framework unchanged. But defective adminis-
tration of justice and other circumstances led by degrees to a
centralization at the royal court, which deprived the Vice-
comes of much judicial business ; whilst on the other side,
the police spirit of the new regime made the criminal sittings
the chief business in the several hundreds. In all cases the
customary execution of all judgments, the collection of fines,
and the confiscation of forfeited lands, remains the province
of the Vieecomes.

8. As Police Magietrate of the Crown he performs the cus-
tomary duties of maintaining the peace, pursuing peace-
breakers, if necessary, with the " hue and cry" of the whole
county ; he accepts security for good behaviour, and controls
the general surety-system of the tithings. Through the neces-
sities of the times these police functions became much ex-
tended, and developed into what was soon an unlimited
system of police fines. For carrying out these measures,
periodical poHee-court sittings were instituted in the several
hundreds under the name of " tumv^ vicccomids " and " vuus
frankpleefii." The more the judicial functions of the sheriff
become curtailed, the more prominent is his character of
police official.

4. His office finally as Bailiff' of the royal demesnes (gerdfa)
develops into one of high importance, owing to the form of
the Norman administration. As in the Anglo-Saxon period,
the management of the royal demesnes is now entrusted to
the Vieecomes to administer them as a steward within his
district. He takes over these demesnes with the stock upon

The Norman County Government.

143

them, he makes good the deficiencies as they occur, and covers
his diBbarHements by deduetiona from the rent according to a
fixed Bcale (Madox, ii. 152). In many counties the remainder
of the estates which had been assigned to the Saxon Shir-
gerefa to provide his ofiicial income (reeveland), were added
thereto. The sum total of these estates forms the "corpus
comitatiLs " out of which the annual rent due to the King was
primarily payable.

In later times, when the "corpus comitatus" had become '
greatly diminished by grants {tiTvee datm), he only accounts
for the " remanens Jinnee post terras datas," and this too was
frequently burdened with current annuities and pensions,
which had also to be deducted. An important part of his
receipts is formed by the paytneats made by the tenants
to their royal landlord. The payments in kind, consisting
in com, provisions, conveyances, and manual services, ap-
pear in Domesday Book as having in great measure been
already converted into money, and according to the system
pursued by the Treasury, this conversion proceeds, until aa
early as the reign of Henry I. it haa become the rule. To
these again are added the customary rights to wrecks, trea-
sure-trove, and the other occasional sources of revenue of
the old regal finance, and also (in the province of the
magisterial functions) the rights to escheated and forfeited
property, to various dues and fines, and to the confiscation
of the movables (cataUa) belonging to executed or fugitive
criminals. •

The revenue accruing from such suzerain rights was extra-
ordinarily increased by the introduction of the feudal system,
and these accretions were more vigilantly guarded by the
Norman kings than by their predecessors. The feudal system
added relevia and other similar incidental revenues, the large
pecuniary value of which led to their being payable directly
to the court. At the time of Domesday Book the maxim
held good, that only vassals (tuini), who posseHS six maneria
or less, should pay their rel/^rium to tho Viceoomes. Those
possessing more than six niaiieria pay immediately iuto the

144

Constitutional History of England.

Exchetjuer (at all events this principle is expressly tucDtioned
in two counties). Do. 280, b. 298, b. (2)

To deal witb tbe numerous financial and judicial dutiea, an
official system became early establisbed, with its clerks (clend),
in whom we recognize the ancestors of oiu' uuder-sheriEfs. The
sheriff charges bis under-bailiff witb the duty of collecting the
dues and rents, with distraintB and summonses in the seyeral
districts {BalUvi Huridredorum) ; aud further appoints working
officials called " bailiffs " or " serrlentes" to attend on him
and act as messengers, and also travelling under-oEQcials or
baiUffs errant. Altogether the financial position of tbe sheriff
between the Treasury anil those from whom payment was
exacted, became soon so complicated, that (as in many
German states of tbe middle ages) a "farming" of the office
of sheriff arose, with a view of turning the uncertain revenue
into a fixed state income. Certainly there are to be found
among the sheriffs both farmers (ferm^rs) and administrators
{custodes) ; the difference between whom consists in the
manner in which they render their accounts. But " farm-
ing" becomes the rule, aud in many reigns can be proved to
have prevailed in nearly every county. The appointment
was sometimes for a quarter, or for half a year, but generally
for a year — not unfrequently too for a number of years ; but
yet always reckoned from year to year, and revocable at the
pleasure of the King. The rent is frequently the same that
the predecessor paid {antient ferm), or the old sum with an

(2) I eball rerei B);ain to the Nor-
man VicecoiuGs in bia character or
military coinuiissary in cap. 10, Hlb
special duties itf furnishing garrisone
tbi the BurgB BroH> from the fact, that
the feudal service of forty AvjS was in-
(ufBoicnt for ttie purpose, and that
paid Btimd in ); garrisons were absolulel;
necessary. Hence the freqni

nrl I

; for

horse soliliers nnd foot soldiers

^ . d more frequently etill in
tbe campaign B. (Dialogus de Sc,
Madoi. ii. 422: Mudoz, i. 220, 370,
Hlc. vhpre a diuburtsmeut of £1228 is
mentioned.) The Viceoomes u jtuUci-

ary is agatn referred to in cap. II, and
hia pneition as police magistrate in
cop. 12. The inenlion made of his
police functions in the legal books of
tliis potind is precisely tbe aoms u
(hat of tbe Shli-gerefu in the Anglo-
BoxoD period, e.g. in regard to the
peace tlmt he had to proclaim, Hen. 79,
sec. iv.; OS to siimuiouBeB, Hen. 41,
sec. v.; to diairainta. Hen. 6, 51; seo.
iv. : cntnplsinU relating to theft, HeD.
66. Fee. ii.

Tbe lege* iriU«/mi eBpeelBllyoonGrm
the old police fiinclions of the Shir-
gorCfn, I ahiilt refer at length to hit
flnancial dutiei in cap. 13.

TTie Norman County Government.

145

additional pajment (hicrement). The Exchequer accounta
show that a formal rivalry in bidding took place. Once, for
instance, the Chancellor, the Biahop of Ely, bids for the
counties of York, Lincoln, and Northampton. 1500 silver
marks down, with 100 marks additional in subsequent pay-
ment; whilst the Archbishop of York bids for York alone, 8000
ailTtr marks down, with 100 marks additional payment.

The farmer-general had at the same time to produce re-
spectable men to the Treasury, as sureties for the rendering
of an account that was now strictly controlled. Twice a
year, at Easter and Michaelmas, the sheriff appears in person
before the Treasury, These are the two seaccaria, meaning
terms for payment, which were previously announced to all
tho Crown debtors in the county. At every term a pro-
portion of the rent, and other sums due, " mmmancea," have
to he paid down as a provisional payment (" profer") ; then
with the presentation of the receipts follows the " visiia
compoti : " and in conclusion the " svmvia." Often, special
commissioners were deputed to investigate the conduct of
Blieriffs who had exacted payments without giving receipts,
or bad committed other irregularities, (2*)

(3») With regard to the rendering
of MCAunts by the Vicvcomea, tbe
"DiiUogiH do 6ea«!ario," ii. c. 1, 2. 4
(Mndoi, ii. 407-16), fiven the Bystem-

nretent n
tjmim ef

" Vid* ttaU
'a (hh dili^, qtiod m ad
m (7>i r»l ibi, in nratlSiie SaiiBti
Miduulit, el halieat ihi Ucian Quidii«id
(Ubi* d« rtltrf firma vcl nocn. el nomi-
malitit kKc debila ivbtrnpla." I'hm
fcliow the ievenil itomB, Under cer-
tain oiKDDistaiiUB it is eipreiBed in
•hupet tenn«, "alioquin tic U ai$ti-
gabtmiu, gu4id p<tna lua aliii BallirU
uailrit diJiitur in rx^mplum." (Madox,
1, 356.) Bepresentation in deliTcrins
•coouiila is oalj aliened hj special
rajal sandaieB, in luler timeH hr
•P«cis1 penDtasien of the prcsldi-nt. It
wai impenttive that at Itast one milii
•hoald be amongHt thesulislitutes, anil
Dot only " elerici." "quia, non defrl
eoi pro pfcunia ml raliodniii torn-
VOL. I.

prihrndi." (Miidni, ii. 415.) In eawa
where Iha iiBTBon from wliotn the bo-
countB lire iluf is o rnsial of the Crown,
short prncfEB i« toudi', with distrBiot
uu his fief or pcraonnl atrcst, but a
mila IB to be kept ID decent imprison-
neot. An admrniBtratinn of the whole
offloe by siilistltutea can only be allowed
by Bpecihl Boyal liceooe. In the Tiotnll
5 John a.'^iiuhriceaimegproaiiKeUario"
is met witb in ihia office. But other
coneiderationa are iUbo entertained with
regard to money paymenta. In 12 Joho
the men of the county of Doreet and
Snmerect pay 1200 marki in ailver,
"quod Rfx amttitual rii Vieeeomilem
da M ipti§ laUm, qui retideju lit in
oomilatibtu iOi*, tzeepUt W. Brimtrr*
el lull." etc. An objection of thil
kind to certnin persons ns BbcriSii is
not unftcqUDnt. In this way tho first
eeparote paBea occur, in which an elec-
tion by the county of their sheriff is
allowed in return for a monef payment.

146

Cimstitutional Slstory of England.

The eoUective office of the sheriff, as war commissary, Btim-
[tooning the lords and knights ; as treasurer, through whose
parse the finances of a email province pass ; as police magis-
trate, having to exeente judgments and maintain the King's
peace against the mightiest in the land, clearly shows that,
according to the notions of those times, only a Crown vatieal
or a skilled ecclesiastic was capable of administering snch
an office. The Norman lords despised no positions of gain.
Hence we find at times kings' sons among the sheriffs (for
instance, Kichard, the son of Henry IH.) ; the great justi-
ciaries of the realm, and other high Court officials ; the
Archbishops of Canteibary and York ; numerous Bishops ;
and sometimes even a highly placed Boyal Chaplain ; bnt
most frequently the names of Norman lords occur, to whom
the office of sheriff afforded a lucrative income in addition to
their landed property. Yet the system varied under different
reigns. Careless monarchs allowed the magnates to seize
the sheriff's office ; in a few cases the office was even allowed
to become hereditary, although the personal responsibility
was retained. But it was not until the reign of Henry II.
that the office became systematically filled from the ranks of
the newly formed official gentry; in the last years of this
reign it was filled from the same class of ofBuials as the
barons of the Treasury and the travelling commissaries. In
spite of the important position it afforded, the office remained
at all times a purely personal one, dependent entirely upon
the will of the King, and therefore revocable. The King had
accordingly the power of sepai-ating from it several branches.

LThus we meet in early times with special " foresters," " cus-
tomers," " esch eaters," "farmers" of towns, guilds, etc.,
and in later times special collectors of the talUig'ia of the
fifteenths and other subsidies. The King had also the right
to commit his burghs to the care of special burgh-bailiffs, with
or without a judicial and financial jurisdiction within the
burgh -district. He could also divide the judicial authority in
certain districts, and grant exemptions to towns, etc. ; all
these special administrative branches the sheriff must support

The Norman County Government.

147

with hie authority, whenever diatiainta and executionB are to
be pnt in force. The King could alao introduce modifications
into the conduct of the office ; for example, by permitting the
controlling power in extraordinary caaea to be exercised by
Bnbstitutes {e.g. for clergy in military matters). And he could
finally on this account depose the sheriflfs, singly or collec-
tively, a popular measure repeatedly resorted to in the twelfth
and thirteenth centuries. Ha might suspend them at any
time from office, place castodes over them, investigate their
conduct by commissioners, regulate their behaviour by instruc-
tions, and impress their duty npon them by new oaths of
office. As in the Anglo-Saxon period, there cannot be found
any trace of a right to the office, or of a right of the county
aeeembly to appoint to it, nor of an appointment by election. {2'')

m. ■SC&E ia.otal GobEmmtnt of ti)c Sbub-fifslrfcis within the
county is still principally regulated by the nature of real
property in just the same manner as under the Anglo-Saxon
ger^fa system. Through the Conquest and the feudal system
arose a change of occupiers of the soil, and with the change
in persons a new grouping of poBsessions ; but the old system
of property was in the main retained. The descriptions of
the estates in Domesday Book reproduce the modes exist-
ing at the close of the Anglo-Saxon period, under the partly
new names of " manors," " honors," and " burghs."

1. The vuinar, " manerium" or lord's seat, is identical with
the " mamm " of the Anglo-Saxon period, comprehending

(2°) Of tbp penaniilly high positiOD
of the alieriir DDmerous instanccB are
gireii l^ Maiftu. In the " Dialogns,"
S. 0. 4 (Madoi, ii. 417), itis. however,
«xpreMl7 stnled tbst the Vioecoinee
need nut be a TBssal of the Crown.
la IdUt timea the offlcinl iDBtructioTiB
of the VireiwiDeB axe nnmerouB: for
inriSDce, in 42 Hen. III., an uniTsrwl
oKtli of olfine a preacribed, wliioh
throws much light apon tbi> spirit nf
the adiainiRt ration. The Bheriffs miut
■wenr that they will impartially am!
promptly gtsut jnstice to [ho poor an lo
the noh man : that they will accept
nothing pereooalty or thruugb others,

etcept food and drink for a single day ;
Dot to quarter tbemeolves on any one
with mi)ro thnn ail horseii to lodge
with Done who is worth Icaa than £40
inMiiDe from reel estate, anil oat mors
frequently than onee a year of twice
at most, if invited, and then without
makieg a precpdent of it : tu take no
prew-nt exoeediog twelve pence; Dot
to take more servatita with them than
ncoesiiiry for their safety on circuit : to
Bee thnt these servanta do i
nd . .

I, wool, nioTsble' goods, raoney, or
's worth. (Miulox, ii. 14T.J

I

fte eeorls and dependants who had settled ronnd about it,
who for the most part (bnn a onion of neighbt
TtUala. Under the new tenure, the real rights of landed pro-
perty hue not changed their nature as fiefs. The nevl;
enfeoffeoNorman, alike with the Saxon Thane who remuued
in poBseasion, exercises the uso&nctaary rights of liis pre-
deeeraor, that is, collects the costomary dues throu^ ttw
managers of his estates, prtejtotiti riU«, reeves, baif^ OC
stewards. In the BTstem of police-sureties the villa, forma
ft lord's tithing, where it contains ten or more familie i. The
landowner claims the castomary jurisdiction over his people,
together with the extensions of it that have taken place by
grant, all of which are enumerated in the deeds of grant
nuder the denominations " saca," " soca," " infangtheft," and
" outfangtheft." It was merely a new name when this was
now called, in the language of the Norman lords, a " manor,"
ft name which first appeared with other Norman fashions
under Eadward the Confessor. The majority of the manors
wars now in the hands of Crown vassals ; a considerable
number also former Saxon Thanes. {Ellis i. 90.) The
Nonuan GoTetnment endeavonred to reduce all these judiciary
poven to me tmiform STstem, but certainly not to extend
them (vMlt ohap. x.). The Domesday Book, indeed, shows a
nomber of new manors which had be«n created by division,
but in the yeiir 1390 the statute " Quia Emptore* " put an
end fcff erer to the creation of new manors, (n)

2. T&« JhtmalMHi of lirdthipa (Hcmors) also reaches back
into the Anglo-Saxon perto<l, originating in a group of estates
lying elose together, ova which, in the system of police-
snreties, the stewards (frnpemti) of ssTeral lords presided

_ _j of Smbmt ■•;« m tbUows:

«M, tm dbwNi ml «HCi *M«r«i »m> (Blta.). SH. SS&.) As tothe teebniMl

f T ft w w u M« (Artir *Ka ^ yWtta* -nJUcOnC' -tcMn." - toU" io th«

^a frwuMirnM Bid*, of XSfia, *■ AHeRhOHcr Am DenlMhen

I, SnOtrnm. ChMlB. Hm- Reehto* (Ui|Mift 1860), L pp. 170-

I

The Norman County Government. 149

which lordBhips were often given a. " aaca et Boca " in an
.extended meaaure, and which were in certain matters co-
ordinated with the hundreds. The eucceasora of the Saxon
igreat Thanes are now Norman lords, who, following the
ifuhion prevailing in their old home, strove to form exclasive
[feadal lordships out of these nniona. We find in England
|ioand certain magnates a small court, a steward {dapi/er), a
1 butler (pincernn), a marshal, a chamberlain, etc. — their offices
' being sometimes even hereditary. The numerous venatoret,
and half a hundred other classes of higher and lower servants
mentioned in Domesday Book, point to the fact that in-
ferior vassals of the Crown also imitated this custom. The
Normans, fond of pomp, herein vied with the princes of the
Continent. But the Conqueror had taken care to assign
their possessions to the greatest feudatories in so many coun-
tiea, that their estate in each county did not differ greatly from
that of the inferior vassals of the Crown. They were not ahle,
either locally or temporarily, to consolidate themselves, since
the strict law of escheat often brought the same possession
back to the Crown several times in a single century. And
then the interest of the financial administration pre-eminently
kept these greater formations within limits, and, where a favour-
able opportunity offered, endeavoured to suppress them. The
principal seat of the lord, the " ciipit-t huraniw " of later times,
might indeed he a meeting-place of the under-vassals for
feHtiv-ities, investitures, legal business, and the holding of
manorial court days, hut it was not a superior feudal court in
tlie French style. The Norman manors are rather mere unions
of estates, which are all granted, transferred, and administered
alike, hut have not specific sovereign rights attached to them.
After the frequent escheats the "honors" which had thus
fallen in were often re-granted, diminished in extent, so that
later Treasury accounts distinguish expressly between lordships
of old and of new tenure. Finally, the prohibition to create
new manors also prevented the formation of new honors, {h)

(t) Tlio appellation" honor" is aleo tion. Heywond, pp. 188, 183, rightly
ruerely n new name for an old iostilu- points out that, wUete in Domoeduy

150

Constitutional History of England.

S. The Norman Burghs are in like maimer a continuation of
the special parochial and judicial districts, which had bi-en
formed, in the Anglo-Saxon period, around a fortified building
or a castle. Many were severely dealt with and laid waste
at the time of the Norman Conquest. WiUiam I. took them
over with their legal constitution, and incorporated the more
important of them immediately with the royal demesnes.
A list of them, about eighty in all, is given by Ellis (i. 190).
A number of such places, ■which already in the Roman times
had been civitalea, continued to be called "cities," which
name, however, has no reference to their constitution. In
the county system they often form a hundred, and sometimes
form several, as where an old and a new town are united
together. Like the counties generally, the royal cities, burghs,
and towns were treated aa special estates, and either incor-
porated with the corpus comitutus or given over at the royal
pleasure to special " Fermors " or particular town bailiffs,
cuatodes, provosts, etc. The Empress Matilda, for instance,
farms out London for ^300 rent to Geoffrey of Essex.
Where in greater cities several special guilds existed, these
again might he the subject of under-leases. For example,
in 5 Henry II, the Weavers of London pay five marks in
gold as rent for their guild for two years; the Bakers one
mark and six ounces in gold; in 11 Henry IL, the Weavers
twelve pounds silver, and the Bakers six poimds silver "pro
ffildii swi ; " and in like manner the guilds in Oxford and
in other places. It will be shown later on how the feudal
system began to compel the real estates not subject to the
feudal military service, to periodical contributions in cases
where the honour and the needs of the feudal lords required

Bnok the «r>rd "honor" Jb in eei-
ttiin cases met with, it isnsed alike for
the Innd and fnr the flef nf ordinary
TnBsalB. It wtui not uotil later titnna
tbut it va« us«d in preference for the
great fiefa : " Pottationet magnai, qwu
rf^goxvcanlhoitorei." {Henr; Hunting
don, " Do Contemptu Mundi," c. 23.)
Probnhl^ the eipreision be«Bne a
lechnioal one in the Tieosurj. So fat

as I cfin discoTOT, the name "honof"
is used io tlie Tceiuiuy tccotmta
after tbe time of Hen]'; II. for the
great posaesaiona of earle, of the Hi^
Conetdble. and of some few great tw-
bhU. Tbe collection of laws, wbicli
wBi maHo aboat the enme tiiDc, that of
the Leges Henrioi I., certainly aaee the
word for those posaessions, to whioh
Buveial nuxntria belong. (Q. □. 55.)

The Norman County Government.

151

it. Under the name of " tallaffium " a taxation of this kind
■was imposed according to necessity, and as a rule only repeated
at several yeara' interval. It was raised either from indi-
Tiddals or in gross ; in the latter case the hoUBeholda bound
to contribute agreed together, in their common pressing
interest, how it should bo raised. Frequently already existing
guilds of merchants, tradesmen, and bouse or land owners
undertook this duty of raising the laUiniiiim in considera-
tion of especial privileges. But it was still simpler when,
instead of tbe sheriff, whose accounts had without this become
complicated enough, the "men of tbe burgh" themselves
undertook to farm it. The King then demands bis " taille "
from the body of citizens, or from a smaller guild which has
undertaken the duty, but no longer from the individual, whose
possessions in this manner become again tax-free. In this
case a lit and proper person is presented to the Treasury, who,
on being appointed " town-reeve," undertakes with sureties
the responsibility for the due payment of the rent agreed on,
and collects from tbe individual tbe dues and imposts. The
ofBcial thus appointed is known throughout by the title of
" reeve," or " bailiff," in later times also by tbe Norman name
of " mayor." For some time an eager competition took place
between the citizens and the Vicecomes or some other lord
anxious to outbid them. In process of time, however, the
majority of tbe towns farm themselves, " /irma hurgi,"
" fee farm," and thus gain tbe first step towards their
independence. Ey a charter of Henry I. even tbe sheriffs
office for the county of Middlesex is, according to this system,
farmed out to the city of London, " ad firmam pro CCC
libria ipsia et ln^edilms euie ita, quod ipsi civca ponvnt viee-
comitevt, quern voluerint ile ga ipsii," etc. (" Select Charters,"
p. 103.)

Even in the Anglo-Saxon period tbe city of London, stand-
ing as it did in regard to population and extent of posses*
Biuns, on an equality with a county, by annexing Middlesex,
had gained for itself the position of a county. Its " wards"
may be compared with the hundreds. On the accession of

152

Constitutional History of England.

Eichard Cceur-de-Lion to the throne, instead of the port-
reeve, two bailiffs appear as town-reeves, and soon after this
a mayor, whose free election (uouiination) was granted to the
citizens bj charter (10 John). After Richard I.'s reign more
extended privileges for other cities spring np, such as
privilege of market, new guilds, a separate juriediction, and
free election of tlieii' own officials. From the jlrma hur^i
connected with a separate jurisdiction, proceeds the English
municipal law, which at the close of this period stands before
us developed in clear outhnes, but which only presents a
number of immunities with no special participation in the
general government of the county.

The separate government of the burghs was in the Anglo-
Saxon period especially seen in the case of the royal
demesnes. Besides these appear also the mediate towns
as a part of the possessions of the great feudatories, though
certainly in small niimberB and of small extent, in which the
lord of the soil collected for his own benefit the customary
rents and dues, and held his court. The burden of con-
tributing according to the needs of the lord attached also to
the persons of the inhabitants, and occasionally comes to light
whenever, in consequence of escheat or feudal guardianship,
such places temporarily pass " into the King's hand," and are
so entered on the Treasury rolls. This right of levying con-
tributions became, as everywhere, a cause of oppression,
grievance, and disturbance. How it was exercised by the
Norman lords we may judge from the fact that the towns
frequently dispnted the lords' right, and declared themselves
liable to pay contribution only to the King. For this reason
the King appears early to have protected these places againet
ill-usage. The very frequent mention of a special royal
licence points to a general control exercised by the Treasury
over these tallagia. "When lordships escheated, as so
frequently happened, the reservation was always made in
the new grant of them " that such places should only pay
ittUagia when the King taxed his own " (Madox, i. 7S6),
What after this still remained of the lords' right of levy-

The Nonnan County Government

153

ing contributions, finaUy disappeared generaUy through
purchase, (c)

It is beyond doubt the finance administration which has
before all else influenced the form of local government. In
the interest of a uniform financial control the royal manors
and the groups of estates were now left to the administration
of the Shir-gerefa in a still greater measure than in the
Anglo-Saxon period, so that manors and honors pre-eminently
appear as lordships in the possession of private landlords.
In the burghs, on the other hand, which were a bounteous
spring for the replenishment of the royal exchequer, a royal
special government prevailed, and was constantly endeavour-
ing to form independent communities in consideration of
heavy money payments.

(c) As to the Nonnan bnrghs and
the gradual origin of municipal iuw
out of the fusion of the modes of
taxation of the jirma burgi with the
grant of a police jurisdiction (court
leet), see in detail Gneist/'Gcschiclite
des Self-government," pp. 104-112, and
Stubbs, i. cap. 11, sec. 131. Relying
upon the great mass of records con-
tained in Merewether & Stephen,
"History of the Boroughs," 3 vols,,
1853, I differ in some particulars from
Stubbs, and hold to the view, that the
basis of the municipal law is the grant
of a separate municipal court, and that
the right of citizenship is hence
normally extended to all resident
citizens, who share in bearing the
burden of office, and paying the muni-
cipal taxes, *^ resident householders,
paying scot, bearing lot." The favour-
ite modem idea, of making political
creations proceed from groups of social
interests, has given an exaggerated
importance to the guild sybtem of the
English towns. The so-called ^^judicia
civitatis Lundonix^* as also the guilds
at Cambridge, Canterbury, Exeter, and
elsewhere, are voluntary unions with
certain limited ends and objects in

view, which have often an importance
at the first origin of the firma hurgi.
The Municipal Court of Justice (the
court leet) on the other hand, with its
legal procedure, could not be limited
to, or based upon, a private guild.
That the mediate towns are a com-

Earatively inferior creation, is proved
y the rare mention of them, the in-
significance of the places mentioned as
such, and the small number of the
baronial charters, when compared with
1500 royal charters, upon which is
based the formation of the English
municipal law.

In harmony with my deductions
Stubbs says (iii. 559): "In 1216 the
most advanced among the English
towns had succeeded in obtaining, by
their respective charters, and with
local differences, the right of holding
and taking the profits of their own
courts under their elected officers, the
exclusion of the sheriff from judicial
work within their boundaries, the right
of collecting and compounding for
their own payments to the Crown, the
right of electing their own bailiffs,
and in some instances of electing a
mayor."

Constitutional Hisiory of England.

CHAPTER X.

1. ^!)t BtbElopinent of tfte i2otman itlflitani ^oton.l

Upon the basis of the county government we have just de-
picted there ensued a change in the powers of the Crown,
which BhowB with startling rapidity the material sovereign
rights of the more modern pohty. Primarily it ia the
military power which, under the influence of the Norman
feudal system, presents new features in every direction.
Once the weakest point in the Anglo-Saxon pohtical system,
it has now become one of the firmest bases of the Norman.

1. The decision ax to war and peace was at the close of the
Anglo-Bason period still frequently made by the Witenage-
mote, and claimed by it as a right whenever extraordinary
services were required of the national militia. The limits of
this right were, however, not sharply defined; it was at all
events an established principle that the King could claim the
right of personally summoning his own Thanes. This last-
named right was now the nniversal one, since every vassal
of the Crown and every under-vassal had become the King's
homo. The mihtary oath of fealty is now taken to the
King's person, and holds good for his possessions abroad,
" extra regnum" as is laid down in the Charta, Will. I. 3, c. 2 :
"Statuimua ut omnU liber homo fwdere et aacramcnt-o (iffirmet
quod intra et extra Angliam WtUelmo regi Jideles esse volunt,
tcrraa et honorea ilUm, etc., defenders," (" Select Charters,"
pp. 83, 84.) This charter has, indeed, been enlarged with
spurious additions by a later hand, but it is probably genuine

in substance. In any case feudal service extra ree/num was
enforced by all the Norman kings, and it was not until
after the separation of Normandy from the English crown
in John's time that cases of direct refusal occur. The
Norman was obliged, in the interest of bis own possessions,
as well as in that of his countrymen in Normandy, and as a
condition of bis new possessiona on Englisb soil, to acquiesce
in the condition imposed, that of serving the King "intra et
extra regnuvi" The Anglo-Sason Thane had to be content if
he retained bis possessions on similar terms.

This was certainly the hardest requirement of tbe new
order of things, and one that met with a strong opposition
from the vassals. This fact explains the events fraught with
ancb important consequences at tbe close of William I.'s
reign. When in the year 1085 an invasion of the Danes
was seriously thi-eatened, the King, by means of a land-tax,
brought together a huge paid army of different nationalities,
and by heavy taxation and quartering of bis soldiers sup-
pressed the opposition that was still offered him. In the
following year all the greater landed proprietors appeared
willingly at the review held near Salisbury to acknowledge by
one great act of homage, that all Crown and under-vassals
were now the King's "men." And this act proclaimed that
the newlj' formed feudal militia was no popular muster, but
an army to be summoned by the ICing. At tbe same time
the royal prerogative of deciding tbe question of war and
peace was established for all time. As an extension of this,
the right of building castles was distinctly recognized as a
royal privilege. The " castellittio sine licentta" ia from that
time forward an offence threatened with the " migericordia
reijis" and severe penalties (Hen. I. 13, sec. 1 ; 10, see. 1),
and use was made of it in such an extensive manner that
William's reign marked a decisive epoch in the defences of
the British Isle. (1)

(1) For tho Normnn miliCnry g^steca uBefnl mntter Ii alsn oontnined ia
Mawholt.cf. OneiBt,"GeMibicliteiie» Grose's "MililBry Anti qui ties." Sue
Belf-eofenwneul," pp. CI -68. Some ilso remarliii in the "British Military

2. The equipment of the soldiery and the apportionment of
the contingents was in Anglo-Saxon times the subject of trans-
actions between tlie sheriff and the county aaaembly. These
transactions now assume b. different form. The Domesday
Book laid the basis of a roll of the Crown vassals. According
to the extent and the nature of the productive property it
could be computed how many shields were to be furnished by
each estate, according to the gradually fixed proportion of a
;£20 ground rent. The burden of performance was laid in the
first instance on the landed property of the Crown vassal.
But since Bomesday Book was drawii up, subinfeudation
had increased, and the actual burden of performance was
thus partly transferred to the enfeoffed under-vassal. The
manifold subinfeudations, changes of possession, forfeitures,
and divisions, were proved by the charters and writs preserved
at court, by means of which the rolls were ma4e to correspond
with the actual state of affairs. But, in consequence of the

Biography "(2nd edition, 1S46). The
inaoTutioni tire tbo strict personal
Bctilce based oa pro|iertf, Ibe nniroria
apportionment ncoordiiig to free pos-
■esaiau of real property, and tbe onm-
plete enforceineot of obtMlience. by tbe
paciBtimenU for felony, and feudal
penal tioB. This striet martial law was
■mtmdnced from Nonunndy. It is tine
there did not exist n military code
Khicb ooiild bave produced a written
Norman fendal law. But the fuuijul
ByBtem had alre&dy become deQned. in
its details b; tbe regulations of tlie
dukes, and by nu early estahligbed
legal and financial administration.
And iu Normandy, too, prooemiiiig
doubtloia from the Ijierareby of tbe
feudal system, and from the poeituiQ
of a eonquering tribe, a olaaa-priviiep
liad become developed in niitline. The
Franco-Norman feudal constitution of
tboac timirs waa inised upon the eeigno-
Tial idua, which made the great feuda-
tory into an bereditary Setgneur over
his nndei-TBssals, and whioli in after-
times, faTOared by the influencQ of
possession and similar iDt^rests, easily
toade this bund a etrotigDr auo than
that which bound the under- tusbsIh to
theii siuerain. In England an oppo-

site oondition of things existed. Tha
poiaession of the Norman lords was a
new one; the natinualitj and tbe
interests of their Sainn under-vassal*
opposed to theirs, and i

then

Nur

hom<

I the

eolleoted from all i . _.

Beignorinl idea cfluld not aocinnliDely
firmly estnhlUh it«elf hero. The i<>T-
tilled places the Conqueror oarehiUy
reserved to himself. As the Conqneet
advanced tha first care of Uie Con-
queror was tbe building of a forttesa
in tbe conquered tjiwn- The cxclasiTD
royal rightof fortifying nasties, though
doubtful in the Anglo-Saxon, is
certain in the Normau, period. Of
the forty-niiiH castles mentioned in
Domesday Book, only that of Amadel
in deecribed as existing "lempon
EdieaTdi." The castles of Dover,
Nottingham, Durham, and the White
Tower in the Tower of London, in el-
iatunce at that time, are not mentiuued.
This Tiumiier of strong fortiQcationB
with, for tbe moat part, atonding gar-
risons, certainly exercised a aevece
pressure upon the adjacent oountry.
Tlie remembrance of the Norman
" costle-tDen " remained throughmtt
the whole of the Middle Ages.

numeroua disputed eases and varjing conditionB, a perma-
nent roll of tenures was never drawn up ; accordingly, the
number of shields to be furnished was never oflieinlly deter-
mined. As far as we may conjecture by reference to later
statements, the number of shields may be &sed at aboat
30,000.*

But the Vieecomites were doubtless in possession of the
official treasury lists for their county. There was therefore
only now needed a personal order of the King issued to the
Crown vassals, and at tho same time to the under-vassals,
who for the purposes of the summons to arms are also
" homines regis." But einco the duty of furnishing, equip-
ping, and provisioning the troops belonged to separate estates,
this basiness had to be undertaken by the government of
the county. It was impossible to issue thousands of per-
sonal orders directly to tho individual vaasalB, nor were the
great feudatories the right persons to be addressed, as their
poaaessions, and with them their under-vassals and horsemen,
lay scattered about in many counties. According to the rolls
in Domesday Book, the estates of about 130 secular vassala
of the Crown were situated in from two to five counties ;
those of twenty-nine lords in six to ten ; those of twelve great
lords even in ten to twenty-one counties, and the possessions
of the great ecclesiastical vassals of the Crown were distributed
similarly to these (thirty in two counties ; about thirty in
three counties ; about six in from three to eleven counties).
The procedure consisted in a mobilization order addressed to
the Vieecomites, and couched in the following form : " Vice-
comili KancifB salutcm. Pr/ecijnmus Ubi quod sine dilatione
tummoneri facias per totam ballivam (nam Archiepiscopos,
Ejnscopos, Abbates, Priores, Comites, Barones, Mllites, et libere

tion. The ofBciat oompntntion, accord-
ing to which tho scnlage at the end of
tlie thirteenth century was caloulnted,
is biuad upon id eatiiuala of 32,000
koighta'-feea; but the amount of money
raallf railed fell far ihort of thiil
OBiioial* (StubbB, L 4B2>

* See nboTe, p. 130 note, (he atate-
MDt of Sugrave ander Uuary II[, In
the Ubtr tiger, the number of Icnighta
Whoooald be fumisbed b; the fiusals
of tho Crovn ia the ten ODunUe*
•onth of the Th■me^ i^ givea at only
8047, and these eountiua apparcnllj
' l»fourthof the whole populj-

158 Constitutional History of England.

tenentes, et omnee alios qui servitium nobis debetit sivc tervittvUt
mUitare vel seijantim .- quodque aimiliter elamarifaciat per toiam
ballivam tuam, quod tint apud Wigomiam in crattino S. Trini-
tatis anno regni noatri sejithno, omni dilatione et occa*ione
jmitpositis, cmn toto hujuemcdi gervitio quod nobis debent, parati
cum cquis ft armis cundum in servitium nostrum quo eis prKce-
perimus. Eodem ntodo acribitur omnibus Ticecomitibus Anglia,"
(CI. 7 Hen. UI. 3.)

The sheriffs then iaeued their proclamations to all burghs
and market-towns, commanding the vasaala to present them-
selves " at the risk of forfeiting their fees or of severe penalty
according to the King's pleasure." In time of greater urgency,
and out of courtesy, special commands could be issued in
addition directed to the great Crown vassals and the prelates,
and these commands were served by the Vicecomes. Every
vassal of the Crown had to see that on his estates so many
heavy-armed men were in readiness as according to the feudal
list it fell to his lot to furnish. The preparations for equip-
ment and provisioning bad to be made beforehand on each
separate estate, and it was the duty of the great feudatories
in each county to make one of their under-vassala or house-
hold officers responsible for this. As the total number of
the propertied Crown and under-vaBsals only supplied a por-
tion of the shields required, the majority had to be furnished
by the equipment of sons, relations, and free dependants
{servientes, mounted servants). Since, moreover, the ^rmsn
army at all times needed not only cavalry but also masses
of infantry, the vassals were readily content to furnish,
instead of the superfluous horsemen, a cori'espouding number
of archers or spearmen. The furnishing of contingents
thus became much more a matter of detail, and had to
be conducted according to the county-divisions. Neither
at the time of equipment nor in the field, and perhaps
not even at a review, coiild the soldiers of a great vassal
have presented a fixed unity, and hence the vassal's position
as hereditary captain (senior, seigneur) could not attain to the
importance that it did on French soil. But all these trans-

The Development of the Norman Military Power. 159

aotioDS were not matters on which the Thanes of the county
were to be negotiated with as in the Anglo-Saion period, but
the T&asal hnd to satisfy the royal officer that he had folfiUed
the datiea the feudal list imposed on him. (2)

8. The command over the collective feudal army belongs,
as a matter of right, to the King, as was the case in the
An^o-Sason period. All actual leaderships are based npon
his personal commission. According to the cavalry system
of the feudal militia, the collected troops keep their own
"comes stabidi" and their " maregcallus," as at the present
day their adjutant-general and quarter-master-general. The
constable and marshal arrange the troops into divisions and
companies, settle disputes as to precedence and field badges,
in the field as in the tournament ; keep the rolls of their men,
and give certificates as to attendance, by which a proof is
furnished to the Treasury respecting the feudal duty of each,
showing whether it has been performed, bought off, or re-
mitted. From these beginnings was developed a military
jurisdiction derived from the King. But as every standing
army strives to transfer to the civil commmiity the military
organization, the same was the case in a high degree with the
feudal militia, service in which was baaed upon real estates.

(2) As to Ihe reeruiting of the
tensiitR Me Gnwe, " Militnrr Anti-
qnitit«"(i.65). TtmnBB.'-EichBqui'r"
q>. 33), The orders iimcd to tlie
uwrilb celling apon them to snminoti
the ttoapg oppeat to be UDifomil?
bitted. (Madox. i. 653, 654.) Failure
to Kppou it in the case of the higher
elerg7 only puoishrHl with h^vy
0nea (amerciaments) — for inBtwire,
with aniDfl of 100 marks in silver;
in the case of seoalar rasaala depri-
latioo of their eatales appears to be
the immeiliuto conaequetim. (Madox,
i 662, 663,) In aJdition to the per-
■onal service of the Grown vafsal, the
prfMCribed number of henvj-armed
troop* had U> be furnished, for whimi
the expression "lerrtentn" becomes
gndnall; the preiailiog one. (Hej-
wood. 12!).) As a proofof the fulfilment
of military duty, either a ccrtiGcale
ftoto tho oommander-in- chief would

I

serve, or from the constable, the mar-
ahal, or one of his lietltennnta de-
puted for this purpose, or the "rotuJi"
of the war office, (Mmlox, i. 656, 657.)
Persons poaseasing a fraction of a
knight's fee, do duty for a relatively
short time : for instance, the half of a
knight's fee is computed at twenty
days each year. As early as in tbe twelfth
oentDiy these sub^^ivisions extend so
far aa one-twentieth of a fee, in which
case evidently only the honorarr rights
of the Crown Tuasnl. and not his per-
sonal service, are ooneemed. That even
clerics were snmelimes snmmoned in
person is proved by a writ (printed
in Bymer), addressed to the bishops
" eo qtiD jn'iurv'i. tan prtelati quam oiii
in propriii peraonU vrnire debeanl, ad
dijintlonem corona et reqni awfri " (41
Hen. nX). As a role it is only said
that the prelates have to send " milibu

160

Constitutional Ilistory of England.

The more the vaasallage began to feel their importance as
a great war-guild and dominant clasB, the more urgent was
their demand to have their constable and marshal for the
whole feudal army when upon the peace footing, as the feudal
militia in Normandy had long had its hereditary constable
and marshal.

After long hesitation tliia point was conceded. Under
Stephen, perhaps even somewhat earlier, a comtahularia and
a war marshalship appear established for the whole feudal
army, endowed with certain distinctions and fees. Over the
army in the field, however, the King reserved to himself the
personal command, in addition to the right of appointing
the commanding constable and marshal. The official system
extended to the inferior commands, to which the names
" conatabuhina" and "constable" were universally applied
from the highest ranks down to the lowest. Certain limita-
tions only were recognized in respect of the appointment, by
the King, of men chosen from the ranks of the greater,
middle, and inferior vassals. The maintenance of these limits
was rendered necessary by the indispensable military retinue
which accompanied the higher commanders, and not less by
the esprit de coTJta which, was rapidly developing among
the feudal militia. The skilled service of the cavalry re-
quired the practice and training of years, if possible even
from boyhood. The system of knighthood, with its admission
to full honours, and with the degrees of knight, esquire, and
page, was after the Crusades uniformly developed in England.
The tournaments flourished under Stephen and Richard Coeur
de Lion, From the obligation to full knight's service naturally
arose the obligation to take up the dignity of a knight, and
from time to time royal writs were issued to the Crown vassftla,
"lit arma capiant et se milites fieri faciant, sicut tenementa
sua qux de nobis tenent diligunt " {Rot, cl. 19 Hen. III.). (3)

(3) Ab to the oomtaaad of the feudal
militia, bog belov, rap, 16, " tlie great
officei ; " and the " Poetnge Reports "
(iii. li)9b}. Beginning!! of the guild
■jslem and the "maiter'B nnk" in

the PQTnlr^ are fonnd alretidj in tbs
Anglo-SaioQ period. (Turner, " Hiitor7
of tLe Anglo-SuionB," iii, 73-75.) In
the Anglo-Saion records, "Cniht" la
e. Uilerablj frequent term for tha in

Under the firm hand of a martial montirch this Norman
feadal army presents an imposing picture, and comes into
the foreground as the actnal baeis of the political and social
system. With this military organization the Norman kings
became, as none had been since the withdrawal of the Roman
legions, lords of the whole land. This mihtary force, assisted
by the numerous and strong works of defence, dominates alike
the western Britons and the northern neighbours, puts an
end once for all to the Danish iuTasions, and turns England
into a really united (^tate, possessing in point of power the
promise of a great future. In epite of all its outward pomp
and personal bravery, this feudal army suffered from the
defects inherent in all feudal militias — imperfection of dis-
cipline, tactics, supplies, and transport, and the want of
weapons effective at long distances. It was also probably
never collected together for important service, but was only
employed in-divisions and at long intervals in wars upon
tboj Continent and border-wai's, or to suppress isolated in-
surrections. But one thing was especially wanting in Anglo-
Norman feudal soldiery, a characteristic feature of the feudal
militia of the Continent— ^the " territorial" connection between
the undor-vassals and the great feudatories. This defect
resulted not only from the scattered position of the great
feudal estates, but still more from internal dissensions. For
several generations the former Saxon Thane did but reluctant

tinl followers. Still, k single inBtanco
of the Cdnfarring of the knigbt'a digoity
ia no proof of a militnry Bystem or n
pririlcje of rank formed from it.

Not Qutil the time of tbo Criuadca
is a powerful inSueiice upon military
*nd>ocialIJfe acquired by the kuigbtly
order. Ae to tbo royal ordioaQccB
sffectiDgtbelanrDBmoDt under Kichard
C«enr-de-Lion, see Lappenbcrg-Panli "
(iii. 280). This, moreover, as well m
ttie custom of "dubbing the knigbt,"
is made a sooroe of reTcoue, Out
«f the royal rhutors of the earlier
NoTOuut period, "armii et equit m
hau tnalrunnr," tlie proetioe oJ the
Treasury about the middle of Henry

m.'s reign, deduced the niuim that
every vassal, oven the under-vassal,
is as a home regit bound to cause
himself to be hnlgbted nt court, paying
the fees forthe dignity under a penally
forneglectinglodoso. (Madox, i. 510.)
Hence arose Ibe ourions circnmstanoa
that the taking up of the kaighf s dig-
nity wus regarded in England SB n
burdensome duty, and one which the
luajorit; endeavoured to escape, being
contented with tbeir dignity as "scu-
Inri'i " (esquirM) in the feudal scale of
dignities, tneii maxim being " lu/Ficienii
Aonor eit lumini, qui digBui hrmore til "
(Coke, " lul.," L 231, 233).

162

Constitutional History of England.

aervice as an under-vaBsal to the Norman lord who had been
forced upon him. And with the majority of the Norman
midei--vaB8aIs the case was no better, they being a collection
of Franldsh horsemen and farmers, who now figured on
English soil as lords, "rude upetaits, almost crazed by their
sudden promotion, marvelling how they had attained to sneli
a position of influence, and thinking they could do as they
liked " (Ordericus, iv. c. 8), Eeal loyalty between the small
and great vassals was thus, in the early Norman days, almost
impossible ; and with the decay of the royal authority under
the usurper Stephen, the small vassallage broke up into a
violent irregular soldiery. The mihtary state still lacked
national unity.

These weaknesses of the feudal militia, and the ever-recur-
ring conspiracies of the great vassals, caused the revival of
the old Saxon national militia more than a hundi-ed years
after the Conquest. Disunion in the royal family itself, the
influence of the Crusades, the evil estamplij of Normandy and
France, and the dissensions with the Church, at that time all
combined to make the feudal array an untrustworthy force,
against which the King himself sought for some counterpoise.
In accordance ^■^ith the established principle of the Norman
crown, the old right of summoning the national defence
(fyrd) had never been abandoned. This force was once called
together by WiUiam Eufus, although primarily only for the
purpose of extortion. (Huntingdon, a. 5, "Will. II.) In the
North Country the national militia, under Archbishop Thur-
stan, had won the battle of the Standard against the Scotch,
and again in 1173 the popular araiy of Yorkshire, under
the command of the faithful barons, had warded off the
Scotch invasion. This was followed (1181) by the new legal
ordinance of the Assize-of-Arms (27 Henry II.), which con-
tained the following provisions. Each owner of a knight's
fee (not merely as tenant, but by virtue of the universal duty
of the community) is to possess a suit of iron armour, a
helmet, a shield, and an iron lance, and moreover eveiy
knight is to have as many suits of armour as he has knights*

The Development of the NoTTnan Military Power. 16S

fees. Every secular freeholder, posaeBsiug in movables or
rents ekteen marks, shall in like manner possess a suit of
armour, helmet, shield, and lance. Every freeholder of ten
marks in goods or income shnll have a hreastplate without
arm-pieces, an iron helmet, and a lance. All burghers and
other fireeholders shall have a stuffed jerkin and iron helmet,
and a lance. Each shall swear the oath of allegiance, and
that he will keep these weapons for Bervice at the King's
command, and in loyalty towards him. These weapons may
not be sold or pledged. In the hundreds and hamlets district-
commissions (consisting of men possessing not less than six-
teen marks rent in land, or ten marks in movable property)
are to be appointed, to assess property for the land army.
Eoyal Commissioners are on tboii- journeys to make lists of
the names of those bound to this duty, and to swear them in
to obey the royal "assize." Freemen only are mentioned,
and it is expressly laid down that only freemen shall be per-
mitted to take the miUtary oath. Apparently officers (con-
stables) bad already been appointed in the several hundreds
for this militia, which was a force not dependent on feudal
tenure.

With the general summons of the Uberi homines thus
established — the national army revived on a new legal basis
— ^tbere could also be combined the summons of the feudal
militia, as was actually done in a ease of great war-peril in
the year 1217. (" Select Charters," 343.)

In another direction also, at about the same time, the
national influence of the insular position of the country, the
climate, and the mode of life made itself felt among a portion
of the feudal tenants. The conquering race had long felt
itself secure in its possessions. For more distant warlike
expeditions upon the Continent a uniform levying of English
fendal forces appeared neither equitable nor, in consequence
of the short time of service, feasible. Hence, from the time of
Henry II., remissions of feudal service began to be purchased.
Varying at first, by degrees a scale for this so-called scutage
(scutagia) became fixed ; and thus the feudal military system

Consfituleonal History of England.

enters into the province of the financial control (see caj). 14),
as the basis of a new ajBtem of taxation. t

t The origin of "eoulage" in satis-
factioD of military Hervioe after ttic
reigii of Henry II, is carafully giron
by Madoi (i. 625 f / st./. nm"
(Sec Itclow. ca\j\. 13, seo.
second year of Honry II,
time, llie Prclatea icere,nn
of a cnmpnign n^inat W
Id pay twenty fBlhli on eL,
fee inBtend of fu niishing a ]

In 5 llcory 11. the teoa
oIbd oltaiu pEimigsioQ ts
raorl:^ for each eliield iiurt«f
serriue. From this tima a.jt-
of feudal aervicc by levSagi
more freqnent. Wlioro ■ —

were doiuunded, lliu comn
|)eared as a favour, whioll

time was not forced on tho recipieuts.
But later, when the taxes were filed
at a higher rate, and Ibe demand for
ige was more frequently made,
iine of Mugnu Chaiia dreir near,
I tho Eiug was obliged t« consent
■gotiate with his Crown ynwale on
iubj«ot of asBcfinug the laitagia.
Tent from this, and ixxiurring
earlier and later, woa the admia-
of n Enbfltitiite in cacee of apccinl
ranee, aa to vthich a money pay-
; (flna) wm mutually agreeil on
acb indiTidual ease, under the
ing, "ne (ranyVrinnf, pro rtma-
oi) txercUu, nt obcoi eum rtge,"
Uadoi, i. 657, 6S8).

( 165 )

CHAPTEE Xr.

II. 'STIbe Bebelopment of tjbe iSoman ^iuHtctal ^ofoet.

The judicial system, as the most permanent part of all
political organizations, was least affected by change in the
transition to the Norman period. Immediately after the first
preliminary settlement of affairs, William solemnly bound
himself in the fourth year of his reign, '' to maintain the good
and well-tried laws of Eadward the Confessor," merely except-
ing certain changes that had become necessary. (Sax. Ghron.
A.D. 1070.) It is said that he appointed twelve men versed
in the law to make a collection of all such laws and customs
as were in use in the time of the Saxon Kings. The Saxon
population clung to that promise out of affection for their
national system of law, and with all the more jealousy, because
it afforded a guarantee of personal freedom against the tyranny
and violence of the Conqueror and his followers. In all
historically authenticated cases it is apparent that William
acknowledged the ancient judicial system; that he wished to
do justice, and that he perceived therein a means of main-
taining and consolidating his new kingdom. From the time
of Henry I. that promise is periodically repeated. In the
meaning and language of the time, it was understood to
embrace the " lex terrse,** that is, the whole legal system, in-
cluding criminal as well as civil law, procedure as well as
positive law. The promise meant : '^ Bight shall be spoken
by the same persons, and for the same persons, and according

166

Constitutional Sistort/ of Eiigland.

^^ am
^^* Et

to the same forms and principles as in the Anglo-Saxon
days." ■

Justice is accordingly dealt out by the same pereons ; that
is, the Norman Vieecomca, as Justiciary, steps into the
place of the Saxon Shir-gerefa, and periodically holds the
customary courts in the county and hundred. The jurors are,
as in the Saxon days, the freeholders of the county.

A decree of Henry I. (Charters, 103) confirms this with a
royal reservation, " Sciatis quod concedo ctpreectpio, ut a laodo
comitatua mci et hnndred-o in illis loeis et iisdem, terminis scdeant,
Biciit sederunt in tempore regis Edwardi, et non alitor. Et si
amodo cxiirgat pUicitum de divisione terramm, si est inter
irones mcos duminicos, tractetur placitum in curia mea. Et si
eit inter I'avassores daorum dominorum, tractetur in comitatu.
Et hoc duello fiat, nisi in He remamnit. Et volo et prtecipio,
ut omnes de comitatn ea^it ad comitatua et hundreda, gtcut
feccntnt in tempore regis Edwardi."

The collection of lawe Icnown as the Leges Henriei
Primi, repeatedly represents the county courts as assemblies
similarly composed to those of ancient times. Formerly the
Hundred Court was composed of freeholders, but in the County
Court the Thanes were the regular judges, and the ordinary
freemen only participated as assistant judges, or as mere
bystanders. In the place of the Thanes stand now the Crowns
and under- vassals and the greater freeholders in their capacity
of free landowners. The customary legal system makes them
therefore judges: "Regis judicea aunt barones comitatua, q

" Ab to the consecutivB hietory of

the Angle-Norman jiiitioiai Bj'iitem,

Duf^alo'B trentiao, "OiigiQea Jori-

UicialeB," caDt&ina only antiquarinn

matter. Equally perpleling are the

scattereil remerks iu Spelmuo'e " Oloe-

tariDin." Here to the poinl, but oftan

r, is the Hkolch in Spenoe'a

"Equitable Jnrisdiotian," vol. L pp.

99-127. A better treatment of the

I wiliject Iweiiis with Eiiward Fosa'a

Lnork, "The Jiidgoa of Enghuid"

■ I. 1H43-G4. U vols. 8vo). The

nita ef the Qeimaa Ireatue b;

Biener, "DaaEngliBfiheOesohm ,

Qericht," lSfi2, 1853, 3 vole., nnd Um
treatises of Bruanor, Guuilermanii.Mii]
atliera are ver; great, It is nev well
cstRbliahcd that King Eitdward never
puhlialicd a. apecial co^e of laws, but
that 1>7 the"jDe^< Eduardi" is meant
the cuBtomary law of tlie conotrj at
the close of the Anclo-Boxon period.
This ia proyed by the espreBsion of
William of Malmiwburf (Geat. R^. if
11), "mm guod illn aluftun't, ft '
oinenaveriL"

urf (Geat. Rng- i^^m

The Development of the Norman Judicial Power. 167.|

^^

iiberag in cis terras liabeiit ; rillani rcro vel cocscH, vel qui avnt I
hijuMjnodi vili-8 ct iitopes pergonal, non aunt inter judicea nuiM' >
randi" (Hen. I. c.29).**

The same actions are now heard before the Normaji Vice- J
comes as were formerly heard by the Saxon Eorl and Shir-J
gerefa: " omnia cama tcrinincticr in comitatu vel hundredo vel\
halimoto aaaim hahentiuoi " {Hen, I. c. 9, sec. 4). In Uke ■
manner the regulations touching suit of court, show that
the County Court is to be the proper court for the highest
as well as the lowest classes : " Interaint milcn epiacopi,
<omit€a, vicedoiiiiui, vicarii, centcnarii, aUkrmanni, prmfeeti,
prapositi, barones, valraaores, tiiagrevit ct cMeri terramm domini
dUigcnter intendeiitea " (Hen. I. e. 7, see. 2). The duty of
the vassala to do suit of court (sccta) was a feudal duty, and a i
Saxon custom at the same time ; but representation was I
early recognized: " ai dapifer rjas legitime fuerit ; si uterque I
necessarw deait, prmposttus, ct sacerdos, et qiuituor de meito-j
ribas villa adaint pro omnibtia, qai nominatim non erunt <
placitum atibmoniti (Leges Hen. I. c. I. eit. sec. 7).

The procedure of the tribunals which the Saxon freeholder \
here sought, was the ancient one, with the Saxon writ of I
summons, outlawry, security, compurgators, and trial by
ordeal. The Norman, on the other band, preferred a pro-
cednre which, furnished with formal pleadings, generally
appealed to the duel as vltima ratio. The rule of law

** Hence ne have at firat the old
ootnpoBitioii of the Hundred Court
with ilB freeholdera, tho County Court
-with its TliaDi>s, In whoaa ploM) non
atSiDd hBTdl]' more than four hundred
Crown VRSsalfl and the eublenanUii
of Dnmesdaj Boob, A limitation lo
Crown tasaals alone, whioh haa been
vtteQ aaaertcil, ie perTeotl; aotenublti :
noHundied Court, and not munjCoanty
OonrtB, could havo bcuu Buffloientiy
«oinpoBod of the eiisting numbor of
the t«nenU$ in eapile. The tublmtnie*
of the Dotuesday Book am only to
a imall extent inveBteJ Bubvasanls,
but they were bi^yond all doubt
lOiere leaentti, acocrding to the inaaD-
■ag of the Anglo-Saxon cuostitutinn.

The dci^recB in the feadal rigiiae
came into consideration in the legal
HjsteiD only in ono special point, that

-i, cap. 2), n rnlo wMeh oatablisbea
the principle of the legal equality of
Crovn and nnder-Taasala u pana
In the County Court. As a foot in.
the province of the indicia] areleni b I
difTenmce between Crown and under' f
viuanU ia ayoided in the eiprewioa
lued to donate them, which embraoes
all freeholdera uliki.', " libere tenenta
et gui natiutntur curiam de eomilaiu in
eomilatu, etc. " Coram baronibui,
mHililiiu tl uinnibui liben lenmUSmM
tjiudem eomitaiui."

168

Constitutional History of ETigUmd.

L

which was needed to decide between the two Eystems had to
be determined by royal direction. One chief point, the proof,
the Conqueror had already settled according to a ju«
tequum {Carta Will. c. 6; Charters, 8-1). Bnt this was, afttr
all, only a chief point. Moreover, a trial which took place
with judges, lawmen, suitors, and compurgators, each of
whom claimed their customary law, whilst no party so mach
as imderstood the language of the other, was sure to cause
for a long time a terrible confusion, in which partiality and
corruption were not wanting. At all events, in this mixed
law, we find an arbitrariness on the part of the magistrates
both in procedure, proof, and judgment ; and a venality
that even allowed the ordeal to be avoided by a money
payment. With the poor the procedure was somewhat
summary.

The law to be applied was, as understood by the Norman
and Anglo-SasoQ litigants and judges also, heterogeneous.
After long lluctuations the necessity for a unity in this re-
spect brought about an arrangement, according to which
personal property was generally governed by the Saxon law,
real property by the Norman feudal law, whilst the personal
family law stood under the influence of the Church. Espe-
cially in the law of inheritance did the two systems claslK
The Saxon declared an equal right of inheritance in all the
sons ; Norman custom and the necessitiea of the knights' fee
led to the right of primogeniture. A middle course lay in
the maxim: " Primvm patris feodum- primoffaiitueJiUus Itabeal ;
entptiones vera ct deinceps acqiiisiiioufg suns det cni tnaijix
relit " (Leges Hen. I. e, 70). In the end the Norman law
triumphs with regard to landed property ; only where
numerous old Saxon owners of the soil dwelt close together.
as was the case in Kent, an equal divisiou of the land
amongst all the sons (gavelkind) remained a local custom.
But it is evident that it was no longer the judgment of the
pares, but only regulations of higher authority (in later
times the judgment delivered by the royal justiciaries), that
at this period were capable of laying the foundation of the

Tlie Development of the Nomtan Judicial Poicev. 169
English " Common law " as a oniTerHal law for all

But together with the retention of the laws of Eadward
the manorial coui-ts were also retained, as was tffken for
granted in the law-books, and emphatically recognized in
the "Carta Henrici I." The manorial courts already existing
coincided with the customary rights of the Norman feudal
lords ; though these latter were in some particulars more
extensive. In the mixed law which resulted, a feudal idio-
matic phraseology prevailed (e.g. the term " curia huronum "} ;
yet here the state of affairs, partly old and partly new,
required to be separated from ono another.

1. As a matter of coarse, the occupier of a manor claimed
jurisdiction over hia viltani, a jurisdiction extending over the
transfer of property, all disputes arising in consequence, the
reservation of services and performances, and disputes of
the tenants among themselves. Later legal language calls

••• The question oa to the form of
tliie procedure before tho Normiin Fire-
COlaa wiU alwujB bs % moBt difficult
o&B to Bolve. (BieDor "Engl. Gcsch-
vomeii Oericht." i. pp. 52-5U.) At all
events the old tradition tbat tho Con-
qoeroc bunuhed the Anglo-Suxoa Ibq.
xnoge from tbe oaarts is erroneous.
^The ohnrters of tbe flist Norniau kings
are IsBued in the ADglD-SiLSLoa Ian-
^DBgs u being the lungunge of the
coontry, a Inogiiitgo which William
bimMlf eodcavourcd to acquire. Latin
was ataployed as on official language
only ; oU official tranasctiona of tlm
Eichequer, aU judicial leBOripts, all
reporta of the oldest law snita. all re-
cords of the curia regit ittelt, even
under Iticbard I., aro touched in tho
lAtin language. It was evidently not
tbe intetitioB of tbe Cooqaeror to ao-
knowledge bisMorman feudatories oa n
raling class, b; recognizing their dialect
•a tbe language of the country. It
was generationa later before tbe Fienoh
language occaaionall/ appears aa tho
official language of royal ordinanoee.
Frenoh was spoken in tho courts, bat
this was a mutter of necessity, eeeing
that the Vicecomilen and tbe secular

great officers of the realm were for the
moat part Norman knights. Hence
arose the important position of the
clerks and under-officials as inter-
prctere and advocates ; hence also the
early development of a class of inferior
attorneys can be explained. A trial
carried on in French, with an Anglo-
Saxon nnder-vasaal or farmer, would
hnve been quito as difficult in ths
eleventh century as in the nineteenth.
Id the country and local courts litiga-
tion was probably carried on in it
carious jargon, about as confused as tho
rnlca of law were themselves. Only iii
the ceattal courts the technical froming^
of the procedure, and thu appoiot-
meot of Norman lords aa jndgee,
brought about an early awcodc-uey of
tbe French tongue, nhich ugHin luler
penetrating from the curia regit down-
wards, formed a French legal lan-
guage. Mow the procedure in tile Itojsl
High Court became formed uuilcr the
Lufluenco of thu clerks of the court,
aod the attoraoyi at the dose of the
twelfth century is clearly shown by
OlaDvUl's legal works. (See Pldllips'
History of English Law. ii. 97-334.)

170 Constitutional History of England.

this old manorial court sitting in civil causes the " cus-
tomary court," and centuries elapsed before tbo practice of
the courts allowed the peasant class the right to biing an
action for recovering their property in the royal courts.

2. The Anglo-Saxon rule, especially under Cnut, had already
extended the manorial jurisdiction to the allodiarii. The feudal
system now introduced the principle that to the mesne lord of
the soil belongs also a judicial control over the land of his
grantees. In consequence of this, the Norman landlord ap-
pears also to have claimed a subjection to his authority of
the freeholders who bad been attached to the fee of a vassal,
rendering contributions, protection moneys, or performances
analogous to the under-vassals. The practice of the Ex-
chequer regarded the " right to suit of court and service " on
the pact of the independent small landowners as naturally
included iu the gi-ant of the Crown fief. " As soon as a man
found himself obUged to do suit and service in the court of his
stronger neighbour, it needed but a single step to turn the
practice into theory, and to regard him as holding his land in
consideration of that suit and service " (Stubbs, i. 189}. The
private juriedietion over the libcrc tcncntcs that thus arose,
was now called "curia baronum" ("court baron"), iind it is
apparent from later circumstances that the Norman adminis-
tration uniformly recognized such an institution, at least for
the disputes of the tenants among themselves. The mode
of procedure was left to the custom of the individual localities.
" Placita cvjusque curiw secunduut consiielttdincs auas agitajitur,
Solent autcm placita ista in curiis dominoriim dcduH secunAum
rationalilcs consuetudinea ipsarum mrianim, qux tot et tam lartte
ut sunt, in scripliim dufucili rcduci iion jwasunC [(Glanvill,
xii. 6). The law books, therefore, pass by the procedure of
the Court Baron in silence, hut teach as an established prin-
ciple that it exercises a civil jurisdiction analogous to that
of the Hundred Court, in real actions as in actions of debt.
It was not until later that personal actions became as a rule
limited to petty matters not exceeding forty shillings ; before
bringing a principal action concerning a " liberum tcne-

The Bevelopnent of the Not

I Judicial Pow

171

incntum " the plaintiff wag obliged to sue out of Chancery
a " brei-e dd recto," acknowledging the judicial authority of tha
King, and his lordship paramount over all landed property.

8. The manorial courts of later Anglo-Saxon days also
exercised a criminal jurisdiction to an unequal and often to
a. Tery wide extent. Beyond this, according to the principles
of the feudal law, the lord of the fee claimed for the curia
/eudaUs a certain criminal jurisdiction over the under-vassals,
or at all events a right of distraint on movable goods, for
the purpose of maintaining military discipline. Both prin-
ciples appear blended in the Norman administration, forming
a uniform and inferior criminal jurisdiction of the curia
baromim over under-vassals, ^ libcre tcncntcs, and farmers.
This criminal jurisdiction, however, is confined to small
offences and thefts in flagranti. For financial reasons all
the heavier cases were reserved to the King, and grants
of more extensive rights were, from the Anglo-Saxon period,
for the most part reetricted.t

f Ab to tho Bjgtcw of tho Norman
curitiliaronum.me Biener, "Geschichto
(lar Ooschw. Gor.," i. 48'5G, Tba
later jiuisprudeiict diatinguiBhud u

com pone Dt
Til. ■ '•

;iril

undor-Tiuiialli and
freeholdcis in regnrd to tboir depen-
deut lands van felled Coott Bnron ;
tbe Manorial Court, in its original
juiisdidtioo orei tUme livine npon
defluid end dnmestica, was called Cub-
toraarf Cmitl. The Court leet, flnnlly,
mi ■ tofiil police ooiut uvor nil living
upon tbe land, flrat iosUtnted hj later
gnat The LegPB Henrici I. employ
tat the Manorial Court tlie term " Unf-
limotnm " (Hen. S.mx. i: 20, aen. 1 ;
57, aeo. 8 ; 78, ai^o. 2), which eeema to
belong to the more modcni fendnl Inn-
puBge. The most frequent cxpresaion is
" tara tl toea." The Leges Honrici I.
«ap. 80 eootain ftnt oT nil tlis general
rate: ~ ArrMepite/ipi, epiieapi, oomites
oloIJcpotetCafFt, in Urrit pnmriK polti-
latit iKC, Moeam et neam hMtiil, UJ tl
tluam et in/angatthea/ ; in atterii vera
per mnplionem, vd eambilionem, rri
^uofjuo modo perijtiiiitit loeaia ct caeam

ImJm^iiI, in eautlt o>n?it1iu>, ft liaUimotii
prrtiuetiWiui, tuptr mum tl in lUO, tt
alitptaado lupfr attmiu hmniaa." Of
oourao, the King has also the aams
lonnnrinl jariBdiotion over his own de-
mesnes: "oniniunt Urrarvm, qua* rex
in dominio ma hubet latam ha&^l ; qua-
rtiiKiain Icrramm maneria dtdit, Md
loenaia libi reltnvU tingtdarem et com-
rauntm. Nte tequilur loena rtgit data
manrria, ltd magii ett ex penonit"
(p. lit). The later Anglo-Saxon deeds
of grant eontain tlie clause : "eoncedo
n tibrrlaleia pienariam, id rit eaatm ft
toeam, tol et Iheam, et in/angttietkef,
monbruA, hemeixne,foritetl" (cr. Cod.
Dipt. iv. 167). That the sense of tha
words was no longer <<leuil7 understood
was no hindranoe to, but r.ithei a good
reason for, retaining them aa a fanDola.
Whan tho Norman Kings (lui Henry I.
OD hja ascending the ttirono) were
ohiiged to meet their Cmvra vnasals
with friendly nssnrantea, the manorial
tighta formed prunaril; ibe subject of
tU<«e proDiiaea : "Saeam in lerra et ■»
aqua, in liMa el in eampit, lolnetUBi tt
learn, yrJtAftreeam e( Aannoennni, /ore-
tUaitum el in/anglhic/, et in /•tgitim-

However well ordered theae judicial lUTangements might
appear externally, their inner life was defective and disordered.
The greed and arrogance of the Norman riceamiites and
vassals made these courts places of arbitrary dealing and
oppression. The rules of court and of law to be applied were
for many generations contradictory; the judges were kept
asunder in various ways by national antipathy. The Con-
queror had intended to have the more important customs of
each county determined by commissioners; but this work
could not be cai'ned out in consequence of practical difficulties.
The private codes which were formed at the same time were
entirely inadequate for the task. The conflict of the legal
conceptions of different nationalities left a wide field open,
which the partiality of the Norman country magistrate and
bailiff took advantage of for his countrymen and compeers, or
for the highest bidder. It is only from the occasional inter-
ference of the King, and the partiality of the ricccnnntes,
which is mentioned as a matter of course in almost every
contemporary narrative, as well as from the general detesta-
tion in which the office is held, that we can conjecture what
manifold injustice is hidden behind the silence of history.
These internal defects bring the Anglo-Norman judicial system
into a state of agitation, which by a continuous process of
pressure from the lower upon the higher class brings about
a centraUzation of justice, in the following order.

I. ®1)E local ColtitS become gradually Hmited. As private
rights of the landlord (rights of property) they still exist
unabridged, so fai- as the jurisdiction of the manorial courts
over the villmii extends; that is, as a "customary court."
The jiu-isdiction of the curia baromim, on the other hand, is
regarded as a personal grant, and can accordingly be refused,
"non sequititr socna regis data mancriu, scil mii<iis est ex
pcraonia " (Hen, I. c. 19). For financial and political reasons
the royal authority (different from that on the Continent)

rUTn reeepHonem tuper fomm }nvpTif)i iptuia aqairfrr dtberent et taper lam
homirut >iUra burgof ci extra, lam jilene mutfus tanomm guot ego ri> eoneeui"
ttlamdiTe«U,qHammi!iproprii'miHiitri (Lfc'sBoxon DiQt,,App. Cbart Ko.is).

TTie Development of the Norvian Judicial Power. 173

impeded every development of the court baron, and without
attacking it in principle, gradually neutralized the judicial
power of the mesne lords. Different cii-cumBtancea tended to
this rei^ult.

(a) The scattered position of the lords' possessions rendered
it an exceedingly difficult matter to form great feudal manors
in consequence of the great distances (Hen. I. c. 55). The
principal seat of the lord, the " eaput haroniee," might well
he a place of meeting of the under-vaasals for festivities,
investitures, and the like, but could bo no baronial court for
the collective vassals, no " coiir tie Imronie" in the French
sense. A court baron of this description was more important,
as numerous under-vassala and the personal presidency of
the lord could be added to the ordinary Ii'eeholders. But the
jadicial power of the great feudal lord, as far as can be proved
by documents, was only an aggi'egate of manorial jurisdictions,
not different in quality from the jurisdiction of a manor.ft

(h) To this was added the superintending and rival power
of the King as the highest judge in the land, which in the
spirit of Norman administration was zealously exercised on
account of the perquisites. The Exchequer records ebow that

tt The owners of the'grenter lord-
tsb'ipg, Bonounded by the ofncitlls of
tbcir bouaehDlds. held aok'mn JeudnJ
coqtCb (Modoi, i. 101), nod in tlieir
docuioeDtiimnde uBeofa stfle annlogous
to tb»t of tbe royal admin uttntioQ or
juatioe ; fuch eipresaionB tu "Dajnjero
ma> €t omnibui turonibui tnei> cl
AonintbiH m«'i Franrf* et AitglU," are
JreqneDtly to be found in the " ISonai'
iiewat A<iglieanwn" and in the
•^ FormuiaTB Anglicanam." But tho
scattered poBition of theii' lands did not
peimit iu practice of any olber relation
tbiiD that aZ intermediate Drown
vuBnlb The under-vamala could not
cmno from dietan^ea of twenty or a.
hundred mjlps to tbeir feudal courts,
in order to liold aittinga once a month,
after tbe foabion of a hnodred court.
With the raput larrmiie tbe juris-
diction of Mveral contignonB raanors
was often united (Heywood, 148); but
it never went beyond tbe scale of a
plurality of manon. "Although an

i distinct oonrts for eerend manora "
(BCTORgB, ai, S2, cited by Scfiven on
Copyholds, 6). Kogiirding tbe de-
fective nature of the manorial means of
eKccotion, see Scriven, vol. ii. 757. As
to the lending of lawmen, which in
later times no longer occurs, see Ellis,
i. 236, 237. By tbe atatnfe. Qaia
Emptoni, 18 Edw. L, tho development
ia legally curtailed. In the rare eases,
in which in later times tbe King
makes an heredilary grant of tbo
admin iatration of a hundred, this is
donewitb reservation of the jurisdiction
of the Royal Judges and Sheriffs. A
request of the landlords to have their
own prisons woa refused by the Statnte
of Marton : " Magnata petierual pro-
priam pritonara de Ulu, qnat capennt
in parcit et tn'rariii lale. Quod qui-
rfem dominui rei conlradixil, tl idea
d^ferlur."

174

Constitutional History of England.

judicial mandates proceeding from the royal court very early
admonished the feudal courts to administer justice under the
threat that in default the supremo power would intervene.
The " writs of right " directed to the small patrimonial
courts wero openly issued, as letters patent, and were
despatched by the Viceeomes, They contained the regular
clause, " et nisifeceris, ricecomes hocfudat, jii? ampUm dnmorcm
audiamiis pro defcctu recti." Every defect in this customary-
judicature was made use of for the same purpose. The right
of distresfl which belonged to the mesne lord is only a
sequestration without the right of sale. In cases of execution
the King must accordingly he appealed to, and the matter
given over by writ to the sheriff to he further dealt with.
Every comjilaint, that the manorial court refuses justice or
docs not properly admiruBter it, transfers civil as well as
criminal matters to the Royal Court ; in like manner appeals
by "writs of false judgment." Where the manorial court
has not been properly composed (which often occurred, owing
to the scattered position of the estates), the matter at once
devolved upon the Royal Court. All attempts made to form
a superior jurisdiction of the greater feudal courts over the
sentences passed by a smaller curia, are finally cut short by
the Statute of Marlehridge in the rule, " Nidliix dc cfetcro
{excepto domino regio) teiieat j'l'i'^tinn i« curia stm de faUo
judicio facto in cjiria tennntium suorum ; quia hujusmodi placita
apcr.ialiter apectant ad coroiiam et difinitatem domitii re^fis."

(c) Decisive reasons were also contained in the nature of
the law that was to ho applied. After the lapse of a century,
the administration of justice had become concentrated in a
class of professional judges. Compared with this arrange-
ment the formation of the private courts became more and
more insufficient. In like manner the mode of taking evidence,
especially the procedure with compurgators, " legis vadiatio,"
became less and loss practicable. "Whilst in the royal
tribunals a reform adapted to the times was introduced, which
developed a civil jury, and somewhat later a criminal jury,
they were still denied to the private courts, the insignilicanee

The Development of the Norntan Judicial Potrer. 175

of which rendered such reforms for the most part inapplicable.
The fact that the private courts remained upon their old
basis, -whilst an untiring legislation hrought the Royal Courts
important improvements, also contributed to the unavoidable
decay of the former.

(d) When in course of time great lordships reverted to the
Crown in consequence of escheat or forfeiture, these extensive
judicial powers were in the re-grants frequently withheld ;
and generally the snb-vaasals were made immediate vassals
of the King. By this means, and also owing to the ultimate
interdiction of subinfeudation, the courts baron lost their best
lawmen. It was next assumed that where there did not remain
at least two freeholders to compose the court, their jurisdiction
was suspended. AH these defects are seized upon by the
higher courts, and private jurisdiction becomes merged of
the county and royal eoui-ts of first instance.ttt

II. ©fit CDounty GToum, as regular country courts of the
liberi kominca of the realm, passed over unchanged, with their
two grades of Hundred-gemote and Shii-e-gemote, into the
Norman period. In their case aleo a curtailment of com-
petence took place.

1, The Ilundred Court appears with its monthly sittings
in the Leges Hen. I. c. 51, sec. 2, " Dehent aiitcm ad sivgnloa
menses, i.e. per annum duodeciea, conifrrpari kunrlreta." In
lite manner c. 7, see. 4 ; " Dehent aiitem hundreta vel wapcn-
tagia duodecies in anno congregari, ct sex dirhtis anif tmnmoniri,"
In Henry I. 41, sec. 6, it is repeated that a kliifanl shall

ttt Ai B. oonnterpoiae to the greftt
fisiidAl lonle, tUe oppoeile maxim vaa
followed in favour of the townn. hon-
don and certuio lurgei toscna obtaiucil
by privilege a mayor, or a. town-roeve,
nbo Rpparently excrcj«ed the whole
oriminal and ciTil jurudtction ol tho
VioeoonieB, and entirely aupeneded
bim. Other towns ilIso, in order to
lighten Uieir judicial dntieii, begun to
•how a coQBtant tendeocj' ta Torm a
■peeial court of their own, nliich woa
■Mrimble for the wanti of a mare closely
packed popiiln.tion. Such f^rants were
now made b; the king, an lonl-pora-

mouut, by charier, according na tho
necesBity of the case retjnired. or on
petitioD, and on the pujiucnt of high
(iiiei. la tho biihops' goes the ghinta
are generally old ; in abbey Inndi thoy
took place regularly. In certain char-
ten of Henry li., a cmDplote eiemptlnn
ttata all interfuronca of tho Virtnrniet
is pronouuwd, and ooniienuunt immu-
nity from the suit of court intliomimty.
Under John grants were made in great
nuinbetB, which, in the order of thingi
exUting in those doys, created, at all
oYcntB, a special "court loel."

176 Constitutional History of England.

present bis accused man at the hundred. But beyond doubt
the hundred court suffered considerable damage from the
fact that the court baron became extended with the competence
of a hundred court to under-vassals and Vtln-rc tencvles. The
hundreds appear almost everywhere broken in upon by mano-
rial courts ; and, omng to the dissensions prevailing among
the lawmen, give the feeblest possible guarantee to the weaker
against the stronger. It is scarcely conceivable how, at this
time, considering the number of the hundred courts, an ade-
quate composition of them was possible ; but it is very easy
to understand that tho yicci-ome», overburdened with business,
had little inclination to hear, twelve times a year in each
hundred, small civil causea which brought in only small fees.
From the supplementary relations, which always subsisted
between county court anct hundred court, it followed that
numerous civil actions were brought into the county eoort.
That the hundred court was, notwithstanding its apparently
Bmall judicial activity, regarded as a regular district conrt,
is explained by the tenacious adherence of the people to a
judicial system, which was the last buttress of the social con-
ditions of the ordinary free man. The character of lawmen
in the hundred court remains the legal mark of the Uberi et
lerfales homines, who keep their position by the side of the class
of knights, and who furnished the most numerous members
for the later important trials by jury.

2. The County Court, now " Curia comittitus," has, from old
custom, jurisdiction in more important cases, over actions
brought against Thanes ( now " milites"), and other influential
persons. Already in the Anglo-Saxon period its relation to
the hundred court was a supplementary one. From the
sphere of the hunth-ed courts and courts baron, a number of
civil causes are now brought thither. Of criminal offences,
■we find mention most frequently made of thefts and smaller
offences [metletie, vcrhcra, phigiB, transgrcssionce). The ac-
cumulation of business brought it about that later {as decreed
in Magna Charta) twelve sittings were held annually. Even
the Leges Henrici51,Bec.3, say, "Comittitus his,sinoii sit opu»

Tlie Development of the Norman Judicial Power. 177

ampliua, congregari." It appears, therefore, that in addition
to the two legftl Shire-gemotes, prorogued sittings were in-
troduced, to which, as instituted court sittings or " county
courts," only the interested parties were summoned. But even
thus the coimty court was inadequate to settle the great
number of small criminal cases. Hence from the county
court a " tumus Vicecomitis," " Sheriff's Tourn," was separated
off — a new institution, belonging to this period, according to
which the Vtcecomes journeys, at least twice a year, through
the several hundreds, and, in the capacity of Koyal Com-
missioner, disposes of the petty misdemeanours, which were
most practically dealt with at the places where they were
committed. This tumus Vicecomitis is not to be regarded as
an original institution of the hundred, but as a branch of the
county court, by virtue of royal commission ; which is referred
to by Henry I. c. 8, sec. 1 : " SpeHati tavien plenitudine si opm
est, ilia in anno convcniant in kundretum suum quicunque liberi,
torn kvdefest, qitam folgarii, ad dinoscendum scilicet, si decanie
plerue sint, etc." Similar delegations to a commissioner were to
be found in Normandy. On these circuits the whole male popu-
lation of the small districts appeared for police purposes, whence
it followed that the name of people's court, "court leet,"
was customarily applied to these court-assemblies per delega-
tionem. Under the Norman fine and fee system there arose
from them a local pohce-court (cap. 12), which was further
a subject of grants to landowners and parishes. From the
position of the Vicecomes as royal commissioner, it can be
seen why the Tourn is regarded as a royal court of record,
whilst the old Anglo-Saxon county court is not one. In the
multifarious business thus brought before them, the Vicecftmites
make use of their higher bailiffs as substitutes; the lower
bailiffs are employed for summonses, executions, and service
at court sittings. (2)

(2) The count; and hnodred courts
hsTe or M Anglo-Snxon inBlitutioDii
piworrcd most faitbfnll; their orif-LDal
Harm, nntl uc find tljut ibe Li-'gis Uen-
riei, cc. 7, 8, 14, 11, SI, and a number
VOL. 1.

of other passages, deaoribe the ooDnt;
and hundred oourts purely io the form
in which tlie NormnoB found them.
Kon that the ahcritf, according to the
oew arrangcmont, musi twice a joar

a

Constitutional History of England.

Numerous and important as the comity eauBCB now became,
a diminution of their competence is very soon visible, owing
to the royal reservation of actions touching Crown fees, and
of the heavier criminal cases, of the extent of which we shall
have to Bpeak later on. In the county court also is seen
a tendency to go higher ; the reason for which must be sought
in the partiality of the sheriff, and, still more, in the state of
the law and judicial decisions. The duties of members of the
village communities to act as judges (in Germany styled
Schofen-Verfasgung) cease everywhere when compound modes
of property and social conditions take the place of simple
and uniform tenures. In Anglo-Norman England, the law of
possession had from the first to develop itself out of discordant
elements, by applying the Norman feudal law to Saxon modes
of tenure. In like manner a unity of legal views on the part
of the judges was prejudiced by contrasta of nationality,
and gradually, too, by those of the modes of tenure, in propor-
tion as provincial, civic, and ecclesiastical legal spheres came
into daily collision. The diversities of interests and views of
social life, as it became settled, effaced the sense of legal unity ,
and made it necessary that the development of law should
proceed from State authority. Decisions had here, at an early-
period, to be gatliered from interpretations and analogies ; for
a customary law based upon the " legal customs of the com-
munity " would have been a different one in almost every
county, hundred, and town, according as nationalities were
confused and knights, fi-eeholders, and citiaens were blended
together. In a still greater measure was this true of criminal
law and criminal procedure, in which, for the maintenance
of the public peace, the most important principles had to be
modified by the higher authorities.

III. From this internal process of decomposition can now
be explained the position of the royal jurisdiction imder the

hold n pplioa-ooart (lurnun Viceoomitii),
ve mpet (aa early, inileed, as Iho I*g«8
Benrii'i I) with two snrte of oouite in
the bitnilrod — tbe great court fur the
Prank-pledge, the glierilTs Touru, held

twioB a year: and the smaller onnrt,
tbe earia parva huiidredi, held eveif
throe weebs, presided ovec by tha

The Development of the Nrn'man Judicial Power, 179

Norman name of " (Htfa ISegfs." Probably at the time when
the Anglo-Saxon judicial Bystem was confirmed, many reeer-
vations demanded by the feudal Byatem were made. Of civil
matters, legal difiputes as to CroWn fiefs were reserved to the
King, for his personal instruction of the court ; as were like-
wise differences as to ndvocatiiB, and the like, out of regard
to the state of ecclosiastical relations. The ancient judicial
authority of the King could also summon before him every
action from the lower courts, partly on account of dtfectu*
recti, and partly when it was assumed that in the lower
oonrt impartial justice was not to be obtained.

liwaa not intended by this, that for all such oases a special
floort of lawyers should be formed at the royal court. The
majority of such cases were referred by ooramiBsion to the
county court or some neighbouring county court, as extra-
ordinary matters, not lying within the firma of the Vicecomen.
Only in case of actions against the greatest magnates, the
King sometimes appointed a commission of prelates and
vassals of the Crown, to decide the matter at court. The
composition of the county courts, which excited little con-
fidence, and the want of unity in the principles of law, as
applied to rights of property, promoted an appeal to the
royal fountain of justice ; especially from the time when
special commissioner-judges {justiciarii}, who were free from
the animosities and eagerness for fees of the sheriff, began
to be appointed for this purpose. So soon as the way was
thrown open, under Henry II., a flood of civil causes imme-
diately swept into the royal court, which was now opened
on payment of fees, to the most varied legal claims. The
oondition of things resulting herefrom is shown in the treatise
of Glanvill, i. c. iii., where a considerable list of reserved
oivU causes appears, with the further addition " quodlibet
placitum dc libera tenemento I'ei feodo potest rex trahere in curiam
mam, qiiando vult " (cap. t.).*

' The JDriidictloli of the aMrfa rs^ Tation of emi oauxei was pmhnbly

will be rlucuiaed at greater leugth in originallf limited tn the provisioD in

coniiection with the oential ailmiaiB- the Carta Henrici I., toDchiog litiga-

tntum (capi. IS, 17). The royul re«er- tioo ni M Crown fees, (jlimvill, i. 3,

\

180

Constitutional History of England.

The course of criminal justice is analogouB. Here also at
first a reservation was made of certain more seriona offences,
such being in Cnut'a laws reserved to the Crown from the
jurisdiction of the private courts (Hen. I. 10). The mass
of the reserved cases was, however, at first assigned to the
county court for hearing. Only in cases of the prosecution of
prelates and the highest vassals of the Crown, and even then
only in a few cases, which are recorded in history, did the
Eing make use of his privilege of administering supreme
criminal justice through a commission of prelates and vassals
of the Crovra duly appointed ; and this criminal authority
generally commuted capital sentences into confiscations and
forfeiture of fiefa. But in this respect the royal reservation
increases, and even Glanvill reckons all "/elonim contra
paccm rajix " among the Crown cases reserved : even frays
and brawls, if they arc tumultuous in their character, " si
accusator adjiciat dc pace regis infracta" (Glanvill, i. cap. 2),
The heavy criminal offences appear now as "fehnise contra
pacem domini regis," and in regard to the mode of proceeding
as " phcita coronie." A better spirit is infused into this
portion of the legal administration by the severance of the
farm interest {firma) from the judicial functions; which was
effected by the appointment of royal justictnrii in the place of
the Vicecomcs. The reservation of the royal right of inter-
ference now develops into a periodical delegation of matters to
criminal judges."

_ m: "plaeil

baroniit, pi. de adceattionibUMt quatin
itatui, pi. dt dolSna unda nlhH, querfla
de fine /acto, dt homagiit facimdU, de
nUiciit recipiendii, de ptirpmtnrii, pL
debHi» laicorum." Ceitninly, a mora
estendcil meuDing is nfterwHiila given
br Glanvill's words (i. 5): "gttodlibet
ptacilum de libera tenemenlo vel/eado
fetal rex Irahere in curiam mam,

rndovtilt." Prom the time of Henry
begin the nomeroas oases oF paj-
ments for the aoctptnnee of tlie cause
Kt tho roynl court under the heading
" ne plaeitet niti ooram Bege de (ene-
menlu ivit ,- ns ponotur in placilvm aiti

Tbo ori(;LQBl rfBerration in
crimiual matters U Baninicd up oi
follows in the Leges Henrici, i. o. 10,
" JTea «nnC jura, qux rex Anglia mlui
et euper rnnnet homines habet in (sira
tita: infraetio paeli regim per maniiM
twi breve datx; danegildumi plaeitum
Itevlum vel prMEeptorum ^'ua onntenq^-
lamm; de famulit tuii uhicuitfut
occiiit vtl injurtalie; infidtlilat et
prodifio ; guieanque deefieotiM vel malt-
Wgiiititn de eo ; ullagar^a ; /urtum
morle impuni/um ; murifrum ; faltaria
mondjB ines; incendium; '

77ie Development of the Norinan Judicial Power. 181

The reign of Henry II. is a period of transition, which in
its oentraliziog spirit brings the more important matters
through travelling judges to the court (c«rw), and which also
by forming a body of profeBsional judges prepares the way for
/a more solid ajatem of justice in the whole realm according
to the principle of unity. The system of royal justkiarii
about the middle of this epoch forms such a connected whole,
that a special exposition of the central administration is
needed (cap. 17J. The transition to the administration of
justice by official and professional judges, which did not take
place in Germany mitil centuries later by the adoption of
foreign law, was accomplished here as early as the twelfth
century. Considering the tenaciousness with which the
Saxon population clung to their customary law, this would
have been almost inconceivable, if it had not been necessitated
by the bad state of the county courts. But it also goes hand
in hand with an entire transformation in the old participation
of the lawmen in judging, which change, as early as Henry II.,
already begins to assume the outlines of a civil jiu-y, and
noder Henry III. that of a criminal jury.

The great change which here occurs depends chiefly upon
royal ordinances, even upon quite informal instructions. Only
in the case of a few decisive innovations did Henry II. find
a conference with asscmbhes of notables by means of the so-
called " Assizes " advisable. Most new arrangements pro-
ceeded from necessity, and were begged for by the litigants at
court as a boon, and were moreover of such a technical kind,
tbat the improved administration of justice could only evolve
itself slowly and irregularly out of the practice and better

Jonttd," elo, Tbis pnesage is in pari
M Imnilatlou of tlie hases Cuuti, II.
13-iG. and it is duublful how old Uie
confusedly add^d clauges may be. At
the oloBe the nutbnr, however, adds;
"Tbe meaning of this reserraUon ia,
thai the bearing of thone meJTO scriouB
erimlnal casra dues not belong to Ihe
genersl fiirming uf juriadictiDn : ' Hkc
mtniDtimiiacaylacitaRegisneC'perlijiaii
Vietoi/milihtit vel ApparilnHInu vd

MinUlrit pj'im line drfinitii prxlocu'
tionibat InJIrma »i«i.' " It oooordingly
did not exclude the power of niuigning
all thess coses to the commiBsionera to
deal witli before the oonutj court,
vrhioh waa very frequently done until
Magna Cbarta. The aaaertion in Glon-
vill, i. 2, la more ci'liable, but it
famishoa no proof of the exact time of
eitensioD.

182 Constitutional History of England.

apirit of the magisterial body. Though according to the
State records aa yet published, much still remains defective,
the following may be taken as the situation at the close of
the period.

The judicature had been reformed by ordinances of the
King ; his admiuistrative power had to a considerable extent
remodelled law, judicature, and procedure. The arrangement
of the court had been transferred in all important civil and
criminal matters to the person of the Sovereign ; '
domini rfijit ipse in propria persona jura decemit" (Dial
cap. 4).

The judicial decision in these cases rests no longer with t
lawmen of the county, but with justiciarii appointed by the
King, for the most part ofQciaU educated in the law, to whom,
as immediate organs of the royal administration of justice,
the county courts, as inferior courts, are subordinate.

The ancient participation of the people in the administration
of justice is hmited to what in this altered order of things the
members of the community etill were, and to what they could
perform ; that is to say, to the determination of the qusestio
facti by commission appointed for this purpose, in the form
of a civil and criminal jury. The customary manner of
inquisilio by means of sworn committees of the community,
which was in use at the time of the framing of Domesday
Book, for the purpose of deciding on the royal privileges, the
levying of taxes, determining the degrees of mihtary service
accordmg to the assize of arms, and for the actual settlement
of local affairs, is now made use of to substitute a more
rational mode of proof for the obsolete modes of taking
evidence by means of compurgators, ordeals, and duels. ***

••• The (ievelopment of the Jury in oentmleovernmeiit. lUtetliataf Charle-

oivil oclione has been fully diicusseil msgoe. or at the Nunoaa kiagt, with

oad deturmined m all ilB l«ohnkn1 do- it« defective officinl gjatem, n«edi nn

tails in the great treatiaea of Biener, exact loral rertlfiealloD, it is b; the

Bruimer.ForByUi.undotbera.solhiit it nature of things referred In the terti-

auiBceB to notice the results. The mou; of the ttilla, the hundrahm.

conoeolioD of these leohnioal inrtitu- and the annitatia. Thia testimoDj

tioQS of procedure with the political can only bo practically delivett-d by n

orguniiation. is important for constitu- represenlotion of those bodies, that is,

tional bialory. Where an energetio by a pruvost aud foot a>ea toi tlie

Hie Development of the Norman Judicial Power. 183

At tbe close of this period we find the civil and criminal
procedure based apon a Bystematic co-operation of the Royal
Jndges with committees of the conununity ; and already in
Bracton's treatise the more modern fundamental principle of
the judioatnre is laid down in its universality "Veritas ire
jwratOTc, justitui ct jmlicium in judice " {Bracton, fol. 186 b.)-
The legal decisions which are now pre-eminently the applica-
tion of general laws, pass from the community to the official
professional judges. But the former participation of the com-
munity, consisting in passing Benteuce, compurgating and
giTiDg evidence, is reduced to the determination of the
" question of fact " by committees selected out of the body of
tbe hundred,

It is evident that thus the- judiciary powers of the King
have become something different from the formal and merely
supplementary judicial office of tbe Anglo-Saxon sovereign.
The King has become the " fountain of justice " in a new
acceptation of the term, a royal supreme judge in tbe most
extensive sense, and in sense until then unknown to the
Middle Ages.

viUata bj the daodeeim UgalM

kotHine* fur tlie hundred, uid h; the
twelve or mofe miliitwi, etc,, for the
nnnilatui. For the greater bodies,
tbnse of the hundrriliiTn nod tbe
EogliBh "burghs" tbii number of
twelre wiu fiied already in the Anglo-
SdioD period as tho proper repreBeuto-
tioo. Tbit combiuation of im action
ot tbe gaTemmetit with ad acMioQ of
the local bodies wdb node so neoeararr
bf the ctrounutanoes of tbe ciue, tbal
the Chnich with its synodal courts, arid
Charlemagne with his attempla of
•eotUar preaentmentH and remgnitiaaea
were obliged to take the same oourse.
Tbe material part of tbe iDnovation
conaisted, as Brunner remarked with
perfect truth, in the fact that the
ntagiilenal power of itself, by virtue of

iti oCBce, helpa to the furaisbing of
evidence, whiUt in the andent Ugii
actioaei lie proof waa purely the oon-
cem of tbe purties. So boou as tlie
principle of an oOli^ial determination
of evidence (inijuuidu) bad for ooce
and all bei-omu VBtabliiibed, the moiles
of l«king aueb evidence depended opoii
the ootiBtitutiou of the offices, and (lie
oQloial districla. In this sense a modi-
fied introduction of the Frimkiah in-
stitutions wliich hud long been in vugue
in NormanJy tuob place, and these
were now adapted to the English
e-omitaliiM, huitdreda, and villain, and
technicatly developed by tbe juriits
of the curia regit. The action of tbe
jury in oriminal affaire ii dealt with
on p. 189.

Constitutional History of England.

CHAPTER XII.

in. ^6e BEbdopmtnt of i§e Xorman police GEonttol

As the Anglo-Saxon Bovereign, in hia capacity of supreme
guardian of the peace, proclaimed the " King's peace" at his
acceBBion, so did also the Norman kings. This proctamation
(at all events from the time of Henry II.) waa regarded as
■valid for the whole of the reign; occasions, however, often
presented themselves for general and special proclamations
of peace. In the oldest Treasury records we find fines of five
marks, eleven marks, and f 20, "j'to pace fracta," especially
recorded against Norman lords. The oldest regulations on
this point are only repetitions of existing arrangements ; bat
in the hands of the Norman sovereigns they continually attain
greater dimensions.*

* TliHt the Nomuui national police
legulatioDS aie a coDtinmitinn of the
Anglo-Saxon systeiu of maintenance
of tbo peiioe is Bbown by the detailed
refercnPOB of PalgiBvo, ii. 105 cl Kg.
The dlfforeooe between the " Fax data
manH ngU," and the "nax o VieaiomiU
data," IS pat fornara in Henry 79,
■eoB. 3, 4 : the equul value of all imme-
diate and mediate peaea-pioclamatinnfl
in Edw. 12, eeca. 1, 27 ; as to its re-
action npon private feuds.see Bracton,
1 3. c .15, BM. S ; Fleto, i. 3. o. l(i,
•eo. 16 ; Britton, G8 ; and Alien, " Pre-
tDgative," 121. Ita conuectioii with
Ihe Anglo-Bainn poHi^e aecimt;/, in
eout^qiLODca of the cnnfused BtatemontB
I of tlie Legts Edunrdi o, 20. hag pro-

voked maoh oontroTCTsy. (See the de-
tailed nciiouiit in Waitz, "Dent. Vetf.
GtBch.," 2nd edit., 1885, p. 426-157.)
The author of that privale nilli>otioa
does not here qnoto the wolds of the
law, but onl; gives descriptioiia, in
i*)iii<b be endeavanTs to elucidate to
his cotitemimrariea (he ancioiil poUoe
system of the country. Tliu word
"Frilhborg" (according to Lambard
"Freoliorg") which there oconra, pro-
bably bcloiiga more to the pnpulor lan-
guage than lo Ihe laws. " Francpla-
giam" is the Norman translation la
the officinl ^-emiiculBr of the times.
Tliechangeaduringthe Norman period
probably coDsist meiely in the altered
method in which the Eicbeqnei, and

I. The Anglo-Saxon principle of police sureties is repeated
in the ordinance of William I. c. 8 (Charters, 84): "omnia
homo qui voluerit ae teneri pro libera sit in plegio, vA pltgius
eum habeat ad Justidam, »i quid offenderit. El (si) quisqvam
evaserit talium, videant pUgii, ut tolvant qnod calumpniiitii/m
eat, el purgent se, quia in evaso nvUam fraudem noi^erint.
Hequiratur hundredua et comitatus, sicutanteceaaores atatuerunt,"
In like manner the responflibility of the Thane for his
depenilants is found in the Leges Eduardi, c. 21 ; that the
vassala of the Cromi should have their miliiea and ser-
vicntea nnder their security, and these again their " armi-
gcroB vel aliis acndcntea." To establish an effectual control,
the Norman administration now iotrodnced an annual revi-
Bion of the police unions, the " viaua frattcplegii," view of
francpledgo. This revision was combined with the circuit
of the Vicecomes at Michaelmas, and lasted for centuries,
and in name even down to the present day: "Bis in anno
conveniant in hundrctuni stmm quicunque liberi, tarn hudefcut
qiutm folgarii, ad ditioscendum, si decania plenm sint, vcl qui,
qtionwdo, qiui riilionp., recfasflrint vel super accrevcrinl " (Hen. I.
c. 7). In these laws only general surety, a responsible pledge,
or two pledges are primarily spoken of. But the Norman
financial administration has in this as in other cases intro-
duced a more rigorous mode of exaction. The Norman
official, who had nothing in common with the communities,
summarily demanded the fine from the people tributim (in
gross), and loft them to settle the matter among themselves.
The result was that in this manner the system of police enre-
tiea developed into a mutual responsibility of the tithing, and
it can thus be explained how in the twelfth century the
private compiler of the Leges Eduardi considers the police
euretyship as a mutual one ; " ita quod gi units ex decemj'oris-
Jant, ad rectitiulinem nnvem haberent decimum" (Edw. c. 20,
Bee. 1), jft in such a way, that the guilty perpetrator, if dis-
covered, himself pays the indemnity (sijc. i). If he escapes,

the rayal mnglBtnleji wilh inoreiisod from the "DbBtmate and ill-diBpg«ad "
military and police povera. cxnct lliu comoiuuiticB.
fiucB lu tbe mobt luiuuiiiry fiuliiuu

186

Constitutional History of England.

and has no property, the provost of the tithing must make
compensation " de suo et friOihorgi " (see. 4). Following theae
pasBagea, scholars have erroneously invented a Bystem of
"mutual-surety" which they allege to have existed in the
Anglo-Sason period. The later law books also mention it
as being a duty incumbent on the community ; e.i/, Bracton,
124: " De eo autem qui fuffam ceperit, dUigenter inquirendum,
sifucrit in franrplegio et decenna, tunc erit decenna in miseri-
cordia coram justiciariie nosiria, quia non liabent Ijisum maU'-
fuctorem ad rectum " {see Fleta, i. 27, sec. 4). Certainly the
Anglo-Saxon law of settlement, the necessity of every vagrant
being received into a parochial union, could be most efifectu-
ally enforced by this system of exacting penalty from the
community in gross ; and thus it remained for centuries
an instrument for harshly treating vagrants and suspected
persons. (1)

II. This rigorous treatment of the tithing was followed by
an extension of the responsibility of the larger union of the
hundred. The insecurity of the Normans in the midst of an
exasperated population was the cause of the issue of a decree
by William, that any hundred should at once pay forty-six
marks, within whose houndai'y a Norman should be found
murdered, unless the perpetrator were captured within five
days. (Will. I. 3; Charters, p. 84.) Here again the royal
right to issue ordinances is conspicuously seen. A Saxon
"Witenagemote would most certainly have claimed the right of

(1) That from the first b transfer
of ADgln-Saxon inBtitiitlona vaa in-
tended, ia niBO aliown bv the Eiche-
3iier accounts. lu nmuberleaa tuses,
utricts wore fined For " haibuur[tig
an unknowQ perion without having
l&keii /raneplegitim of bim," and for
" harboaring a man who wru not in
the JranepUgmm," far receivitig a mun
"nithoutTothiag," and soon. (Madi>i,
L 516 cf Kq. 55.10 Bee in OerTitie (i.
565), where the handred of Psokham
and others are fined, beosuse they
wittingly nllow a man to Utb amoiigBt
them without ■•/runcjilegtuni." The
yearly roourring view of fmokpledge

laure, but one
which wnti not exactly essential to (he
eyatem, and in mnny districts vas oat
put into force at all. The later exer-
cise of it is flhown in Hagrna Cbaita ;
in Fleta, ii. 52. 72; Britton, e. 29;
Horu«'B "Mirror," o. 1, seo. 16, The
iuEtilutiau was not tntroduoed in lbos»
jirovincBa lyiug north of the Ttonl
(Piilgrave, li. 123), which fact sooma
to prove that it pruceeded from the
Conqueror himself at a time when
these northern ptoriuce
beeome included ic

e« had not jet^^

e Norman lO^^H

Tlte Development of the Norman Police Control. 187

agreeing to such innovations. But now the threatened Nor-
man community eagerly accepted an effectual protective
measure which the other party was not in a position to
gainsay. But soon the administration extended the principle
still further, so that, according to the Exchequer accounts,
a fine is charged upon the himdreds "in gross," as a subsi-
diary responsibihty, where the village does not poseesa the
means of paying the police fines it has incurred. (2)

in. A step further and a duty of presentment was developed
out of these beginnings. The necessity of not leaving the
prosecution of breaches of the peace purely to the pleasure
of the injured party, but of prosecuting them ex offi.ciij in the
interest of the injured commonwealth (the King), had even
in the Anglo-Saxon period led to a decree of iEtheh-ed III,
{3, sec. 3) ; which speaks of a presentment of breaches of the
peace "by twelve Thanes of the hundred." This decree
apparently remained isolated and was soon forgotten. But
the Norman Vkecoiiws, wherever he was confronted by the
Anglo-Saxon population, was from the first ordered to settle
local matters by the help of neighbours sworn in for this
purpose. The exact time at which a procedure of this kind
became established for police purposes, and whether it was
connected or not with Anglo-Saxon institutions, cannot be

(2) Tlie exteniioQ of the police ce-
■poiuibility to the huudredB in the
caie of murdrum rests upHQ a
direct ordioituce of the Conqueror.
(Will. I. c, 2 ; Chartere. 84.) llie in-
noration oonsiats in tho principle of
the responsibility of all tb« men of the
hundred, sepurately and colleotively,
aa well as in the euonnously high

GnAtty of farty-aii murliB in silver.
praotice this was reudL<reJ all tho
more acTere by the Icgnl pri'sumi'tiou.
that every unknown corpse is to be
considered as tliat of a NorUDn, until
proof given that the murdered mnu is
an Eagliahmaa. Tho author of tho
Leges KJoardi, in cap. 16, ropreatuts
the case, as if accordlog to An|.'li>-
SaioD legulatioiiB the forty-six murlu
were to be primarily collected in tlie
guilty villa, and aooording to the

newer regulation tho sum was to bo
gathered from the hiirnlred. to obrinte
the ruin of tlie small communitiea.
The Carta Wilhelnii ilself speaks of
the lord of the manorial court boing
ptimaiily answerable, tile hundred
making up the defloiency in the sum,
" ubi vera tubilaalia domino d^efrit,
totm httndredai tn quo otetno /aeta
eit uonimunifer lolual quod nmaneL"
From tlieee ordinances and the more
ancient usages, there arose in ptactioe
a subsidiary liability of the hundred
for other police penalties also. (See.
an to tlio frequent penalties inflicted
on the hundreds, MadoiL, i. R6&, and
tlie wliole scctioii on the subject of
amurciiiments.) The oounty of Shrop-
shire was exempted rrom thia s^s-
lexa, aa were also favoured oities like
■Worcester and Bristol.

188

Constitutional History of England.

determined. But when the Btormj times had passed by, and
the delegation of travelling commiBsioners from the court
{jvjiticiarii) bad become a standing institution under Henry
II,, the chief organs of the State were ready and able in
conjunction with the Vicemmitca to carry out and maintain
such a presentment. Traces of this institution are first found
in the Assize of Clarendon, a.d. 1166. The "capitula plaei-
torum corona" of tbe years 1194 and 1198 (Statutes of the
Healm, i. 83 et neq.) mention as an already established
practice that the travelling judges were furnished with forms
of questions, by which they had to examine the communities
as to punishable offences and tbe infringement of the royal
prerogative. On the Hundred Court days of the sheriff,
this was naturally united irith the view of frankpledge and
the other criminal and poKce business of tbe yicecomes. As
in the Assize of Clarendon, so again do we find the " tnquiM-
tioncB cnram Vicecomitibm " specially mentioned in the Btatute
of Marlebridge (1267), c. 25 ; in the stat. "Westminstor i. c.
11, 15 ; stat. Westminster ii. (1285) c. 13, according to which
the under-bailiffs of the exempted districts are to adopt the
same procedure. About the middle of the thirteenth century
the legal work of Bracton gives us a picture of a perfectly
developed system of presentment ; and still more in detail,
Fleta, i. c. 19, 20, ii. 52 ; Brittou, c. 2-21, 29 ; the Mirror
and tbe Statutum Wallias (1284). The travelling judges find
tbe representatives of the hundreds all assembled. By a
preceding proclamation, they proceed to form a presenting
jury in such a way that, out of every hundred, four knights
are appointed, who, as elective officers, appoint twelve
milites or Uba-og et Icgales homines. At the commence-
ment of the proceedings tbe free townships and districts
are bound, through the medium of their propositi, in ac-
cordance with the instructions contained in certain forms
of inquisition, to present the offences that have occurred
in the interim. The twelve jurors then deliver their verdict
on this indictittio, and further as to whether anything has
been withheld. The formula of inquiry — which included what

^^^7%e Development of the Norman Police Control. 189 I

the jurors tbus appointed knew of Crimea that bad been I
committed, and their probable perpetrators, of infringements 1
of royal rights, of official misconduct, and extortion on the ]
part of provincial magistrates and uuder-magiBtrates, and of
offences against the police lawa affecting weights and mea-
Burea, broad, beer, and wine — contained, with later additions,
as many as a hundred and thirty-eight questions. The twelve j
jurors of the hundred are sworn in with the following for- 1
mnla : "quod veritatem dieam de hoc quod a me intcrrogiihitis 1
ex parte domini regis." The answer given by the twelve jurora
is regarded aa an official indictment or presentment, and
can at once come on for trial. Until the close of the 1
Middle Ages we find travelling judges, sheriffs, and local J
courts, all exhibiting an inquisitorial activity which, through |
the formulated instructions, develops itself uniformly. The I
whole male population is accordingly assembldd at short in- 1
tervals, not now in order to find a sentence as lawmen, 1
but in order to give account of the way in which peace and I
order has been preserved, to take the oath of aUegianco I
when required, or to renew the same, or, finally, to present j
themselves for a formal police inspection. This system of J
ofBcial indictment led further to a change in the mode of ]
evidence ; since, as against the official indictment, compur-
gators and duels were out of the question, and SMing that - '
the ordeal, in consequence of the decrees of the ecclesiantical j
councils, bad fallen into disuse after the year 1219, A new i
procedure is thus introduced into the practice of the coorta; I
according to which the defendant is asked whether he la j
willing (in the place of the ordeal or duel) to submit to the ,
decision of his community {patrta). If he submits, the definite
question is laid before the jury, " an adpnbilin sit, vcl non."
Originally this might bo the same presenting jury which had
pronounced the indictatio, hut the defendant was allowed
a right of challenging individual jurors, by which means i
new jury was formed. In the following period this becomes |
the legal rule ; the defendant can always demand the em-
panelling of a new jury, which now, as a petty jury,

190

CoTVititutional Ilietory of England.

definitely delivers its verdict of "gailty," or "not guilty."
As the indictment jury proceeds from the decrees of Henry II.,
80 also from the practice of the courts under Henry III. was
the verdict by "jurata " developed. (8)

IV. The keystone of this police-system was the transfor-
mation of the turnvs Vicecomitis into an office' for examina-
tion and police-court, and the origin of the courts leet,
co-ordinated therewith. Owing to the circuits of the judges,
and the increasing centralization of the criminal trials, the
connty courts became lower courts for criminal oases, with
which the newly formed system of presentments could be

(3) The deTelopraent ot the prosent-
ment duty of the bundrodB und
PHrishes is, aa a rule, loferrcd to JEUih.
Ill, U, which treslB o( a prceentiDeiit

Cnounced bythe twelTO Thanea in the
idred, but which vas not long re-
taint'jl ID this ehape. and wliich perhaps
DoraT WBS carried out at all. Thia can
be explained in the «tme wa; oa on
the Cantinent. in the post-CarloTiiigtKa
period. As a, constitnt and Ann direc-
tion of tliD procedure by roynJ otBcerB
was wanting, the now iimtitution lie-
cajed; and continnod (as on the Con-
tinent) only in a ornmbiing form, aa r
preeentmout in emallor onmniunilieB ;
and of this wo fiod traces as in Cnut.
II. c. .TO. "And if a man of the
hnndred is so faitlileas, and is ao often
accused, and three men together aceuae
him, there renmiDa nothing for him but
tago throogh the threefold ordeal " (see
LeRtB Will. 0. 51). The Norman
Hystom of preBontincnt that was now
wing received arose from the new ad-
miaistrative system, which with its
Norman ofBoiala atandini; face to face
with a forcimi ali<l hostile population,
was obliged from the first to have local
BtatiBtii'B verified by persons appointed
" " ■ a for the purpose. " '" "

aint whether the i
miilei or that of
tidnries was the earlier. But thiB new
institution only booame permanently
eSMiys after there had boen founil in
the royal justloiarieH in their capacity
of cmiBBnricB, the inBtmments for eon-
ducting such a system of pri'sectment.
The oomiectioD of the '* petty jury "

with this system, after the abolition
of the ordeal, is shown in the volu-
minous literulure on the origin of trial
by jury; before all by H. Bmnner,
Bienor, sod Forsyth. The necessity
of putting the question to the indie-
lalia, wlietber he was willing to eub-
jeot himself to the Judgment of hia
community (patria), ie undoubtedly
due lo the fact that the now procedure
could not be called a "jadielum panttm
Mcundam legem terra-." AcoordinB to
the one opinion which Is repeatedly
expreased by Bracton, an obligation to
do so took the place of the former
obligation to submit to the ordeal.
Here, as there, a " tenetur" "eoauptl-
lUur" " eogeadvt eat " was inferred, by
virtue of whioh the refbsing party " (»-
ds/enaus et per hoe quati eonnXiH rw-
viaiiebit," Accordinuly the foil penalty
was imposed >'n eonlHniaciatn npoa
the person refusing. But the matter
was still doubtfoL The new procedure
WHS no jurfieium, as was assured
shortly after Magna Cbarta. Only
where the necuaed gave liis eipres*
sanction to the proceedings, did a do-
viiition from the customnry mode of
proof appear unobjectionable. Btit to
obtain this acquiescence coercive mea-
sures were considered right, a ■'prison
fort ti durw," yet withoat hloolsbed
and bodily injury, in order to adhere
strictly lo the letter of Magna Chwta.
In the year 1 275 this was approved, and

the n

irooednro generally directly

the statute Weatmincter

The Development of the Norman Police Control. 191

practically combined. From the thirteenth century onwards
the (urniw Vkecomitia appears a very effectaal mode of
bringing to the higher tribimala the official indictments of the
hundred for serioiiB criminal offencoB. At the same time the
turRU« remains a criminal court for petty offences, the
number of which increases with each generation, in conee-
qnence of later ordinances, especially of those touching weights
and measures, bread, beer, and wine. The summons of the
hundreds for the discharge of siich unpopular business, and
the extortion inseparable from the ofiSce of sheriff, render the
tonm a periodic public grievance. The sheriffs and their
bailiffs, who were often changed at abort intervals, often failed
to bring with them the local knowledge necessary for such
work. Hence, among thickly populated districts, a tendency
became manifested to form for themselves a separate juris-
diction for these summonKes of the whole male population
(which now were pre-eminently called popular courts, " courts
leet "), and by taking this burdensome busiucsa upon them-
selves, to be at least ijuit of the extortionate magistrate.
Through royal concession the bishoprics and abbeys were
the first to succeed in doing this. In return for considerable
money payments it was from the time of Iving John granted
to numerous burghs. But it was also the interest of smaller
hamlets and manors to form their own court districts, in
which a manorial magistrate was now felt less oppressive and
was less hated than the extortionate Vicecomes and his under-
bailiffs. The lord of the manor had the same interest, and
was quite as much inclined to exchange the old hmited
criminal jurisdiction of the court baron, which had become
odious to him, owing to the continual interference of the
Vicecomea and the ever-recurring penalties for alleged trans-
gressions, for a royal concession, which granted him a police
jurisdiction to the extent of the sheriffs-turn. The power
thus granted was more extensive than the ancient manorial
jurisdiction ; it had definite limits, and could not be disputed.
In the cotu'se of time this change was made in such numerous
instances among the old manors that a coui't leet became

I

192

Constitutional History of England.

almost a regular accompaniment of every court baron. Private
leets were now distinguished from the public leet of the Bberiff.
Nevertheless the private leet is merely a manorial court by
grant, an emanation from the royal prerogative jurisdiction,
a court of record, which in the King's name summons all the
tenants to suit of court {secta regis, suit royal) ; whence also
the non-appearance of those bound to suit of court may not
be arbitrarily remitted by the manorial lord. The object of
the grant is the right to hold police-court sittings (tourn)
for a smaller district, to exact fines and taxes (amerciaments,
fines, ersoiga-penee), and generally, too, a small court-fee
{cerium leUe, cert-money). The lord of the manor is only
entitled to the profits of the court ; but the court belongs, in
legal language, to the King ; " the day is to the King," The
holder of the court, the steward, represeuts the person of the
King, and must have the judicial qualification of the sheriff in
the tourn, and hence the lord of the manor most probably
cannot himself hold the court. For non-user, improper sum-
moning, or negligent administration, the Crown
the leet, sequestrate it, or definitely recall the grant
vacant jurisdiction then lapses to the sheriffs- turn. The
local police-court is a branch of the sheriffs-turn, and has
accordingly a similar jurisdiction over offences, which are
punished according to the common law and the customary
system of regulations, or which, according to the newer fines,
are referred to the leet, but not over placita coronx,
which may only be inquired into as in the sheriff's -turn, and
where the public accusation may only be laid by indictment.
It is, therefore, to use a modern expression, an " o£Bce for
examination " and a police-court combined. (4)

I {4> With Kgard to the origin of the

I loa '

I kn

I Kb

I lot

L liDi

■ die

■ (an

■ Bin

{4> With regBrd 1
local poHca- courts, coarii i*ei, hcu, lor
k mora detailed account, Gaeist, "Ge'
■chicllte des Seir-goTerameat," 90, 91,
100-103. Tlie court boron bail ooly a
limited tight of eseoution, and uojurifl-
diotion over the police flnei which

I royal ordibitncue had iiitraduaed
(amerciumeiita}. Tbo lord of tlx: mauor
also, who wished to have an eSeoluol

police-court for his manor, was obUged
lo ohtaiu tlie rojal grant of a. conrl
leet, which io pruccss of time beoama
thorulo. ThemiiaorialGlemauta appeal
also hero overah^owed by tho higher
judii-ial HDd police control residing io
thti Sovccuigu. But thepoEBeaaiuiiofa
nmnor is not a necessnrf condition.
SoniutlmeK also a court le>el is granted
for a Tilhigo or a single house. Like

. Hand in hand with this newly constituted tribunal goes
the development of a summary procedure in criminal cases,
which first gave to the police regulations their full efficiency.
As early as the Anglo-Saxon times we hear of a penalty for an
offence against discipline, for disregarding the King's com-
mands (oferhyrnes), which is paid with 120 shillings. (Edw. II.
1. II. 2.) In the Leges Hen. I. a similar disciplinary punish-
ment as a penalty for neglecting the royal commands, over-
a regis, is repeated and extended to further oaaes. The

to snmmon to Ihe court dsy tliose
boand \a suit of mtnrt. TliU nader-
officer lins also, alotie and iritbaut
the interftiri'iii^e of the steward, to
select and Bummon the jory (Smreii,
ii. 837). The steward opiiiB the onurt,
which, a« in all rofal cnurta of iaw,

the cbnrch advnwHoos in EDg:1and, the
leela became often sepuriited from the
enlatea. and nere separately inboiited.
The pToeedDTa before the leet is io Ihe
present day a mine of wealth forjudg-
ing of the procedure in tlie local courts
of U)e Middle Ages (of. the chief
authority, Scri Ten on Copyhold). The
ordinary court diiys are lictd twic« n
year, in the first mnntli uflei Easter
and Michaelmas. The oummltlees who
BBsist at the fiadiog of the Tordlot are
in later legal langunge called "juriea,"
bnt only in the senw of "juries of in-
gairy," jniit as in Uie sheriff s-t urn.
The dnty of attending court is not
» eonseqaenee nf a, manorial right, but
A dnty incumbent upon all subjei^tl;.
royal suit of court (suit real), and must
•ocordiugly be paid in person (with
eieeption of the hinls and clergy, as
proridodiD52UeDry lll.c. 10). From
the number prtHfjUt, the parish com-
mittees ore nest appoiuted. In the
, BheriffVtum in taCir limes ouly sititors
of twenty ahillinga yearly urising from
freehold or twenty-aii and two-thirds
IiMa copyhold were to be appointed
U form \hE coiomitte.. (1 Ricl>.UI. o. 4) ;
bat this provision only dates from tlio
«nd of the Middle Xpa, and was not
(by analogy) appliouble to the private
leels. The formation of the court leet
is coDipletely detached from feudal
principles, seeing tijat euit of oourt lias
no connection wliutevct with real estate,
but is attached to the fact of residunoe,
andHoordiugtothenlrict lettetextonds
to oil pereonBbetwfeutlieBgtis of twelve
and sixty, if tliuy bnve been resident
within the juriBdiclion of the oourt
for a year and n dny (Bcriven, Ii. 82.^
824). Under tbo maunrial steward
Ibere Qsists a bailiff, whose duty it is
VOL. I.

fallows the oonstitntion of the '
jury," of twelve to twenty-three per-
sons, which in many leets remains
a whole year in office, in others is
newly formed every court day. In
lighter criminal cases, the court leet
CAu pass sentence and inflict tlio
penalty, b^ fine, amoroisniDnt, and
ligbter pnniahments provided by Bpeouil
liLWs. Bucheasesnre, as in the sberiffs-
turn, fraya. offences agiiinat tbo beer-
house tegulatioDs, diHinlerly houses,
false weight, nffenoes Bg^n»t the police
retfnlations for bakers, brewers, but-
chers, and other trades, neglect to mcTid
tlie roods, failure to do suit of oourt,
refusal to utidertoka parochial offices,
etc., the general object being the main-
tenance of the publio pL'Bot) and the
removal of publio nnisani^es. After the
passing of the sentence (in mitaioardia
tat), the adjustment of tlie police flue,
"effeermenl of the amerotment," is
mode by two or three valuers, who,
in later tlmea, in ncBurdance with
the fundaiuenlol rules of Magna
Cliaita,mast be appointed from among
the pare*, and very frequently from
among the jury themselves. The
moiBure of the money-fiue cannot be
further called in question, for the writ
"Aa moderata mittricorilia" ia only
applicable to courts "not of reooid"
(Scrivet), iL 652, 853}.

I
I

I

194

Constitutional History of England.

Norman feudal Bystem brought with it a penal system as
a portion of ita military discipline, whicli the military com-
maudt^r carried out by inflicting feudal fines {emendit) upon
movables. Under the name " inieericordia," "merci," tiiis is
also known to the Norman jurisprudence, but is apparently
of little importance. But since, in England, the whole body
of landed proprietors have become the king's homines, this
fact enabled a criminal jurisdiction for breach of discipline to
be deduced to its fullest extent, which was sometimes applied
to the old case of the overhyrnes, and at others extended to
new cases. In the ordinary way this was brought about by
a double act : (i) by a Judgment of the Court, which declares
the guilty person with his movables forfeited to the King's
mercy : "in misrricordia- regis est de peciinia sua," that is, he
is guilty of an offence and liable to a fine;^(t) by an Act
of Execution, by which, according to the rank of the owner,
the forfeited property is taxed and charged with a fixed snm
of money, " admensuratvr," " ailforalnr," and when thus deter-
mined this sum is called an "amerciament," This last proceed-
ing was a consequence of the Norman financial principle which
in order to render a complete valuation practicable, reduces all
natural payments, including alao forfeited movable property,
as far as possible to money payments. •"

•• The onnneotioB between the Nor-
man system of am ercl amenta ftod the
Anglo-SnioD law can be i

follDK

[nks ;-

(a) The Angto-BaionoMdal penalty
inSicIei] on tlie royal gcrefa for n^lttot-
ing hia defliilte offloUl dulica, appaira
Id Atblst. I. eeo. 5. This i» eapaeiallj
threatened, where an unju at judgment
hat been pmnounced (Edg. Ill, 3); in
oaM of oamiptinn (Atblit. V. I sec 3] i
for foiling to attend theconrt day (f^«.
IL7,81: fornogtecting to exact pcnal-
tJeB(Edw. 11.2;; For Deglcatini; official
dntiea oonDetti d with Ibe preeervation
of tbe peari] (Atiilet. II. 26, pr. v. I,
teo. 2, Tl. S. nee. 4, etc.). f>ecin° tbat
an; oppoailion tu these diaoiptinary

Eunialimpntn woidd, aa u rule, Mrtuinly
lire brought aUiut a dppndtion from
otbr^ a auniiDary proveediiig could
leadily b« etuployed in saoh caaea.

(b) A further syatem of tbe "otst-

bymcs" is i-xtCFnded »b b dieoiplinvy
puniahmi-at alwi t/i sulijei'ts. who neg-
lect definite c.iurt and police dutiM.
eapecially neglecting Ilie unit of court
(Atldat. II, 20); neglivlingthemmmoiu
to Bpprebend the diwibeilient ■ ' '

t, l«rnre he bm

ived a

tiflrate nf diamisul from hia fonner
master (Edw. II. 7; AthUL IL BJ,
V.l: Edw.IILS; Cout,:>H): siidolBO
for noD-fulDIni«nt of a judicial (enteitae,
for purchasing ontxide thi* privileged
marki'ti>, unri ihc like. The punaltr ii
in all oucB 120 abillinin. The I.mm
Hen. I adopt thiecuatiManry law under
the iiHBi- of" armeunrtta " (Hen. 1, 34.
aeo. ,1; 35, aeo. 1: liG.S». 41. tec l;
411, lea. 1 ; 51, aeo. 7 ; S2, aw. 1 : K

The Development of the Norman Police Control. 195

The practice of the Exchequer has here again blended
Saxon custom and Norman feudal law together in a manner
that seemed most advantageous to the finances. The disci-
plinary punishment no longer takes the form of a fixed sum,
but is graduated according to ranks; for the upper classes
more, for the poorer classes generally less, than 120 shillings ;
according to the probable worth of the movable property.
The official fine imposed upon a gerefa who is liable to be
deposed, which in clear cases of neglect of duty had been
already inflicted in Saxon times hrevi manu, had now come
to be extended to all vassals, and even to the libere tenentes,
wilh respect to the performance of their court duty (secta
regis). An appeal to a judgment of court appeared, on the
other hand, a very dangerous experiment, since the royal
steward appoints the judging lawmen, and the fine was
proportionately raised where there had been a show of
defiance.

Thus the amerciament-system soon followed the arbitrary
system of the administration. The untrustworthy, disunited
composition of the courts of justice under the Norman praB-
fectural system is the real root of the encroaching police
control. The person accused generally forthwith declares
himself " in misericordia regis,^' and the fine is now fixed in the
Exchequer by the lower officials ; higher fines by the superin-
tending officers. In the most important and complicated

Bee, 1 ; 60, sec. 1 ; 80, sec. 9; 81, sec.
2 ; 3, 87, sees. 4, 5). It is expressly
mentioned that the old fine of 120
s^iillings is according to the present
ralne equivalent to 50 shillings. But
as the Norman feudal law is every-
where grafted upon Anglo-Saxon cus-
tom, so now the feudal maxim, which
gives the lord the rij^ht of Icvyinpr fines
on movable property, coincides with it.
(c) The newer system of feudal fines
is put into force as a natural attribute
of the royal lord. There were, as it
appears, no express decrees issued with
respect to it; the system was rather
introduced in the practict^ of thct Ex-
chequer in the manner described in
the ** Dialogus de Scaccario," ii. c. 16

(Madox, iL 439): ** quiaquU in regiam
majestatem deliquis$e deprehentlitur, uno
trium mttdorum juxta qualitatem delieii
qui regi condempnatur (1) aut enim in
universo mobili 9uo reus judieatur pro
minorH)U9 culpit, (2) aut in omnwus
immchilibus, fundis scilicet et reditibus,
ut eis exhxredetur, quod si (3) pro
majoribuB culpis aut pro maximi* qui-
huscunque vel enomnbus dclictis, in
vitam suam veJ memhra.** The " Dialo-
gus " then refers to the first case : ** cum
igiiur aliquis de mobiWms in ttene phtcito
regis judieatur, lata in eum a judiribus
tenientia per hxc verba: 1st* est in
misericordia regis de pecunia sua : idem
estcusside tota dixistenL"

19G

Congtitutional History of England.

eases ft special oommissioDU ns sent into the conntiy to
make the rating, and he rated the men of the county or
hundred by the polL The blending erf the fm«i>da feadtdi*
irith the Anglo-Saxon taw accordingly biongbt abont the fol-
lowing changes : —

1. The right to the amerciaments is now established in
f&Toor of the mider-feofieea also, as against their under-Tassals,
and is graduated aeoarding to the feudal d^rees, for the Eorl,
and for the barcm or Tliane (Hen. I. c. 35, 87). Hen. I. c. 41
contains the express assurance : " unutquuque dominus jjlauim
ocfneu-tuttam taam habeat secundum loeum et modum adpK dt
homine suo, et qui »ant ejus super Urram gunm." (1)

2. The new amerciaments are no longer raised in &xed
Boms, but graduated according to the probable amoimt of the
movable property, that is, according to rank. It appeared
now as a royal favour [merd) when the guilty party escaped
with the payment of a smn of money, less in amount than
his entire catalla. In the strictness of law, the whole of the
movable property is forfeited, " est in misericordut reffia de
pecvnia sua idem tst ae si de ioUi dirissent." The rating
" ad/orare " in the Exchequer appears as an act of mitigation
by a conrt of equity. (2)

(1) Thia new law is partjallj Jdenti-

oal Titb the older, annriiing to which
the Ealdonoen, Sliir-g«r£ras. and lords
of nuLDoriikl conrU uphold their ofBcial
anthoritj bj the ioflictioD of email
disciplinarj pnniBbmeDta (Hen. I. 3i,
BOO. l;35.eec. l:41.wc. l;53,sec. 1;
87, aec. 5), corn^spooding to the diad-
plinary pcnulties which were fbroierly
paid to the Eorl &Dd the hiuidred
(Cd. U. 15, see. 1). Thii "miteri-
eordia ViceeomitU" and of the prirale
rtndal Ionia, however, plays a ver]'
unimportant part in the Gicheqner
BOoounts, btcaitae it was not, as a mle,
a Bnbject Tor the rrndtringnf accronnta,
and with the demy of the coantj and
private coortB, it is intelligible that the
iniportanoe of the amerciament ol the
CuuitsoriowerinDtanoeBhould link also.

which for certain offences adopted the
forfeiture of moTabk- propcrtj. In like
manner, in the spirit of l)>e eodeaia*-
tieal adminiBttation a ralinj; ia pnipor-
tionata to the propvrty of (he oSeoAta,
a< is laid down in Athli. VI. 53, "ud
alwa;a, ai one is of the mightier men
here in the world or Uirough dinii^
higher in ranb, he diall be punuhea
the more aererelr for liie sins, and psf
higher for ever; wnuig lie cnomita, and
therefore one shall modif} and ouv-
fullj distin^uiah rich and poor, «»d
CTery olana, in eccle«89tica1 as well M
in Bt«n]ar puoaltiea," Tlie first aMnr-
ancvs of a mitigation of the arbittnrf
amerciamtntu in the Carta Hen. L 1,
sec. 8, ore ao<iordm<;l7 ea«j to under-
Btand : " n quit baronum vfl AomfuMM
dalril nuffMH

■ with the Anglo-Saxon costom, /aeicbattemponpatriMma^

untn,' M il aea f P L i

The Development of the A'orman Police Control. 197

3. The number of casos for fine knew no limits now that,
going beyond the Anglo-Saxon custom, every act of disobe-
dience against royal decrees was brought under a fine, and
tbus a mode of compulgory proceeding was initiated, for the
purpose of carrying out all possible decrees. Already the
lieges Hen. I. c. 13 give a. varied list: " qiue placka mittimt
homines in mite.ricordia reijia," bnt in which criminal penalties
and police fines are mingled together. (9)

Submission to the viieericordia, or the ordinary procedure
of the coiurt, are matters of free choice. The previous decision

in misericordia est " still, according to the " Dialogus de Scac-
eario," in case of dispute, admits of the demand of a judicial
Bnce. Since even in the Sason period the fixing of ofiicial
fines as regards the King's personal officials doubtless took
place brei-i manu, the Norman feudal system brought all
Tassals into a similar dependence upon the King, which made
an appeal to the courts of justice somewhat impracticable. (4)

Hence the Norman king became possessed of an arbitrary
penal jurisdiction, such as probably no other potentate of the
Middle Ages ever poseessed. The difference between it and
the old system of penalties consists in this, that the existence
of the offence and the suitablenesB of the penalty inflicted is
no longer determined by the finding of the community, but
by the personal will of the lord or his deputy. It is no longer
a question of the jurisdiction of the tribunals limited by
custom, but of an arbitrary police and disciplinary control,
the influence of which upon the form of the English constitu-
tion has not been sufficiently estimated. The application
of the same for the purpose of carrying out and extending

_jin foritfaeti ila cmendabil

tteM mundanrt rtlro — in tempore ufio-
■ Hn tniteet—oTum meorwm."

(3) A liBl of fifteen bends of kioeroift'
,_eiits is gtvtu bj Mailox (i. 526) ; a
blotter ttnii inooiuplate one by Uudy
^Rotnli finium, p. ivii. el fq)- The
[ttamber may be conjeotured bj thia fiicl,
Atuil in later timeB fifty Botnli wore
'ttaob laid kt ohi; time before a Boron of
Sbe Sxoheqoer for the purpoac of rating
ttiem (Hadux, ii. 65, 6il).

(1) An appeal to tbc Auglo-Saxon
lawB, tliHt i», to the ordinary fonos of
tbe coort, became a very dutgcioiu
experiment, aeeing that guaiante^s for
a jiiBt Bvntonee againut tbe offeoded
lord were very few. The " Diologas"
indicatCH tfais dleiuly euoa^h, i. c, 8:
" Btgi^ eiti militat'UT, tn prmntam r«<M
jtuticohidir, nUt ftainavtrit padiilondo
mitmBordiam prmveitift judicium.''

198

Constitutional History of England.

the Anglo-Saxon police regulations has been already indi-
cated. The numherlese remaining instances furnished by the
Exchequer accounts can be Bummarized under the three
following points of view.

I. The system of amerciaments serves in many ways to
supplement the criminal law. The cases mentioned in the
Exchequer accounts are — the lending of money and weapons
to the King's enemies, refusal to work upon royal castles
and bridges, the imprisonment of royal servants, insulting
royal officials with abusive language, the withholding of
goods belonging to another, etc. A special enumeration of
offences is out of the question, as the misericordia is very fre-
quently mentioned without the reason being pven. A separate
province ia occupied by the " misi-ricardiu de fun-.sfa." "Whilst
the more serious forest-offences are threatened with penalty
of limb or life, the more trivial ones, such as neglecting to
mutilate dogs to prevent their hunting, are left to the King's
vuseriford'ui. The secular magnates, bishops, abbots, and
others have to pay amerciaments of five hundred marks,
a hundred pounds in silver, and similar sums, in cases where
men of lower degree would have forfeited limb or life. The
general heading " iti/rrulio jxtcis" and " cuntemptiis brcvitim
regis" was of such wide scope, that at last every royal order
could bo enforced by amerciaments. In a still greater degree
was this the case with the ordinances which were later issued
with the advice of the estates of the realm. Offences against
tbeae, as " breach of assize," in defanit of special penalties,
fell under this heading. Hence the innumerable amerciaments
on account of dispossession of estates {novell disseisin), which
we find enforced especially against abbots, and .secolar
grandees, their clerks and esquires, and which become the
basis of an effective system of real actions and a new theory
of poBsession.

n. The system of amerciaments serves also to maintain
the authority of the courts against disobedience in the widest
sense {defau}t, non-ajipearance), even against female wards,
who do not present themselves, in answer to a summons to

Tlie Development of the Norman Police Control. 199

marry ; neglect to prosecute a suit, quitting the court vithoat
leave, unauthorized compromise {coneartUa dc pare regis tine
licentia regix), irregularitieB in evidence, refusal of the duel,
failing to appear in the lists, or admitting one person to two
duels in one day or, " quia posucrunt Imminem ml aquam sine
warranto, xine visit scrtrienlium regig," etc. Where in later
times committees of the community are appointed to take
evidence, an amerciament is imposed where incompetent men
are brought "pro nisticis adductis ad/aciendam jwrnfam ; quia
elegit ntstiroi nd asuisam ; quia recejiit kominan ad juratam qui
nonfuit de kundredn .- it is inflicted upon such as speak to the
jury ; for false witness and false judgment ; for an improper
execution of the sentence, "pro Uitnmc suapenso iine visti
eervienlinm regis," etc., against sheriffs and provosts for
improper distraint and the like. Hence arose a method of
carrying out reforms in the procedure of the courts by c
of simple instructions from the Crown.

III. The system of amerciaments serves also to protect royal
privileges against the pretensions of private persons ; e.g. the
illegal raising of tolls, the unlicensed appropriation of the
royal prerogative {purpreslnra), pretensions raised respecting
public roads and rivers ; and generally as an effectual measure
against the exceeding of powers of jiu-isdictiou. Thus W. de
Friston is fined for passing judgment on a robliery in his
court; " milit''s Ciirim Coniitisgm de Couphmd, quia feceniHt
judicium de placito, quod iion jjertinuit ad nos." In addition to
this interminable system of fines there is still the right of
sequestration (the capcre in ntaniim rtijis), which is also de-
duced from the fundamental principle of the feudal grants,
often taking effect on very trivial grounds. To what extent
aeqaestration was made use of against magnates, for defaults
in the Exchequer, or for not putting into execution the royal
decrees, etc., is shown by numerous recorded cases. Thus,
the city of London was once taken into the hand of the King
for a " trespass of the assize," and its custadui was entrusted
to a commissioner.

The executive power of the Norman kings has been shown

200

Constitutional Hixtonj of England.

ID

I '

■ th

I tn

I ai

in a former chapter ; thia police control esliibita tlieir legal
power to maintain peace and order in the country, and the
effectual means of autliority residing in the sovereign as
against his officials and the greatest magnates in the laud,
and even against the Church. Numberless entries on the
Exchequer rolls show bow thia controlling power extenda over
persons, communities, and corporations, over spiritual and
temporal dignitaries, over the greatest magnate as over the
humblest peasant ; over the entire population of counties and
hundreds, legally unlimited in the number of the cases as in
the amount of the fines. The exemptions only refer to the
duty of contributing to the ordinary police-fines of the county
(common amerciaments), from which the royal demesnes, the
property of the Queen, of the higher officers of the Treasury,
and by special privilege also of certain magnates, were ex-
empted. The revenues derived from the royal amerciaments
are in very rare cases granted to private landowners, such as
the Bishop of Bath, and in such cbbcs they are fixed by the
King, collected by the royal officials, and the amounts cashed
by the grantee at the Exchequer. (Madox, ii. 66.)

The power of the amerciaments has now become the
proper instrument for enforcing police regulations and royal
orders in every other province. Under this system it first
became possible to put the royal ordinances in the place of
the older legislative resolutions of the Witenagemdte, and
in this mamier to restore the mechanism of an absolute
government by ordinances with administrative execution.
Originally this police system of finea was probably founded
upon practical necessity. The insolence of the " FrancigensB,"
the martial inclination to violence, the wrangling of the Nor-
mans among themselves and with the Saxon Thanes, rendered
absolutely necessary that strict military discipline for which
historians laud the Conqueror. But after a few generations
{as in the modern police-organized State), the other side of
the picture becomes apparent, namely, the extremely arbi-
trary working of the system with regard to the lower ranks
and the defencelessness of the subjects against any abuae of

Tlie Development of the Norman Police Control. 201

it. It is evident how disagreeable to landowners and cor-
porations a jurisdiction under such a system must have
become, if they exceeded their authority, and even in its
mere exercise. The smallest error made in respect of the
forms and limits of their jurisdictions and franchises exposed
them to arbitrary punishment and sequestration of their
possessions, on the ground of trespasses, contempts, defaults,
and false claims of all kinds. It is a marvellous contrast to
the condition of things on the Continent, when in England
we continually find great estates and great cities under seques-
tration on account of the official offences or oversights of their
bailiffs, for quitting the royal court without licence, and for
neglect of the royal commands, and so on. It is also manifest
to what arbitrary action of the government both person and
property were here subjected, and how later it came about
that the first aims of Magna Gharta were to secure the funda-
mental rights of the subject by bringing the amerciaments
within the pale of the law : *' Comites et harone» non amer-
cientur nisi per pares silos, et nonnisi secundum modum delicti
liberi homines, nonnisi per sacramentum proborum et legalium
liominum de vicineto,''

Constitutional History of Eiujland.

IV. ^fjf iDrbtlopn

man jfinanrc GTontrol.

FoLLowiXG on our aoeot penue of the Anglo-Saxon

tings, the financial W" ration at this time may

also bo distinguished audi wing heads.

1. Ei-veniie immcdintdy derived from- the royal demesnes,
newly founded after the Conquest by an extensive reservation
of demesnes and forests, increased hy the frequent lapsing of
fiefs. The older payments in kind reserved from doniesnes
and Folkland were from the time of Henry I. turned into
money payments, after the fashion of the financial adminis-
tration of modern times. There still linger on some remains
of usufruct in Folkland, the minor Crown rights relating to
treasure-trove, wreckage, and derelict goods ; as well as the
ancient duties payable on wool, sheepskins, and leather
{cHxtiimie).

2. I'm/its art «i lift from the royal authority :

From the military power arose the right to the services of
the inhabitants in building bridges and castles, now effectually
enforced hy summary amerciaments. But this old source of
profit was far exceeded by the new income arising from the
feudal law through reliefs, wardship, and marriage.

The fees and fines arising from the exercise of judicial power
now poured in abundantly owing to the centralization of the
more important actions at the court. Equally productive
was the extensive right of forfeiture for felony, and the cases
of confiscation of movable property.

Tlie Development of the Norman Finance Control. 203

Finally, the revenue arising from the police power, flowing
in abundantly owing to the unbounded number of police
amerciaments.

3. Beginnings of direct taxation, including:

The atixUia, or aids of the Grown vassals, but only in three
fixed and certain cases of honour and necessity.

The scutagia, shield moneys, since the time when, under
Henry II., the acquittance-moneys for the feudal military
service begin.

The taUagia from the inhabitants of the towns and the
country not liable to any feudal service ; taxes which, as the
inseparable concomitants of the feudal system, were intro-
duced into England also.*

The first glance shows us at once that the new income
far exceeds all the old sources of royal revenue. The
Norman administrative system is keen in developing in a
fiscal direction every department of Btate ; the undefined
arbitrary administration pervades all departments with its
endless system of police fines and dues, » amerciaments and
fines, in a manner which defies every method of arrange-
ment. By becoming centralized in a royal treasury the
financial system assumes a new appearance, and following
the Exchequer documents, Madox, the great authority on the
history of the financial system, draws up the following seven
heads, under which all such details are to be included as
illustrate the spirit of the political administration.

I. 'STiie l&ogal Bemesius anlr jfoxt%t%. These are originally
formed of the manors, lands, parks, and forests {andent
demesne),' more than a thousand in all, which Domesday
Book enumerates — constantly increased by lapses and con-

* For the financial Bystem of this
and the following period tlie authorities
are: Madox, **The History and An-
tiquities of the Exchequer of the Kings
of England " (2 vols., London, 1769),
from which I have here quoted. For
the Middle Ages, Sinchiir, '* Hist, of
the Revenue" (3 vols., 1803, 1804);
and Cunningham, '^Hist. of Customs
and Subsidies, etc." (1764), are not of

great importance. Other authorities
of value are the Treasury Rolls printed
in later times by the Recoxd Commis-
sion, Hunter, ** Magnus Rotulus'*
(1833); Hunter, "Great Roll of the
Pipe," for 1155-1158. 1189-1190 (1844)
Rotulus Cancellarii de 3 Joh. (1833)
Hardy's Rotuli de Libertato regn. Joh.
Hardy's Rotuli Finlum.

tiscatious, but also diminiBhed by new grants, and sometimes
by lavish waste. Only a port of the demesnes, especially
in the neigbbourhood of the King's residences, stood, aa
a rule, under the direct management of the King, that is,
of his court officials and personal servants. Those scattered
about in the country were included in the mrjtun comilulua,
and therefore occur again under the farm rents in the
counties. (1)

II. Jftcfs Inpsing bn tbe ficqutnt casts of 1^$tf):ai anb ^oi-
fetlUIC. When, at a later period, England and Normandy
became disconnected, the poasesaious of the Norman lords in
England, and of the English in Normandy, were to a great
extent confiscated. So long as such estates remain irt
Toanu rc'jis, they form a portion of the demesnes, with the
ground-rents, reliefs, wardships, and rights of marriages ap-
pertaining to them. The earlier aub-vassals have now become
vassals of the Orown — not of the King as such, " ut de
eorona," but of the King as possessor of the lordship, "ut
de konnre" The greater estates of this sort are given over
to special tenants {frrmora), or stewards (custndi^) ; towards
the end of the reign of Henry II. they form a special
demesne department or Escheatry. Only the smaller escheats
are in later times made over to the sheriff, to a separate

wheo the land hFu been acquired by
tho K-ine in bis private oupacitj, or
ialiorilecf from an ance«tor, who aeser
wore the crown (Comjn, Djgeet, Pre-
n^tive, D. 64 : Allan, " Prerog**"*."
1S4, 15S). In like luanner the prin-
ciple of the iunlik'nability oF the mili-
tary fiff Toflmta npon tho Crown. As
the feudal tenant edusI leave his on-
central eatutu til hie flrstburn. and o«n
only dispose of newly acquiwd pm-
perty. the later parlismenia were ia-
clincd to treitt the alieoBtion of the
" ambient dumesne " as au Irregxilaritj :
frivolous Bqunnderinra were, on iv-
mund of the amt-mbly, recalled by
"iirU of nujuiDDtioD ' Aa to the

,., WT"

by Onwell and othiTs, as 1422
30 phnsM, 781 pMks, 67 foroHta. Con-
sidering the ooQstiliitioD of Domesday
Look, however, disorepanciea are earily
eiplaiiiBble. As to Hiair formation out
or tho pnsBi^iona of King Eadward and
tbufuniilvof God wine, nod from remain*
of Ibe Folklnnd, etc., see Ellis, Introd-,
i. 228, 22B. Instrnd of the ubudI term,
" ewTO teQit." we fln'l in Exon Domea-
day Book, tlie more eiaot eKpreesion,
" domtfiioahis reaU ad ngaum perti-
n«u." The obligatioD nt all lamled
estates to military servloc bad ul»o
roioted upon tlia Hifbt of the royal
demesnes. Aocording to a lopll view

CfocMding therefrom, the real property
t^longa to tbe King by Tittue of the
right of the Orown, and descends to
the bait to the Ihione as such, even

Aa to the
kind, whioh^^^

1

The Development of the Norman Finance Control. 205

account. When a bishop's see or a monastery became
vacant, the Treasury also insisted on the vacant fees being
treated analogously, and appropriated the revenues until it
was again occupied. For tliis reason William Rufus left the
Archbishopric of Canterbury and other bishops' sees unfilled
as long as five years. These temporalities were at first
managed by special cushxhg, and later by the Eacheatry. (2)

III. eSe jfEulinl perquisites : laditfs, affilarlifitips, anD
iHtaniaOE. The rdeviu are at first arbitrary ; from the time
of Henry 11. they are fixed in the case of single knights'
fees at five pounds in silver, or 100 shillings ; for groups of
knights' fees, forming a lordship, after Magna Charta, 100
marks ore paid ; for the lordship of an Eorl £100. The
profitable wardships were often made over to the vassal of
the Cro^Ti who bid highest ; the dues paid in respect thereof,
in the case of gi'eat fees, often amounted to several hundred
or thousand marks in silver, in one case even to as much
as 10,000 marks. Still more various was the financial prac-
tice touching the marriage of male and female wards. Thus,
for instance, Geoffrey de Mandeville pays 20,000 marks for
his marriage with Isabella, Countess of Gloucester, and for
the possession of her lands (Hardy, But., sxx.). The varied
marriage dues are directed to such ends as these ; " ut rex
concederet ei diwere iLxorem ; ut ditr.at uxorem ad felle mum ;
ne capiat inriim niei quern volueril; " Lucia Comitissa CestritB
pays 500 marks, "nc capiat virtim infra qiiivqiie annoa"
(Magn.,Rot., 31 ; Hen. I.) ; Gundreda Comitissa 100 pounds
in silver, " ne maritetur invita;" Alicia ComitiBsa Warewio,
1000 pounds, and ten palfreys, " quod sit vidua, qnavidin eibi
placuerit, ita quod per regem non esforcietur ad Be martlaiidum,
et pro habenda custodia pueronim saoruni" (7 Job.); E, de
Seinsperia, on the other hand, pays nine pounds in Bilver,
" quilt rcnuit JUiam Hiisculphi Mttmard." (3)

(2) The iRpsinjr of flefs whb mnnipu-

iBled for finntipiol purpOHeB a!l the . „ .....

mnte, w the first Sormnii king* Bcldom the Cmwo feps,

inflicted piitiUbmetits of life- and linib (:)} Tlie rflicfa nf Ihe inilividnal |

upoD tbeif Crown tsshuIb. The; cxer- kai^htH' ftos wero atreudy a

I

IV. tirfjE llUnis of fljc 17ittromitts anS Jfcrmors in tfje
([TounitCS. These comprise local revenues of all kiiida, arising
from demesne, dues, fees and forfeitures, and small royalties ;
which, in the interest of the financial administration, are
massed together under the head of " general farm." Wliere,
in the place of a farmer, a cttgtos administers, he must xenies
a special account, and deliver up the surplus after dedni
the expenses of management. (4)

V. ^liE joints anlr anunftimcnts, the latter of which have
been already explained under the system of police adminis-
tration. The fines are royal dues in the widest sense of the
term, and are just as characteristic of the system of this ad-
ministration as the amerciaments with which they are often
confounded. The position of the King led to a number of
arbitrary powers, or circumstances, under which he could
either grant or deny. It appears here to be an unchangeable
maxim that nothing which can be refused is granted without
a money payment ; a maxim, the reminiscence of which enters
even into the administrative system of the present day. The

enies ■
ictii^^H

hare ^^

L

of Ihe "DittJogns <ip ScnccaHo" (ii. o.
10) Sied at 100 ^billiTiRB (Msdox, ii.
426). The i^liera of trreater eatstei ara
in the " Di&lngus," ii. 24, atill ex hena
pjaeito, eiod only in later times fixed
at 100 mnrka for a bnmny (JUaiinx,
i. 318) ; the line hetween the two hna
bpen evidentlv drawn by the pmntica
nriheEioheqW. The practice of tha
profitable feudal wardship will ■.fippne
from » few examples: Will, de t^t.
Marie Churuh paja 500 marks for tha
wardship of B. Fttz-Honiinp, "to-
gether with hia whole inhi-rilanpo,
kniehta' fees, female maninge," ntc.i
Simon de Montfort evco pitys 10,000
marks for the " cistodia lermmm H
litredU" of Gilbert de Anftanvitle notil
the msjority of the heir, *' with mur-
riam, church patronage, knighta' fees,
and other appurtennnces and vaoiD-
ciea," Id frequent cnsca the wnrdahip
ap^MtntmentB nre again recalled. Iie-
akuse afterwards a person lins heen
found «hn olB-rs more (Hnrdv, Rnt.,
sixi.). Btill more multifurimin are tha
inatnncoi mllecti'd by Madoi and
Hardy u to morrioge. I may here

remind my readers that the relative
laloe of money in the elereiith eea-
tiiiy is jienerally flxcd at ten time*
tliat of the iJtesent day. The owner
of a ininll Englieh knight's fee p«yi
aeeordingly at ench olinnge of pc~ ~
Bi..n, 1(K) sliillintre = V, marha =
thslefj, in silver Tulue equal ti
loot) thalL'rs of nur money; Oia j
sensor of » greater I'irdsbip, 100 n
or about 1:1,300 thntora of oui
Tlie maximnm value nf • i
might amount to 10,000 »«_, .,
vtiino of a feudal marriagG evsn to H
donlileofthat.

(4) The rent (Jimui) of the sheriff
is only n roUeolion of the roidilla and
small revenues whinh were to be raised
within the bounds of tha oonnty. or
the specinl fnmi district. Even the
earliest Exchequer aoMunts of 31
HeT.ry I., tratnin rents of 400 nnd 500
inarkB, which prove how extenaive the
jurlsdiPlinn of the county c
have Ih^u at thut time. J
reirnlntions nfr.-.-t.fiig the ttiiMi
aocr.nnU in the Jirma Vteieowtilin, I
ThOBitis, "Exchequer" (51).

The Dei'elopment of the Norman Finance Control. 207''!

people of that time appear to have felt this system more I
as a burden than as an injustice ; for the King had the fonoal
right to act as be did ; he proceeded in the same manner in
Normandy, and the Norman lords vied with the Exchequer
wherever tbey could. The endless list of fines can be grouped,
in some measure, under three or four chief heads :—

1. Fines for Liberties and Franclugei. The right of the
landovmers to hold feudal and manorial courts was often of
doubtful origin, and the extent of the jurisdiction also might
be called in question. The defieieuey was then made good
by a fine. For instance, Lucia, Countess of Chester, paid
100 marks for the privilege of pronouncing judgment in her
Curia between her vassals (Madox, i. 397, 898). Certain
counties under Henry 111. obtain in this manner their own
right of election, that is, the right of nominating their own
BherifTs. In Uke manner the men of Devonshire pay twenty-
three and a half pounds in silver, and the freemen of the
counties of Dorset and Somerset similar sums, for leave to
choose their own sheriffs (Madox, i. 417 et se.q.). In this
manner the towns obtain the beginnings of self-government :
London pays a hundred marks for the privilege of choosing
its sheriffs (31 Hon. I.) ; Carlisle ten marks for electing its
coroners ; Cambridge three hundred marks in silver and one
mark in gold for leave to have its own firvui and exemption
&om the interference of the sheriff of the county ; Lincoln
two hundred marks for firma btirgi and a single immunity
from tallagium. Sometimes exemptions, immunity from Inl-
lagia, diaforestings, and the like, were permanently granted
apos a high fine being paid ; but then fresh dues were
paid for the renewal and confirmation of such immunities,
especially under a new government.

2. Fines in Actions at Law. From the time of Henry IL j
these were unlimited. The King grants permission for suits
to he brought in the Eoyal Supremo Court instead of in the |
defective county courts, and at the same time for an improved
procedure in taking evidence (r^mjwtd'o, jury), but only on
payment of fees. Hence the lunumerable fines, " ut luiberet

L

208 Constitutional History of England.

juKtiliam ct rectum;" that is, the permission to bring the
action at court instead of in the county. Each single writ
is sold, sometimes even with special sums in the event of
success. Every step in an action, entering one court instead
of the other, notahly every inquest by jury, presupposes a
fee. Thus, K, de Luci pays fifteen marks and a palirey to
obtain an inquisition, "on the oaths of twelve good men,"
as to what dues and services were owed him by his tenants
in Coupland ; W. de Mahurdin, twenty shillings for an inquest,
whether he holds his land by serjeantry or as a knight's
fee. In one case four marks are paid, for substituting in the
assize six knights instead of six others alleged to have been
bribed. Numerous fines are further paid that the King may
"help the plaintiff to his right;" for instance, on one
occasion, two hundred marks, that the King may assist to re-
cover a debt from the Jews. More numerous fines still arise
to obtain despatch in a matter. Frequently the parties offer
beforehand a quarter, a third, or a half of the sum they claim.
Sometimes this offer takes the form of a bilateral " sponaio,"
so that either both partiea offer a sum, to obtain the same
object (concurrent fine), or each of the two wagers upon the
opposite issue of the decision (counter-fine). Just as equivocal
are the great fines for the King's "favour," protection,
mediation, " at Rcxjuvct eum verms N. ; " " ut Rex manuteneret
eum." Under John, a stay or delay of the legal proceedings
was even granted in return for money : " Rohertvs de
Amouesdal debet V. marcas pro habendo brevi de pratectione, ne
ponatur in placitum de aliquo tenemento auo tiiai coram Retje
vel per breve Regis ; et ut sit quietus de sectis et hundredis, et de
omnibus placitis et querelis, excepto viurdro" (Hot. 2 Joh.).
" Decanvs et Capitulum Londonias II. palejridos, pro protectiorte
ne eexentuT contra libertatcs cartanim aiuirum " (Rot. 2 Joh.).
In criminal matters, also, the rigour of the penalties and
amerciaments was frequently mitigated by tlie previous pay-
ment of a fine. The instances generally refer to Norman
magnates : " 0. de Lerec debet XX. marcas argcnli, iU rex
perdonaret et et Oaberto clerico sua jmUivoUntiam suam " (MagQ.

Hie Dtmlopiunt of the Norman Finance Control. 209

Bot., SI Hen. I.). "-R. c. de CLXX. Marcis anjenti, iit rex
perdonct d malivolentiam siuim projilia Gddewini de Del." (lb.,
31 Hen. I.). Farther payments were made "pro habenda
pratia ft henevolcntia regis," etc. Counties, bimdreda, and
Bheriffs pay Biima of a hundred marks for an "indulgent
procedure," " for a peaceful hearing," and the like. To these
must be added fees for release from prison, or other favours.
The Dean of Ely pays one hundred marks for the release of
hia concubine and lier children ; the wife of Hugo de Neville
two hundred bena for leave to pass a night with her husband.
To this category belongs also a fine, " pro lieentia comedendi."
Instead of suffering a sentence of capital punishment, which
has been pronounced, permission was sometimes given, on
payment of fees, to enter a monastery, " iit liceat tranafcrrc ae
ad lutbitum religionis" (Rot. 5 Job.).

8. Fines for concessions o/furonr in respect of offices, guilds,
and dispensutions, notably for persons who on payment of
fees receive their father's office, or an office for their relations,
or the grant of the office of sberiff, or a Bpeciiil farming at
the old farm rent. Even the offices of Chancellor and
Treasurer are often granted on payment of great sums as
pnrehase-money. Conversely, fees are paid for release and
discharge from an office, or for relief from responsibility,
sometimes also " vl rex facial reeipi eompotum sijie ira et
indignationc." Further, fees for the granting of trade and
industrial privileges, especially for the renewal of the gilda,
for licence to export com, and so on. After 19 Henry III.,
and probably even earlier, orders were periodically issued to
the sheriffs, " quod omnes illi, <pti de nobis tenent in eapUe
feudum unitis milttis vcl plus, ct milites non sunt, arma capiant et
se milites fieri faviiint." On paynaent of fees " dispensations "
are also granted; hence the numerous fines "pro habendi*
rcspeclu- dc mililia."

4. Fines for regraniing of Fi(fs and for Alienations. A
portion of the Exchequer documents on this subject are printed
under the title " Rotuli Finium," and contain important deal-
ings respecting the inheritance and alienation of Crown fiefs.

VOL. I. P

210

Constitutional History of Erufluiid.

r

This classification ia sufficient to show wliat a continnal
source of wealth tlie finea -were to the royal Treasury. Crown
vassals made an additional payment in such cases as " minim
refjitia?" (5)

VI. anis, C^^allagts, Stutagcs. {6) In principle the knight's
estate is certaiuly held free from all taxation of villeins,
"quietiim ah omnihus (/iUlis rt omiii operc," as solemnly con-
firmed by the charter of Henry I. But the feudal auxiiia
renerved to the lung extraordinary contributions on the occa-
sion of the knighting of hia son, the marriage of his daughter,
and, in case of necessity, for hia release from captivity. [«)

The common tases, tnWiiiia, were raised from time to time
as need retjuired from royal towns and farmers on the royal
demesnes. Although the reorganization of the mihtary system
had led to the exemption of the smaller freeholders from the
military service and from the burdens of the militia, yet the
feudal system deemed it necessary to retain a fair compensa-
tion by levying a subsidy in the fonn of occasional money
contributions {talliiijUi). An inseparable concomitant of the
feudal system, the talUifiiiun ("taille") made its appearance

L

(5) Tlis fines are anangeil b;
Idiuioz, i. 395, 425, 456, under nuinor-
01LB hiidingB, for wliioh I bave 8ul>-
itltuted a more aimplo ornitigenietit.
Hard)', "Batuli Finium," maked three
clueee : (I) Fines for tba concession
ilDil conlirmation of liberties andiran-
eliisefl; (2) flnea for proacedinga in an
aetiun, wilb BtB BUb-di vision a ; (3)
mixed £nee with tea aiib-headingH.
Ai to the divigioii into vol untury, flues
cr "obhitiuDS " and involuntar; fines.
Bee Hardy, Intnid., xvjii. Aa to money
pnyments for permiswon to cbooae their
own HherifTiii theoountv.seeMadox, i.
410,417,420; Hardy, Introd.. p. xxix.
As to the additional payment of the
'Qurum regiruB, BUIa, i. 172.

(U) The beginnings of » direct taxa-
tion Bre olasgified by Mudoz bb siiIb,
tellnges. Hud icutagea : partly for eub-
Btiintinl reasons, and poilly becauue
(he ntimes in early times arc confuBod.
Mudoz Bilds iilio to this group the
cuitamir, Ihu cuaLoniRry duties on
mool, sheepskini, and leather, vhioh I

have already mentioned bIioto m
ancient sources of revenue. The gaait
liable to duty were ■ wine, enteral
mercli&ndiHe, and woal. The old duty
on wine was called '' prisage," that is,
the tenth cask from every ship at th^
price of twenty slultinga. The saeotid
customary duty ((general merchandiae)
was, aa a rule, in the form of one-
fifteenth or a similar proportion, and
was ]Hud as a fee for licence to trade.
The toll on wool remained until the
reign of Edward I. in a very irregular

(n) The auxifio, aidi, were, by
right, limited to the three oaumoratea
cases. But as the subfeodariss Tere
fond of extending these casee, and ot,
in its analogous application to the royal
boroughs and demcgne villages, the
nolioa was still fnrther extended, there
resulted a general tendency to extend
the aids to other cases of need, which,
after the times of Magna Charta be-
came tile bepinning of tho gnmt of
subsidies by the estates of the realm.

Tlie Development of the Norman Finance ControL '.

in England with the Conquest ; and the strong political de-
velopment of the feudal system insisted that all classes should
"be as far as possible proportionately burdened. As, in fact,
the old popular army, which existed sido by side with the feudal
militia, had never been expressly abolished, and indeed from
the time of Henry II. had gradually been revived, the practice
of the Exchequer dealt with the possessions of farmers and of
towns in some degree according to the analogy of the feudal
estates proper, hy confining the ttdlaifiii and mwiUa to cases
of honour and necessity, though such cases received a more
comprehensive interpretation than where the feudal tenants
■were concerned. Hence aids and tallages are frequently taken
together, and are denoted as " iloun " or " aiuilui," or by other
more courteous terms. The towns, in order to avert a too
rapid return of taxation, often payed voluntary <lim<i, "pro
bono itdvmtu. r^Qis," " jiru thim novi anni," "to conciliate the
King," and so on, which all flow together with the system of
the fines, (h)

The shield-moneys, "scnlagia," afterwards became still
more important. The constitution of the feudal militia,
brought over from Normandy, appeared, in the long run,
not quite suited to the insular position of England. So soon
as the internal affairs were settled, it was no longer a question

(6) The Mlaaia, {Haclai, i. CM. aec-.
732-751) ure a epwiflc creation of Ihe
feudal Bjrstein. The greater lunilod
proprietons, wlio bb a Btniidiiig atmj
had taken upon tlietnachtiB tlie defcuf^e
of the realm, demanded Ibat thaae land-
owners who were not boiiod to kniglita'
•enke alionld pay their proportionate
•bare in maoej. TNe inftolence of
tbe wmcni and nar-skilleil clasuw in
France deai^nted nil the rest ai
" taUJablM," sad from the landlorda'

Clint of view aa " ixTTeablrt." In Ehk-
nd also Iho "(ai'iic" was enfunwdwi
mndi a* a mutter of oourm, that even
the givat and powerful «[(y of Londuo,
in 7 Hen. III., paid 1000 marka: 26
Hon. m., lonu Diarki; 37 Hen. III.,
' 1000 marks, in addition lo twenty
marki io jipiA-. 1(1 John, 20DO ninrks,
iaUagia. The hardship lay in the un-

certainly of (lie (!naoa and nf (he fre-
quent recurrenoo of the taxation. In
in^lanil two apeoiol reasons «>Dcun«d
''■•-'■ gare the Plusaes liable Ir "•-

: claim I

which a

•'tailU' a, pccnlia
equitable treatment. The first was
the ntentlon and later revival of the
militia by the atmMa of Henry II. ;
the "bii'flaUes" were here never an
unarmed elasit, bat, on the contrary, in
every generation did goiul Borvioo
alike again<it the rebellions borons
and DKaiast the Bootoh tutadors. The
otlier reason lay in the "jlrma biu^ ; "
io order to raise tbe fee fitrm rents of
tile tuwna in times of neoewity, oerlaiu
townii were promisod that iheir contri-
butions ahotild not be increased, which
now CumiRhed a reason for aontinnal
clnima, and also for disputes as to tho
amount of the tautioa.

212

Constitutional History of England.

of Bbort campftigDB at home, but of a number of permanent
garrisons, and long campaigns against Wales, Scotland,
Ireland, and France. For both needs tbc feudal militia with
its short-Bcrvice system was ineufScient. Hence the Norman
kings at all times kept a paid Boldiery, and allowed some
of those liable to military service to buy themselves off for
certain campaigns. According to a trustworthy authority,
in the second year of Henry II. the prelates were for the
first time allowed to pay twenty shillings per fee instead of
furnishing a soldier for the campaign against Wales. The
first general imposition took place in 5 Henry II., for the
campaign against Toulouse, with two marks per fee from all
Crown vassals, under the name of " dnmim." In 18 Henry H,,
for the army in Ireland, partly actual service and partly
money payments, under the name of " scntagia," were accepted.
In like manner in 33 Henry II., for a campaign against
Wales, twenty shillings per fee were ra^ised " a militihus qui
non abiervrit cum regc." From this time the imposition of
ecutage instead of personal service became more and more
regulated, payable by all tencntca in capite alike " dc corona"
and " de bonore." The paying Crown vassals are then allowed
to raise from their sub-vassals the same sum per fee "«(
haberent sciitayia stm." Occasionally the King raises them
immediately by royal order from the sub-vassals in maniim
snnvi. The raising of the new fee-duty from that time con-
stitutes a new official duty of the sheriff, wJio, on being ap-
pealed to, lends the Crown vassals assistance in esactiug the
gcutatjUt from their undor-vassals. (c)

VII. The final heading, actfttnlal Inromc, embraces
treasure-trove, goods cast away by the thief (waifs), wreckB,

(e) As to leulngia, Madoi affordi

us ths oompletu blHtory of iu gradual
oriinn. TLe " Dialoi^ia de Scaccariti "
rrcognizea Ihe teHlagia tw a fiDsa-
obl (■raetico: "Fi'l iniordum, u/ frnmi-
nmle prl iaiurgrnU in r'fpiUBi hmiium
marMiialione, lUprmat rex lU linj/idit
frodit tnr'Iflum ■uinmant aHqvam miri,
leilieel, rcl libratn unum ; a»dt

nllitibui ilfpeadui vel donativa titait-
ilant. MaeuU miDi yriKceyn tttpmtii'
iirivt gwitn (bnaaad'ciM IfUieit Bx j umtM
(nii/iui. Utcc itoqut niniinai quia tut-
mine teutoniH taltttur, imtagiMK so-
miaaliir." Aj to the early combln*-
tiun of the esprcsiiioii*, ''anzilAi,"
»(Mi(fl(((a," " lallagia," " hgda^fa,"
' ^ " ECU Miulos, i. £80, m.

•futaiiia

d-dm

M

The Development of the Norman Finance Control. 213

the movable property of felons, of persons executed, of fugi-
tives, and of outlaws, deodands, and other smaller royalties,
which, where they have not been granted to private persons,
are for the most part raised and exacted by the sheriff.
Dating from the Anglo-Saxon period, the common obligation
of the inhabitants to make roads, bridges, and fortresses
{trinoda necessitas) still continues, as also the foraging of the
royal servants on journeys (purveyance) which in later times
became a standing public grievance. Finally, the so-called
^* Danegeld," which in spite of its abolition under Eadward
the Confessor, was still raised from certain estates. (7)

Considering this accumulation of sources of income, it can
well be understood, how the myth arose that the Conqueror
raised a daily income of d£1060 SOs. 3d. from contributions
(Ordericus, Vit. iv. p. 523), one of the numerous exaggerations
of later historians, which perhaps is based upon an arbi-
trary counting up of the highest amounts of revenue in
certain years, whilst under later reigns the most favourable
financial balance scarcely reached a sixth of that income.

(7) As an item of the Accidental
Income (Madox, i. 342) the Danegeld
is also mentioned in the legal books
(Edw. Conf. 11 ; Hen. 10, sec. 1. 15
Cart. ciT. Lund. sec. 2; Madox, i.
68(5 -694. Thomas. " Exchequer,"
p. 41; Sinclair, " Revenue," i. 69,70,
72). This payment was expressly
abolished under Eadward the Con-
fessor, and is mentioned in Domes-
day Book in one passage only (Stam-
ford, 336 b). Nevertheless, it occurs
very frequently in the later revenue
accounts, especially under Henry I. as
an impost upon certain estates. This
difficulty, whicli is remarked both by
Preeman and Stubbs, can be explained
by the following consideration. The
Danegeld as a lawful tax, was abolished,
and remained so, but the old valuation
of the productive returns of ordinary
lands for the raising of the former
tribute was often retained on the occa-
sion of the later exaction of '^tallagia,*'
** dona" ** auxilia" to avoid making a
fresh valuation each time. The old
established rate on the productive re-
turns was therefore called Danegeld.

Now it is perfectly correct that the
general ground-taxes (carucagia, hyda-
gia, etc.), re-introduced in later times,
correspond to the scale of the old
Danegeld taxation. But it is very
comprehensible that in the laws and
ordinances the hated name ** Dane-
geld," with its humiliating memories,
was studiously avoided. Every revival
of ** Danegeldum" would have had the
preposterous result, that the numerous
exemptions from the tax would have
revived also, whilst in the course of
business in the Exchequer no one
scrupled to denote the old taxation of
the produce of an estate subject to
the common burdens by the term
** Dane-money."

Though the most recent English his-
torians describe the gradual formation
of a new system of land taxation in
this epoch as a disguised revival of
the Dane-money, this in nowise de-
scribes the position of aflfairs ; but the
course of events will probably be more
correctly represented in the following
account.

214

Constitutional Histonj of England.

a

Among the manifold sources of revenne to the Crown,
undeniably the most important for the fature of the Ex-
chequer and the Constitution was the seutayiiwi, ^^'hich
arose under Henry II. from the convereion of the feudal ser-
vices into money ; because, according to the position of affairs,
in time a uniform land-tax was naturally developed from it,
and from that a uniform incotne-tas, which can be followed
up from its &rst beginnings in this place to the close of the
period.

After the privileged landed proprietors, from the greatest
Crown vassals downwards, bad been subjected to hea^■y money
contributions, which were equivalent to the actual burdens
of feudal service, that impediment had been overcome in
England which on the Continent caused the failure of laud
and income tax. As soon as the governing clafss has been
made to contribute in proportion to its means, the develop-
ment of a just and rational system of taxation meets with no
more obstacles. At first a uniform hide-tax could be levied ;
for the unprivileged landowners could certainly uot with-
draw themselves from a uniform taxation of the hides, when
the privileged classes were taxed in full, in proportion to the
amount of their possessions. The farmers of the demesne
and the cities had been already included, paying taxes just as
the knights' fee estates did under the names of " tirll'itiia,"
" donri," " aiixilia ;" being, in fact, taxed quite as often as,
and even oftener than, the knights' fees; and this although
their landed property had been cei-tainly valued quite as
highly. But all other tenants of the gi-eat feudal estates
h found themselves in the same position ; for the lord had at

I last no other way of raising his tiuxilifi, eeiiUiiiin, and reUcia

I except hy taxes, protection-moneys, rents, and work done by

I his dependants. Already under William the Conqueror,

I during the great and heavy distress of war (a.d. 1084), the

I ' expedient liad been adopted of le\-ying a uniform hide-tax
I throughout the whole country. This was done at a time

I when no Domesday Book had been compiled, and the division

B of the feudal burdens was beset with insurmountable diffi-

r

The Development of the Norman Finance Control. 215

culties. In view of the threatened Danish invasion at that
time, a war-tax, of an amount till then unheard of, being
seventy-two pence for every hide, was levied, by which the
whole of the landed proprietors in the country were induced
to take the universal oath of allegiance, and to accept its
consequences (a.d. 1086). A similar situation arose a century
later, when the levying of a " Saladin tithe " for a Crusade
(a.d. 1188), and the ransom of Bichard I. from captivity
(a.d. 1193), required the immediate raising of unheard-of
sums. The feudal burdens meanwhile were fixed and dis-
tributed by the Exchequer, and the vassallage, true to the
tendency of all tax-paying landowners, clung as long as pos-
sible to the scale of contributions according to the register.
Hence on these occasions land-taxes were levied cumulatively
upon all landed property ; but the auxilia of the knights' fees
were still rated according to the scale of the scutages, the
other estates according to hides, and therefore the last-named
tax was designated as *' carucagiiim.'' As early as the year
1198, under Eichard I., a general taxation of the landed
estates was resumed, in which a uniform impost of five
shillings was raised upon each carucaginm or hundred
acres of land (Stubbs, i. 510) ; not an immoderate rate, but
one which nevertheless met with opposition among the great
proprietors, and especially among the clergy, and could not be
raised without difficulty. It was natural that the feudal pos*
sessors should not willingly acquiesce in such a sudden change
in the scale of levying; i.e. according to acreage instead of
the feudal register ; wherefore it came to pass that afterwards
the scutagia were, for a time, raised separately from the carii-
cagium on such estates as did not owe knights' service.

As in this way a simultaneous taxation of the whole of
the landed property arose, there was naturally connected
with it a simultaneous taxation of movable property. The
talUtgia of the demesne farmers, towns, and tenants, were
estimated not only accordiug to the income of landed property,
but according to the total capability of performance on the part
of the subjects, and accordingly the personal property was

216

Constitutional History of England.

P"

similarly estimated, which id cities, omng to their indostry
and trade, was of considerable importance. The very first en-
deavour made to include this source of income proportionately,
led to a taxation according to percentage or fractions of the total
income, which, from the time of Richard I. onwards, gradually
appear in addition to the land-taxes as tenths, elevenths,
thirteenths, seventeenths, and other fractions. The Saladiu
tithe of the year 1188 is again the Erst precedent for a uni-
form taxation of personal property, which was levied cumu-
latively with the land-tax. For Eichard's ransom, there was
levied at one and the same time a scuUiifium from the knights'
fees, a caTHcoriium from real estate, and a proportion of their
income from the cities and from the rest of the population.
In this an improvement was distinctly visible on the valuation
system of the tallnijia, against which only the clergy raised
objections on its being afterwards repeated.

The modes of taxation that had thus come into practice
■were immediately abused by King John in his own fashion.
Even in the first year of his reign, John increased the
carucaifium from two to three shillings, the scutagium from
£1 to two marks, and levied the latter from year to year.
In the year 1203 he levied one-seventh ou the personalty of
the Crown vassals, in 1204 an auxilium from the knights,
and in 1207 one-thirteenth on the personal property of the
whole country. Against these innovations there naturally
arose an opposition on the part of the Crown vassals, and,
indirectly, of the whole nation. It was the crown vassals
who, in the first place, were thereby injured in their rights of
possession. The levying of scutage had been estabhshed
without opposition, so long as it was only levied in moderate
jigums, as a favour accorded to those feudal vassals who did
not serve in the campaign. But now a payment of this kind
was to be extorted regardless of the question whether the
feudal vassal wished to serve in person or not, whether a
campaign was intended or not, or whether a case of honour
or necessity had arisen, which obliged the feudal vassal to pay
a pecuniary aid. Herein lay a fundamental alteration of the

The Development of the Norman Finance Control. 217

•^^■^^■"^^^^^"~^^~^"^""^^~~^""^^^^^^^^^^^^^— ^~"^"^"^^^^^^"^"^— ^^~^-^^"^"^"^^^^^^^~^^~~^^^^^"^^~^^— ^^^^■^~~~"^~"

original conditions under which the military fees were granted
and held ; the feudal estates were thus reduced to the level of
the common landed estates which were bound to a carucagium.
But the greatest wrong done to the Grown vassals was un-
doubtedly the rough-and-ready exaction of a seventh on their
personal property, which placed the tenentea in capite upon the
same footing as the taUiables. Such demands had certainly
not been made upon them since the days of William Bufus
and his treasurer, Flambard ; and against such a course of
action the charter of Henry I. had given the solemn promise
that the miUtary fees should remain free from all demands
beyond their military duty (Charters, p. 101). The time had
arrived when an agreement with the Grown vassals, and their
consent to the imposition of auxilia and scutagia could no
longer be dispensed with ; and thus the taxation question had
reached the stage of Magna Gharta (cap. 18).

Constitutional PUstory of England.

L

CHAPTER XIV. '

HL^t ^Norman (Siififquet.

As the financial system ia the centre of gi'avity of the sovereigD
rights of the Norman State, so it is also the foundation and
basis of the permanent oflicea and official institutions of the
State. The hereditary monarchy has found a stronghold in
its new demesnes and in its feudal suzerainty, upon which
rests the defensive strength of the regenerated State. But
this political system is also pervaded by a financial spirit,
which goes far beyond the mere necessities of existence, and
does not shrink from subordinating even the administration of
justice to the interests of revenue. Aa long as the spirit of the
Norman sovereignty ia paramount in the history of England,
finance is the centre of all government ; where provinces, dis-
tricts, and towns wore all subjects of general or special fee-farm
tenure, the most important administrative council could only
have the character of a financial department, simitar to a
"war and demesne chamber," or a "general directorium"
in the later constitutions of the Continent. Thia ia the
meaning of the Norman Exchequer {Ecbiqu'wr) ; and having
regard to its paramount importance I shall proceed at once
to diacuss the origin and extei-nal form, the procedme, and
the personnel of the Exchequer in connection with the finaucial
control.

I. The Origin of the Exchequer. It is not in itself impro-
bable that the Conqueror organized his financial department
according to the custom in Normandy, where an " Echiquier "

The Norman Exchequer. 219

had a prominent position in the twelfth century as the highest
government department and court of law. The English
Exchequer is, indeed, only a part of the Curia Regis, and is
accordingly styled in official language Curia ad Scaccariam.
* But in contradistinction to the other functions of the central
government, which are merely temporary and periodical, the
Exchequer forms the one firmly organized governmental
department, " Curiarum omniuni apud Anglo-Nonnannos anti-
quissima " (Hickes, Diss. Epist., p, 48), in which the current
administration appears united. The name ** scaccariwn'' is
referred in the Dialogus, i. 1, to the diapered cloth which, for
the purpose of calculating accounts, was spread out like a
chess board over the table, round which the sittings were held.
** Scaccarium tabula est quadrangtda, quse longitudinis quasi
decern pedum, latitudinis quinque, ad modum vienssa cir^
cumsedentihus apposita, undique hahet limbum altitudinis quasi
quatuor digitorum, ne quid appositum excidat. Superponitur
autem Scaccario superiori pannus in Termino PaschsB emptus,
noil quilibet, scd niger, virgis distinct us, distantibus a se virgin
vel 2>^dis vel j;a///i« exteutas spatio.'* Year after year we
find a number of great funbtionaries and royal officials, with
numerous clerks, assembled round this account table, employed
in receiving payments from the sheriffs, the special farmers,
and custodes, in scrutinizing their accounts, and giving
receipts ; imposing and receiving periodical aids, tallages, and
scutages ; appointing the sheriflFs and other fennors and
custodes, and calling them to account ; deciding legal disputes
within their administrative jurisdiction ; directing payments
to be made for the needs of the royal family, their trains and
servants, for war supplies and garrisons, for paying the King's
creditors from loans, and for administrative expenses of all
kinds — all this being done under the personal superintendence
of the King, or according to his actual or supposed personal
pleasui-e. Consonant with these functions, two divisions were
early formed : ^ (1) the account department, or scaccarium
viajus ; (2) the receipt department, or scaccarium de recepta,.
recepta scaccarii, scaccarium inferius. The one division after-

■wards had its office on the right, the other on the left side of
Westminster Hall. The rooms wheie the sittings were held
wero often distinguished ; the state session-room with the
throne was scaccarium, in the narrow sense of the term ; and
the smaller council-room, thalamus haronam. These words,
which are always ambiguous, denote alike the place of
official administration, and the functionaries themselv)
the chamber, in which the specie is actually deposited,
specially called thesaurus regis. [1)

(1) As to the origin nnd GKicniftl form
I «f Iho Exchequer, the chief authority

is tha "DialoguB de Scaiy»rio," »
treatise upon tho law of tlie Ex-
Gh<M(uer. which Mndoi (part ii.) has
printed, and fnraiahed with copious
notes. It givoe evidence of the eiirly
matured development of the adminie-
tmtivo maohincrir. and is a mnivelloug
teitunony to the official views respeot-
ing the State, auch an is hardly lo be
found olsewheie in the Middle Agca.
Gervosius TilbmgcnaiB van rormerlj
regarded as the author; Mudox fii.
33t-34S} aBsisrua it to Ricanlus, Filias
Nigelli. a court cimplaia of Heoij II..
f afterwards Bigliop of Lnndou. and

graudnepbew uf ttogcr of Saltsburj,
the great ininiBtei of HeDTj I. Its date
may be Sxed with toletuble certaintj
for 1178, In Liter tiroo# the ioatitu-
tioiiB of the Exchequer have again been
the subject of an exhaustive mono-
eraph, printed for private aiiculation
by P. S. Thomas, "History of the
Eicfaeqner " (ISIG); aud another pub-
lication of ThonjBH (also unpublished J.
" Motes of Materials for the History of
Public Denartmenta" (1846). Certaia
I Tiea>iury Bemrds have been printed by

I the Record Commission. The oldest

■ existing Hotulus, cbIIhI S Stopben

■ («dit. HuDter, 18:1-1}, may be placed.
I on convincing evidenoe, as early ns the
H SUtyeu of Henry L Astolhoinstitu-
I tion of the Norman Echiiiuitr, see

■ Hadoi, i. I62-1US; WamkouiK. Fnw-
H soriehe lieiolis- uud Bechls-Geschichte,

■ i. »4ri; Sch&ffntr, Pranzusisotie Sloata-

■ und Itechts-GeBchiehte, ii. 408, 409.
I Jla introduction from Normandy ia

■ prnyail by the " Dialogue de Scawwtio."
K *'ab iya ngni eonquititlone per rtgem

ords,
F tha^

Wilhelmum fada ofpiae
tumpta tamea iptiiu raliont
carlo tfuniraarino" (Dial, i _„ _
well OS by the Latin torminolo^ of
the Exchequer. lu any case that
evidence proves the existence of the Ex-
chequer under William the Conqueror,
though en actual importation from
Normandy cannot be substantiated. Uy
former view (after Floquet. Histolie
du Pailemcnt de Normondie, p, 8),
that a. Norman Exchequer-roll ma
existing ns early as the year 1066. ia
certainly based upon an error (StQbbt,j.
STT), but Eo is alio tlie opinion of
Bishop Stnbba, that the Echiquitr of
the islnnd of Sicily was imported into
England by an English Exchequer
cterk. Thomas Browu (ace tlie " Tnuti-
netious of the Acodemia Reale," Ot
Eome (28th April, 1878) ; all the exist-
ing legal recuida, and I'rcasury rolls
of Normandy ore of so much later
origin, that it cannot bo proved IVom
the later constitution of the Noraun
Sehi'juia- that the English was formed
after its model. (See also I.ihermann,
" Einleilung in den Dinlogus de Scao-
cnrio," GottiBgen, 181)5.) The con-
troversy is after all merely nominal:
for the close connection of the Judicial
and flnnncu administration was in th«
Middle Ages everywhere a matter of
course, and, oven if the name of Eeki-
gnier arose earlier in Normandy, yet
the English institutions were so cloeely
cannvcted with the county goveniioeiiti
aud the uischinery wns so finely
developed by the offioials under Henry
I. and Heury II., that the malariu
port of tho institution certainly belong*
to tha Angto-Noimau stale.

The Norman Exchequer. 221

—

II. The course of business in the Exchequer embraces in its
early arrangement —

1. Payments into the Treasury, These are made in the
counting-house (oflSce of tellers) in gold or silver coin. The
pound {livre) of the Norman period is an actual pound of silver
of twenty-four half-ounces, and is divided into twenty shillings,
and the shilling into twelve pence. The silver penny {denarius)
is the regularly minted current coin. The mark in silver is
accordingly thirteen shillings and fourpence; the shilling
about the value of a Prussian Thaler. The gold mark is
equivalent to nine silver marks. These values are fairly per-
manent. It was not until Henry YI. that the coin had lost
about a third of its silver contents. But the irregularity of
the coinage, as well as the depreciation caused by wear, and
by forgeries, led to special precautionary measures. In the
case of payments ad sealant, sixpence in the pound was
demanded **to make good weight; " in payments, adpensuvi,
more than sixpence. LSSThere the purity was doubtful, a
smelting test was applied^ but this also was remitted on pay-
ment of one shilling per pound (nominal combustion). The
payment is entered in an account book, and from this trans-
ferred to a strip of parchment, called the "bill," or ** tellers'
bill.'* This strip of parchment falls through a pipe-like open-
ing into the "tally court," where a "tally" is made of it.
This tally is a piece of dry wood, on which the " cutter of
the tallies" has to cut notches corresponding to the sum
paid ; whilst the " writer of the tally " writes the sum down on
both sides of the wood in figures. According to the length of
the incision, one notch denotes £1000 ; another JEIOO ; £20 ;
20s. ; Is. ; and so on. The chamberlain splits the notched
stick down the middle in such a manner that each half con-
tains the written sums and the incised notches. The two
matching parts thus split asunder are called "tally" and
" counter-taily," or " tally " and " foil " (folium). The one is
retained by the chamberlain; the other is kept by the
payer as a receipt and proof to be produced to the account
department of the Exchequer. (It was not until 1783, by 28

222

Constitutional History of England.

Geo. III. c. 82, that these notched sticka were done away
with in the Excheijner, and checks substituted for them.)

2. Payments out nf the Exchequer are made on a royal
order (writ, or mandate), under the great or privy seal,
generally addressed to the treasurer and chamberlains. The
usual formula for this purpose is called a " Uhcmte." Orders
for payments which recnr periodically, such as salaries, are
called "Ulerate current," or " dormant," and are couched in
Buch terms as the following : " Rrx Thesnurario . . . sulutem .■
Liberate dc thestiuro nogtro aingvlk annis qninqiie CapelUinia
noBtri-B ministrantibua in CapeUia S. Johatinie et S. Stepliani
Westmonastrii, duodecim librtis et decent deiiariog pru stipcndiU
snia " (29 Hen. III.). In the course of time, for the puqjoae of
control, other mandates are inserted. Thus the royal writ
is deposited on the account side of the Exchequer, and on
the Btreugth of it a " treasury warrant" is issued by the
treasurer or some member of the Exchequer staff. Acting
upon this warrant, the auditor sends an order to one of the
tellers, which is then countersigned by one of the Exchequer
ofiGcials, and in this form is finally honoured.

3. The book-heepiiig of the Exchequer, divided into the
"rottdus annalis," the "wi'womnr/fl," and other daybooks, was
early arranged in a technical form. The chief book is the
rotidus ann<tlis, "the great roll of the Exchequer," the most
stately and important record, into which (according to Madox,
ii. 112) the accounts of the royal revenues flowed through
different channels, as rivers pour themselves into the ocM
These mogni rotuU p'lpie (so called on account of their 1
rolled up in the shape of a tube), arranged according \
counties, have been preserved in their entirety since the first
year of the reign of Henry II. (with the exception of two
years). Partially printed by the Record Commission, tbay—
form the moat comprehensive source for studying the a
trative law of the Norman period.

The renderiufi of accounts m the Exchequer. The most*
important accounting parties were the sheritfs of the counties.
A great part of the demesne, feudal, and judicial dues paBsed

hrougli^^
oceas^^H

: beiiltf^l

iing ^^1

3e first
of two

aiuil, tbOiy^^—

r fidminil^^B

The Norman Exchequer. 223

through their hands, besides numerous disbursements for
munition of war, equipments, and salaries. Their duty was
not merely to receive and pay over moneys, but also to
deal with complicated accounts and receipts. And thus
months generally passed away from the provisional payment
{prefer) until the definite sum was fixed {aumma). Many
amounts, such as confiscated catalla, and incomes from seques-
trated property, which appeared in the account in round
smns, had to be scrutinized in detail. Disbursements are
only passed on presentation of a *' warrant of discount," and
must be regularly justified by the King's writ ; and in the
<5ase of regularly recurring disbursements, there must at
least be a rescript of the Exchequer. For the repayment of
loans contracted by the King, orders for payment are issued
upon the sheriffs yearly rent by writs of " allocate et compu-
tate,'' The accounting party must appear in person, and is
previously sworn ^* dc jideli compoto reddendo-;'* although
sometimes an account is accepted " jicr Jidem " or ''per verum
dictum.'' Occasionally, by royal writ, and later by Treasury
rescript also, the presentation of accounts by a clerk, as
attorney, is allowed. The final acquittance was often so
liable to hitches, that the accounting parties pay sums of
several hundred marks to be quit of the responsibility for
themselves and their servientes. Similarly the accounts
are presented by the fee-farmers and bailiffs of the towns, the
escheators, the ''customers," or special receivers of tolls,
and all those who have been entrusted by the King with a
special administration (bailwyck). Later, the travelling judges
have also to render accounts. (2)

(2) As to the proceedings in the 389. The chief authority is the Dia-

Excheqiier, and especially as to the logus, 1. c. 6 (Madox, ii. 373). In

order in wliioh ttie functionaries sat at later times the numerous controls were

the council table, see Thomas, Ex- furtiier increased ; in ttie time of the

<5hequer, p. 1 e^ «e<]r. The payments into Stuarts **a letter of discretion" was

the Exchequer are dealt with by drawn, in which the treasurer denoted

Thomas, Materials, p. 5. For com- the special fund from which the pay-

parisons of the coinage arrangements ment is to be made; upon this the

of the Anglo-Saxon period, sec Schmid, parliamentary allowance or disallow-

Glossarium s.v. Geldrechnung. ance of the disbursements was based.

As to the dUhnrsements out of ike As to the hook-keepingt see Madox,

Exchequer^ see Madox, i. 348-350, 362- ii. 456 et seq.; Hunter, Introduction,

224

Constitutional History of England.

6, The Excheqrier court days. For the settlement of dis-
puted and legal points which arise at the presentation of
Oiccoiints, the higher functionarieB of the Exchequer assemble
periodically and hold sittings, which are called "xcaeearia,"
and aro described in the Dialogus de Scaccario, ii. c. 1, as
follows : —

" I'rmcedente namque bresi aiimmanitionis, quad Regim aucto-
ritatU aignatur imagine, cout'ocantur ad locum nominatum qui
neeeiitarii aunt. Acccdunt autem quidam ut sedeant et judietnt,
quidam ut aolvant et judicentur, Sedent et judicant ex officio
vel ex principia maitdato Baronen, quorum aupra meminimus.
Solvunt autem ei judicantiir Vicecomites et alii plures in r
quorum quidam I'oluntariia oblationibiia quidam necesaaTiis »
tionibua obnoxii sunt ret."

The individual accounting parties are summoned thith^^
with tlio waminfj, "Sicut te ipsum et omnia tim diliyis," and
a notioo of tho separate amounts due, "annotatis omnibus
debitis serintitn cum causia," and with the coucluding claase,
" Et hac omnia tecum habeas in d^nariis talt-is et brcvibus et
quictantiit, vi-l capienliir dc Jirma tiia." Those who failed
to appoar were Biiminoned realiter by the sheriff or the
"huiHsior" (usher of tho Exchequer), fined in an amercia-
ment for every day they neglected to come, and in case of
need arrested, and their whole property sequestrated by a
writ " de nmnine districtionis." On defalcations being detected,
immediate arrest took place. Landed proprietors and corpora-
tion!* also, claiming a franchise, were obliged to appear .every
year in tho Exchequer, when tho sheriff presented accounts,
and to give account themselves as to the returns, out of which
they then were allowed so much as was due according to the
I terms of thi^iir privileges. Failure to appear or refusal of

L account incurred sequestration. "When the Iving had, as an

I §t«)ii

■ th« 1

■ Rccv<

I SI H

L n

St(i)iiin .

tho mora oorrsot date. SI Hen. I.
Rccvb'b Hiitory, i. 218, and thu Intro-
dttolion to the Boluliu Fipn, du uauu
SI Hsu. I.

The pTcmnlalion of aeeoantt is de-

Kribed :

cLeqnor, p. jQ-SX.
preBontalioD of neo .... ^

ftrmonaDil llDandaloniciiilsu. „

ID gronl numbera by Mftdox (for el-
nniple, tlie control of the eoinaec,
M.,doi, ii. 13a}.

The Norman Kxcheguer.

225

exceptional caee^ himself received an account in person, or in
camera sua, this was notified by writ to the Treasury. (2')

The administratiye* principles of a demesne department
with such full powers, naturally produced for the Exchequer
important legal prerogatives, and were the source of the
present privilegia fisci in England. The decisions of the
Exchequer appear as the oldest form of an administrative
justice. According to its constitution, the Exchequer is
certainly no chief court of law, but is only intended "od
discemenda jura et dubia determinenda, qum frequenter ex
incidentibus qusestumibus oriuntur** (Dial., i. 4). But) the
Norman financial system is inseparably blended with all the
branches of pubhc and private law. The fixing of fines
and amerciaments, the decision of appeals against the imposi-
tion of tallagia and other imposts, involved a jurisdiction
extending in all directions over the prerogatives of sovereignty.
All privileges of the lords of manorial courts and towns, all
liberties and franchises, in the sense in which they are used
to-day, i.e. all royal grants, the legal validity or extent of
which are called in question, are here decided. In every
dispute as to a Crown fee, just as in every grant and in-
heritance of a fee, the Exchequer is an interested party. The
debits regis have first to be satisfied, in every administra-
tion of the estate of a deceased person. From the litigation
in ordinary private law also (" communia pkicita,'' in contrast
to those in which the King has an immediate interest) the

(2*) The Exchequer court-days in
their eharacteri»tic form, accordiDg
to the Dialogue de Scaccario (Thomas,
and Madox, ii.)* have also a certain
influence upon the later forms of pro-
cedure in the central courts. The
privil&jia fisci, which proceeded from
the practice of the Exchequer, had
permanent results. Where any one
was at once a debtor of a King and
of a private individunl, the **debilum
regis" must be paid before all else. A
debtor of the Kinof cannot dispose by
will of hi.-* personalty to the prejudice
oi the King ; and his heirs cannot ob-
tain the administration of his personal

VOL. I.

estate, if he has died intestate, without
the have of the Exchequer. In case
the solvency of the estate is doubtful,
the King undertakes its sequestration,
calls in outstanding claims by way of
administration, and satisfies himself
first, with reservation, however, of the
burial expenses. Debtors to the Ex-
chequer are also, on demand, allowed
a ** writ of aid" against their debtors,
that by getting in their debts promptly
they may be enabled to satisfy the
official claims. Herewith are connected
at a later period a number of the
provisions of Magna Charta.

226

Constitutional History of England.

JUrut derived an interest, from the fact that the Eicbeqner
assisted a debtor to the fiscua against third parties, to pot him
in a position to fulfil his obligations towards the King. Hence
it can be explained bow the Exchequer in meting oat ad-
ministrative justice drew also common civil actions before
ita tribunaUT According to the Leges Eduardi, civil suite were,
in (teed, to be decided by a judicium parium ,- but this pro-
vision was formally satistied by the Exchequer choosing ita
higher officials from among the Crown vassala, " baronea
acaccarii," in whom even the greatest feudatory was com-
pelled to recognize a properly constituted court.
•^ III, The staff of the Exchequer is divided into the bigber
officials and the clerks. As all departments of the central
government meet together in finance, so all the great officials
of the State bad a seat here, in person or by representatives.
The personal presidency was reserved for the King himscU ;
and in thia capacity he acted for centuries. Where a Chief
Justice, " capitidis jiisticia," had been appointed by the King,
the latter is represented by him. Under Henry II. this chief
judge had become a permanent official ; the Dialogus de
Bcaceario accordingly mentions him as the president, and the
higher judges as " hamnts acaccarii," as important officials, but
whose appointments were revocable: " lUk enim reaidet Capi-
talit Domini Regie Justicia, primus post Regent in regno ratione
fttri, et majorea quique de regno, qui familiariua Rcgiis aeeretii
aeaistunt ; vt quod fuerit sub tantorum prtesentig conatitutum
vel temiinatum, iniwlabUi jure subsistat. Verum quidam ex
officio, quidam ex sola jussione principia resident. Ex officio
principaliter residet tmo et prtestdet primus in regno, CapitttUi
scilicet Justicia. Huic autem aasident ex sola jussione Principia,
momentanea scilicet et mobili auctoritate, quidam, qui majartt
et diteretiores videntur in regno, sive df. clcro tint give de Curia.
Assident inqujim ad discernenda jura et dtihia dctenninanda, qum
frequenter ex inddenlihva qittestionilrus oriuntiir " (Dial., i. 4).
In order to understand the poaition of the Barons of the
Exchequer we must remember that they form a supreme
court set over the great farming I'iceeomiles, amongst vhom

The Norman Exchequer,

227

are often to be found the first men of the realm^ bishops,
grand feudatories, etc. ; and that their judgment decided
questions of law even against prelates and Crown vassals.
It was natural, therefore, that the controlling officials in the
supreme court should be men of similar position, i,e, persons
with the necessary rank in the feudal or ecclesiastical hier-
archy. The Barones were accordingly those among the
magnates of the realm who were the most skilled in business,
and who stood nearest to the King. The highest court digni-
taries have a place of honour among them ; as have also the
Chancellor and the Treasurer, who gradually became the
principal personages among the Barons of the Exchequer.
All these higher functionaries bear the name of " Sedendi ad
Sca<;cartam ; " the latter name, ** Residentes ad Sca^carium,'*
includes also the under-officials.

The under-officials are difficult to classify, for in the
earliest records a large number of persons are comprised
under the denotation " Clericus Scaccarii; " Madox has, how-
ever, with great labour ascertained the individual classes, and
arranged them into two groups. The most important under-
officials in the account department are : the Remembrancer
as keeper of the register and despatcher of business, the
Ingrossator Magni Rotuli, the Constable and Marshal as repre-
sentatives of the State functionaries of the same name in the
Exchequer, the Usher (Huissier), and in later times the
Aiiditores Cqpijpotum as revisers of accounts. The chief
under-officials of the receipt department are : the Clericas
Brevium, the Chamberlains as keepers of the chest, the Clerici
Thesaurii, the Tellers as cashiers, and the officials appointed
for weighing the coins and applying the smelting test. (3)

(3) For the official staff of the Ex-
chequer, see Madox, i. 197 ; for the
under-officials, Madox, ii. 263 et seq.
To the under-officials of the account
department belong (1) the Remem-
brancer, RememoratoTy registrar, keeper
of the register, despatcher of business.
(2) The Ingrosser, Ingrossator Magni
BotuH Pipas ; sometimes two function-
aries of this sort, frequently persons

of aristocratic families. (3) The Usher,
or doorkeeper, entrusted with the safety
of the buildings, the money-chest, and
the registry; and at the same time
doing duty as a Huissier, who receives
the customary fees for summoning the
sheriffs to the Exchequer sittings.
From the time of Henry II. it was an
hereditary office, even divisible and
descending to women. The one en-

\ The spirit of centralization collected together in the Ex-
chequer the whole of the State finances. The other exchequer
offices which are found existing are of Becondary importance,
and in the majority of cases were temporary institutions. For
the personal disbnraementB of the King there is a household
treasury with special clerici and a Thesaurariua eamerm.
Sometimes secondary and local escbequers were formed far
temporary purposes, as, for instance, a " Scaccariwm redemp-
tionia " and a " Scaccariuni" at Worcester. A more important
secondary department is the " scaccitriant Judmomm," under
the " cnstodes " or "jiisHciitrii Judieoriim," having jurisdiction
over all affairs relating to the Jews, and comprising numerouB
clerks and under-officials. The special constitution of this
procedure and the attributive justice of this administrative
body is so characteristic, that the condition of the govern-
ment under King John cannot be described more appro-
priately than by saying that the whole central government
had adopted the character of the Exchequer of Jews. (4)

Biies. (<uiHl(irs of Ihs chest, nra ap-
[>aiiil«<.l by the Gr&iid CbaDibetl&ia and
tlie Court Chamberlain of the King
OB their representatives, and OQght
properly to be kaigbte; the ourimt
baalDeM i« conducted bj speciiU
Cleriai Cantfrariorum ; (3) Clenti
Tlfiaurarll, treasurer'a clerka ^among
them 19 prominoiit the Clerk of
the PellB, bookkeeper of the Mtignmi
Sotuliu ds Renrvta, mentioned in
Henry III.; (4) The Tclk-ra, the iwal
CBshlen or ^y-oDtciiLls, usual! r foiKor
more; (5) The Petonra and Fusonn,
uiider-offloials employed ia wrighinK
the oains. enil npplrin^; the smelling
test, originally herL-ditary ofltoM^
BerjeBDties uniti-d with landed eatata^
heiedilsry and divisible. Beaidsa
the^e, goldsmiths for the teiting tiM
metal, easayers, and ether amistaat-
nflictMls wer« engaged at salariM m
they were wanted.

H) The Eieliequer ef Jevra la da-
eeribod by Mtulni, i, 2'il ct teq. lU
oiistenee is explained by the original
sbseDce of legal riglits in tli« Jnwa,
wliose positinn may b« mmparcd wtlli

fooffed of the "Borjeanty" appointed
the acting Huiasiers for this ol1iiN>—

the Iflth centuTy. (4) The Con»tablH,
an under-<i£Bcial ap[niuted hy the
Constable of England, so long as that
office eiisted (Dial., i. c. ^}. (A) The
MarsLal, an nnder-nfflcial provided by
the Mnrshal of England, having ter-
toiri functions to perform connected
vith the piesentiitioD of aoconnts
(/omlus maretealeix), and with the
right to take arrested persons inlo his
keeping (IMal.. i. c 5). (fi) Avdilon*
0<T<potum (Mailoi, li. 290. 291), re-
visors nf accounts, mentioned first in
!) Eilw. IL: originally this biuiness
nsa conducted by clerks appointed
pro hoe vice, or by the baronii Ihem-
SBlrrs (Thomas, Eioh., 122, 123).
(7) Clerks of eslreata, who were also
of later origin, for the exactioD of the

The Hoond group of under<>lBcLals
belonci to the rereipt department,
"Reerpla Smptari," the "Smccarium
in/trio:" (I) The CleHcut breriam,
clerk of the wrilsi (2) The Chamber-
iHim, a highci ohua of undei-fuootioa-

" Knimnflf-KnnOhlii

The Norman Exchequer.

229

des Kaisers/' and who were not merely
subjected to unsparing taUagia^ but
were bled in every way at pleasure,
Bomefimes under the name of '* protec-
tion right," and sometimes of a ** right
of occupation." This view of the /S«ctM
is unequivocally declared in the Leges
Edwardi Confessoris, sec. 25: "J^t
Judxi et omnia sua regis sunt. Quod
si aliquis dttintierit illos vel pecuniam
eorumy rex requirat taitquam suum pro-
prium, si vuil et potest.** Since they
have no persona standi in judiciOf
no landed property, and no right of
inheritance, and their legal capacity
depends upon the royal favour alone,
arbitrary conditions and payments are
attached to their legal intercourse.
Fir:it, their right to bring actions in
their contracts with Christians was
only recognized when the terms of the
bond were to be found in the chest of
the Jewish secretary (chirographer).
The inheritance of their property is
only allowed on payment of heavy
fines. For example, Henry III. de-
mands six thousand marks of a widow
for the personal estate of her deceased
husband. The causes and pretexts for
the imposition of amerciaments are of
course innumerable. One of the most
common was for marrying without the
royal consent. At times all Jews were
thrown into prison, and then released
on payment of heavy fines, on one
occasion of sixty-six thousand marks ;
on anotlier occasion the Jews were
pledged to the Earl of Cornwall for a
loan of five thousand marks. Hence
the numerous "ransoms," "composi-
tions," "fines for protection," and
"licences" in the Jewish administra-
tion. In return for great sums, they
were allowed important privileges.
For instance, in the Charta 2 Joh. :
**t*< si Christianus hahuerit querelam
adversus Judasum, sit judicata per pares
Judxi. Et Judxi non intrabunt in

placitum nisi coram Nobis" etc. In
the fifth year of John's reign a formal
jury was formed of " legaJes Christiani
et Judmi," For this department, under
Richard or earlier, a separate and
secondary exchequer of ^*custodes" or
^*justiciarii judiiBorun%^* was told off,
consisting at -first of Christians and
Jews together, at last composed for
the most part of Christians, appointed
under the great seal. They have juris-
diction in all matters touching Jews,
such as the scrutiny of the accounts
presented, the decision of actions aris-
ing out of Jewish contracts, •and dis-
putes touching their landed property,
their personalty, taxation, fines, and
forfeitures. Under iheJusUciarii stand
the chirogra/arii and coffrarii (who
preserve in chests the charters and
bonds between Christians and Jews),
as local officials, appointed in places
where a considerable number of Jews
dwell. From the practice of this
secondary exchequer a special Jewish
finance law becomes formed, "Law,
Assize, or Custom of Judaism ; "
under Richard I. the judges on circuit
have instructions given them as to
this custom (capitula de Judseis). In
the short period from 50 Hen. III. to
2 Edw. L (1265-1273) the Crown
was credited with £420,000 "de ex-
itibus Judaismi" (Coke, Inst ii. 89).
The whole institution comes at la^t to
a sudden end through the expulsion
of all Jews from England (19 Edw. I.);
in consequence of which act tliey re-
mained for 3(34 years entirely banished
from the country. The number of the
expelled Jews was 15,060 (D' Blessier
Tovey, Anglica Judaica, Oxford. 1738 ;
J. M. Jost, Gesch. dor Israeliten, Ber-
lin, 1820-28, vol. vii. pp. 102-171). As
to the other secondary exchequers, and
provisional payments in other place;»,
see Madox, i. 262-271.

Constitviional History of England.

CHAPTER XV.

V. ®!)E aafsE ana Bttnp of tfjt iaorman GTSutci) S'UpKinais.

This fifth and last division of tbe sovereign power took a
different course in the Norman period- In the same degree in
■which tbe temporal goveniment became consolidated under
an absolute monarchy/tta Chiu-ch advanced in the direction
/of a Eomanizing centralization, which confronted tbe power
\ of the Crown by the equally strong power of tlie Pope. In
the middle of the period this made a breach in tbe system of
absolutism.

William tbe Conqueror had not under-estimated the inflaence
of tbe Church. He had found her an influential power under
Eadward the Confessor, and in possession of about a third of
the revenues of tbe soil. With her support the new throne
was won, the Hanetion of the Pope was the sole indisputable
title to it, and the lower clergy were the class upon which
the obedience or the opposition of the masses in a great
measure depended. The feudal and i^cciesiastical States wore
obliged to form an alliance with one another to attain their
culminating point. The Conqueror recognized this relation
in a number of cuncessiouB.

■/ England adopted the Roman Liturgy, and submitted to the
ritualistic precepts of the Papal Chair. The 'kasiu-ance of
liberal and punctually collected Peter's pence was very welcome
to the Curia. The celibacy enjoined upon the clergy still met
with a passive resistance, which was only gradually overcome
after the time of Henry I.

.^Ji

Norman Church Supremacy. 231

The liberal endowment of the Church in its archbishoprics,
bishoprics, chapters, monasteries, and other foundations, is
not only maintained, but extended by many new gifts and
ecclesiastical foundations. The monasteries especially increase
under Henry I., Stephen, and Henry H., in such a manner
that their number is computed in the " Notitia Monastica "
at three hundred. At the close of the period the Church is
; said to have been in possession of about the half of the soil
of the country, but this probably means only the half of the
ground rent of the greater estates.

The ecclesiastical jurisdiction over clerical persons and
matters is recognized in all its ancient extent, and also is
from this time forth separated externally from the temporal
courts. The Anglo-Saxon union of bishop and ealdorman
for the purpose of holding common court days for clerics and
laymen was in the highest degree antagonistic to the spirit of
the Roman ecclesiastical government. The Earl had now
retired from the position of president of the county court : the
co-operation of bishop and Shir-ger6fa was all the less likely
to be acceptable to both parties. The internal contrast
between the spirit of the popular court and that of the eccle-
siastical district court had made itself more and more felt,
and the desired separation of Church and State was in this
point conceded. This step, so characteristic of the legislative
power of the time, is taken towards the end of the Conqueror's
reign by means of a writ addressed to the Vkecomites (Char-
ters, p. 85), but with the assurance that it is taken " cammuni
concilio et concilio Archiepiacoporum et Episcoporum et Ahbatum,
ct omnium principum regni.'' Sec. 2 : " Propterea mando et
regia auctoritate praecipio, ut nullus episcopus vel archidiaconus
de legihus episcopalUms amplius in hundret pladta teneant, nee
causam quse ad regimen animarum pertinetj ad judicium secu-
larium Iwminum adducant, sed quicunque secundum episcopalea
leges d^ quacunque causa reZ culpa int^rpellatus fuerit, ad locum
quern ad hoc episcopus elegerit vel naminaverit venial, ihique de
causa vel culpa sua respondeat, et non secundum hundret, sed
secundum canones et episcopates leges re6tum Deo et episcopo suo

facial. (Judicium vtro in nnllo loco portctur, niei in episcopali
tede, ant in illo loco quern ad hoc cptscopux constituent.)" The
Bummoning of the parties before the now independent eccle-
siastical GOurtB took place under threat of excommunication :
" et si opm J'u^rit ad hoc vindicatidum, fortitudo et jtuttitia regit
vel vieecomitis adhih<;atur." Futhermore, the Vicecomitcg and
royal hailiffa are forbidden to interfere -with the coarse of
businesa iu these courts. Upon this separation the " CuriK
Ckrigtianit^tis " take with them the consideration of such
secular matters as had, chiefly for external reasons, been left
to the spiritual authorities, iifhen both were formerly united.

The " Leges episcopates " here form a contrast to the " Legrn
Eduardi," embracing as they do all tliat was formerly decided
according to the rights and customs of the clergy. In the
now independent ecclesiastical courts, the appljeobihty of the
jua canonicujH, of the Decretals, and of the resolutions of
the Concilia, is, with very few exceptions, regarded as a matter
ofcom-se. Thus there arose a jurisdiction over matrimonial
matters, wills, and indirectly over questions of legitimacy and
the inheritance of personalty, over verbal -contracts, tithes,
church dues, and church sees, which was ipdependent of the
temporal power; a penal jurisdiction for' the maintenance
of orthodox doctrine and Church discirdinc, and for the
punishment of bigamy, incest, foiiiication, and other offences
against morals ; and a more and more-' sharply defined
magisterial authority over the whole of the clergy. To tliis
was added an appeal from the ecclesiastical decision to Rome,
and to the practice of the papal legates, arid thus was formed
an almost sovereign power within the poUtical state.*

* Thn separation of tho eoo1e«tiutiotil
jurisdiction into sopnrate courts took
plai:e at a tiinu of extreme tonBion, in
vhioh the imperial proclamation o^tlie
NoriDan military ^uilul law atlll, met
with reaiatanoa. aeaco it is ea^ to
underatani] tliat tlieteonqueror resolved
upon B ooucessian, Whieii satiBfied the
must cngcat demaiHls of lii» Bti[ierior
cleruTi ani) shortly aftcTwnrtls rendered
possible tlie act r>f bomn^e at Saliehury .
The oonieaii o! the decree ai to ttie

Bepnration or tbe Bpirilual juriadiction
iitjuite clear. The J»ord "hundret"
dcsignnlfs the secular ploMi^if jilstioo,
in which also the countj MiMs wore
held. The iudepiDdence of the Curia
ChrUHanHatUi, bciweTer, did not ox-
clude the obligiitinii oT the clerg; to do
Knit nf court (srv'te ngii) in their
cnpacitT ai Crnwn vassnla. What the
t.ogpB Uon. I., BOO. 2, contain on thid
point wu the establjahed luw of foudal

Norman Church Supremacy. 233

The Conqueror plainly recognized the possibility of this
consequence, and endeavoured to avert it by the following
checks drawn from both the old constitution and the new.

I. The ancient rights of the Anglo-Saxon State over the
Church were retained, especially the royal ratification of the
resolutions of the Councils. In the year 1108 we still find the
canones of the Ecclesiastical Council in London adopted "in
the presence of the King, with the consent of his men." In
the year 1127 Henry gives his consent to all the resolutions
passed in an ecclesiastical Council, and ratifies the same
by his royal power and authority (Stubbs, i. 874). By
virtue of the King's right of making decrees, the clergy are
forbidden to leave the kingdom without royal licencq^ to
recognize a Pope without royal direction, to publish circular
letters from Bome before they have been seen and approved
by the King, or to pronounce sentence of excommunication
upon a royal vassal without the King's permission. In like
manner the right of appointing bishops or abbots was pre-
served according to old custom. These appointments are now
made on high court days, after hearing the spiritual and
temporal magnates. Very frequently a royal chaplain, in
any case a man in whom the King had personal confidence,
was appointed bishop. To these old conditions the Conqueror
added a new and comprehensive arrangement.

II. The great landed possessions of the clergy are con-
sidered, according to the system of the feudal suzerainty
over the whole land, as granted to be held under the same
laws of tenure as the baronies and knights' fees; that is,
with the fuU burden of the feudal services, suit of court,
and feudal dues. This theory was applied to the estates of
about one hundred and fifty bishoprics, chapters, abbeys, and
greater parishes ; but not to the glebe-lands, tithes, offerings,
and fees of the ordinary parishes. Thus was solved an old
problem of the Anglo-Saxon military organization. The
bringing of the rich ecclesiastical estates, with their thousands
of interests, into the feudal register of the realm was a step of
great significance, and it was the more popular because the

great bishoprics and monasteriea were thus compeUed to
adopt subinfeudation, by which means many old landed
interests of Saxon Thanes were preserved, and many new
ones created. The interest of the temporal lords urgently
demanded this equahzatiou. The Church bad not hitherto
been able to claim more than an equality with the highly
privileged landowners. The administration endeavoured here
to enforce the new order of things with certain indulgence.

(A number of monasterial estates retained their customary
immunity as "tenures of franltahnoign." A portion of the
feudal servicea remained in arrears, and was excused. For
B long time in the Exchequer accounts the scutagea of the
prelates were divided into two classes — into those " q\im
reforfnosctint," and " qutB non recoijjwgciint," the last named
remaining in abeyance. In ordinary practice no personal
military service was required of the epiriluai lo*ds ; in their
case a remission of feudal service for money payment was
first allowed. An indulgent spirit towards the clergy is
also visible in the matter of aids, amerciaments, and se-
questrations. **
III. In the same way, all the other sovereign rights are also
, ^nforced against the clergy. The mihtary summons is
' issued to all ecclesiastical vassals in the usual form ; generally,
therefore, through the Virecomeg, and with like eflfect. The
Exchequer accounts show tliat even bishops and abbots were
fined on this ground, and had their estates sequestrated.

•• According to Iho Inter invastiea-
tions of FrremsD and Stubba, tliis
spplicKtiim of the Nurmnn fendel tja-
trtu to tbe Innded estaUa of tbi^ riiiirch
oerUlnly did not take ptaoc iiutniitlr:
for the tlieory of tbe forfeiture of Iheir
landed property, bj " rebels," aad of
the " redi'mptioD " of poaaoMiioDS en
the part of the reil of the landowneiB,
wu inapplicable to the landed eetalci
of eccleaiastical corpnratiaoB. Butaince
tbe great sot of homaBe at Saliebaiy,
tbe uoiver^al obligation to featly, to
feudal Borvices, and to ftudul pay-
mifuU was dirived from the legal act
of iDveatiture and tbe fuadnl oath;
oumwoiu iodicstionB beat witQena that

under Tfilliam Ilufus tbe I
Flamhard applied all the ruuBequencea
of tbe feudal law to the eccleiiaatical
estates hIbo. The pmcttoe of the Ki-
rhcqui'T, the Congtitutioni of Claren-
don, and the fully developed tbearr
of the Gng1i>h feudal law, as it !b laid
down in tbe leeal work of OUovUl.
allow Ibe opplicaticin of the feudal
eystcm oa a completed fact (Stubba, L
398, 299, ill. 357, and other paaaagnal.
Conuiwled therewith i« the cnergetie
relenlioD nf tbe iDveBtitiire of lh«
greater eetuteB of the okr;^y, wliioh 1«J
ua much in the inkrest of tlip Otown
a« in that of tho Itimpanl vunlt.

Norman Church Supremacy. 235

Under Henry III. there occur even summonses to the clergy
to do personal service in the army.

To the judicial power both higher and lower clergy are so
far subjected, that they have to do suit of court {secta regis)
both in the county court and in those court commissions
which were immediately formed by the King. It was only
a more indulgent practice which, permitting them to be
represented in the county assembly, limited the compul-
sion to find the verdict in person to the curia regis; and
here also no participation in passing a death sentence was
demanded from the prelates. In their character of vassals
of the Crown, they remain passively subject to the royal
court; ''I do not condemn a cleric and a servant of the
Lord, but my Earl.whom I have placed over my realm,"
said William I., when he personally arrested his brother,
Bishop Odo.

The clergy with their tenants are subject to the police
control, as a consequence of the temporal judicial supremacy ;
the Exchequer accounts show us that aU the new police laws
and the practice of amerciaments were enforced, even against
the highest clergy.

In like manner the Norman exchequer accounts show that
the financial supremacy of the King is also exercised against
the clergy. Money claims of the King upon a clerkus were
first exacted from the fief by distraint ; failing this, an order
was issued to the bishop to seize the beneficium of the
cleric, "otherwise 'the King will come upon the bishop's
^ /barony." All feudal incidental payments, " relevia,'* " auxiliay'^
i ** scutagia,'' are extended to the Church. For the revenues
derived from wardship and marriage, which are here absent,
the King compensates himself by withholding the temporalities
of the bishop's see, which under William Eufus sometimes
remained vacant for five years. As a matter of course, the
old common burden of the trinoda necessitas, which since
Henry II. receives a new importance owing to the revival of
the militia system, is also incumbent upon the clergy.

According to the Conqueror's calculation, the maintenance

of the royal autliority thus appeared eecured, even after the
conceaaion of a separate ecclesiastical jurisdiction ; and the
first three kings of the Norman period remained opon this
basis virtually masters of the Church. The dispute ahout
investiture under Henry I. ended in a compromise, by which
the King renounced the enfeoffment with ring and sword, hut
reserved to himself the full feudal suzerainty.

The usurpation of the throne by Stephen, however, caused
a severe shock to the royal authority. The exclnsiveness of
the episcopal jurisdiction was declared in an oath extorted
from the King; the interference of the papal legates and the
appeals to Rome increased to such a degree, that Stephen's
successor found before him the difficult task of estahlisbing
afresh the old order of things.

A century after the Conquest, under Henry U., the Cln
and State had arrived at a turning-point in theii' mutual
lationa, and the position of the Church had now become mi
more favourable and popular than it had been at the eoi
mencement of the Norman period. What the Church
lost, by its subjection to the feudal State, had been retria'
upon the gi'ound of moral influence ; for to its other callings
a. new one had now been added. In the dissensions of
nationalities it had become the natural mediator, the nearest
protectress of the oppressed Saxon element, the sole pc
whom the Norman kings at their court days were at til
obliged to meet on the footing of negotiation. Even thouj
the high prelates had become Norman, yet the great mass of
the clergy still belonged to the Saxon population. Saxon
" clerks " were the chief staff of the Norman administration,
necessary interpreters to the French-speaking lords, and not
uninfluenttal intercessors for the mass of the oppressed
classes. The corporate spirit of the clergy had advanced far
enough to uphold, amidst the discord of nationalities, the
unity of the Church, which on that very account could not be
subject to the haughty class of nobility. And under these
circumstances it was very significant that Henry H,
appointed a man like Thomas Becket to the archbishop'

Lrest

I. himsdiS

Norman Church Supremo/^.

237

'-^

one who by birth belonged neither to the Norman nationality
nor to the privileged class.***

Under such altered circumstances Henry 11. saw himself
involved in a critical struggle with the ecclesiastical power, in
which he was in the end unable to recover full political power
over the Church. With her separate administration {juris-
dictio) she everywhere opposed the temporal jurisdiction. The
maxim of separation of Church and State had led to this,
that the lower clergy for three generations found their law
and discipline entirely in the canon law, their ideal in com-
plete severance from the laity; and that a very influential
party among the clergy, especially in the monkish orders,
stood resolutely on the side of Rome. The Church was free
/from the fiscal odium of the secular administration ; she had
the popularity which surrounds all forces that resist an
absolute government. Henry II. did not dare, under these
circumstances, to carry out the re-establishment of the royal
prerogatives without summoning to his aid the most powerful
and influential persons among the laity. He summons
accordingly (1164) in the formal manner of a '*cour de

*** For a time the ecclesiastical
influence ^v^as diminished owing to
the fact that the ranks of the clergy
had become internally disunited. Since
the year 1070 tiie Conqueror had filled
with Xorman clerics the two Arch-
bishoprics of Canterbury and York, and
then by degrees the bishoprics and the
mctst importiint abbeys also. The
curious state of things arose that the
higiier clergy were not able to Hpeak to
their flocks so as to be understood.
The diblike of the Saxon ]>opulution to
a foreign tongue and foreign customs
was now extended to the dignitaries of
the Church. Among the numerous
successful upbtarts of the times were to
be found many adventurers belonging
to the clerical profession . The majority
of the important ecclesiasticiil di;;uities
were, however, bO . far as can be
ascertained, filled by worthy persons.
Daily labour in the ecclesiastical
calling, the feeling of Solidarity against
the arrogance and violence of the mili-
tary vassals, and the powerful corporate

spirit of the clergy (increased by the
gradually enforced celibacy) appear in
the Anglo-Norman Church with un-
mistakable plainness. But on the
other side is visible in the first century
of this period the strong personal
influence of the King over his prelates,
who have been for the most part court
chaplains and royal secretaries. '* The
cohesion of the Church was for ages
the substitute for the cohesion which
the divided nation was unable other-
wise to realize It ^as to an ex-
traordinary degree a national church,
national in its comprehensiveness as
well as in its exdusiveness. . . . The
use of the native tongue in prayers and
sermons is continuous ; the observance
of native festivals also, and the rever-
ence paid to native saints. The eccle-
siastical and the national spirit thus
growing into one another supplied
something at least of that strong pas-
sive power which the Norman despotism
was unable to break '* (Stubbs, Const.
Hist, i. 245).

, cum baronii _^_
ction and fe*-^^

238 Constitutional History of England.

baronie" the greater Crown vassals and prelates, collectively
and separately, to attend tlie extraordinary assizes of Claren-
don and Nortbampton. At the opening of the first-named
assembly, in January, 1164, sixteen articles were presented
and carried, which coneernthe ancient powers of the eccle-
siastical supremacy. The chief article (No. XI.) is as
follows : —

" Archiepiscopi, epUcopi, et universx peraoruo regni, qui de

rege tenent in capite haheant possessiones siias de rege, stmt

haroniam; et inde respondeant justieiariU et viiHtatrU regu et

teqiiAntur et faciant omnes conmetudines rcgiaa, ct aicul rmteri

baronea debent inlercsae judiciis curUe domim regis, aim haronLi.

' bug, usque preveniatur in jvdicio ad diminutionem i

vei tnortem."

Y' By this (1) the subjection to the fendal jurisdiction and to-'

' all feudal burdens was declared anew ; and with it also the

temporal penal jurisdiction over the persons of the clergy was

k recognized in principle. Wliere clerical offenders are ex-

I amioed in an ecclesiastical court a secular judicial official is to

I be present, and the convicted offender is not to be further

* protected by the Church. Feudal vassals of the King shall be

outlawed only after previous trial, and with approval of tl
I royal court.

I i/" (2) The highest appellate jurisdiction of the King

I ' English soil was retained, and the parties are forbiddi

W " ulterius procederc " {that is. to appeal to the Papal Chair]

r without special leave (Art. Till.): " De appdlatiimihti*,

emerserint, ab archiduicono debent procederc ad epucopum, tt

epUeopo ad arckiepiacopum. Et si arckiepiBcojms dcfccerit jn

jastuAa exhibenda, ad dominvm. regem pcrveniendmn eat paatremo,

ut precepto ipaius in curia archiepiseopi contToveraia terminetur,

I ita quod non debet viteriua procederc abague assensu doTJiifU

1 regis.

I 7^

L

y' 3. The royal rights of appointing to vacant bishoprics ai^^^|
/abbeys were especially and formally recognized. Tl^^^l
revenues of the vacant sees fall to the royal Treasury, until j
the time for the new election has arrived. The formal '

Norman Church Supremacy. 239

election takes place in the King's chapel, and with his consent, •
and there, before being consecrated, the '' electvs'' must take the
oath of allegiance to the King as his feudal lord in respect of
his temporal fees, with reservation of his ecclesiastical rank.

These and other principles were compiled from precedents,
and were, as '' ancient customary law," so indisputable, that
the bishops, as weU as the secular vassals of the Crown,
recognized them without hesitation. Thomas Becket knew
these principles, and had applied them for several years when
he was chanceUor; and accordingly, after some resistance,
found himself compelled to make an unwilling concession,
and to promise to keep these articles " legitime " and " bona
fide.'* When, however, by means of the clause ** salvo jure
eccfe«i«," and under the authority of the Pope, he continued
his resistance, the King formed a decisive precedent by ob-
taining from a well-attended court of spiritual and temporal
vassals of the Crown, on the 17th of October, 1164, the con-
denmation of the primate in misericordia regis, which was
then in the customary manner reduced by the King to an
amerciament of £500. But the hard-earned victory was lost
again owing to* the passionate and intriguing conduct of the
King, the violent issue of the dispute, and the martyrdom of
Becket. At the final conclusion of peace, great points were
yielded to the Church, especially the ajjpeals to the Pope.
By later articles the principal point was comTeded to the Pope's
legate, viz. that for the future no cleric should be summoned
to answer for a crime before a temporal judge, except on
account of a secular fee, or of an offence against the himting
laws. The other points of unpleasantness to the clergy were
also for the most nart omitted. In its further development
the concession of aseparate judicial jurisdiction led to the
privilege of milder punishment, under the term of " benefit
of clergy."

Under King John the Curia advanced still further, and in
the course of a dispute between the King and the Chapter of
Canterbury, succeeded even in procuring the appointment of
the primate under papttl authority, and, in the further course

240

Constitutional History of England.

of the dispute, the free canouical election of the bishops, aa
well as the feudal suzerainty over the English CrowD.

Thus the relationship to the Church became the one weak
point in the system of Absolutism. Towards the close of this
period the old relations between the higher clergy and the
Crown become changed. Whereas formerly the King was
Bure of seeing in the bishops' sees only prelates who were
known and personally subservient to him, from this time
onward the ecclesiastical corporate spirit designates the
dignitaries of the Church by canonical appointment. The
charter of (^15th of January, 1214) (Stubbs' Charters, 288),
touching the freedom of ecclesiastical elections, has especial
influence on later centuries^ It was this " Chexter of Liberty,"
afterwards confirmed by 25 Edward I. stat. 6, sec. 2, which
considerably altered the character of the English episcopal
^ench up to the close of the Middle Ages, tinder Heijry III.
, f the papal power had reached the zenitH of its might io
\ England, and this, in conseq^uence of the realm being overrua
by foreign clergy, led to a reaction on the part of the land-
owning gentry as patrons of the churches. The influence of
the King is now confined to withholding the temporahties
during the time a see is vacant, and to the moral influence of
the feudal oath of fealty; through which, by the withholding
of the temporalities, a renunciation could be compelled "of
all the clauses of the Papal Bull, which were opposed to the
royal prerogative, and the law of the land." The breach in
the absolute royal power which was here made could not be
healed in the course of the Middle Ages, It was the first
opening, by means of which Magna Charta introduced the
beginnings of parhamentary privileges.

[ tlw

NwTK TO Chapteb XV.— The conree
which ihe (XM^IeaioBticsl dUpules took
in the NonoBii period f-itrat tlie atnn-
diinlf<i[e«tiinntin)ftbFiDhRreDtiitrcii(nli
nr thd ahanlute motiardiy. anri must
for this putpOM be act forth oon-

UriilfT Willuim I. tho ooDoessioni
merely the imm I'd in to vlshos of
tlw Charoli: tt aeptnle ccclcaiMtical

JuriadictioD. the Peter's ponce, kod
tbo iDodeiule maul«tion of cdibacT.
WilliBm hod also no objeotion* (n th»

doctrii>e of trnnsubntaaliBllnn. On
tlie other hand, he rejmt* with

S-oud rewilntetiew the demand at
reKory VIL for ■ 8tl»!»ia(y, and U
tnking i>f the oath of aUegitnce, m —
hill suprcnjBCj ov«r the Church ii
oitcnial tnultora, and u

Norman Church Supremacy.

241

the due exercise of it by reserriDg to
himself the placet to the publication
of all circular letters from Rome, and
by reserving his consent to all Councils,
all canonet, and to the excommunica-
tion of any royal yas8dk(Eadmer, Hist.,
p. 6, Wilkins, Concilia, i. 199).

William II. misuses his fiscal rights
against the Church, as in other direc-
tions ; leaves, among other things, the
Archbishopric of Canterbury vacant
for nearly five years; and is soon
involved in a quarrel with Archbishop
Anselm as to the taking of the oath of
fealty, in which temporal and spiritual
vassals take the King's part. A
Council of the year 1097 resolves that
**the archbishop has to leave the realm
witiiiu eleven aays."

Henry I., who by a cunning usurpa-
tion of the throne had anticipated his
elder brother Robert, was dependent
upon the support of the clergy, and
accordingly recalls the archbishop,
Anselm, who again refuses the oath of
fealty. After a long dispute Heury I.
declares in a Council of the year 1107,
upon his absolute authority, that the
investiture with the ring and the staff,
the symbol of the conferring of the
spiritual office by the King, or a lay
patron, should for the future lie
abolished.

Under Stephen, the usurpation of
the Crown brings confusion into this
question as into others. By extensive
promises Steplien brings the higher
clergy over to his sido, who then
l)ecome faithless to all the vows
formerly made to the Empress Matilda;
but later they also leave King Stephen
in the lurch. In 1138, tilings hud come
to such a pass, that in the Council of
Westminster a papal legato promul-
gates sixteen canons, and takes into his
own hand the conduct of the elective
act for appointing to the Archbishopric
of Canterbury. In the course of a few
years tho Papal Chair becomes the
court of appeal for all contending
factions.

Henry II., in a difficult position,
thinks to secure his royal prerogatives
by choosing his favourite and chan-
cellor Thomas Becket, but finds at
once in him an ambitious, energetic,
and equal opponent. In 11G4, tho
principal dispute is fought out at tho
Assizes at Clarendon and North-

VOL. I.

ampton, when again spiritual as well
as temporal prelates declare for th&
King. The sixteen articles of Clarendon
comprise in a formulated shape the
sovereign rights of the feudal State.
But in the course of the dispute
passionate irritation loses him most of
the advantages which had been gained.
A thoughtless word of the Kiug causes
the murder of the Archbishop. Under
the moral impression caused by this
martyrdom, Henry IL is compelled in
the year 1172, in the presence of the
papal legates and a great assemblage
of temporal and spiritual lords at
Avranches, to purchase peace with tho
Church by taking an oath ''to allow
tho appeals to the Pope bona fide
from that time forward, and to removo
all evil customs against the Church
which had come into use during his
reign."

The first century of the Norman
period had almost brought into a con-
dition of equilibrium the two powers
which were struggling with each other.
But after Henry II. the power of the
Crown diminishes quite as continuously
as tho power of the Papal See rises,
until the latter reaches its famous
climax underSbnocent III., whose rule
is contempbraiy with the miserable
reign of John. The humiliating sub-
mission of John, and his restoration to
the throne as the vassal of the Pope,
bring about the situation of Magna
Charta (a.d. '1215). The material
points of dispute which arise in this
period are in a compressed sketch of
their coursoios fallows : —

I. The celibacy*of the secular clergy.
This, under William I., is at iirst only
partially recognized, for the married
clergy are still allowed to retain their
wives (a.d. 1076). Henceforward, how-
ever, the ecclesiastical decrees are
more strict. The canons touching
celibacy increase in number. Those of
the year 1107 contain a positive com-
mand directed to yie married clergy to
separate from theift>wives, and the rule
that tho Bons of priests should never
"inherit" the Church of their father.
In tho following year, however, Popo
Pascal II. sends a letter of dispensutiou
from the command of divorce, " because
its execution in .England would bo
very much out of place, seeing thai
there the best and greatest part of tho

Constitutional History of England.

clorgy is of that Bort." In 1121!, at a
full eccUsiaslicftl Connnil at Wcst-
miarter (at nhicb, for the first tima,
a papiil legate pre»ds<l}, the legnte,
John of CremB, with great zoal plended
ror"tnimaeuIafaeiu(i'tai,'' but wiu hlm-
aelf obliged to lenve the cnunlry in
aecKoy and hwte, in ranaeqiience nC
nn immnnil lUMndal (Hnntiof!don,2I9;
Horeden. 274; Knjgliton. 23S2}. In
1192 it was thnnght poaaible to c».rrj
<mt the pioLibiiion of mHrriifEe b;
leBTins the eoforoingof itto thcElDg.
Bnt Henry L lande ase nf thia power
only by allowing every priest to keep
bis wife on pnyment of n flne. It waa
not nntil the twelfth century thnl the
inereaiin? power nf Rome at last
effertiially en forced celibnoy.

II. The diBpute ng to inTestitiiro
broke out under Willti.m II. in oon-
Bcqnence of the refusal of Arrhbishop
ADselm, the Kin^ having np to that
time enfeoffed hi« nrelates with the
ring and «taff. At the council of 1095
«yen the bishops ranged thumaelves on
the side of the anoienl custom. But
now, in consequence of this laae, in the
year 1098, h solcniiily promulgntcd nnd
Bever<> eannn was launched against
inve«tlture by laymen, and Henry I.,
Iiy reBWii) of hia having nsnrpcd the
throne, was not in a pottition to reject
the mediation of the Pope on thia
question. In spite of the opposition of
the seonlor vn^nals, the Eing or-
qnieacod when Anselin consented to
teoall thesenti^n(«ofeIco^1«luniolltion
puwid on the prelates vlui hiiil 00-
cepled a royal investiture, i When at
last Ihe qiiealinn woi brnn^ht before a
Cnuneil at l^nndon, V< be decided on
principle, the King ended the dispnte
by declaring on his personal und
absolute authority "that in futnre no
one shall be eufeafled by the King; or
n lay patron of a bishop's see or an
nhb^ by the delivery to him of a
pastoml staff and a ring, hut that, o[i
the other hand, consecration should
not bo denied ri chosen prelate by
reoaon of tile homaiiium wbioh he
pays to the King." Thus tliere arose
a partiti'in of the right of the in-
vrstitnri^. which Ijod been hitherlo an
exclusively royal prttngntive. The
oimpromiifl no* pluc.'n the elootioo in
the hands of the chapter, the mnsetrra-
1 the hands of the archbishop

■jT the temporri
goods and authority in the hand* of
the King. The election took plaice,
from thia time, at the cliapter-hooM of
Ibe cathednil church, where the wiahea
of the King were communicated, either
by letter or message (not, as formerly,
by direct order). When the fnolatc
elect ha<J received the royal oawnt, the
choice woa ecrutlnined and ooi^toied
by the laetmjwlitan. Before of Bttor
the consccratinn. the bishop Needled
from the King the temponuitiM, and
took an oath of allegiance to him,
cnrresponding lo the homu'jiim and
feally of a temporal lord (Stubbs, iii.
295, 29S).

III. The appoiu tmcnl of tha bishop!
by the King was such an undpubl«i],
flrinly eatablished custom, that, in the
flnt century of tlie period •caroely an
objection waa raised to it. Only in the
election of the Primate of England the
more eicliuive character of the apiritiiBl
State made itaelt felt, an appeal being
probably made to pr<'Oedent«: aoeord-
ing to which, at tlie appoiolmeutM
tlio head of the English Chnrch. tjhe
chapter and the voice of the bisbopl
had been heard. Tlie tlectiona of tSa
archliishopa l.anFmne, Anseln, md
Badnlfus (A,». 10TO-1I31), proceeded
still from the hings, who only after-
wards consulted the prior and the
convent aa lo their opinion. The
violent diapnle which negan under
Henry L, between the " monks "
(canons), and the bisbops, continned
for a wliole century. After the mnrder
ofThomas B»aket(A.D. lITO),a donbl*
election took pince, which the Ffoa
decided; and, after this preocdonU he
claimed the right of cnsflrminK all
elections of bishops. The queatioi) oT
eleolion was at last decided by InnMent
IIL in favonr of the Canons of Canto-
bury against the bishops. In the eonrw*
of the dispnte the royal lieht more
nnd more dwindled to a mord right of
confirmation. At the closft of tfau
twelfth ci^ntury, the rights of each
party had become tolerably clotoly
deflned. The royal consent waa in^^
penanblc: the right of the ehaptot tu
elect, and the cnnHrrantion of their
choice by the archbiahop, was formally
recognized. The ileridiug authority of
the Pope in disputed esses was upheld

by strong preo

M

Norman Church Supreinacy.

243

dispated opiscopal elections the Popo
haa only an appellate jmisdiction.
Only in the case of an archbishop an
immediate papal confirmation and
recognition was carried oat by the
I'urial theory of the Pallium (Stubbs,
iii. 304). Before receiving the Pallium
the archbishnp may not consecrate any
bishop; but on receivins: it he has to
swear obedience to th(» Popo in a form
which, in process of tim^ becomes more
and more stringent (stubbs, iii. 297,
304). After free canonical election
had been introduced by the charter of
John, tho royal rights of confirming the
election was also abolished. The royal
influence after this' time confined itself
to tho moral influence of the feudal
oath, and to the fact that tho King, by
withholding the temporalities, could in
any case enforce a renunq(ation of *' all
the clauses of the papal Bull, which
should be opposed to thocoyal preroga-
tive and the law of the land." It was
-not until the next period that a strong
influence of the King upon the ap-
pointment of tho bishops became in-
directly re-established.

IV. The cxclusiveness of the spiritual
jurisdiction and its independence of
tho royal judicial juriwliction, forms
the most important point of the English
Church controversy. Even Henry I.
luid on this point resolutely opposed
the ecclesiastical claims. The appeal
to Rome was only alldwed under royal
licence, and then onl^'in rases which
a royal court of law was incompetent
to decide. Under Stephen, however,
the cxclusiveness of the episcopal juris-
<liction over spiritual ])ersons and
matters was declared ; and, after tho
system of appeal ^to tho Roman chair
had once begun under the legate, the
Bishop of Winchester, in a few years
it went so far that all the more impor-
tant matters were referred to Rome for
final decision. This* state of things
Henry j l. found existing, and, in con-
nection with it, a partijJly disordered
clerical body, who, unde^ro protection
of their privileged judicial position,
had in tho course of ten years more
tban a hundred unpunished cases of
manslaughter to show. In the face of
these excesses, Henry II. was able to
count on the attjuiescencc, not only of
his Crown vassals, but also of tho
majority of the bishops.

At the commencement of the dispute
with Thomas Becket, Henry had the
sixteen articles of Clarendon drawn up
by two of his josticiaries, Robert de
Luci and Josoelin de Biailiol, which
articles, in fact, only contain the royal
prerogatives so well defined by pre-
cedents, that in the assize of 1164
even the bishops recognized the royal
rights. Thomas Becket sought in vain
for a legal title for the new position of
the Church; he was unable to find one,
except in the authority of the Papal
Chair. It was under these ciroum-
stances a decisive victory, when the
King, at the Council of Northampton
(17th Oct., 1164), brought about tho
condemnation o^ the Primate, and with
it the recognition of the English cus-
tom. But, from that time forward
Henry II. ruined his case by pereecn-
tion and personal chicanery, which
aroused the sympathies of the Saxon
population for the archbishop. Against
the murdered, and soon afterwards
sainted Martyr, according to the spirit
of the age, the King's case oould no
longer be vioiprious. In spite of all
his shrewdness and perseverance, the
principal object of the dispute was lost
at the final conclusion of peace (a.d.
1174). The King allowed the appeals
to tho Pope, and in his acknowledgement
made to the papul legate, Petroleone,
limited the royal Jurisdiction to actions
brought on account of fiefs and hunting
offences. In tHe struggle against his
rebellious sons and against the sym-
pathies of the 8axon population for
tho ecclesiastical cause, tho King had
grown old and weary. * Under Richard
and John, under the infiuence of tho
Crusades, and the manifold complica-
tions in the interier of the country, tho
papal power continued to advance
until it rcachedr tho pinnacle of its
mi?ht under Innocent III.

V. Tho recognition of the papal
legates forms an important incident in
the dispute as to tho jurisdictions.
Henry I. had for a long time set him-
self against their admission ; but tho
complic4itions which his resistance en-
gendered compelled him to give way.
Scarcely were the legates admitted,
than, us early as I12G, a legate, as
such, held a Church Council, and pub-
lished seventeen canons, under the sole
authority of tho Pope. Under Stephen

244

Cojistilidioiial History of England.

n

their insolance reaa so high as to inm-
uion the EmetuanBwer teroren legale
aod Church Ci.uiicil. This might later
be dianTowed ea extrnvBgimce. But
the legate eyBtem hod gaiaed d footing;
axtA the ciruumstarLce that nrclibiehopt
of Canterbury had taken the positiou
of legates, proved nufavunrahle to the
independeacD of the Eogiieh CImroh.
The union of the powers of the legate
with the ntlHcB of archbishop, com-
pelled the King to rerognlze indirectly
the supreuie juriadictioD of the Pope,
80 KKin aa it wus placed in the hands
of one of the archbishops. After
Honoring 111. (a.». 1221). the arch-
bishops appear to llnve received the
neular ootnmission of legnle&,B£^ing
"lefjiAi nati" from the Tnomeot of
their reDognition at Borne, imil this
was afned^ to on the parbof the Pope,
with reservation of tlie rtght to Hend
'^legati a lalcre," who "Suspend tlio

Eiwer of the " Ugati reiidenta," The
gate system also renelied its culm innt-
inK point in the confusion under John.

VI. A farther incident of import-
ance noa the exemption of the monas-
teries from the episcopal power. It
began with the commence men* of
Uent; II.'s reign, afler which tirati tho
policy of the Papacy worked syeteniiiti-
collv towards weakening the epJBDopal
aat£ority. On the strength of an evil
precedent, the riohctt ah^s, one after
the otber, were wrested from the
bishops, and then actually subordinated
to the Pope and his legates.

Another incident is the cmileet be-
tween the ArelibishopB of Canterbury
and York tor the primacy, which, in
the vicissitudes of this century, fell Ui
the Pope for final decision.

In tlieso controvertiicB the weapons
employed by the two poners are
chomcterlBtic of their Toapi'Otive posi-
tions. The King contends witli the
means lie derives from his feudul,
pnlice, nnd linnncial supremacy, by
withholding the temporalities, tho
sequestration of feudal posaeasione, tbo
ooutiaoBtion of porsoDalty, the pnforott-
ment of amorciametitri, and the ap-
plication' of Ihb right of making decrees
in inUiridunl cases. When the dis-
pute iros at it« height, Hciir; II.
caused all the personal estate and
revenues of the archbishop, uad of
t!io«o of the clergy who declared for

him, to be attached, and then furllMT
proceeded to conflacate the real estate,
and to banish all the relations, house-
hold, and nearest friends of Thomas
Becket, to the number of four bnndred.
In another cose u royal decree imposes
the penalty of death, or in the dose of
eeclesiostica cMlralion. for the intro-
<luotian into the country of any papv
hnll of excommunication. The power
of the Crown shows itaelf aa a rule 1o
be so strong, that every order of banidi-
ment is effeetuol in its operation, and
even the moat powerful preLites wltb-
draw themselves from the ileapemte
confiict by flight. rn,l.-i- -Inhn sjl
these means liod bocomc maased Uf-
gether and increased to na enonuon*
extent. But this power is oAau
cheoked by the feeling of the masses,
by the threatening position of tin
French kingdom, wliieh enters into Ibe
dispute as lord-aaxerain and at the
ri'qaest of the Pope, by the danger
which menai^ea tlie possessions of the
English Sovereign upon the Coutineet.
and by internal troubles, — under
Henry U., even by a rebellion of tuB
own sons, tn the course of the eoclesi-
astical diapnte matters went atlactso
far that the King found bimself for-
saken by his secular Crown tubmU.
as in the case of King John, and thu
tho RoyhI power reoiched its lowMt
limit. The Cbnrch on its side dOM
luittlo by interdict and excouimnnioaX
tion, with which ut first tlie prelates
nnd laity who pay obedience to the
royal oommands are tliroateilfed ; then
by degrees it increases in boUness and
directs itself against the pe^a of tho
King. A frivolous exerciJe of tho
spiritual instruments of con/bat could,
however, bo defied even by -^tepbeB
and John, so long as the feeling and

1 tlie other side, by o

the succession to the tbmne. Thif tw*
sides may have been fairly balofioed.
but tho decision depcwled finalj^ on
the internal energy of each. ,

VII. Tlio final break-down of Un
royal eociesjastical supremacy tander
John reata upon a concurrence of many
circnmstaaces, long since prepared ii
the person of the King. The Id

No7-man

wns ngain givfn b; the double elcctioiF
III' an Archbishop of Cuntecbuiy. On
tlii^ -Hat December, IZIMi, loniKeDt III.
hail dictati'i-iall]', ttad in a rerj un-
{•anooicftl ^/ma, impoHod Bpoa tbe
C'liiinDB (cbflHid vieited Bome m n
special embssBj, liis friend and fellow-
stti'leut, StephiiO Lungtoii, as aiHi-
bisliop. On the continuAi op|>o»ition
of tb« King to tliia so-called election,
there followed oa the 24th Marcli,
1209, tiie pronouncing of the interdict.
Tlie inliabilanti of the cuUDti; re-
mained, however, passive ; the temporal
nobles were still on the side of the
King. Three years later (A.D. 1211),
the dispute had progressed bo far that
the legate pronounced the sontenco of
eicoramunieation, releMcd all Bubjecta
from their oath, and degraded the
King from his rojul dignity. (The
temporal vmsall atill adhered to the
King. John, just nt this time, had
wagird two Ibrlunate campaiKus, the
■only succpBtful ones nf his reign. It
wns the ^ievoue fault of Ihe King bim'
Kclf, (bat brought about the finrU crisis.
Neither in England nor on the Con-
tinent bad tha affairs of the kingdom
ever been carried on by Buelr fcrocioas
meaoB as John mode use bf at this
time: curiously combining' the cruel-
ties of an Asiatic despot with the
practices of the Exchequer of Jews.
In the following year (1^12), a formal
decree of deposition was iBsued by the
Pope: "Papa tenUntialiler drfinivit.
ul T(x Aaglomm JokanneM a lolio regtii
deponeretuT, tt atiul. Papa ptwuranlt,
»iuxedeTet qui dignior kaberetur. Ad
hujiu quoqae lententia txfeationem
ju^riptit Duminiu Papa poUntiuimo
Jleiji JVoncuruni Phitippo, quatenin in

i Supremacy.

> hune lahoreta otmmeTtt ' (Mnt-
■w Paris, 11)2). King Philip and
^ French nobility accepted the a
Ision with eoUmBiasni, and '
■poratioDs couuncuced in .
Bich giive 11 ]>roBpect of a repot
■ U under Williuru the t

qucror. The feudal aummons of John/
on the other side, brought together in
England an army of 00,000 men (Uat-l
tlic^w PaHa, 163), whioE hod to '
partly disbanded on account of t
want of prorisionB. But, like an
eleotriu spark, ^common consciousness
of the un worthiness of thu Ring
flashed through the assembled maases.
John himself felt this. Fean of Ihe
French military power, and of the
temper of his own vaBsals determined
bim to unoonditionai submission. On
the 13th Hay, 1213, the formal treaty
with the papal legate, PandulfuH, wu
brought to a ooncluaion, in aooordanco
with the papal inBWuotions (Rjmer, i.
2, p. 54). Two da/s later, on the 15th
Mar, 1213, John resigned his orowu
and bis kingdoms into the hands of the
Pope, Burrenderiny ■■ to tlie Cbonh
and the Pope his Mngdoma of England
anil Ireland, to Aoeive them again
from the Church as a feudal Taanl "
(B>mer, i. 2, p. bn ; Matthew Pari '
164). Stopheti Lasgton, Aichbishoj
and Primate, makes liiB entry iaid
Ii:nglund, takes poseeBsion of the AichA
bishop's sec, nud • absolvca the Kiugl
from the •ontcnce bf excnmmuuioation. \
The uegotiatians a9 to the removal of \
the interdict and the compensation
the Cliureh, ore protracted for a con-
siderable time Imiger, until the crisis
ends iu Magna Charta.

Constilutional History of England.

CHAPTER XA'I.

^tE Cuiin JatQi's— iTije Gaicflt Officrrs o( tfjt Utalm.l

TuE Norman government of the kingdom rested upon a
combination of the relations of the military, judicial, police,
financial, and ecclesiastical authority ; consequently its
central point was found in the person of the King. The
Norman feudal iihraseology, which after the Conquest pei'vaded
all departments, introduced for the above the appellation
Curia Jiet/is, which, corresponding to the social, military,
judicial, and administrative position of the Crown, may signify
according to the context :

The Curia considered as (1) the Norman Court Day;
(2) the Iloyal Coui-t of Justice ; or (3) the whole Government
of the realm.

I. ^iit t£mia tonsitimli a% t\)t ^omian iTourt Bans. The
Conqueror was exceedingly fond of pomp and splendour.
" Thi'ice a year he wore his crown, so often he was iu Eng-
land ; at Easter he wore it at Winchester, at Whitsuntide at
Westminster, and at Christmas at Gloucester ; and there were
1 gathered ahout him all the magnates throughout the whole

I of England — Archbishops and Bishops, Abbots and Earls,

I Thanes and Knights " (Chron. Sax. a.d. 108G). This account

I of the Saxon Chronicler, often varied by contemporaries, is

I the pith of all that we know about the ciiriit in this sense.

I When tho festivities were passed over, this was likewise

I chronicled: " lioc anno corona aua nun indutus est" (Chron.

I Sax., A.D. nil); similarly if he held his court at Christmas

Christmas

The Curia Regis — The Great Officers of the Realm. 247

only (a.d. 1114). Of course the pomp of the Norman court
had increased greatly since the Conquest. We know that the
Dukes of Normandy held a court three times a year, at
Easter, Whitsuntide, and Christmas, and united with it ex-
chequer and judicial business. These courts were accordingly,
among the Normans, customary festivals, and were therefore
called in England also, ** curies de more.'* They were to the
subjects sometimes an occasion of pride and display, and at
others, of national antipathy and painful remembrance of
the past. The • Conqueror evidently wished to accustom his
subjects to the personal government of their "legitimate
ruler.'' The oppressed Saxons saw here at first some few of
their own race, and might have imagined the assembly to be
the time-honoured Witenagemote. Perhaps the summons to
it was issued by royal writ, generaUy to the possessors of the
same lordships and bishops* demesnes as in the Anglo-Saxon
period (Chron. Sax., a.d. 1023). Many a proud Norman,
with his princely retinue, would see in the assembly a
Norman ** cour de baronie;'' but the Conqueror had taken
care that it should be neither the one nor the other. The
ruria was rather, according to all authentic information,
-pimply a court festival, the splendour of which was intended
to compensate the greater feudal tenants for the want of
political power and importance ; as in later times under the
French ^* anclen regime.'' "The royal order," says William
of Malmesbury, " summoned all magnates to the ' curia de
more,' that the emissaries of foreign nations should marvel
at the splendour of this throng and the pomp of the festivals."
This phenomenon has, at first sight, something startling
in it. William the Conqueror had passed fi'om a dukedom
with legislating diets, to a kingdom with a legislating Witen-
agemote. In both countries powerful estates limited the
royal power in important respects. But the Norman diets
were not based upon written and traditional constitutional
documents, but upon the usage of the law courts and upon
the custom of the country. What the Norman Crown vassals
found in England was not the customary law of their own

Constitutional IHstort/ of England.

country ; and the throng around the Norman Sovereign was
to the Anglo-Saxon Thanes no longer their national assembly.
Tho Anglo-Saxons no longer foimJ a place in the council
of the King, but only a tolerated existence in the position of
under- vassals, which, under the system of the feudal social
degrees, excluded them even from being lencntcg in cnpite.
For the Normana, in another direction, the precedents, upon
which the old law of the Witenagemote rested, were not " the
rights inherited and liberties guaranteed from the days of
their forefathers." To both nations liad been promised the
continuance of theii- hereditary common law; hut from the
thrusting together of two nations and two constitutions, there
resulted a neutralizmg of both, and tho necessity of a reno-
vation for each. As the old constitution was merely a com-
bination of the relations in which the royal power stood to the
landed interests in the army, law court, preservation of the
peace, fmauce, and Church ; so tho new one could on!}' form
itstlf from the new relations; and these bad in every de-
partment led inexorably to a method of government by royo!
ordinances, and to unlimited sovereign rights of the King.
We will once again summarize these stages of development.

In the department of the military organization the personal
Bummons of the King had taken the place of the decrees of
the national assembly touching war and peace. Through the
feudal system the old relation of personal service had become
the only valid one ; the feudal vassals do their service iitlm
cl •■xtra rcijniim on the personal summons of the feudal lord.

In the department of the judicial system the Conqueror
begins with the promise to allow the " Leijes Eduardi" to
continue. This was the concession, which even the mighty
Emperor Charlemagne was obliged to make in fact and in
law to the peoples of his empire, viz. the retention of their
hereditary common law, which was to suflfer no change
through mere ordinances. William might indeed deliberate
with his Norman nobles upon the promise he had made ; but
the "legitimate" successor of Eadward could not make the
coniu-mation of the rights of his Saxon subjects dependent

The Curia Regis — The Great Officers of the Realm. 249

upon their ''consent." The same situation repeats itself
whenever collisions between the laws of both nations occur,
which for similar reasons must be decided by the King. From
generation to generation the precedents accumulated, arising
from this situation.

In the department of the preservation of the peace, the Con-
queror commences his legislation with a decree which protects
the lives of his Normans by a fine for murder of forty-six marks,
Against which the Normans were certainly not desirous, nor
the Saxons able, to raise any objection. This situation re-
peated itself; the police-control naturally devolves upon the
possessor of the absolute military and judicial powers.

In the financial department the King needed the acquies-
■cence of the Normans with regard to the old revenues of the
Anglo-Saxon kings as little as he required that of the Anglo-
Saxons to the new feudal income. But the main point was,
that the new revenue flowed in copiously, and that in the
auxilia, tallagiu, and scntagia, a new current income was peri-
odically raised as need required, and one which suflSced for
generations for all the King's necessities.

In the department of the Church, the Anglo-Saxon King
had the right of appointing the prelates, and the right to
give or withhold his consent to the resolutions of the Councils ;
the feudal constitution subjected the same persons to yet
more extensive rights ; the enforcement of military discipline,
sequestration, and forfeiture of all real estates.

As all these legal relations conduced to an absolute rule,
so the same result was brought about by sundry social condi-
tions, arising from the dissension existing between the nation-
alities. These dissensions, from the lower strata upward,
I)ervaded and loosened the bonds of society in the counties,
and consequently deprived the great vassals of the support
of those below them. * There were certainly about the same
number of great landlords as in the Anglo-Saxon times, out-
•wardly more briUiant and pretentious; but without the in-
ternal union among themselves which is the root of political
power and liberty. There was the most splendid court in

Gliristendom, at wliicb, In a long and brilliant cavalcade, the
rich Norman lords and prelates appeared from time to time,
followed by their under-vaBsaU and retinueB, with the colours
and distinctive badges of their lords. There were the same
elements of poaseaaion upon which in former days was based
the Witenagemote that had degraded Eadward's authority to
a shadowy rule. In Bpite of all this, tbo Norman kings rule
the land by means of writs and letters of privilege, they
appoint or depose year after year their bailiffs in the counties,
and assemble tbeir tenants and prelates at paradea and court
festivals without allowing them any influence but that derived
from revocable offices and commissions. The Norman grandees
lacked the support which was the life of the dynasties on tbe
Continent ; because their estates were scattered and severed,
and tbeir men divided by national antipathies. Their Norman
under-vasaals are at first persons hastily collected, their Sasou
imder-vassals yield reluctant serrico to a lord who has been
forced upon them, and the Saxon population, as a whole,
retains for generations its dislike to the whole body of the
intruders. The conjunction of these relations brought aboui
irresistibly the decomposition of the older political righted
although these had a deep historical foundation, (1)

(1) The Niirmnn Cnurl-dsj-s hoTO
been tlie subject of > party controversy

fram diflerent points of view. !□ the the ipirit o( hcraldrj, mnst have bma

timaoriheBluOkrUitbocnnieimpiirUiiit a "lord, bomlLtary aoble, and ooun-

to op|ios« thu higbly eznlltiit riglit -of cillor of tbo CrowD," iu orJt-r lo &gan

tlie IcingHbip "jura (iiVi'no" bj nn si lu sn anci-stor of equal ruuk at ths

leott equully nnoient gBnealngical tr^e top of Ibe pedigree. Just as iutcT'

of parliament. The iiidrfluite testi- esled areour polttieal porliuof t^day

mony given bj bistoriaov, severed in xcttiug up an old pedigree for fu-

from its connection, was ocnirdiDely liameot. A view, very widely pnina-

rearranged in sueb a way tlmt tbe gated at the tinm of the Keform Uill,

wnrds" HHria," "nmcilium," and "n>H- represented the NnrmaD erown ••

gititttn," WHre made tn ineaD " legiala- perTeotl; dependent on pnrliamont.

tivo and tox-granling Datiauol Mscm- Tliis line is tuken by Allen '< troalLxv

bli«t." which wbh received with great appra-

These "armed pBrliamcnts," with liation (EdinliuTgh Kfniac, voL 31):

tbtnr gteamiiii' hcfmotc, ebields, and " "" ' '•'■•■■•
niarlial paradea, were also an object

of inlcrest lo tbe studotits of heraldry. amembly.

It is part oC the ipecinl bu«iQMs of of the No.

tbe brrnld's olllce to find fot s newly mninod the

cnated lord. «onio remote anctstor, '- —

who wai pcrhapa an nndor-vosaal, or,

The Curia Regis — The Great Officers of the Realm. 251

The documentary history is in harmony with this. There
exist actually no laws of this period which have proceeded
from the initiative and the free deliberation of estates of the
realm. The formula found in one or two cases, " consUio et
consensu haronum meorum,'' will be referred to later, and apart
from this. The so-called laws of William I. are really pro-
clamations, charters, and official commands, as is seen at
once in the style, '^prsecipio,'' ^^ lyrohiheo^' — the King wills,
orders, decrees. Even if sometimes a plural occurs, a '' sta-
iuinius,'' '* voluifmis,'' ^' prsecip'unus,'' we cannot infer from this
the action of a deliberative assembly. Under William II,
also, such decrees do not occur; he does not even appear
to have summoned an assembly to ratify his doubtful claim
to the crown. Hemy I. certainly begins his reign with a
charter in which he promises much, the pith of which lies in
these words : ** I give you again the laws of my father; that
is, the laws of Eadward, with the changes which my father

of a feudal Estate of the Crown vas-
sals, overlooks, in the first place, the
social disparity between half a thou-
sand petty Crown vassals and the
princely earls and great lords, whom
William had enfeoffed as tenentea in
cajnie. The great political fact is
further overlooked that the dependence
of the King upon the majority of his
Norman vassals would have brought
about the most rigorous decrees against
the rights of the Saxon population,
which still formed a great portion of
the feudal army, the numerical majo-
rity in the staff of the Church, and
the greater part of the whole population
of the nation. So long as dissensions
continued between the ** Francigena> "
and the " Angli," tlie carrying out of
tlie promises made to the Anglo-Saxon
portion of the community could not
possibly take place under a legislative
assembly of Normans. In conse-
quence of this arbitrative position, no
monarch since Charlemagne, was ever
so favoumbly situated as the Con-
queror for thoroughly organizing his
empire on a uniform system. Wil-
liam I.; and both his sons, show a
practical undcrbtanding and an inex-
orable persistency in dealing with this

question, such as are rarely found in
history in conjunction with so many
favourable circumstances. Once set
on foot, this system of government
strengthened and developed its maxims
through the medium of its professional
officers. The old custom of Normandy
was indeed considered, but was never
the decisive element where royal powers
and financial interests were concerned.
The Norman Echiquier certainly com-
bined the court assemblies with busi-
ness. After the festivities were over^
it was the custom to proceed to the
account table and bring in order what
was owing to the lord. But in Eng-
land a regular connection is not per-
ceptible. The Exchequer is from the
first a fixed official body with its own
course of business procedure; its two
principal Terms do not tally with the
period of the ex)urt days, and a sum-
mons of those from whom accounts
were due to the court festival was
never dreamt of. In the same manner
the four law Terms of the English
courts of law do not tally with the
periods of the curia de more^ and thia
is external evidence that the later
course of judicial business did not pro-
ceed from the Norman court days.

Constilutio)ial History of England.

has made with the consent of the vassals," wherein the
one-sided character of tho proclamation is distinctly pro-
minent. Under Stephen a similar charter was issued, and
nothing more. Under Henry II. the Assizes of Clarendon
and Northampton contain the first heginnings of a legislation
with assemblies of notables, but these tokens again disappear.
Under Richard I. and John we find again only inatnictiona to
oEBcials as to their duty, and charters. The careful investiga-
tion made by the recent committee of the Upper House upon
the subject of the peerage, has led to the definite conclosion
that under William I. and "WiUiam 11. nothing can be dis-
covered to show the existence and constitution of a legislative
assembly; but that the charters of Henry I., Stephen, and
Henry II., showed that the promise of the continuance of the
laws of Eadward had been regarded as the "right of the
country ; " and that it might be thence concluded that there
existed a sort of legal constitution, of which a legislative
assembly gathered together at least for certain purposes,
formed a poi-tion ; and that special one-sided arbiti-ary im-
posts were regarded as infringements of the rights of the sub-
ject (Peers' Report, i. 36, 42). The chief question, how such
an assembly was composed and limited, as well as the question
toucliing the revocability or irrevocability of the royal charters
and letters of grace, is not here dealt with. But the really
important part of that view lies probably in this point, that
even the Conquest was neither desirous nor able to abolish
the highest principle of all Teutonic constitutions, viz. that
the lex tcrree cannot be altered by despotic command, bat
cnly with the consent of the representatives of the nation;
"lex ex consensu popuU fit et consensu ct constitutwne regia"
(edit. Pistense, see. 6), "ut neqtie prineipes nee alii quHibet con-
Btitutiones rel nova jarafacere possint, niei meliorum et majorum
tcriBs coiigcnDiia primiliie hahmtnr " (Eeichstag at Worms, 1231).
In times of necessity and peril the Conqueror also was
obliged to pay regard to this national feehug, which can be
clearly traced tliroughout our thousand years of German
history. When he cut most deeply into the existing " law of

The Curia Regis — The Great Officers of the Realm. 253

the land " by the separation of the spiritaal from the temporal
courts of law, and by their subordination to the " canones et
leges episcopales,'^ he added, out of respect for the nation and
the Church, that this was done " communi concilio episcoporum
ct ahhatum et omnium principum regni.^* This absolute sove-
reign Yrill certainly did not exclude .the idea that the optimates,
who were assembled at the court day, should be heard and
their opinion asked in important enactments. Naturally this
was done in the case of measures affecting the whole of the
common law, as for example the decree in 4 WilUam I.,
which confirms and modifies the laws of Eadward the Con-
fessor. In the charter which held out so many promises at the
commencement of his reign, Henry I. declares, in this spirit,
that those additions were made by his father "consensu
haronum.'' But the purely deUberative character of the
estates of the realm is also seen in the formula. In the sole
existing political act, in which William the Conqueror speaks
of the ''consensus episcoporum et principum,** he confines
himself to inserting this assurance into the decrees which
he issues to his magistrates. In like manner Henry I. in
his charta confines himself to the assurance that the
" emendntiones legum Eduardi** were made "consensu haro-
num.'' For more than a century the many hundred signa-
tures of the prelates and magnates disappeared, by which in
the Anglo-Saxon times the resolutions of the realm were
confirmed and attested. No one has the right to inquire who
was summoned to such a consilium, no one has a right to
attest such resolutions. The declaration made by absolute
royal authority, that the "mcliorcs terras'* were present, is
regarded as sufficient in form and fact. Promises that the
magnates should give their consent, and guarantees for these
promises, begin only after Magna Charta. On the appoint-
ment of high prelates the whole of the assembled notables are
also heard in council; when contemporary accounts allude
to the business of the curiu de more, this is their ordinary
topic ; but yet this only signifies that the King appoints the
prelates after hearing the " pro " and the " con." For in-

stance, Stephen at Easter 1136, holds a grncral^ consUhim
ia the presence of eighteen bishops, and a like nnmber of
secular lords, and issues a charter for the appointment of the
Bishop of Bath: "avtiiciitibiis ct mllaiuiinitibus oinnilnis Julrlihu*
mcis his sithscriptis." Upon a new accession to the throne, or
at the knighting of the eldest son, an especially briUiant
company probably assembled, which might be described as an
extraordinary court day. Such a one was that of 108G, which
■William I. summoned towards the close of hie reign, for the
purpose of reviewing the feudal mihtia and receiving the
feudal oath from the vassals. Such deliberative estates
could certainly by a mere change in their degrees of power
again become legislating bodies. But even for this the
external form was wanting from the time when tlie Norman
kings, perhaps from fear of such a result, began to discontinue
the periodical court day. Already under Henry I,, the curiii
de vwrc. was no longer regularly held. Dui^ing the grievooa
confusion in Stephen's reign it completely ceased : " J^
quippe ruritB salcmtics el nnwttis lirijii sceviatis ab anti
serie desmuh'ns prorsus eraniterant" (Himtingdon and (
Norm., A.D. 1139). They never revived in the old perioi
manner. For the deliberations of the king with
mates a body had therefore to be formed in a new faahi
and one which could attach itself to the administrative
system and the existing grand offices. The constitutional
rights of the English parliaments have in the course i
centuries been so legitimately and honourably acquired, i
they do not need any invented pedigree."

tippoiQtod from their nnmben; bntll
B, coiutitDtionnI riglit nf naBBiit to H
of leKislatioD there ii now ben a tiH.^
Od the occuHion of the nucouion of S
king, BUil at hia cornuntion, a fnim of
olection or &fc!uiiatioii vriu mtai&ed,
anil cnntinucd ns a Ter; aneieat cei«-
monj. bat it had certainly do gnwter
Eignificnnce at this period than in the
Anglo-Siiion (Eadtner, p. Kl). Tli*-
remaiaiiig iastnaces of an Bsaociatioa
of Stale liiiaincfiB nilh tho ooiut d*7*
are priDcipall; the foUowitij; : *.U

* A oomhiaation of Slate bneinese
with the |;real festival gatherings cer-
tainly n-sullMl from the nature of tlio
Statu, and is also ocensionullj expressly
mantianBd. " I'eraetU igitur /m(iW-
oribtu iHebia, dintnomm ntgxioitlm
CfiiuuB {n tnedium duni ex more eorpr-
ruiit" (Eodner. pp. 37, 3tl, 102). But
wc flod nil Bucih mentioDs ooDfiuod to
tliti Sari, (lint the nobles, assembled Bt
the court, were asked their opinion,
war or i^huroh matters were discussed
Kith thuiu, and jailioial oonuuinioDs

The Curia Regis — The Great Officers of the Realm. 255

II. 'STi^ CDurfa ISegts as a CDonstftutfonal CDentral CDotttt of

"EaiD would naturally have combined with a Norman parlia-
ment, if such an institution had existed, after the fashion
of the Anglo-Saxon Witenagemote. The function of a court
of law was and remained the very kernel of every Germanic
form of constitution ; judicial proceedings formed the current

1070, ^hen the subjection of ecclesi-
astical property to the feudal burdens
was decided upon (Matthew Paris, a.d.
1070, whose statement, however, is
for frood reasons called in question by
Stubbs) ; in the same year the hearing
of a lawsuit between the Archbishop
of York, and the Bishop of Worcester
occurs; a.d. 1096, the hearing of a
duel accusation brouglit by Geoffrey
Bainard against William Count of
En; A.D. 1106, proceedings relating to
the reunion of Normandy; a.d. 1107,
for the regulation of ecclesiastical dis-
putes; A.n. 1123, for the appointment
of the primate; (a.d. 1124, a "witen-
agemote " at which forty-four thieves
were hanged, was certainly not a
-court assembly, but an extraordinary
legal assize) ; a.d. 1136, under Stepheu,
for the ratification of the election of
the Bishop of Bath : the charter drawn
lip on this matter concludes with the
words : " audientibus et collaudantibiut
omnibus fidelibus meis him giibscriptis,
apud Wfi^imonasierium in fjmercdis
concib'i eelebraiione et Pasrhalis f('»il
Holennitate hoc aetum <?«<," etc. : there
were present thirteen English and
five Norman prelates, the chancellor,
three earls, two constables, four court
officers, and 8ix barons; a.d. 1155, at
the proclamation of the two sons of
Henry I [. as successors to the throne ;
a.d. 1164, the extraordinary Assizes
of Clarendon and Northumpton are
special gatherings of notables, in con-
sequence of the peculiar state of the
ecclesiastical controversy. The older
polemic treatises, such as Petyt's
*' Rights of the Commons Assorted,"
Brady's Tracts, etc., treat all such
concilia as legislative Norman parlia-
ments. In modern times the " Edin-
burgh Review" has repeatedly recurred
to this view. Hallam, on the other
hand, is somewhat reserved, "Middle
Ages," Note X. In the " Peers* Report

on the dignity of a Peer," the question
is treated with critical caution and
legal perspicuity. An authentic digest
of all the notices of concilia^ from
the Conquest to Magna Charta, is
given by Parry, " The Parliament and
Councils of England," London, 1849,
pp. 1-23, in which the uncertainty and
informality of these assemblies and
deliberations is made perfectly clear.
The most recent historian, Bishop
W. Stubbs, treats of the Assizes, i.
356-358, 869, 376, repeatedly both in
his "Constitutional History," and in
his " Select Charters." But whilst in
one passage he confesses to the purely
" nominal " character of this co-opera-
tion, in which only the theory and
form of a national assembly are re-
tained in memory of an old Germanic
political idea (Hist., i. 356, Char-
ters, 17), in other passages the tradi-
tional ideas as to the Norman parlia-
ments are repeated without material
alteration (Hist., i. 276, Charters, ii.
23, and in other places). Against the
direct evidence that in the Norman

Eeriod the royal right of decreeing ex-
austively controlled all departments
of the Government, a constitutional
lawyer, like the author of the great
Upper House Reports on the Peerage,
might perhaps endeavour to bring
counter evidence. But the mere repe-
tition of the traditional assertions can-
not be received as a counter proof.
Still less is the question suited to
elaborate discussions in essays and in
the daily press, even though they be
received with never so much "appro-
bation." An accurate history of the
Anglo-Norman period is impossible,
if all the rights which, laboriously
advancing step by step, have been ac-
quired for the popular representation,
are by a fiction presupposed as already'
existing.

256 Constitutional Ilistoiy of Etigland.

business of every national assembly. An object for tbia jo3i-
cial activity existed beyond donbt, for the " Leges Eduardi "
comprehended the old jui-isdiotiou of tbe " King in the "Witen-
agemote " in cases of a dcfvctus justkiis, of denial of jnstice,
and of a claim for justice against overpowerful persons. This
department was now even extended by the reservation of royal
jurisdiction over Crown fiefs, and by further resei-vations in
civil and criminal causes. But the traditional mode of hold-
ing a King's court in tbe Witenagemote had become inappli-
cable, Tbe Norman lords, whom the King now gathered
about him, might represent many things ; but they were
not the " Witan of the countiy," the highest bearers and
depositaries of the Anglo-Saxon common law. For all the
highest decisions according to the "Leges Eduardi," they
were altogether incompetent. The King could not declare
any body of Norman lords a permanent central court of law
without proclaiming a jim iiiiquum as a principle for the
country. Equally inapplicable was the Idnd of court custom-
ary on French soil. Had it been possible to constitute a great
princely feudal court, hke those which sprang up in France
around the great ducal famihes, this would certainly have
been to the interest of tbe Crowti vassals; for out of such a
" cour de baroiiif " a pohtieal body of great importance would
have immediately arisen, of whose enactments the history of
this period would have had much to narrate. But the Cro\\-n
vassals, more than five hundred in number, were entirely un-
Buited for such a purpose. The Norman Eorls and gi-eat
vassals, in their almost princely position, would never have
thought of regarding a few hundreds of Nonnan horsemen
and upstarts as their equals simply because, by holding a
single estate, these men had become tunentnit in atpilc, or
immediate soldiers of the King. Even in the thirteenth
century the creation of such a " peerage " utterly faUe<l,
Such an informal body would have lacked also the necessary
legal qualities ; for the judicial decisions involved not simply
feudal customs, but also most difficult questions of the old
common law, aa well as still more difficult and conflicting

The Curia Regis — The Great Officers of the Realm. 257

questions arising between the ''Leges Eduardi" and the
existing feudal law.

For obtaining proper legal decisions, there was accordingly
nothing left but a small selection of lawmen. Among the
numerous spiritual and temporal vassals a number of suit-
able and experienced men might be found, to deal with each
individual case. Among more than five hundred vassals,
who were, according to the right inherent in the grants of
land, certainly in form pares among themselves, the selec-
tion of lawmen took of itself the shape of a commission for
individual causes. The royal appointment moreover clothed
even minor vassals with the requisite authority. The great
vassal was obliged to recognize each man so appointed as
B, judge, even though socially he would never have recognized
him as his equal. In truth, the position of the great
feudatories among several hundred petty ones was not by
any means pleasant, and hence it can be explained why the
great lords preferred submitting themselves to the judgment
of the King rather than to that of a misceUaneous commission,
which never inspires confidence in its administration of
justice. Of so little practical value was this "judicium
pa/rium** acting by commission, that in later times Magna
Charta in its 39th article mentions the '^ judicium parium*' of
the " liberi homines,'' but no especial "judicium parium " of
the Crown vassals. To this was added the fact, that the great
Norman lords found small pleasure in occupying themselves
with legal questions, when such questions did not concern
their native law and their feudal customs, but only the local,
and legal business of a foreign place. Hence most of them
probably preferred the military pomp of the court days to
magisterial duties ; to many of the lords the new order of
things was so distasteful that they gave up their fair posses-
sions on English soil and returned to the Continent. Still
less had the kings an interest in constituting formal judicial
assemblies from the vassals at court. For two whole centuries
they systematically strove against the creation of great feudal
curise in the counties, until they attained their object in the

VOL. I. 8

statute of Marlebridge by forbidding every appeal to tbe
greater feudal curife. For political reafiODS, they could atiU
less tolerate the creation of a central " four de haronie."
They much preferred to leave to a pliable administrative
justice all deciBionB, which, in one form or other, conld be
properly referred to it. Where the immediate royal right to
property, or a debitum regis, waa concerned, the Exchequer
decided with more certainty for the interest of the King ; and
since the " sedentes ad scaccariam" were also Crown vassals.
and also tried cases in judicial form, and were likewise justices
as well versed in the Jaw as the members of a specially con-
stituted judicial commission, the position of the Exchequer,
as a "judicium parium," could not formally be called in
question. The oflicial title, " barones scaccarit " was perhaps
originally chosen to express this qualification of its mem-
bers to pass judgment upon the Crown vassals. Where
the financial system was not concerned, it was in other
respects much more convenient to assign the Crown cases
reserved to the county courts ; besides, in the earlier genera>
tions it was not possible to dispense with the co-operation
of the county courts, where local affairs and Saxon customary
laws were concerned. The Vicecomes presides over the trial
by a royal writ with his lawmen in the ordinary manner, but
only in virtue of a special commission : " ksec dominica pUuita
regis non pertinent Vicecomitihus sine dijinitis prastocutionibua in
finna sua" (Hen. I. 10, c. 3). It was not until the time of
Henry II, that, together with the system of itinerant judges,
the general centralization of royal justice in the staff of the
judges took its rise. (2)

(2) A Buprema fpaAnA court naa eBtublisbed in cansequenre of Um

bIbo Deoesaary ia EnRliind, since tbe sonttering of tho great feudal poMM-

Crown vsssul cao clatm to bu Judi^td sintig througbnut sevcrel oountiea, ■»

oul; b; bii ^rra. Tbe under ?hb»1 tbut every Crown vossul foaod Ilia

CBD DBver Bit in juJgiBent upon hU para \a bis own couutv, and kIio

own feudal lord (ilen. t. a. 32). Bnt a royal Viceatmei or comtuinionar

if on tbe Coiilinont a >(anding, or at amoDi; tbe vs^iIh of the Crown u th*

l«wt a periodion! feudal court arose representative uf the King. Aoco^linK

oat of thu right, tlii* nsa only in con- to tln'e nmiiigoment, tbe county aonrt

•oquence of tbe diffucnt territorial wrb the re^lar forum of the Crown

iDititullonB which eitsteil there. In Tasaali, and no tbe personal suit of

England tbe^udvetum jiartim became court owed by all temporal and apiritBali

Curia Regis — The Great Officers of the Realm. 259

With these views the historical evidence also tallies. We
'find the royal judicial control only exercised in the form of
commissions, and then only in those comparatively few cases
where actions were brought by the most powerful and favoured
Ivassals of the Crown. In all cases of which we have record
ihese commissions are of such a temporary character in
respect of their personal composition, form, and principles,
that the idea of a permanent court of justice of Norman peers
would never have arisen from historical testimony, if it had
not been thought necessary to interpolate the missing pieces
of evidence from institutions of the Continent and of later
centuries. Under William I. a dispute between the Bishop of
Bochester and a sheriff was referred to the county court for
decision, the Bishop of Bayeux presiding on the occasion.
The decision of a suit of the Archbishop of Canterbury on a
matter of deprivation of lands, was delegated to a court com-
posed, under the presidency of the Bishop of Coutances, of
several bishops, Crown vassals, the sheriff, the " whole
county " of Kent, and notable persons of other counties.
Under Henry I. the Bishop of London receives a royal com-
mand, to allow the Abbot of Westminster his right, " other-
wise the Exchequer will pass judgment." William I. arrests.

Taflsals of the Crown was strictly in-
sisted upon (Hen. I. c. 7, sec. 2). The
great majority of their law-suits con-
tinned for a long time to be in reality
settled in the county court. The
records of the proceedings at law re-
corded by Pal grave, vol. ii., show us
that, in addition to these, special
judicial commissions were compara-
tively rare; the admission of tnem,
side by side with an established
feudal court, would be perfectly inex-
plicable. Just as incompatible with a
fixed and stationary **cour de haronie **
would be the judicial jurisdiction of
the Excliequer, the structure of the
whole administrative law, the police
system of arbitrary amerciaments, and
all the later incidents, from which a
court of peers hardly succeeds in
emerging with endless difficulty and
fluctuations in the course of centuries.
It is true that this condition of a

supreme central jurisdiction wielded
by commissions and the Exchequer
exhibits a bad judicial system, which
together with the dismembered form of
the county courts affords an evil
picture of the whole. But this picture
truly represents the state of affairs,
which only becomes less gloomy after
Magna Charta. The judicial adminis-
tration was, and continued to be, the
weakest part of the Norman govern-
ment, in which the formal retention of
the '* Leges Eduardi" was incapable of
remedying internal injuries, the un-
reliability of tho constitution of the
courts, and the mercenary spirit of the
whole system. The Norman, at all
events, found in the greedy Exchequer,
and in the fee-exacting district
governor, his countryman, his comrade,
and his compeer. But bow stood it
with the less fortunate Saxon Thane
and Ceorl ?

260

Constitutional History of England.

at a court day, even his own half-brother without a judicial
proceeding. In Hke manner, in 1137, Stephen arrests his
nephew Roger, the chancellor, and two bishops, "et commisit
eo3 custodiis, donee dederent caatella." Reserving a final
sentence pronounced by judicial peers, the King thus decides
extraordinary cases either in person, or by writ, or by a judi-
cial commission delegated for the purpose. Under Henry I.
high prelates travel across the seas, to lay litigated cases
before the Kin g, and decisions which the King pronouneeB
in Normandy by writs dc ultra marc, are still quite nsn&l
under Henry II, and Richard I. For the course of busineaa
of the royal judicial comniieaions the documents reprinted in
Palgrave, vol. ii., are so far of importance that they testify to
very informal proceedings taken by the commission, which
would be inconceivable if at the King's court a feudal tribunal
with permanent officials had existed as an established, or at
leaat a periodical court of law, which like every feudal rum
would have formed for itself a fixed and formal procedure.**

•• Ai ovideDce how on tlio other
hand " Congtitutionul HiBtory " ro-
gards the rimoBtion of the aula regii
or curia regit, I oontent myself with
leferring to the folloiriDg autharitJSR:
Bowyer, " ConetitutioiiBl Law," p. 243,
and MilUr, " Eoeliab CoiiBtitutioii,"
vol. ii. cap. 3. "The odmiDistration of
juilioe in the final inibtnce, boloaged
oiigiDKll; to the gieat oounail. It
was the King'* baronial court and hit
f«iMM(M in capite «bo were the jatHea
and judges " (AUeo, in the Edinburgh
Smiew, xsvL p. 364). -The com-
mittee of the Upper House onnGaes
ilwlf to ftcoeptiog an orditiarMim
ooiurxlium of the King, which oon-
Bisted of the great officiali and a
■Dialler number of prelalM, barong,
and juttieiarii learned in the law.
Thia selaot ooanoil wu at the «ame
time the ■uprvme court, collod Curia
llegli, which genemllj met tbree
tiniee a year — at Easter. Whitsuntide,
and Christmas " (Peers' Report, p. 20).
This coufuiioD is due to the fact that
later, nnder Henry II., a body of official
Juitieiani waa formed, and that ooose-
quentlj the later legal worki of Glan-

vill and Bmoton, treat of the ettri*
regit in the form of a permanent
boily. Tbaao ofBcial judges are eno-
neoiisly represented as the immediate
BuccesaoTS of the great barons in Nor-
man feudal Buria. As a proof that andi
a permanent tribunal of peers had aflM
the Conquest really beooma fomw^
fragments of the feudal oonstitntlou
obtaining on the Continent are quoted.
But what bccsmo of this powernd per-
manent body afterwards? Theso-«aU«d
history of Eniclisb law ofTi^r* IM ex-
planation (Parry, " Pari I amenta," p.
xii), (Fobs," Judges," i. 20). Whether
it was from the feeling of their iooape-
city in tlie face of the soieaoe of jnrb-
pruilenoe that wob now beginnioK (O
arise, or whether it was from iimmiM
of business in the court, we are told
that at all ovenlB "the aieat barons
gradually withdrew." Whilst Ibe Uler
barons of the fourteenth and flneenUl
centuries seek to gain their poUtiml
influence by personally taking into
their hands, and that with the nxiit
nneiampled £enl, the conduct of noli-
ti<^al and judicial buaiaess, b^ which
the; ftDally ftoquira the f linl^ei «(

The Curia Regis — Tlie Great Officers of the Realm. 261

The negative result accordingly is this, that under the
name " cwria regis " there existed a wide judicial authority,
residing in the King, of personally appointing and consti-
tuting the court in numerous important cases; but that
this curia regis did not consist of the collective body of all
vassals of the Grown, who in their present form constituted
no exclusive body ; nor of a definite number of great vassals,
for at that time there was no precedent for a legal separation
of the greater from the lesser vassals ; nor of a definite
number of great officers of the realm, for the great offices
were at that time not so constituted that it was possible to
form on their basis a permanent court of peers.

In this connection it becomes clear how in England the
judicial supremacy of the King could extend and become
centralized so far beyond all the limits of the Germanic con-
stitutions of the Middle Ages ; how, contrary to all principles
of the Germanic ordo judiciorum, the King so often sits in
person in court, and personally takes part in giving judg-
ment ; how the forms of a rescript procedure by writ arise,
and even direct justice by means of rescripts; how for cen-
turies afterwards the highly personal character of the court-
tribunal is retained in the Constitution, as that of a tribunal,
*' ubicunque fuerimus in Anglia.*' Hence can be explained
how Bracton, Fleta, and the later law books do not regard
the royal office in the strict formal sense of holding the court,
but as a duty of administering justice itself : '* nee potest
aliquis jvdicare in temporalibus, nisi solus rex vel subdelegatus
(Fleta, i. c. 17, sec. 1). From this justice which is concen-
trated in the person of the King, there arises at a later period
/ under Henry II. a court of justice composed of official judges,
which, as the records inform us, arose in quite a different
way, and not as a continuation of a permanent court of
peers.***

a court of peers, the barons of the •♦♦ The only oorreot element in

twelfth and thirteenth centuries are that fanciful image of an aula regi$

declared to have begun their political is limited to this : that the hearing

career, by withdrawing from the tri- by commission of the Grown cases

bunals 1 reserred the method of procedure by

262 Constitutional History of Englmid.

m. ^ (iTuiia IScgis cansQicrtli as a Supreme CSoiietnmnit
CiOUncil, Id which the coDtra,! conduct of a.11 the State basineae
is compriaed, would have developed itself, as in France, from
a permanent feudal Court of Law, bad such an iuxtitutios
really existed in England, But since the court days of tha
King are assemblages of pomp, since the royal judicial power
is exercised by coniiuiesious, the very elements of a formal
royal council of the realm were wanting. Granted, that the
person and the dignity of the monarch, even in the court
feBtivals, can never be entirely separated from the cares and
business of Government ; — still a continuous deliberatioD of
the king was also iudispeDsable, apart from the court days,
owing to the intricate legal busiuesa of a kingdom constituted
like England. Hence there existed beyond all doubt from
the first, a Consilium Regis, only not in the sense of a fixed
body, determined by property or office ; but simply in tha
sense that the king had at his side a small number of chosen
spiritual and temporal vassals to deliberate with him : a
consilium, whose constitution and method of proceeding was
still somewhat indefinite, and varied exceedingly according to
the character of the King. There existed at every given point
of time a sort of conseU du rot, which the feudal language
designated as the Curia Regis, but which varied every day
according to the will of the king, as according to the lettaij
the law is also the case with the Privy Council of our
day. (3)

writs, BUci the ordiuary adminUtrntinn nantj III. Ihnt rendered it nee „,

of tlie sheiifTB oS)c« bjr Umporsl vb8- to crealo b formal eontilium mgU

day

1

_^lBof tbeCrowD giiveriaotoa nurroKcr aa a pouncil-regeney, conmnling of

i-irala of prclatea and barons, leartied iu preUlcB, vneanln, nnd per«iiDH Imronl

the law, who were goDemlljr etnployGd in tlie law. The Permiinent Ooimoil

in jndioltU bnainefla. A bodjof peraone that wai afterwurds formed on tllii

like thiB wB< the natural fnrernnnt-r of precedont. give rim to an eTToneom

thejiuEidtiriiDf later timfs,andof thu idea of a pennaaent cnunoil aa a oon-

"liench" of joBtiDiorieB, atlerwarila gtitutional department during thil

formed. Madoz (i. 6) in, b» ueual, period. Here, too, it ia difllealt to

neuGst to ths truth : he alwnya qaotua meti't such deeply rooted political OOD-

soberly from the Exchequer records. Tiotiona, otlierwiaa than by giving th»

(3) Tho etiria regii, in tha lenso- of following survey of the great offloM

the supreme council, can be Just aa whiebaatuallj' existed, and which were

little traced back lo a ouqiorale body, composed of a liapbuzard colItvtloD oT

as cua tlie supreme feudal tribunnli temporary rcpreeantativea, and court

It waa first o? alt the minority of and feudal odices.

The Curia Regis — The Great Officers of the Realm. 263

That this view is correct is convincingly shown also by an
examination into the nature of the great offices, which in their
Norman form could as Uttle constitute a permanent council as
a permanent court of law. Seven great offices are mentioned ;
but they partly lack a permanent character, and are partly
limited to very definite and particular business.

1. ^ ^USttttatfuS totfus ^nglfae occurs at an early period,
but only as the King's representative, appointed by com-
mission for a time, .and frequently together with others. For
a long time, too, there is no fixed appellation for such a general
governor, for whom, according to the taste and style of the
writer, sometimes one and sometimes another Latin expres-
sion is used. The frequent absence of the kings in Normandy
made a representative often necessary. But it was not until
Henry the Second's reign that R. de Beaumont, and then
R. de Luci, and in 1180 R. de Glanville, were definitely
described as " Summus Justiciariua totiua AnglisB,'' Richard !•
at his accession appoints a bishop and an earl, and associates
with them {associat eis in regimine) five barons. Subsequently,
on his departure into Normandy, he appoints two other
bishops and four barons; from Palestine he adds to these the
Archbishop of Rouen. Later, Archbishop Hubert becomes
Summits Justiciarius. The patent still exists (15 John) which
appointed the Bishop of Winchester *' Justiciarius noster
Anglias, quamdiu nobis placusrit, ad custodiendam loco nostro
terram Anglise.'' It was not until the time of Henry II. that
the office appears to have been regarded as a Government
office ; after Henry III. it ceased to exist, (a)

(a) The Capitalis Justiciarius is so
treated by Spelman (pp. 405-418) that
a certain continuity in the office
appears to be proved by what he says.
But under the earliest reigns, only a
temporary representation of the King
is spoken of. In the year 1067
William I. appoints Bishop Odo and
W. FitzOsbern, custodes Anglim (Hove-
den, i. 450). The Saxon Chronicle
says of Odo ** Cum rex in Normannia^
fuit ille primus in hao terra" In
1073 W. de Warenne and B. de Bene-

facta are denoted as " Vicarii Regis"
or ^^ Frxcipui Anglim Justiciarii."
Under William II., Flambard, a chap-
lain of the King, is mentioned as
" Fladtator et Exactor totius AngliXf**
or ** Regiarum ovum Procurator et
Justiciarius." Under Henry I. Bishop
Bogcr is called *^ Justiciarius totius
AnglisR et Secundus a Rege." Under
the same king B. Basset and others
are also mentioned in a like capacity.
In 1153 Stephen appoints his successor
by agreement, ^^Justiciarius Anglim"

Constitutional History of England.

majnr-domm, appears to have been from the first an horeditary
office. The Norman kings were the richest lords in Christen-
dom, and their BOcial position in itself demanded that they
BhouM be surrounded with court offices; some of which, ac-
cording to the ideas of tliat period, were required to be ^inite
as hereditary as the Crown which they served. A seneschal,
a marshal, a chamberlain, a butler, were all the more
necessary to the royal Crown and dignity, as the great vassals
were themselves surrounded by similar officers. Beyond
doubt an hereditary major-domus had previously existed in
Normandy. But the oflice was of such little political im-
portance, that the seneschal of William I. cannot be identified.
Under William 11. it is said of Eudo '^major-domus regim,
quem noa vulgariter Senescidlum vcl Dapiferum vocamus ; " and
an old record quoted in Coke testifies: " Senescalcia Angliu
pertinet ad comilivam de heicesUr et pertinuit ai antiquo," On
the condemnation of Simon de Montfort at the close of this
period this hereditary office became extinct, (b)

3. CTllt Hotll fflrtflt Cftninbtllain. The royal household had
&om the earliest times a separate administration {Camera)
for certain estates, dues, paj'ments in kind, and personal
expenses of the King. The managers [ramvrarn) are personal
officers of the King, but the place of the first among tbem

— at least Uovcden sseerta this,
ritltough tbe agreeiutot that had been
ooucluded cuotains nalhiDg about it
(FuM. i. 145). A good Burvev of tbeae
earl; genutal goTemoreliiixi in to be
f.iund in Fow, i. pp. 11-20 et leq.
Tbe inportaat clrcuraBtsnoo is also
brongbt intn piomlDence, that thoio
penonB whom the historiana mention
tu lummfjuaficion't, aign the charters
aa nitaeHea, without adding this title
(Foea. i. 85); and also, tbal tbe title
juili'-iaTint actually never occurs in
the charter! of Willium I., and very
rarel; in thoM of Willintn II. (Fosa,
i. 90). But under Henty II., together
with the tailical changes iutmduMd
into tbe central gorarnnient, (he lum-
mtHjiuficidriua appears uamistakablj
at a fonual goiemtuenlal office (Foei,

i. 169). The order froui that lime
onwards ia given bj Fosa, i. p. 170,
«((., ii. p. 23, req.

(b) With regud to tbe tenttdtaUu*
toti-ut AngliK, f/. the referenoea in
Madoi. Grentismenill is lupolioned
as minesohal of Willjata L, bat to
different places other pernna. After
tbo extinction of the office in the
person of Simon de Montfort. it oome
later by re-gntnts In Ihe house of
Lancaster, became extinct with tb*
aeoewion of that bouse to the tbnme,
and was subsequently only granted on
the occasion of great ocremoniea.

Era hae rice, notably at coronation
■itivola. A detailed description of
tbe royal household under Henry tl.
is to be fouud in the Liber Niger
Bcaccarii (edit Ueane).

Tlie Curia Regis — The Great Officers of the Realm. 265

(magister camerarius) becomes in accordance with the tendency
of all court offices, an hereditary office. Thus Henry I. grants
to Alfred de Vere " Magistram Camerariam totivs Anglim in
feodo hereditario tenendam ; " and so it remained down to the
time of Henry de Vere, eighteenth earl of Oxford. But since
the hereditary office becomes, as usual, a mere honorary
place, there arises for the real administration of the camera,
a new personal office of cameraritis regis, King's chamberlain,
who has also a place of honour in the Exchequer, in which his
and the Lord Great Chamberlain's under chamberlains, or
chamberlains of the Exchequer, are employed as keepers of
the chest. Under the Plantagenets this King's chamberlain
becomes an active Lord Chamberlain, (c)

4. V^l^t (ZTonstabulartus totius ^ngUae, %ox1s |^(g]^ (iDonsta&Ie,

Connetable of England, cannot be shown to have been an
hereditary office in the earlier Norman reigns. Li Normandy
it appears to have existed ; in England the creation of such
an office was against all the principles of the Government.
Constabularii are, it is true, mentioned often enough ; for every
command forms a " constabularia,** the command of a troop,
a castle, a garrison, or even of a ship (constabtdaria navigii
regis). It was not until the time of the concessions in
Stephen's time, that a constabularia appears as a family
office, and under Henry IL, one or two constabulariee are be-
yond all doubt bound up with the possession of a group of
knights' fees. But the privileges attached to the office appear
to have been only two :

(a) A post of honour as Great Constable of the feudal
militia on its peace footing, with no right to command, but
some military jurisdiction, and with the duty of keeping the
rolls of attendance and similar administrative functions,
which were performed by representatives. Eeal commands
are always based upon royal commission.

(c) As to the Great Chamberlain and hereditary ofiSce became divided owing

the Camerarii, cf. the references in to female succession ; it exists to the

Madox. After the death of Henry de present day with certain fees and

Vere, eighteenth earl of Oxford, the functions at the royal coronation.

Constitutional History of England.

{)3) A place of honour in the Exchequer with formal daties
exercised by representatives. Thus the conisUthularia arises in
the Exchequer, and in the Court of Common Pleas also, after
their separation. But the constable is only an active member
of the Exchequer by virtue of special appointment.

In this sense the Bohuns held the hereditary office until
1371 ; then it passed through female sucoesaion into the
royal family; and thence to the Stafford family, in which
it became extinct in 1521. {d)

6. ^flC ittaiEStalluS ^nglifE. An hereditary mihtary
marshal no more existed originally in England, than an
hereditary constable. The conquering army, it is true, had
its marshal (R, de Montgomery). But the idea of a family
office is not met with until Stephen's time, when (together
with Milo of Gloucester as high constable) Gilbert de Clare is
mentioned as marshal, and the office ia continued from that
time to his descendants. On the other hand it appears that
from the first an hereditary royal marshal's office had existed;
an office, which, considering the importance of the royal
stables, could hardly be omitted in a court household, accord-
ing to the social notions of those times. The title ia certainly-
very indefinite. Every office for the management or pro-
visioning of a number of horses is called a " marescalcia," and
we even meet with a miirescalcui nrium and a marescalcia
mi-nnurm regis. Beyond doubt, however, a first court marshal
existed, whose office consisted in protecting the person of the
sovereign, assigning apartments in the palace, and in main-
taining the peace of the royal household. This first marshal
was called Magister Marescallus, or simply marshal, and since
he bore the name of Marshal as a family name, probably

(d) As to the CbndabutarVui Angtim,

Spelmnn, " GloBsoiium," pp. 183-18(i,
glVB> UB B masg of mlicellnneouB in-
formation. Tbiu much ii proved, tliut
it woa not nnttl Stephen's time that an
bereditarj amulahuiaria citu be raid tn
hnie existed, ia the person of Milo of
Gloaceater. Ui» fallier. Walter, wns
described in the history of i

mililir. demni TtgUe" (Tatt, i. 123).
whiah dtiKiiption, Mgnin, is capable of
Tarions iut«rpielatioDB. A fumil; right
tn a niililar; command ba*. us a r«ot,
never exists in &ugl»nd. Tbe report
or tlie committeo of the Dpper Uoute
ooncMvea the etrntlabidaria as com-
priuini* a lum tntul of avrvioei whioh
KiriK oiiuld at plcunre non^t or

abbe;, &a " oowfoljiUariuf prinetot rejoot (Peers' Boport,iv. 209-270).

M

The Curia Regis — The Great Officers of the Realm. 267

possessed the office as an hereditary one. But since, after
that time, the family of the Marshals (court marshals), and
the Clares, Earls of Pembroke (military marshals) became
united by female succession, thenceforward, either intention-
ally or by accident, both offices became blended together in
one Earl Marshal. The duties are then threefold :

i. A post of honour in the feudal militia, coming immediately
after the constable, with the duties of keeping the rolls of
attendance, etc., which were exercised by proxy.

ii. A post of honour in the Exchequer with formal duties,
also undertaken by representatives. Thus arose the Ex-
chequer Marshal, who had the right of taking into custody
those from whom accounts were owing. After the later
division of the governmental departments, the marshals of the
English law courts of to-day proceeded from this office.

iii. A supreme post at court, which together with the right
to fees and the appointment to certain offices, constitutes to
this day an hereditary office, (e)

6. Vl^bt (ZT^ancelloT, Canctllanus ?Stegte is the pre-eminent
spiritual personage of the court of the Middle Ages; as is
also his office in the court of the Queen, in that of the dig-
nitaries of the realm, and great vassals, in contradistinction
to whom he is called the ^^ Regis Cancellarivs,'* His original
position is that of a first chaplain. Chef de la Chapelle du
Roi. But as all writing was originally in the hands of the
clergy, the chancellor, in his capacity of private secretary,
conducts the correspondence of the King with the Exchequer,
the under-officials, and private persons. He is accordingly a
court chaplain, in later times generally a bishop or an abbot,

(e) On the subject of the Maresccdlus patent. Here again the existence of

Anrjlix, Madox gives us a number of several marshars offices is perplexing,

reliable data, whicli form the basis of Under Henry I., Wigan, the marshal,

later statements. Later on the anomaly was enfeoffed of certain estates for his

arose, that the earl's title of the Pem- marshal's office. A second, apparently

broke family (at a time when this a lower marshal's office, we meet with

was a very lofty and rare title in the inthefamily of Venuz, which according

land), bound up with their hereditary to a later statement laid claim to the

office of court raarsihal, became united ** magUira mare$calcia" but is said to

under the title of earl-marshal, which have had its claim rejected (Charta

is met with as early as Henry III., I. Joh.).
and is used in later times in letters

IS68

Constitutional History of England.

*

and has a seat in the Exchequer ; from the time of Henry II.
he becomes a principal personage in the formation of the
administrative departmeuta. His office is and remains a
revocable office of trust, and is sometimes granted in return
for a fine, in the amount of which the increasing importance
of the office is apparent. As early as Stephen's time, r
chancellor pays 3000 marks for his office. In 7 John, Walter
de Grey pays 5000 marks for the office of chancellor for his
life — a method of grant, however, which was soon discon-
tinued. Occasionally a vice-chancellor is also mentioned;
and further, a Glcricua Magintvr Scriptorii, who acts also as
Clerk of the Exchequer; a Scriptor Rotuli de Canccllaria,
and others. (/)

7. ^fte ©reasiHEt, generally a cleric, appears under Henry

(/) Tbe Chancel lor, CaiuxUaritu
Bcgii. ia trentcd of in detail by Spel-
mun (p. 1:17-135), wbn gitee a list of
the obancellnis down to James I.
Here also the pe<llgree oF the office
liiu been traoe<I Coo far b«ak iuto the
puet, for the eapellaiti Ttgu of the
Anglo-Sftxon period nre reprtsented
aa ohancellon of the rmlm. II wna
not until tho Intt geoerotioa of tbe
An^lo-Saxon period, Lbat the Capel-
laniu, SitjiUaTiut. Nolariui Rrgit, it
■0 freqnentl)' mentiniicd that the ox-
letenve of an i-ataMiBhed aecretaiitil
department in the govemineot cud be
•Mumed (Semblo, Anglo-Sax. ii. 97).
Tbe Greftt Seul whiob is detirprrd to
tbo obanoellor, nod lioa later itx own
hiatoi)', date* from Eadward the Con-
feisor. Eurd; (1S43) wu the flrat to
pubtiah an exact table of the Lord
Cbanoellora and Beepers of tbe Gnat
Seal, and Lord Campliell to write
Iheii lives (Loudon, 1845-1847). A
list of tbe esrlieet chancellors lias been
carefully oomptled by Foss(" JudEes,"
Tuls. i. and ii.). Under the earlv Nor-
man reigns, the chuncellor still ap-
pears as an ofB^'ial of the second dc-grctt,
wbuae signature occars uftcr those of
the bishops and earls, and having a
seat among the borons of tlie Exdie-
— " The cbanfoUors of tliia early
vure oilvaDciil in later times
bill bops' sees. It was, however,
I importaot office; one in

which the cbancollor. as cabioet-conn-
oillor, generally TOBnagtd all Ui«t
related to tlie papal throne, and trans-
acted auoh cabinet business as re-
quired a knowledge of livr. lij tbe
middle of the period, the position bad
become ao much enhanced in dignity,
that the most eminent bishups, and
even urcbbisliopB, fill the offiM of
obanoellar. Nevertheless, the chan-
oellor remains a member of the Ex-
oltequer, and under Henry III., aW
exercises the functions of an itinerant
judge. Under Henry Hi, a oliaDoellor
was once appointed to whom the Eing
eitber could not or would not entruat
longer the conduct of the businew
appertaining to theolSue: and so tbe
expedient waa resorted to of appoint-
ing a "nuEos ligitli," who discWged
the piincifial business, without tecei*.
ing the title of chancellor (Foss, ii.
137, seg,). From this period there
dates nlbo a distinction, which can
never bo clearly catabliahed, betvreen
a chancellor, and a " Eceper of the
Great Beal." A viee-rhaDoellor is
ulao met wilb onoe ini'iden lolly nnder
Henry II. (Foss, i. 16U|. From tbia,
undtr Richard I., n format official posi-
tion is erealed (Fosa, ii. 21); but one
which again ceasea. The elericxu oo»-
eeilarii, as representative of the ohMi-
cellor in the Exchequer, is mentioned
in the " Dialogns de Scaccnrio," i. 6,
as being even then an imporloiit offloer.

The Curia Regis — The Great Officers of the Realm. 269

11. , and even earlier, as one of the barons of the Exchequer,
among whom he is especially singled out. Bishop Nigel
obtained the oflSce for his son, the author of the " Dialogus,"
in return for a fine of £400. In its later form it increased
in importance together with the finances, so that at last it
culminated in the office of Prime Minister of the country, {g)

A survey of these great offices shows us that they were
neither contemporaneous nor homogeneous. They rather
point decidedly to a concentration of authority in the head
of the Government. When deliberating upon important
military aflfairs, the King would certainly not pass over the
high constable ; when dealing with foreign affairs, especially
the relations to the papal see, he would not easily dis-
regard his chancellor, or the primate ; in financial questions,
he would not overlook his treasurer. But all the historians
mention only single individuals as influential counsellors, and
these, too, are described as being constantly changed. The
important offices have, on the whole, so much the character
of a revocable commission, and the few hereditary offices
have relatively such unimportant actual duties attached to
them, that a permanent constitutional body could not be
created out of them. The assumption of the existence of a
permanent royal council, under the name of a ^^ Concilium

(g) The Themurariu9 Regis is de-
scribed in the complete accounts given
by Ma<U>x, to which we shall again
refer in the following period. Defi-
cient as the infomiation respecting
those great officials is as a whole, yet
this much is clear, that the persons
who really administer the business of
the Government, and exercise an im-
portant intiuence upon it, are revo-
cably appointed servants of the King,
or officials appoint d by commission.
The hereditary offices have only a
subordinate position in the financial,
military, and judicial system, and are
not no numerous as in other countries;
they are divided into two classes: —

i. Grand Serje^ntics, corresponding
with the higher household ministers of
the Continent, high steward, great
chamberlain, constable, marshal, bailer

and others, and which are invariably
combined with the tenure of knights'
fees.

ii. Lower Serjeanties, corresponding
to the lower ministers in their various
degrees, and combined, not merely with
knights' fees, but also with other pos-
sessions which were free of service and
Boutage.

The system of management of the
Norman kings, however, did not allow
serjeanties to be created in too great
numbers, and conceded to them neither
considerable possessions nor an in-
fluence upon the government of the
State. From political reasons it is
probable that in the course of the
Middle Ages, more serjeanties were
turned into fees owing military service,
than new ones created.

Ordinarium," or " select council," is rather an anticipati<fl
the result of circumBtancoB which only developed :
3 the order which I will proceed to state.

Under William the Conqueror everything indicates ft
" gouremement permtind," rendered necessaiy by the complete
change of the whole political system, in which the King feels
himeelf strong enongh to leave hehind him in the times of his
absence some great vaBsal as governor in his stead.

Under William II. this was avoided, and a royal chaplain
was impowered to conduct the business of the State, in which
the oppressive fiscal system and the firmly established
bureaucratic institutions of the Exchetiuer become developed.

Under Henry I., and the long rule of his grand-Justiciary,
Bishop Roger of Sahsbury, the Exchequer became established
as a permanent general directorium ; which may be compared
with the German central military and demesne chambers, and
which was at that time the only permanent central department
of State (ciinartim omnium aniiquiMima), the other business of
the central government beiug conducted by the King, with
counsellors whom he frequently changed.

Under Henry II., the Esehequer is further developed into a
department, organized in corporate fashion, with periodic
sittings for the financial administration and similar business,
and into a corporate royal court, while the other business of
the central government is still carried on by the King with
counseilors whom he frequently changes.

Under Henry III. a government council was first formed aa
an administrative body for the discharge of the whole business
of the State, which formed a basis for the administrat JTB
nature of the permanent councils of later times."

•*• Tlicugli in direct cnntmJio-
tioQ to tbo character of tbe ofQcea, it
is nlmnst InipogBiblig to e[Bdicati> tho
view nliirh insigls upon a pcrniam-nt
roj'al council in t1ii« period. So ih>oq
M the Einp diecbargcs tbe current
bocinen at OovemiDent with b anmll
nnuiber oF Blutc oniciuli, the existence
nf H pmperl* eoiittiluted "Concilium

Ordinarvtm or "Select Cmincil," is

So (oon O^^^l
mniniiaiien, IUH|H
lobe«"Ci»ioaftl»."l

inimerlintclj aesumed.
■ppointB A jtiilicinl c
op;nin at once taken U
OnlinariHm," eilhpr iilentiotil iiith tti«
rnmier or iniiepiwdent of it. If tlw
Elni^ onl; onm in ildibeTation vilh b
meeting of connnellorB. «<nipoeed oF
prelates and bnrona. aettli-s jmpartMit
meaaurea, tbj> is regnrcleil ■■ a " M>9-
num Cmeilium," almoiit iiluutiml wiw

The Curia Regis — The Great Officers of the Realm. 271

the Upper HoDse of later times. Where
historians speak of any great gather-
ing, on the occasion of a festival or of
a critical state of the realm, a ** Com'
mune Concilium'* is made out of it;
which is either supposed to compre-
hend the collective body of the Crown
vassals, or something more or less.
Even Parry, who in other places is so
clear-headed, is unable to keep clear of
this traditional method of regarding
things. ** The first was the King's
Ordiuary Council, consisting of pre-
lates, earls, and barons, selected by
himself, and assisted by the chancellor,
chief justiciary, the judges, and other
ofBcers of State. It was not only a
Council of State, but the Supreme
Court of Justice, and met three times
every year at the great festivals of
Easter, Whitsuntide, and Christmas;
sometimes at Michaelmas, and at other
times also by adjournment.

**The Magnum Concilium was a
larger assembly of persons of rank and
property, convened on extraordinary
occaAions.

** Ttie Commune Concilium was a still
more numerous body, collected together

for more general purposes" (Pari. p. 10).
It is difficult altogether to form any
definite ideas from this. Similarly,
Hallam (Middle Ages, ii. c. 8, note 13)
distinguishes between a Commune Con-
ei/tttm, consisting of all the Crown-
yassals; a Sdeet Council for judicial
and administrative purposes; and a
Court of King^i Bench^ which is said to
have separated itself from the Select
Council in Henry II.'s reigpi (e/. also
Stubbs : Index, s. v. " Council "). The
error lies in the pedantic Interpretation
which would create constitutional
bodies out of a goyemment with
changing counsellors. The shapeless
form of the Norman central govern-
ment has brought later historians also
into the difficulty how they are to
denote the relation of that permanent
official body, the Exchequer, to the
so-called Curia Regii, Madox (i. 154)
expresses his views with great caution,
calling the Exchequer a portion, or a
limb, of the Curia, a sort of Subaltern
Court; which is correct, if under the
term Curia we understand the whole
central government in its shapeless
state.

Constitutional History of England.

CHAPTER XVII.

®tans£tional ^trfol)— Eti'nctant gjusu'tts— gjusticcs in 39ti
— ©tt'gfn of ©slflUs of fte Mta\m.

However strong the Norman State, by its institutiona, might
seem to its contemporaries, yet the weakness of a purely
personal Government, which was ever losing its snpport &t
the death of the ruler, soon began to be apparent. A
recognized and duly entitled monarch, and a powerful person-
ality, are the necessary conditions of such a government.
Both these elements were wanting in Stephen, whose nsurpa-
tion of the throne brings about a conflict which, with few
pauses, fills up the whole of his reign. It is in England tha
period of sword law and similar to the interregnum in
Germany. The poor rurai population were compelled to do
villein services, not for royal castles, but for the strongholds
of the petty lords. " Eraitt in Anglia fere tot tyranni, quot
domini castellonim." A principal condition of the tardily
concluded peace was the razing of the new fortresses, the
number of which amounted to 126, and according to other
accounts to 375, or even to as many as 1115. We can
uuderstand the satisfaction with which, after such a state of
things, the people hailed the undisputed succession of
Ilenry 11. to the throne, and the concord which subsisted
between him and his realm.

Henry II. seems from the first to have found the beat
security for the new throne in reforms affecting the administra-
tion of the realm, which, especially after the commencement

Origin of EstcUes of the Realm. 273

of his conflict with the Church, are of a sweeping kind.
About a hundred years after the Conquest three changes are
almost simultaneously introduced, which, although they have
been already separately treated of in considering the develop-
ment of the prerogative rights, must be here more narrowly
examined in connection with one another ; (1) the centraliza-
tion of the administration by means of itinerant justices;
(2) the institution of an official bench of justices, as a royal
court; (3) the first beginnings of an estate of the realm
formed by the greater barons.

I. 'STjbe instttutton of tttnnant justices was based in an almost
equal degree upon the needs of the political government, and
upon a concession made to the most pressing interests of the
nation. The administration of the cotmties by the Vice-
comitcs had from the first suffered from grave abuses. For
this reason even under Henry I. the Vicecomites had begun to
be relieved of certain judicial business by commissioners sent
from the royal court. Eeliable information on this point is
given us by the oldest extant Exchequer roll, the date of which
(according to Hardy's researches) may be safely assumed to
he 31 Henry I. (1131). This rotulus declares what sums those
living within the jurisdiction of the court owed as a result
of the jdacita which the commissioners have held; e.g.
*' Eobertus films Toli, debet XXX vmrcas argenti de placitis
G. de Clinton" The total number of the commissioners who
were appointed was nine, among whom are three court lords,
whose names also occur in the administration of the Ex-
chequer, and as King's counsellors: Ealph Basset, Bichard
Basset, and Geoffrey de Clinton. The remaining six are
greater vassals of the Crown, residing in the neighbourhood of
the counties for which they were associated as commissioners
with one of the three first-named. The sums, which were to
be paid in to the Exchequer are always only credited to the
name of one of them; and it is never proved that several
commissioners were engaged at one and the same time. We
can accordingly deduce from these entries, that towards the
end of the reign of Henry I. an innovation was introduced, in

VOL. I. T

274

Constitutional History of England.

n

placita regS]

no longer assigning the Crown cases reserred {placita regS)
by commission to the sheriffs, but in appointing a speciitl
commission to deal with them, which was in the prescribed
manner so distributed among the counties, that a royal com-
missioner instead of the Viccmincs hold court with the men
of the county. Under Stephen, this institution, like the whole
central administration, had indeed come to a standstilJ. Bat
all the more pressing was the necessity which Henry 11.
found for appointing more vigorous commissions, since, under
Stephen's reign, the sheriffs had been appointed by the two
claimants to the throne fi-om among theii- partisans, and th«
presentation of accounts and inspection of the Exchequer,
bad both fallen into abeyance. Now begins a much more
comprehensive system of itinerant hnrones or justiciarii :
existing both for administrative and judicial pm-poses, bo &r
as these could be separated from one another under the
Norman form of government. (1)

A system of delegation was very necessary for government,
and especially for ffnancial purposes, for in the confusion of
the times, the royal rights and dues had suffered £rom
numerous usurpations. A uniform rating of the tenants for
the tallages and similar impositions was difficult to compass
by means of partial and corrupt sheriffs, the appeals against
whom had become more and more frequent and pressing. At

(1) ThesjBtem of itinerant junlici!a
liBB no other origio but the practice oT
the oentral adiuiDiatnitioii, niiil the ile-
rrwiag right of tho Sovereign, and
hardl; anjr doeumentary husiB but Ibo
nolicca contained in the Eiche<jupt
accounts. Upon this is grounded tho
suminuy which ^odox Las compiled
vilh great care. The later law books
apeak or Ibo jiaHeinrii erranUt, as
a austonary inatitntion, e.g. Btocton,
lli. c. 11-13. A review of all tlin
Vftrioiu noliccs is contained in tlie
tretttisc of Ednsid Foaa, " The Judges
of England" (Loudon, 1S48 ho.), the
in% two volumes of whieh doiU with
this period. Tho nuthor bus colloctfd
from tliia en forsonal notices of no
fewer than SfiO jUBtieinries. Tho main

results are tho follow iiig. Wilder
Henry I. the M<tguus Holuliu, 31
Henry I. only gires n limited appli-
cation of placita regit. Daring tlio
first eleven yiars of the rei^ of
Henry II. (as under Slephon).aregntBr
institution of the kind cannot he prorvd

Becket which first Hppe«rs to have aet
(he great and popular refonne fn
notion. From 11G6 down to the eloM
of Ibis isign, thl^ itincmnt comiai*-
BLoners form a reguUr chain, with
Bcarcoly a break (Fosb. i. 171). The
objects of the judioiol administf dca
promincutty f ' '

UcnrflJ

I forward from fl^H

Origin of Estates of the Realm. 275

the same time these commissions served for a periodical
scrutiny of the manner in which the Vicecomites discharged
their office. To a still greater extent, as early as 15 Henry
II., we find commissions of prelates and barons deputed with
definite articiili for the purpose of inquiring into abuses of
office committed by the sheriffs, their under-bailiflFs, the
manorial stewards, the foresters, and others. As delegates
of the Exchequer, these commissioners are called " harones
rrrantcs.'* With these financial schemes military objects
could also be combined, which partly affected the castles and
their garrisons, and partly other temporary measures. After
the year 1181 the more permanent business of organizing the
national militia was added to their duties ; and now that the
old system of the Saxon national defence was again revived,
its uniform enforcement could be secured by means of itinerant
commissioners. These commissioners had to gather together
and review the men liable to military service (assisa de arnm
habendis), and to inflict fines on those who neglected to
appear.

Still more general was the need for commissioners for
judicial purposes, and especially for the administration of
criminal justice. While the land still suffered from the effects
of sword law, the right reserved to the sovereign of calling up
important criminal cases before him at his court, took an-
other form. The King's peace had to be repeatedly pro-
claimed ; and where the sheriffs lacked the power or the will
to act, it had to be enforced by commissioners, who often
proceeded in a summary way. From this point of view, all
crimes of violence on life and limb, with rebellion, man-
slaughter, arson, robbery, abduction, forgery, " et si qiiw sunt
.similia " were actually brought " before the royal court "
(Glanvill, i. c. 2) ; that is, the reservation of the royal right
of intervention had produced a periodical commission of
criminal justices delegated from the royal court. At the
same time, the Hundred's duty of presentment was re-
organized, and the itinerant commissioners were entrusted
with the guidance of the parochial committees formed for

L

276 Cmistitutional History of England.

this purpose, according to uniform instructions, mpiMl*
coronx.

Itinerant commisBioners were also employed for the pnr-
poses of civil actions. The reason for this lay in tlie
nature of the law which was to be applied. The judgmeuU
of county and manorial courts touching the inheritance of
fiefs, form of dower, and the righta of the feudal lord wttli
regard to his under-vassals, which were Ktill considerably
divergent, required to be reduced to a definite uniform
syBtem ; and public policy likewise demanded the settlement
of questions affecting the Btatus of the knighthood and th6
freeholders {qwsest'wncs sUthis). From these and other reasons,
an increased number of civil actions are now transferred to
the court (Glanvill, i, e. S) with the general reservation
" qiiodlihet placttiim de Uhero tcnemento vcl feodo potest rer
trahere in curiam mum, quavdo vult " {c. 5). After the way
had once been opened, a flood of such actions streamed to-
wards the court, which was then opened to them only on
payment of a fine. A very usual sum was five marks; we
meet once witb one mark for an action brought in respect of
a hide of land; and then, again, a hundred marks for a suit
brought for a manor ; /£ 100 for an action between the abbot
and the citizens of Whitby, etc. Sometimes the King granta
to persons of rank or to monasteries the privilege that they
should be prosecuted at no other place but before him or his
chief justice. Hand in hand -nith this goes the alteration
made in the procedure and rules of evidence in the civil actioiit
which has been touched upon above, according to which, in
actions relating to property, and hereditary and possessory
suits, the parties were allowed to choose whether the case
should be determined by a committee of the lawmeu
{reco^nitio), instead of by the duel. As being a deviation
from the ordinary law of testimony, tliis needed a special writ,
which was issued on payment of a fine, but at first only to

well-affected " knights and freeholders.

This system of itinerant commissioners, employed for such
direrse purposes, remained for a long time in a state of flue-

Origin of Estates of the Realm.

277

tuation. Madox has collected the names of the commis-
sioners of 12-13, 15-17, 20-26 Henry II., which occm* in the
rotulu But it is difficult to obtain a clear view, as for long
their appointment depended upon momentary needs. But
the aims of the administration of justice become more and
more definite, and financial and military ends and objects
are associated with it in a more and more temporary manner.
Sometimes we find commissioners who restore order in a
certain place (justices of oyer and terminer) ; sometimes
general criminal commissions (justices of gaol delivery) ;
sometimes special justices of dower, justices of assize; and
then again justiciani ad oinniu plaeita, or justiciarii itinerantes
for general purposes (Bracton, iii. c. 11-13). At the Assize
of Northampton, 22 Hen. II. (1176), the institution has
attained a more definite form, by the division of the country
into six circuits, which even then comprised the same
counties as to-day. Criminal as well as civil actions were
assigned to the commissioners ; as also were the superintend-
ence of the procedure by presentment, the guarding of the
royal rights on demesnes, escheats, feudal dues, feudal ward-
ships, etc. This arrangement, although it had been settled
with the advice of a great assembly of notables, was again
altered in 25 Henry II., and a new division into districts
attempted. In the year 1194 new commissions were again
appointed with an extended employment of juries in civil and
criminal cases, and with authority to collect the tallages and
crown dues. Finally, the division into six circuits has lasted
down to our day ; though for a long time general and special
commissions, regular commissions, and those appointed
I'x tempore, continued to exist side by side, (a)

(a) A new epoch is introduced by
tbo extraordinary Assize of North-
ampton, 1176; at which the counties
were distributed into six circuits, and
three justiciarii appointed for each
oircuit. Here evidently a new organi-
zation was intended, for which it was
considered once more advisable to obtain
tiie assent of the mdiorts ierrx. Allow-

ing for all possible expansion of the
royal sovereign rights, still the insti-
tution of itinerant commiBsioners con-
tained a dangerous innovation upon
the Leges Eduardi, and the principle
of obtaining judgment by a judicium
parium. Palgrave (i. 295) assumes
(and, for the beginnings of the insti-
tution, probably rightly enough) ttiat

278

ConslUiitionul History of England,

The immediate management by the court of such an enor-
mous amouut of business was sui-e to exercise an important
induunce upon the form of the central government. Hitherto
the Exchequer had been the only permanent magisterial de-
partment with organized offices; all other national business
was deliberated upon by informal " mnsc'dx," and partly dealt
vith by judicial commissions in the usual forms appointed

the itinerant justioeB wore only coin-
muBioned to eiruuine into the faints,
whilst tho judMmeut irna reioned to
the King at court. Tlio pciMiliar form
of Nonnan court justice had, boweTer,
brought about in KnglBcd a aiibniiBKion
of the prutieB, itbicb fouod do parallel
upon the Continent. A royal epecial
coramiuloner now brought with him
the iiuthoritj of the King bimsalf;
nbeui-Q an appcnl la tlie Curfu Jlf<l"<
that is, to the supreme Bjipointing
power, HOB considered uteleRs. Hence
can be eiplatne<l how commifcioiiera
in Baoh early tiioos not only Rcted as
eipoonders <if tbe lnw, but IbemBelves
ftave iudgment, and tliat (at all events,

to judge bv it« resullsj their — '

was caosidern) Snnl. Even
what catly limes the
justices appointed U) pronaunce final
judgment on ciimee in tbe name of
CtiTlii Btgif ran, "ad awiiendHm H
leTminaaamn." If it number of county
justices were aasociated witli these
oommiMiona, this was but a leminiri-
eenoe of the old position of the wiCan,
■ad soon became a fotmalitj. Tho
MUDe fate beffl it that appeared, in
later timea, in the deray of tbe institu-
tion of SeboSen in Germany. But if
thiBconditionofthiDgs.wbichbadarijcn
from the necessity of juiticc. was to
become a permanent political inatitu-
tion, it can 'easily be conceiTed how
even an abaolute government deemed
the assent of the Crown vasssta advis-
able, CKpoclnlly io Ibcec days of church
qnarrels. Wo can perceive, neverthe-
less, how little Ibc resolutions of such
assemblies of notables possessed tlie
binding force of positive rules of lav.
Vilbin three yearn, at lui ntaembly
beld at Windsor (25 lienry II,), those
resolution* were considerohly allered,
although at Ibis assembly only u
number of prelates uud Crown voisals

pTomolcc
lADdovi

are mentioned after tho ordinary fashion
of royal councils (Parry, ParlioiwDUt
16). The eonntiT is now divided iota
four difuits, and the constituUan of
the commissions altered (Foca, j. ITIX
In later limes, we find, as a rale, at
the head of tbe list of the itinennt
justices, such ordinary jaitietarii as
are at the same time tnembera of the
bench of tbe King's court whioli bod
been established in the meftotlfflb
Then follow those whDweTemei«><Htf-
ciiB erranlea, frequontlj undcr-i
who in Inter times were
be regular jiutieiarii,
and clergy of the county
added to their number, especdaUyvbcn
it was a question of collecting t^taMa
and other impositions (Fow, i. &i,
S35). Vndut John' tbe eircuita were
interrupted forfisversl yt.-ar8,e«peci(>Uy
when the king held circuit in penmi,
in whioli case be was acoompaaied b;
n few jutlieiarii (Foes, ii. 27). Uoder
Henry III, a bishop or an abbot, and
one or two ordinary Jitilieiarii at tlia
"Aoiicuiii " are generally at the besdof
the oommtraion ; the others are greater
or lesser vassalfi of the Crown, or clercy
of thecounty(FoHs,ii.I9l,m2). lotSe
middle of tbe thirleeiitli century, the
law-book of Braclon gives us tlio f«>
mula of D special writ issued for Iha
appointment of an itinerant jnatioe:
" ConiHtuimiiM rat Ja$titia n'um mulnim,
UNO eum diUetlt et fidtlSbuM wttri^
A. B. C. ad ilinrraitdum per eomitalwm
W. de omnibus aitiiU ft placilU, tan

•[Uod ill Brrci noMro d« gmrrtUi mm-
' ' Tobif dinelo clntfiM

the c

' Them
' iiistitulion of rteogniti

I of TteognaioiiM itt \
presentment WHvM^taH
> Itinerant justiofl^^^H

Origin of Estates of tlte Realm. 279

for the purpose. In this infonnal manner a permanent
creation arises.

II. This was the origin of a Court of Binges 33end^ under
the general name of Curia Regis — a second permanent ofl&cial
body existing side by side with, and to a great extent blended
mth, the Exchequer. The judicial cases reserved for the King,
which had been in earlier times assigned to the Exchequer
or a county court, were now as a rule dealt with by itinerant
commissioners; who might be members of the Exchequer,
and also might be other prelates and barons, learned in the
business of the courts, and assisted by under-oflBcials of the
Exchequer or other clerks. These commissioners found
themselves on the one hand continually obliged to refer to
the Exchequer, with which they remained connected on
account of the fees, fines, escheats, forfeitures, tallages, and
other financial and military business ; and on the other hand,
the itinerant justices had numerous cases to determine for
which they had to frame new maxims as well as principles to
determine both the procedure and the law which was to be
applied. /tJnder Henry II. there was instituted for these
weighty juridical questions a sort of bench or hancum, consist-
ing, it appears, at first of itinerant justices, and to a certain
extent identical with the functionaries of the Exchequer.
The siunmus jiisticiarins is the head of the Exchequer and
of the hancuTUy and there existed for a long time a similar
arrangement to that which stUl exists in England : viz. various
magisterial departments composed of the same persons as
functionaries. The same person can be in his capacity of
itinerant justice, a justice in Eyre ; as a member of the
Exchequer staff, he is a baron of the Exchequer ; as a member
of the King's court he may be a justice in banco. Hence it is
difficult to determine the exact year with which the formation
of a bench of justices began. In any case, the authority we
possess is a decree of 24 Henry II., according to which five
commissioners were appointed, **who shall not journey
through the land, but shall hear pleas at court." The busi-
ness was so distributed that the great mass of it was dis-

Constitutional History of England.

charged by the itiuernut justices; but the more important
cases were dealt with by the judicial beiich, that iSj either iii
the Exchequer or in the King's court in banco. (2)

During the second half of the reign of Henry II. we oniTe
at the following definite results :—

1. A considerable number of persons form a permanenl
body of justices, under the title otjusticiarii, who are so stylet]
officially in the royal rescripts. Soon after Henry II., royal
patents addressed to the " Chief Justice and his other justices
of England " are met with, which formally express the officiitl
character of the ordinary justiciaries. The chancellor, too,
acts as justiciary, as do occasionally also aU the great officers
of State, whom we find among the itinerant justices acting as
beads of the commission. That the clergy, being learned in
the law and in the discharge of business, are much and
Btantly employed, is shown by a list (Foss, i. 161), in whi(
occur amongst the chancellors and justiciaries of the peril
the names of five archbishops, eight bishops, three abl

(2) The origin nf a. Court of King's
BoDcll in in like uiBiitier a creatiuu uf
tbe adminiBUatira pmoticu. It 6rat
•ppeati ID tlio adiiiiniitmtivo reoorda,
ia tlien Teoogaizeil in tbe Uw booka aa
on eiixting institution, luid ia Uaiilly
traded bock to oomnion Uw. The time
of its ocigla must bo acoordingly deter-
mined bj a kind oF oircuiasUntiHl
eridenoe, to which the wordjurliotariio
give* ui a due. Forracrly every royal
ooDimiBiioner wns «i enlled, e,ii. those
who were entnuted with the drawing
up of Domosday Bonk, tbe royul
commiwioneni in the army, and cvi^a
■hip captains 'Jutlleiarii navim'i rri/ii).
It waa not nntil the time of Henry II.
leired the moro special

meanlDK of a parmaneni a
for jadtoial busiscsa. Sai
Bioner-justiccs were formerly uo i
frequently fnand tlian '
jadicial commiaiiaaB. ^..ii •-..■»■<_
jtutieinriUM, too. doea not become nn
ordinuy officer nf the realm until tlie
time of Benry II. As late lu IIGS nnd
1177, IloTeileii terms tbe justices ap-
poinled by the Kin^, quite iiiiti^finiluly
"fiiUUt," "familiarer, and "fcuruiin

. . tho law 1

employed in the Exchequer (Uid4
commisaioufl : but they formod r
"bench," and had nopcrmaaeotoflW.
The assiiee of Clarendou, that i^ 4
year 11G4 or 1IG5, appear here, too '
be the turning point. With thia a
begin the regular lista of the itltM
justicee. The neoeasity of I

uuiform instructiona to ihcw m.

aiooera. aud tho necessity for k mnM
oomtnunioatlon of, and luiniutitliig |
the legal principles to be applied, r'
led to tbe formation ot a h ~ ''
which couM be found the t
uniformity in practice. A farther «),
to the dat« ia given by the feet wU
are paid bj auitora for license to br'
tbeir plea before the Curia Regit : MM
oldest instances of uuch fines are fomul
in the Bxohequer roUi, 15 Uenry Q.
(Modox, 1. 06, 429), Everything poEnla
to the period 1165-1179 os that ir
which the Court of Kin
originated.

that ^^m

Origin of Estates of the Realm.

281

eight archdeacons, and two royal chaplains. From the time
of the first formation of the Bench onwards, its members
appear as a higher class of ordinary justiciarii, taking pre-
cedence of those who are merely justices itinerant ; but the
latter were afterwards frequently promoted to be ordinary
members of the Bench, (a)

2. That at the close of Henry II.'s reign there was a perfect
system of procedure before justices in banco at the Bong's
court, is shown by GlanviU's work. This procedure had
attained to such a settled and scientific perfection, that an
established practice of the judicial body must have for some
time existed. With this King's court, the momentous reforms
in the procedure of the civil action {recognitio) have been
associated by Glanvill; and indeed they were connected by
him with the same disputes touching possession, ownership,
and inheritance, that were simultaneously decided in Nor-
mandy by committees of the vicinetum, committees which had
already long existed there as customary enquetes. (6)

(a) The personal accountii have been
carefully collected in Foss, vols. i. and
ii., but a comparatively mixed employ-
ment of the judges is still continually
manifest. Thus, for instance, onco
under Henry II., the chancellor and
the constable together hold the assizes
of Kent; under Richard I. the chief
justice, Archbishop Hubert, presides
at the county assize, and his col-
leagues on the commission deal v/itii
the plaeUa coronxy disseizins, inheri-
tance cases, etc. The royal decree of
24 Henry II., according to which five
commissioners are appointed **qui a
curia non recederentj* out whose duty
it is to hear pleas at court (Beneo.
Tttr. 2G6, A.i). 1178), contains the
origin, or at least is an evidence of the
l)rior existence of a Bencli of Judges.

(h) For the procedure r/. Glanvill,
vii. 9. sec. 7; xiii. 15, sec. G; ii. (3, sec.
4 ; V. 4 ; Spence, Equitable Jurisdiction,
i. 101, 112, 128. hince the acceptance
of ordinary civil suits at court, aud the
allowance of a recognition are royal
favours, and since in all cases reserved
the ruling of the court presupposes a
personal act of the sovereign, tiio civil

action in the curia assumes almost
the form of a Roman procedure by
rescript. The plaintiff must sue out a
writ for this purpose, for which he has
to apply to the secretary of the King,
the chancellor. In the regularly recur-
ring cases, the writ soon became a
matter of oourse, and was to be ob-
tained from the clerks of the Ex-
chequer on payment of a fee. The
initiative writs now became formula
acttonum, obtained through the inter-
position of the chancellor as officina
jiuticix. Through the association of
the itinerant justices with the county
courts, a new ordo judieiorum arose;
viz. commencement of the action by
writ, summons by the sheriff as under-
officer of the supreme court, lUi% eon^
tedatio, and replies according to the
Norman rules of pleading, in certain
cases empanelling of a jury (fecoanitio)^
which in course of practice became
extended to a general employment of
a civil jury. These oldest pleadings
are printed in the " Placitorum Abbre-
viatio," (1811, folio) more in detail in
Palgrave, ** Rotuli Curi© Regis," vol. i.
from 6 Ricb.L, vol. ii. I Job. ; Lend.,

282

Constitutional History of England.

S. According to an opinion formerly preTalcnt, a ciril
division for the communla jilavitit separated itself &om th«
royal court in Imnco in Eichard the First's reign, bo that
at that early time a doable judicial body is said to hare
existed for tbe bearing of cases, a hnncnm rajis or royal
court proper, and a hniiciiiii rovimnnc. Tbe chief authority for
this assumption was Coke's preface to hia Eighth Beport,
wbicb in making this etatement contratlicts Lord JQacon.
Tbe careful researches of Fosa (ii. 161-179) are, boweTer,
sufficient to rebut this view, (c)

In the whole formation of tbe King's court in banco, vt
must not overlook an original and long enduring connection
■with the Exchequer ; which can be explained by the fact, that
tbe Exchequer had long existed as a magisterial department,
in which the procedure of the central administration had
become pre-eminently perfected; as well as by the fact that
the central government still employed the same persons, in
varied capacities, sometimee for financial, and sometimes for
judicial purposes. Tbia continuous connection is shown in
tbe following points.

(i,) The siimviiisjiistiruiriiis was the common president of
tbe King's court and of the Exchequer ; and the Exchequer
as the elder magisterial department remained eo closely
associated with the other, that it was not until centuries later
that an appeal from tbe Exchequer was allowed; whilst the
banruvi regis became, immediately after its origin, the court
of higher instance for the bamum of the cvimnHnia placita.

i ngEini

1835-38. Tbe treaiUn of Guoder-
iDnnii."BeBitzimdEiKentbuiii iiiEiig-
Und " (T&biDgen, 1P64), givps a uieful
iiketch of this fonnulary. eystem. See
al*oBrunD«r,"EulBtcbiing|]er Sohnu-
rgerielite."

(f.) It is ooncltigiTe evidence, that
tlie three pnuagm in GlAnvill, wliicli
Bpeak of the jtulieiaril in banrxi
TeiliUnle» do lint Bay n word about a
doubli^ banrum, that othef tcatimi>ny
upon thiB poinl is n-DDtin^, and aleo
'.hat n chain of circumBtaiicea speak
igDinst it. Theis ciisled, as a matlei

or fact, down to Mania Cberta. oti]f
one court r'li Imnro. The pruoeedinn
befurc it were dcocribed hj GlnnTill
IIS " foram juttiriariu in hanro nwjrfm-
tibui." ExprcBiirais, such na "diem
haJH-l in baneo," were from Eicbard !.'■
time tolerably ^quent; royal decree*
were nUo iseltod to tbe "JuUUim tm
hoHFO," or to tbe "jiuHeir de baneo"
(KoBS.ii. 171). Tbe cxpreesion iHiBeiiM
(liciicii), to denote Ihu jnJieial bodj
itoelr, did not, hnwaTer, beooma cnmA
until tbe follovijiB period.

J

Origin of Estates of the Realm. 283

(ii.) All great officers, who were ex officio members of the
Exchequer, and had their representatives there, were accorded
the same right in the newer Edng*s court. The constable and
marshal had accordingly representatives of the same name in
the Eing*s court, and in those courts which arose out of it
when it became later subdivided. The same right was also
conceded to those members, when the Exchequer of Jews
became separated from the chief Exchequer. In like manner
the office of the hereditary usher became subdivided.

(iii.) The personal privileges of the officials of the Ex-
chequer were transferred to the justiciariva of the newei'
King's court; notably an inmiunity from the common
amerciaments of the county and from scutages, and a
privileged position in using the court tribunal for the settle-
ment of their actions at law. These exemptions were expressly
referred to the old privileges of the Exchequer, '^perlibertatem
sedendi ad scaccariamJ*

(iv.) The offices remained to a certain extent common to
both, as was also the court house. The Great Seal was as a
rule kept in the treasury of the Exchequer (Poss, ii. ft). The
King's court properly followed the person of the sovereign,
but its usual seat, notwithstanding, was with the Exchequer
in Westminster (Foss, ii. 168).

(v.) In consequence of the original connection subsisting
between both departments of justice, the routine of business
was discharged by clerks from the Exchequer ; that is, ac-
cording to its older pattern. Hence the unmistakable coin-
cidence of the rotuli and records of the Curia Regis, with the
business formularies of the Exchequer. Even after the court
had in later times become separated, the fines, amerciaments,
tallages, aids, and scutages, were in the old fashion still
accounted for to the Exchequer, by the itinerant justices.
The old principle ** recordationem curiee regis nulli negare licet **
(Hen. I. 81, 49, sec. 4), was an original principle of every
royal central administration, and did not first originate in
the manner of constitution of the King's court ; both before
and after it was a rule for the Exchequer also, for which

mcideutally recorded under Edward I. (Mado^ it.

Both departments are still always regarded as an emana-
tion of tlie personal government. "In curia, ilomini regit
ipse in pmjiriii persona jura decertiit " {Dial, de Scacc, i. c, 4).
The king, when it pleases him, appears himself as an itinerant
judge, and presides in person in banco ; instances of this kind,
until Edward 11., have been collected by Palgrave; and not
unfreqiiently a judgment is postponed on account of the
King's absence. The whole primitive form of a king's court,
as we can thus perceive, is as unstable as all new creations
of administrative practice. With the rise of a judicial body
the grand period of tho professional bureaucracy in England
had arrived. From Henry the First's day an official nobiUty
begins to be formed, by means of which certain lesser vassals
and clerics attain the rank of greater barons. The clergy
are still in possession of the Latin official language, bnt
side by side with it, the Norman idiom and other technical
qualifications assert themselves, in which the laity successfully
compete ; among the latter a class of law jurists raises itself

• ThB Excheqiie

Curia Regit. It conliuuos to decide
tbe legal questiona within Uic Snancinl
udDiia titration, and tlie King still
■nakcB lue of his right of nlloving
Oldinurj civil actions to bo decided nt
bia will, bj tbu baronfj scoeoin'f. lu
its jirioiiLpal activity, however, tbe
Exoheqaer is and Kmains Ilie ceoLre
of tho receipts and disbnrseoiuQts, tijo
<wirt of account for the aheriffa anil
other accounting pnrti''^. In the Ex-
chequer tke office of sheriff continuus
to be bitDcd out. t^lifrifls, eacbeators,
anil ocrtain UDder-oMclaia, take their
oath of office in it. Id like nuDDEr
from the Rxeheqiier proceeds the
deposition of individiuil HliGriflu, and
under Uenrr III,, even a general
deposition of them all. The t^iiig of
oaths of fealty, grants of feoObientii,
coiDpromises ad tcaccaruim, novt
frpqiiBUtly occur. From tbe Kxcbequer
issue* also tho summons of Iho iMid

army, addressed lo tho sheriff. The
iLdminiatrating body oonsialA now of
tbn c>hief justice and tho baton* : bnt
among these the treasurer beMnm
more and more prouiineiit, until, mfter
tbe disappearance of the chief jnatiae,
he becomta the proper presidio ejad^
Under Henry III. the office of Chu-
cellor of llie Eiehequer appeaia to
have arisen {Jlauiuell. IS Henry IIL,
c/. Thomas, "Materials," 0, 10); in
any case, from Ihia time be is more
fi-equontly mentioned. Vtoni Edward
I.'s time a tnukauTei'a lieutenant i>
also found. The aittinfcs in the Ek-
cbequer are still held oteatioaalty
under the personal presidency of the
Kini;, wbo at other times gives his
urdcrs by writing under his prlTatc
seal, or verbally, and quite informally
liv mcaeeugtr. We sliidl refer agRin
(ehapa. £2,23} in the foUowinK pmod,
to Uio position of the chaoceilor, Uh)
chsncery of tbe realm, and to Uib
system of the rotnli.

Origin of Estates of the Realm. 285

to great importance. In spite of much jealousy an esprit
de corps now appears to pervade the great body of eccle-
siastical and lay officials, who find their common bond of
union in the Chancery and Exchequer. It was the dignity
of the profession, and the cultivating influence of their daily
occupation of administering justice, which enabled, even
under an absolute government, an honourable judicial clasff
to be formed; just as in ancient days, the Boman empire
developed an honoured juristic body from the professional
administration of justice. After the establishment of a Bench
of Judges in the Curia Regis, the one-sided fiscal spirit of
the Exchequer found a counterpoise imder more enlightened
reigns. In the law book of Glanvill, which was written
as early as the close of Henry the Second's reign, an un-
mistakable progress is manifested, not only in the subtle
technicalities but also in a worthier conception of the royal
vocation of administering justice. Still more clearly is this
judicial spirit shown half a centurylater in Bracton's work,
with its very liberal views of the royal duties and of the
power of the laws as being superior to the arbitrary will of
the King.

The old shapeless Curia Regis becomes now embodied, for
the discharge of two chief groups of national business, in
two regularly constituted official bodies, the King's Court and
the Exchequer. The transactions in writing between the
King and these two are conducted by his cabinet coxmcil,
the chancellor and his clerks. As a member of each de-
partment, the King forms between them a department of his
own ; one which, as ojfficina justicias, regulates the subjects
of procedure and the actions dependent upon royal writ, both
of which are assigned by writ to their respective tribunals.
From the close of Bichard the First's reign the chancellor
keeps his own registers {rotuli canceUariw) which, divided
into the heads of Charter, Patent, Fine, and Close Bolls,
have been printed in recent years.

Side by side with these momentous changes in the adminis-
tration, are seen the first indications of certain alterations

in tbe couatitiition, tho importance of which cannot be ot«-
estimated.

III. ©rigin of tfie ©state of (5«atn 33nrons. In spite
of the fully developed sovereign political rights, Henry H.
found his position less favourahlo than that of the first three
Norman kings. The prevailing ideas of every age are deter-
mined by the immediate past, and thia had severely shaken
the belief in the omnipotence of the kingly power. Stephen,
as well 89 his female opponent, had granted a number of
concessions and submitted to a number of humiliations ; the
title and the privileges of the royal dynasty had been for
twenty years diacuased in every cottage. After such eyente
Henry II. did not find it an easy task to restore the old
form of government. "With the far-seeing shrewdness of
liis race, he contrived to find first an able bureaucracy that
was subservient to him personally, iu order to restore the
surviving administrative organization. The mass of the
Saion population was won over by exercising shai-p bdt-
veillance over the sheriff's, by protection afforded to tenants
against the arbitrary imposition of tallages by the landownprs,
by concessions made to the towns, by a nniveraal extension
of legal protection, and by certain reatrictions on duelling.
The somewhat milder enforcement of the forest laws and Uie
feudal duea, as well as the strict regularity of tho whole
administration, were acceptable to all classes.

But the relation between Church and State had become the
moat strained of all. Daring the time of sword law, the
privileged jurisdiction of tlie clergy had been expanded in
a manner which was in direct opposition to the uniform
system of the Anglo-Norman political government. Henry
II. was no less determined to assei-t hia sovereign supremacy,
than was bis ambitious primate, Thomas Becket, to enforce
the new principles of tho century on behalf of tho supremacy
of the Church. The ecclesiastical disorders now form the
turning-point, at which the King found it advisable to pro-
ceed only with the express sanction of the Crown vassals.
He did this, as has been explained above (Chapter XV.),

Origin of Estates of the Realm.

287

simply by summoning to extraordinary court days the more
distinguished prelates and barons to discuss with them im-
portant measures touching spiritual jurisdiction. The first
step in this direction was, that in January, 1164, the King
laid before them the sixteen Articles of Clarendon, touching
the submission of the ecclesiastical body to the royal feudal
and judicial control, and that he had these articles recognized,
confirmed, and finally attested, by the greater barons and
the bishops. Thus the innate national idea of the highest
legislative power, " consensu meliorum tcrrsdy^ awoke to a new
life. As the opposition of the Archbishop still continued,
the King soon after summoned not an ordinary judicial com-
mission, but for the first time the collective body of the
great prelates and barons, in order, by formal judicial
sentence, to declare the primate of the realm guilty, and in
'^ miser icorcUa regis,'' The idea of an administration of
justice by the " King in the national assembly," is thus re-
vived, t

The unfortunate course of the ecclesiastical controversy
caused extraordinary court days to be summoned more than
ouce, at which, in addition to ecclesiastical questions, im-
portant reforms of the temporal jurisdiction were put forward
for discussion, deUberation, and approval. In these the
question was one of fundamental departures from the
judicium imriumy and from the Norman judicial custom of
the duel ; a question of principles already enforced in practice,
but for which the assent of the vassals of the Crown seemed

t The state of ecclesiastical affairs
in the half century from 1164-1214,
undoubtedly prepared the beginnings
of a new constitution of estates of the
realm. Though the encroachments of
tlie spiritual councils under Stephen
formed no recognized precedents, yet
it became involuntarily recognized that
ecclesiastical affairs could not be finally
ordered by the sole authority of the
Kin<j: ; that the Church represented a
])olitical system standing on its own
ri<^hts; and that the English Church
formed an inseparable branch of a
universal Catholic Church of which

the King of England was not the sole
head. To put an end to this state of
affairs, Henry II. decided to summon
the extraordinary assizes at Clarendon
and Northampton in 1164, to consist
of the collective body of great barons
of the realm, all the bishops, and the
most distinguished abbots, all of
whom emerged from the great mass of
(tnentea^ as an united body. The name
"assize," which is henceforward used
by historians as well as by legal writers,
indicates the beginning of a new con-
ception, which is the nret step towards
legislative parliaments.

239

Constitutional History of England.

to be advisable, in order to eooTert decided departures bxaa
ibe legal usage of both nations into permanent national
institntions. Seeing that it vae vitaUj important for tbc
King to obtain the rassals' saneticHi in the ecclesiastical eoo-
troversj, Henry vas obliged to make tboee measures vfaicli
were essentialij necessary for the timea more acceptable.
by requesting the assent of his Crovn Tassals, a step which
is always popular at the first begimung of a political cod-
stitution. The King also does cot disdain, as in the An^o-
Saxon period, to proclaim once again, with the adnce of bis
Witan, the " King's peace ; " this was pabUshed in the Assize
of Clarendon with the additiOD, " qiiam dominHt rex Henriau
eotuUio archUpiMcoporum fi fpuroporum et abbalntn CKtmimque
baronum giiorum mtutitait" (Palgrave, i. 257). In this
direction two innoratious are conspicnous, in which the
national fundamental idea of the legislative power is revived.

1. In place of the informal councils, the collective body
of the great prelates, the earls, and great barons were som-
moned ; in the resolations of the council itself, this " twii-
tilium arcbicpiscoponiiii, cpisi:o]wrHm, obbotiini, eomiliini et
baronum [optiniatum procemm)" is expressly mentioned; and
at Becket*s condemnation, this assembly acts as a peers'
court in the form of a great feudal nirw, and no longer as
a judicial commission appointed by royal supreme power.

2. To take part in the most momentous resolutions on
one of these two occasions, there were also invited a number
of smaller Crown vassals. To the Assize of Northampton
(1176), the militcg ct hniniiue regis, were summoned in
addition to the banmeg ; or, according to other accounts.

L Ah

L

also the Vicecomitcs and ban

tt The oeeewitf of ulUrlios llio
lenponU viuaab to llie Kio^a csaee
by coDCcHioiu, caused Henrj in thoee
twelTB critical yean, to take couckI
with his asaeniblicB of notoblr* lourh-
ing other points ot the temporal jaria-
dlolioti. vliieh produMd a material
alloratinn JD llip oiutomary U'gnl »7slcm
Ota Urns). The Aniw of ClnreDilon
(1I6C) on the iiibjecl of mninlaining

i senindx (/(;/« ((<i(i«. ft

the public peace (PalgiBTc.'
weollh." i. 257, ii. 178: " Select
Chnrtera." p. 113), reco^Tiiied iin-
portoDt inttitutiona which imd gpnag
lip from tile ptactice of the eourti S
law and nf pnlice. AccunliDg to tb»
KiDg*B idea, theae were only deUba-
ati»e eitales. and wer* oirtainlj not
intended to bo ptejndicial to lifa
Kivireign light*. It was belie>«dUi

Origin of Estates of the Realm.

289

In connection with these events, a distinction between
barones major es and minores is first conspicuous in a solemn
political act ; and this distinction has until the present time
continued to form the subject of lively controversy. The
word ^'baro'' originally denoted a man (baron and femef
barones civitatis London, court baron, baron to the Cinque Ports) •
After the Conquest it gradually usurped the place of the
Anglo-Saxon title of Thane, apparently in order, like the
Latin homo, to express the feudal dependence of the " men "
upon the King. In comparatively early times, by barones
were pre-eminently meant the barones regis ; that is, the
tenentes in capite, who from the first were divided according
to the amount of their property, into greater feudatories and
lesser Crown vassals. Thus property qualification becomes
again connected with political institutions. Barones inajores
and minores had for a long period been distinguished in
the feudal militia. AU such as led divisions of their own,
were regarded as bannerets or officers in the feudal army.
On the Continent, fifty milites, or at least twenty-five, were
reckoned to one banneret ; in England, in proportion to the
smaller scale of enfeoffments, a smaller number appears to
have formed the unit of the constabidaria. In the active
army, the King certainly appointed the commanders, but it
was inevitable that the greater vassals, who by virtue of
their feudal possessions had to furnish whole constabularia,
should regard themselves as entitled by bkth to be officers
(seigneurs) of the feudal militia.

if the magnates of the land had once
declared their assent to an institution
called for by the times, the matter was
set at rost by the new institution
having obtained a recognition of its
legality. This conception the political
government adhered to for a whole
century. After 1 176, wo hear no more
of assizes under Henry II., nor of any
under Kichard Coeur-dc-Lion. It is
not until 5 John that a royal decree
is mentioned (Patent Rolls, 5 Joh.)
which reguhited tlie ** assize of bread,"
" e&mmuniconcUio baronum nostrorumJ*

VOL. I.

It may be that it was necessary to con-
nect the regulation of the prices of
provisions (as being a measure of vital
interest to the national lite) with due
formality with the AHHisa de pace «er-
vanda under Henry II. It is not ap-
parent that any general assembly wns
convoked at this time (25th April,
1 204) (vide Selden, " Titles of Honour,"
735); it appears rather that only an
ordinary council was held, whose
assent it was found advisable to
mention at the promulgation of the
measure.

U

I 1

fc tioi

From the first, the distinction between baronea majorta and
minores was known in the Exchequer, Reliefs, wardships,
and marriages of the great feudatories formed the principal
items in the financial administration. Whilst those of the
single lniigbt'8 fee were fixed at a hundred shillings, those
of the greater lordships were not until later times fixed at
a hundred marks ; and in this respect we often find a dis-
pute, as to whether the relcviuin of a fief is to be calculated
on the fief as a barony, or separately on the single fiefs.
In computing the amerciaments again, the greatest feuda-
tories are more highly taxed ; on which account certain
Crown vassals appeal against their rating as "barons," on
the ground that they only possess single fiefs. A notable
example of this is the case of the Abbot of Croyland (19
Edw. 11.) .

From the earliest times barones majoree and mmorfa wen
distinguiBhod at court. Of course it was only magnates who
were able to attend the gorgeous assembhes with a retinne.
To them by custom an express invitation was issued, and
by custom they were treated with much greater distiuctioii
than the knight without attendants.

For the same reason there had long existed in the popol&r
mind and in the language of common life, harone» inajora,
and barones minores.

We can easily understand from this condition of things,
that contemporary writers make use of the expressions
^' harones mnjorfs et minoreg," in such a manner that a later
age was led to conceive of the difference thus drawn as a
distinction in rank, which, however, viewed by the light of
the law, does not in reality exist. A difference in rank would
presuppose that the great estates were held by a special tenure
in a different manner from the simple knights' fees, but in tlie
great register of the fiefs made in the time of Henry III. and
Edward I., and which was printed in 1807, under the name
of Testa de Neville, the terms honors, harnna:, and ftuda
in such confusion that a definite and legal distinc-
tion manifestly does not exist. The expert who wrote c

Origin of Estates of the Realm.

291

Henry VI. his treatise upon feudal tenures (Littleton on
Tenures), upon which the later works of Coke and Blackstone
are based, knows no distinction between tenure by barony
and tenure by knight's service ; and this legal authority is
sufficient to determine the question.* Just as little were the
greater and lesser Grown vassals distinguished by their family
designations. The greatest feudatories a^e sometimes only
denoted by a Christian name, and sometimes by a family
name, with or without the prefix " de " ; the same is the case
with the lesser vassals of the Crown, and also with the
under-vassals. In a few families (Baro Stafford, Baro de
Greystock) the word '^baro** becomes customary for well-
known reasons, yet this is not peculiar to the greater vassals.
These circumstances induced the Committee of the Upper
House when examining into the question of the peers' dignity,
to allow that an "estate of the realm" did not exist before the
time of Magna Charta. The actual and social difference was
still no legal one, not legal from the point of view of public
law, because no cour de baronie existed ; not legal from the
point of view of private law, because greater as well as lesser
tenentes in capite have equal rights of tenure.

Notwithstanding that the state of the kingdom had repeat-
edly compelled Henry II. to accord to the most conspicuous
spiritual and temporal vassals a voice in legislating, yet it is

* In the relatioDS of private law no
difference could anywhere be found
between a knight's fee and a barony.
All the incidental distinctions only rest
upon the administrative practice; and
even in the Treasury records it took a
long time before the various amounts
of the relevia led to a fixed distinction;
as in the Rot. 9, Henr. III., "P«r in-
quidtionem^ qxtam Rex prxcepit fieri,
idem Walierus tenuit de liege in capite
pfrrfoedum militi*, et rum per baroniam "
(Madox, i. pp. 318, 681, where we also
find other instances of the use of" baro-
nia " and " honor " for those possessions
which pay the great relevium of a
hundred marks in a round sum). The
manner in which the ^* Dialogvs de
Scaccario" (ii. cap. 10) speaks of
^^haronia majores et minoret" proves

that even in the practice of the Ex-
chequer as it was in those days, there
existed as yet no fixed terminology.
The law book of Bracton (ii. p. 39, sec.
6) is the first to testify that in those
days the tribunals began in certain
particulars to distinguish between " ba-
rania " and " vasoria " ; " quod dicetur
de barotiia non est observandum in va-
aoria, vel aliis minoribuB feodis qtmm
baronia, quia caput non habent ticut
baronia" But this conception only
dates from the middle of the thirteenth
century. It was not until Henry III.'s
reign, after Magna Charta and a multi-
tude of other precedents, that the
popular tongue began to speak of the
"baronage" as the sum total of all
the greater Crown vassals (Parry,
"Parliaments," xi.).

r

I

clear that tlie King in convoliing the notables had jast a9
much freedom of action as he had in originating all the
consilia optimatvm. The aummons was iBsued on the ground
of personal confidence, and especially to such as were already
honoured with important confidential offices, it was issued in
accordance with the custom of the court, which had always
honoured certain great vassals with a personal invitation
(writ), and it was issued on the basis of the size of their
estates, which was known in the Exchequer, and with regard
to the distance at which their places of residence lay, of course
paying due regard to their personal standing and the opinion
of their compeers. And accordingly these conventions were
not " feudal parliaments," but only great councils of notablee,
and for that reason they cease, and disappear for more than
a generation.

As to the form and effect of such a summons, nothing
was definitely settled in this period. But there were prece-
dents extant, cases in which the King had taken the opinion
of his vassals " Bnper arduis negntiia Tegni,'' and had obtained
their assent. If this assent was proper in the eyes of the
Iving, it appeared still more proper in the eyes of the vassals.
For resolutions of this kind the denotation " assisa," bor-
rowed from the feudal curiie of the Continent, is used ; and
even the law book of Glanvill, in dealing with material altera-
tions made in the legal and judicial constitution, lays stress
upon the question whether they had been brought about by
an asKisa generalig or not. The monarchy in these convoca-
tions had pursued merely temporary aims ; but for the first
time for many long years the great barons had again assembled
in the political coimcils. The historians speak again of the
King as "cum principibita suis de statu ret/ni et de pace eonfir-
iiuinda tractans." The rights of the estates of the realm had
once more attained a definite form, and on this account the court
days of Henry II. were important precedents and of consider-
able moment in the events which led to Magna Charta, and
also as one of the bases of the later parliamentary law. | I I

Origin of Estates of the Realm.

293

hundreds of small feudal potBesaon,
did not contain the element of a poli-
tical peerage. This diflSoulty inczeased
ju8t in the times of the Grosades by
reason of the numerous alienations of
single knights'-fees and smaller parcels
of land ; so much so tiiat we now meet
with tenentes in eapite in possession
of one-twentieth, one-hundredth, or
one three-hundredth of a knight's fee.
As it was impotisible to draw a sharp
line between the greater and lesser
vassals, only the form of the royal
summons remained wherewith to form
an assembly of notables capable of
legislating. If this sununons was
wanting, there was an end of the great
court days. And thus it came to pass ;
the Assizes of Clarendon and North-
ampton were not repeated for a whole
generation. — In modem times the
critical theme of barones majoru and
minore$ has been again treated of in

detaU by Hallam (<« Middle Ages")>
and with much caution in the Peers'
Report (iii 87, 97. ssg., 109, §eq,
254> If in the latter we are forced to
acknowledge that the summons to a
eomiUum regi$ at this period was ex-
elusively dependent upon an act of the
Boyereign, this negatives the idea of
an ** estate of the realm ** consisting of
Grown vassals, since the choice among
hundreds was entirely dependent upon
royal writ The English nobility itself
would be brouffht into difficulties by
the conftued idea that eveir vassal of
the Crown in the Korman Cdria RegU
was entitled to a seat; for the claims
to a seat in the present House of Peers
would have been innumerable if every
descendant of a possessor of three or
four hides, who at one time or other
had belonged to the tenenie$ in eapite^
could lay claim to baronage by tranre.

Constitutional History of EnglantJ.

L

CHAPTER XVIII.

JlElagna CJjana.

After the rule of Henry 11., which was energetic, tlionj
ita latter years full of viciaaitudes, comes Richard (
Lion, adventurous and aimless, but a faithful reflex of tha
which he lived, and accordingly popular. The
regency, appointed for the time of his crusade, soon came
into conflict with the great barons and with the King's
brother John. During the absence of the King, England
again saw one party of the barons in feud with anotber
discontented faction. Witb his return from captivity the
personal rule of the King is restored, and be now holds a
court day {coUoqv'nim) after the old fashion, sits in judgment
upon bis brother John and upon a bishop, imposes a hide-
tax of two shillings upon every bide of laud ; but, engaged
in unceasing feuds upon the Continent, loses bis life at a
siege. The absence of this knight-errant from English soil,
which was, witb the exception of a few months, coutinuoas,
proved estremcly beneflcial, in so far as it rendered the con-
tinuance of an organized internal government possible.

The reign of John which followed appears again to unite in
itself the worst qualities of the Norman system. This King,
who bad already proved a faithless son and treacherous
brother, forfeited by the murder of his nephew Arthur his
French flefs, and thus brought about the separation of Nor-
mandy from England. He involved himself in V, stru^Ie

M

Magna Charta. 295

with the papacy, and concluded it by a humiliating BubmiBsion.
In his government of the realm he was still more aimless
than Bichard, harsher and more avaricious than any of his
predecessors ; he estranged all classes of the people succes-
sively by cowardice and cruelty, by greed and arbitrariness.
At length he brought about a crisis in which all elements of
opposition against absolutism leagued themselves together
and took action in common.

First and foremost among these opposing forces stood the
Church, which even under Henry II. had asserted itself as a
power equal with the monarchy. The time had arrived when
Innocent III., in the zenith of his might, at the Lateran
Council (1215) proclaimed the Church as the universal
monarchy. In his rupture with this power John brought
matters to such a pass, that the Bull of excommunication
was proclaimed to his face, and his deposition from royal
dignity, and the absolution of his subjects from their oath of
allegiance were published upon English soil.

But among the temporal vassals also much had been
changed since the Conquest. Since the Crusades the con-
sciousness of the dignity of the military profession had
mightily increased. The strength of the heavy-armed war-
riors had for generations decided every conflict; all the
power of princes now primarily depended upon the number
of such warriors. The equal balance of conditions through-
out the whole of Christendom, and the sanction of the
Church, had created an esprit de corps, which under the walls
of Jerusalem had formed for itself an universal code of
honour, which even princes could not refuse to acknowledge,
and which found in tournaments and social customs further
support and expression. Whilst therefore the barony and
knighthood began to feel themselves a unity, they were
bitterly aggrieved by the arbitrary imposition of scutages
and income taxes ; and now, too, when in the Exchequer and
in the government of the country bailiffs the prosaic system
of amerciaments and fines had reached its climax, John, as
the guardian of orphans, dealt with his feudal wards with

296

Constitutional History of England.

uuUeord-of injustice, and regarded the wives and daagbtcTs
of his greater vassaU as objects for his licentious desires.

In the towns of England also, as well as amongst the
freeholders, much had in the course of time been altertd.
Tlie extension of the feudal law, with its rigid riilea of inaliot-
ability and primogeniture, to the whole landed property, hid
in its very excess become an unnatural system, in oppo£iti<«
to which the natural laws of political economy and family
life tacitly asserted their rights. By the circuitous path of
royal licence on payment of a fine the alienation and partition
of feudal estates had to a considerable extent been resumed.
Marriage and decease, inheritance by daughters in equal
shares, escheat and regrant in smaller divisions, subinfeuda-
tion, and even direct selling in parcels (which was done by
the vassals on embarking for crusades, and was favoured bv
the Crown) had brought about new estates of freehold in
land. Mercnntile and commercial business, promoted by the
crusades, which had exercised a most beneficial influent
upon the cities and boroughs, had, after the time of Kichard
I., raised a cousiderable number of English towns to a high
degree of independence. This class also, in spite of its innate
loyalty, was in a humour to make common cause with the
spiritual and temporal Crown vassals against despotism,"

k

* Tbe evenU of the nrigio of MngnA
Cbarta hftvo been porlrayed by liisto-
rinns witb jUBtlD&bte prodileclinn.
(Cf. Lappenberg-Pnuli. iii. 293-187.)
For the purpose ot tfaia deniriptioii
it \a impnttiiiit to cnDaidcr the rela-
tionabip livtm^en tlie [loweia who
leaicoe together iji tbeactof June 15lh,
1215, againet Iho mniiurohy ; and Uie
■llifting (if which in the rulloniiig balf-
oenturj broueht about audi b mutvel-
lous ofmnge in their pogitiona. TIte
cnuntorforce of the Church wae at tliU
time the most impoaiiig na noU na the
moat arable. Arcbbiahop Slopbcn
Langton himself, in epite ot hia pro.
moUnn by tlie ['«|ie, itriiugly imprefeol
by tbc popular feeling, not odIj' under-
took for a time the oonduot of the
Movement, but remnineil Blauni'b to
Uie Tight c«UBe, and naj with jiutice

be considered a patriot. But imme-
diately after sue^eBS bad been gnineil,
the imperious bebavinur of the Carta
towards tbe baroDS remindiil theoation
only too aPDiilily Ihiil a spiritnal abao-
lutiam ezisled side by aide with Uw
temporal. Antrin<r tbe Crown ranala
of this period tbe majority had only
risen to importance under Ueaiy U.,
and owed tbeir inilueiitial position to
tbe newer eystem of politinil admioii'
liati'in. At the head of tbe armed
opposition stood liro*iiiinentlj lb«
northern boront. Id the framing id
Magna Cliarta, the acbool of Iheoffidal
nobility formed under Henry IL i»
reoognizable. All psriies of the Iben
eiisting nobility apparently took Te^ry
Blight intereal in tbe poaaessioa of
Niirrnanily : for the rr-cuijquest of
which no effort! ever appear to Imto

Magna Charta.

297

But it was, above all, the blending of the Franco-Norman
and the Anglo-Saxon nationalities, by this time complete,
which had imperceptibly imdermined the foundations of abso-
lutism. For five generations they had now lived together
under one Church, one kingdom, one administrative system,
enjoying peace in common, and suffering equal oppression.
The period of sword law imder Stephen, and still more the
ecclesiastical controversy with Thomas Becket, had at times
elevated other antagonism above the national dissension.
Parochial and family life had made intermarriage between
the Angli and Francigenae a daily occurrence. Under the
strong political and ecclesiastical power a new insular national
culture became matured, which through the separation of
Normandy from England developed its own characteristics.
In this new creation the Saxon element predominated, not
merely in numbers, but in those peculiar attributes of character
which the Anglo-Saxons retained unchanged in their family
life, their manners, and their language. The sober, moral
earnestness of this family life, in contact with the brilliant
and volatile nature of the Franks, proved the stronger of the
two elements ; and finally in Church and State, in the com-
munity, and in the family, assimilated to itself the Frankish
character until, in spite of a continuing difference in language
and in class ideas, it became once more predominant in the
nation. The greater portion of the powerful classes in the
country were indeed still by name and descent Francigenae ;
but with each successive generation, the population of the
British Isles became more and more consolidated into the form
of a nation Germanic in character.**

been made. The powers of resistance
displayed by the Crown vassals cer-
tainly seem to have been strengthened
by the spirit of knighthood, and by
the sympathies of the under- vassals
and Ireeholders. But custom knew no
other than a royal authority in the
feudal militia, and that body easily
bt'Uimc disorganized under a marshal
of tiieir own choosing. The scattered
position of the military fiefs, and
above all the want of financial means,

rendered a lasting resistance imprac-
ticable. Hence can be explained why
the barons, after a few months' struggle,
were no match for the financial power
of the King, with his paid soldiery
and garrison troops. The increasing
importance of the freeholders and
cities has been already adequately
estimated by Spelman " on Parlia-
ments " (c/. Peers* Report, i. pp. 32, 35,
and below, cap. xix.).
** The most significant new basis

298

Constitutional Mistoty of England.

It is these elements that are comprehended in the world-
renowned events of the 15th June, 1215, which, under the
name of " Magna Charta," are rightly regarded as completing
the foundation of the English constitution. From the moment
when John in his ecclesiastical dispute had collected together
the whole military array of his realm to oppose the King of
France, the consciousness of their relation to this monarchy

^

ia doablleas the reconciliatinD nf the
Datiimul HntipatliieB, to which the often
qaoted bxtimnjxj of the " DiatoguB de
Spaccsrio" refers: "JameoliahilaHiibui
Anglinit ti Normannii el alleratraM
(UDTH dveentHna col ttuhenlihni, «i'tr
ptTmixtit tunt ndd'ono, ut vtx dixierni
poteit hodie, qkh Angtm ouu Nor-
mawniw nl genere." AUuough in
fonaer timea the Tiutionnl rioiitraiit of the
Fmiicn-NoriuBti and English natiun-
ttliticB WBfl perhafis overrated, vet the
recent researohes of Friuinan (rol. v.
Appeodiz W) perbapa, on the other
band, go too far id weakening and
nnderrBting the national cuntr&st.
" What Englithmen suffered from van
maiDl}' that irregular often und(«ignHd
opprcuion, which must take plnra
when the laws of a. wnquercd people
ore administered by tlieir ooDquerora "
(Freeman, ir. p. 14). "The buocgm
of William's iiivanion was a diitiiict
trininph of one langnagM, one luode
of iraifaje, of one soeinl and political
system over aooUier " (Frueman.iv, p.
17). The point of view insisted upon
by Stubbt u correct, Ihat the Norman
monarchy, with laudable oonsiateticr,
npheld the legal equality of the two
nations, and that the pressure of the
Norman nationality was priiici]uiily
owing to the NonnaDs having taken
poasessioD of the high ofdcei in the
^(ate and the great laudtd prupertius.
The national contrast is croHsed by
this suoiul one, but the aationul anti-
pathies in conseqaence were rstber
embittered than mollified. A deeply
rooli-d national dissension ia proved
not only by orcdible liistorioal evidence,
but above all by the uiiiforai bearing
of the Anglo-Saxon population at evei;
attempt at inBurrecliou by Norman
great vasaals; it is evidenced also by
the dopompoaiti'm of the constitution
of the counties, which was every-

nhere visible, oning to internal dis-
sensions, that could only be rooted in
the nutiuuul ekiinent. Absolntism was
founded on tliese diesf-neions alone,
and that it had taken root there ia
shown by the stability of the tendency
to freedom from the moment of tbv
blending of nationalities. In spite of
all changes which the positions of
power and party nnderwent in the
following generations, this progres
remained irrevocable; it oonaiiliilsMd
ilseir in eai'h snnoesaive geneialioo,
aud triumphautlj led the emiuicipa-
tion of the estalee Id further vtotorica,
up to the close of the Middle Agt&
But in this blending tb» Genaanie
element hod berome the preponderating
one. Just as Magna Charta did not
arise from the Franco-Norman, bnl
fnim this national spirit. It waa
Hnnlly the tongbneaa of the Saioo
nationality which saved England's
freedom. Whilst on the t'onlinenl
Itomans and R"manized Celts cronrdni
to the courts of the magnates, the Bason
Tbauea and peasants remained apart
daring these hard times, and ahnt
thumselves within their tortifled farm-
houBL'B. Whilst the adnptive Scandi-
navian Normans in their settlement*
in Normandy had, after a few genrrs-
tions, como to use thelangURge oftbeir
wives, and had become Franbiah in
manners and enstoms, in England the
Norman element whicli bad beeoin*
French had not, in spite of the pontlon
of the ruling class which it had bold
for oeuturius. been able to introdaee
one-tenth of its foreign words into tb«
Eugliab tongue as it U spoken to-daj,
or more than three words into the
English Lord's I'rayer (Hickea, The-
EDur., Pref.. p. vi.). Finally, it was
the qualities In churaeter which
decided the issue in the qnestioa of
nationality.

Magna Charta.

299

awoke in the breasts of the people. The papal legate had
laid before the King proofs of the understanding subsisting
between the barons and King Philip, and had thus in the
first instance procured the humiliating submission of John
to the papal throne, which threw the country into greater
agitation than the interdict. At the meeting of the mag-
nates in St. Paul's on the 25th August, 1218, a confederacy
was formed, which, supported by a great proportion of the
prelates, advanced slowly in its claims against the Crown.
It was not until towards Easter, 1215, that an army collected
at Stamford, consisting of two thousand knights, with a
numerous following on horse and on foot, amongst whom
were some great feudatories, but especially younger sons of
the first families in the land. They chose Kobert Fitzwalter
as Marshal of the *' army of God and of the Holy Church,"
obtained release from their oath of fealty from the canons of
Durham on the 5th of May, but only succeeded in gaining a
firm footing against the King and his garrison troops when,
in league with the citizens of London, they had won that
great fortified place. In this crisis negotiations for peace
are made upon the meadows of Kunnymede (15th to 19th
June, 1215), in which the King, with his small retinue upon
the one side, and the rebellious barons in full martial array
upon the other, treat together, the Earl of Pembroke acting
as mediator. The barons (perhaps Archbishop Langton
himself) had originally drawn up in formal articles the griev-
ances of the country, articles which, revised and completed,
were recognized by the King by the aflBxing of his great seal,
and being then formally issued, were raised to a royal
charter.***

•** The authentic versions of and
legral treatises upon Magna Charta
have not been prepared with quite
that care which would have been ex-
pected from the importance of the sub-
ject. Jurisprudence, which is always
slow in dealing with political questions,
paid for a long time but little attention
to the charter. The law books of
Braetou, Britton, and Fieta scarcely

touch upon it incidentally; its prac-
tical judicial effect demanded a pre-
vious specialization through the long
series of Acts of Parliament which
have proceeded from its fundamental
principles. It was not until after the
days of the Stuarts that the science
of jurisprudence did justice to Magna
Charta, more especially in the restora-
tion of the authentic text. The ori-

300

Constitutional History of England.

Magna Charta leads us back to the details of the Normu
administrative law, ao that the sketch I have hitherto givao
wilt also serve aB a commentary to it. To begin with,
however, the relations subsisting with the Cbiircb mast be
especially remarked. Only in close alliance with the English
prelates were the barons able to wage war against the
monarchy. The charter granted in former days touching
the freedom of ecclesiastical elections (p. 240) was ao-
cordingly confirmed, and was to he faithfully adhered to.
The "separation" of Church aud State was still popular,
as being opposed to absolutism ; and neither the baronial
class nor the English population thought of interfering with
the position the Church had now attained. Tbe articles
of Magna Charta accordingly only lay down legal limitations
of tbe secular authority as to which the order in which
we have hitherto eoneidered them appears applicable and
convenient.

S'nal dncnment hiu been deacribeil by
iHokatone ("The Great Charter," pp.
xr.. xvi}. It is preserved ia ilie
Britiih Museum (of. Lnppeoberg-
Pauli, iii. 424). Of the copies mliich
were oiroulated by the bsrona only
two liave bren fniind by ihe Record
ConirDUBion, Ht Liucoln and at ^nlia-
bury : the first ia taken Tor the text in
Bymer, i. 131, and in the " Statutes of
tlie Healm," i.7(LappcDberK-Pauli,iLi.
438). Of the (reatisCB three may per-

..." (Oiford, 1759 fol.), in which tlie
onuiBo of the editions and the oonflrnia-
tlnne until the end of Edward I.'sn-ign
■redescribed with oriticsl care. Thtn
followi tlie reprint of the thirty-nine
arti'oles, upon whirh MEigua Chiiria
was based (pp. 1-9); then the vorrect
lezt of the oliBrtct drawn up in tiixly-
threu anielei, ISth Jniie, 121S (pp.
10-24). To those uK added the more
importaitit later version?, eapecially
Hnena Obattn. a.:i. 1-^17,9 Henry IIL
(ii.) A legnl oommentary Is giTen
by Coke (Inst., ii. pp. 1-78) on the
articles of the cbartit at caalalned in
Ihe Trrsion of 1) llcnry Ul. Some
■ervieeable addilions are coulaiiiDd

in Barringtoii'e " ObscrralioaB on the
more Aneient Statutes, from Hb^*
Charta to 21 Jnoies L" (3th editiaii,
1796).

(iii.) An excellent reprint, now
readily nccossible, is given by gtubha
in his " Select Charters," oousiatiiig
of the draft made by Uio baron* (p.
2HII), the first voraloii (p. 2116). and
the lntt.'r alterations in the teit nnda
Henry III. (pp. a39, 314, 353. 3S5.
3-7).

In the ordjoarj editions of tbo
" Eoglifh I'urliamontary StatulM,"
Mi^nn Churls is only given in ila
Inter form (U Henry IIL). The oO-
oial edition of the "Statutes of the
Itealm," which was isaued by the Brmrd
Commission, pies tbe original docu-
ments: the most important of them with
the addition of a fac-mmih. The ar-
rangement which is appended follows
the development of the Sovertngn
rights, but in detail the seqaeno« of
the arUeles. An arrangement of the
articles aconrding to rnoks and -Innsns
for which they were frumed is {^ren
by David Rowland (" Manual of tha
English CoDBtitutiou," Loudon, lt(£9,
pp. 50-eO).

Magna Charta. 301

I. The first group of articles deals with the legal Umftatfons
of X^t feulial mflttarg potoer, principally viewed from the
financial side ; touching wardship, marriage, and the amount
of reliefs and aids. Herein the ancient right of the Crown
was recognized, but an unfair interpretation of it for fiscal
purposes, and excessive claims, were prevented by a reduction
to fixed payments. The relevium of the estate of a comes was
fixed at £100 in silver, that of a Crown vassal at 100 marks
in silver, and that of the single knight's fee at 100 shillings
(Ajt. 2). The feudal guardian of minors is to have his proper
income and services; he is not to lay waste the lands, but
rather to keep them in condition (6, 6). Feudal heirs are
to be married suitably to their rank (7). The widow is to
have her dower, and must not be compelled to marry again
(8, 9). Arts. 12 and 14 (dealt with below, V.) relate to the
imposition of scutagia and attxUia* No mesne lord is to be
allowed the right of taking other auxilia from, his under-vassals
than a proper aid in the three ancient customary cases (15).
No one shall be constrained by distraint to do more services
for a knight's fee or another free fee than he was bound to
do formerly (16). No governor of a castle shall compel a
knight to pay money for the castle guard, if he performs it in
his own person, etc. (29). Moreover, all these regulations
are to be recognized by the feudal lords as binding on them
with regard to their men (Art. 60); '' Omnes autem istas
consuetudines pj'edictas et libertates, quas nos concessimvs in
regno nostro tenendas, qtuintum ad nos pertinet erga nostros,
omnes de regno nostro tarn clerici quam laid observent quantum
ad se pertinet erga »uos.'' A great portion of these feudal
articles is in accordance with the old promises of the charter
of Henry I., but differs from the latter in its much more
determinate framing, and providing for the sub-vassals, and
for proper execution. (1)

(1) Legal limitations of the feudal par commune eonstlium regni no$trt,

military -power are especially contained niH ad corpus nostrum redimendum

in the articles 2-8, 12, 14, 15, 16, 26. et primoaenitum fiHum nostrum militem

29, 43, 60; *' Nullum scutagium vet faciendum et ad filiam nostrum primo-

anxilium ponatur in regno nostro, nisi genitam semel maritandam, et ad hoc

II. Ittgal limfintfons of i6e fubicial poioet. (i.) Concerning
civil justice: the hearing of ordinary civil actions shall no
longer follow the royal court, but shall be held in some
certain place (Art. 17}. The civil assizea shall be held once
a year in every comity by itinerant justices (18, 19), None
are to be appointed JHatifiarii, county and local justices, who
are not versed in the law of the country, and willing to duly
observe the same (45). The arbitrary and disproportionate
fees exacted for judicial proceedings are to cease: " niiili
vendemvs, nulli nctjahimus aut differemus rectum vel jusfitiam "
(40} ; and as a fact, from that time the great fines derived
from actions, and the sums paid for stay of judgment dis-
appear from the Exchequer accounts. (ii.) Concerning
nriminal jusliee: no Vicecoincs, no constable of a castle, or
local bailiff of the King, shall from this time forward exercise
in his own right eriminal jurisdiction and decide placita corwue
(24} ; it is manifest again from this how popular the cen-
tralization of justice at the expense of the county and town
baihffs had become.

But the most essential clause, which also relates to legal
procedure, ia the fundamental article S9 : "Nullum liber
capiatur, vcl impriaonetur aut diasaigiatur aut utlagelwr
exvletur aut aliquo modo dealruatur, nee super turn
nee super eum mittemua, niai per legale judicium parium aw
vel per legem terrte." This is the assurance of the continuance
of the Lenea Eduanli, of the traditional judicial constitution
with its legal protection accorded to person and property.
By "jiulicium pariiim " ia meant, not such a jury as in thfl
year 1215 existed only in civil procedure, in the elements of
a jurala, but judgment hy peera. The addition of " vel
legem terr«"run3in one copy"ct per legem terrw {"vtl
the language of this time often occurring for " el ")
ingly, this clause deals with the frequently repeated assurance
of the traditional law of the land and judicial procedure ; bat

I fiai niti ratlnnabite auxUium " iibrrtairi Here niso to be o1>)«rTed

(12); lunimoDB of all Crovrn vaxiulA the feuilal Ionia towards theit

itio mnimune contiliutn in such Vnaala (60),
■a (H, below, uote 5), All tbsM

J

Magna Charta.

303

the assurance is more strictly framed, and demanded in its
present shape by the Norman magnates themselves, and
accordingly guaranteed again by them to the liberi homines
of the realm. (2)

III. Hegal Itmttatfons of tjbe police potoer. The main point
lay in the system of amerciaments ; for by the imposition of
police fines every judicial protection of person and property
could be rendered illusory. Magna Charta (20), directs the
following provisions against such abuses : (i.) The police fines
shall correspond in amount to the magnitude of the offence :
''Liber homo non amercietur pro parvo delicto nisi secundum
modiun delicti^ et pro rnagno delicto amercietur secundum
magnitudinem delicti.'* (ii.) The execution in respect of police
fines is to take place with the heneficium competentise, in such
a manner that every liber homo should save his necessary
subsistence (contenementum), the merchant his merchandise
(inarcandisa), and the villein his implements of husbandry
(waignagium). (iii.) For the condemnation of any to an
amerciament, a co-operation of the " good men " of the neigh-
bourhood shall be necessary; that is to say, a summary
judicial proceeding : " et nulla predictarum misericordiarum
ponatuVy nisi per sacramentum proborum hominum de visneto,*'
This comparatively immaterial and often disregarded pro-
vision cuts at the root of an arbitrary police power, and of
such regulations as are contrary to the constitution ; and in

(2) Legal limitations of the judicial
power are compri8e<l in the clauses 17-
II), 24, 34, 88-40, 45, 54. as follows :—
'''■ (\nnmunia placita non sequantur cu-
riam nostram sed teneantur in aliquo
certo loco" (17); "nwWiw Vice-comea,
constahularius, cf/ronalores vel alii balr
liri notttri teneant placita corona nos-
trsp. " (24) ; *'' nihil (fetur vel capiatur de
cxtero pro brevi itiquititionis de vita vel
memfrriSy scd gratis concedafiir et non
negetvr" (30). " NuUns liber homo
capiatur vel imprisonetur" etc. (39 v.
above). This essential clause had,
moreover, a precedent ; for already
during the conflict between the regency
appointed by Richard I. and the barona,
a similar assurauce had been mutually

agreed on as to the proper course of
justice : ** Sed et eoncestum est^ quod epis-
copif tt ahbateSy comites et haroneSf vassal"
Bores et libere tenentes rum ad volunta-
tem justiciariorum vet ministrorum
Domini BegiSy de terris et eatalltB niie
dtMaisientur, Bed judicio curite Domini
BegiB Becundum legitimaB conBuetudineB
et OBBUKiB trcustabuntur vel per manda-
tum Domini RegiB.** ** Nulli vendemuBy
nuUi negabimuB aut differemuB rectum
autjuBtitiam (40). Article 42 provides
that the county court shall be held
every month, the sheriffs toum twice
a year ; the yearly sittings of the itine-
rant justices are to be reduced from
four to one.

304

Constitutional History of England.

the course of the period in which the estates of the reu
were formed, was thoroughly carried out by the co-operatiou
of parliament. A writ, " dc vwderatn migericordia." carried
out in principle the appeal to legal process agalnat police
fines and administrative executions even in the local courts,
A fundamental rule of liberty to move from place to place,
to which the clergy also coald appeal in their intercourse with
Some, is contained in article 42 : " Liceat unicuiqae rfc ratterv
exire de regno nostra et redire mlvo et secure per terram et per
tiquam, talrajide nostra, nisi tempore guerrse per aliquod brere
lempns propter comvmnem utilitatem regni, crceptis imprisonat'it
et utlagatis secundum legem regni, et genti de terra contra not
gncrrina et mercatoribus, de qiiibusjiiit siciit predictiim est." (3)
IV. Itgal limitations of tfie finanrial pototi are already com-
prised in the provisions touching the feudal power. Whilst
thoee, however, are only in favour of the upper classes, &
number of the hardships inflicted by the fiscal Government
upon the freeholders and cities are next dealt with. Aa to
the auxilia (properly tallagia) of the city of London, the
same rule is to be applied as in the case of the aids of the
feudal vassals (12). London, and all other cities, burghs,
villas et partus, are to have their " Ubertatei ct iiberat consuetu-
dines" (13); merchants their trade and traffic secure, and £ree
from all arbitrary impositions and tolls (41). There shall be
one weight and measure for the whole country (35). No city
and no freeholder shall be compelled to build dykes and

(3) Ltgal llmilasiont ef Om poliea
nnnrr am oontnined in article* 20-22,
2*. 32. 39, 42. 54. 5ii, primnrily conwrn-
iog Uie BjatiMn of police fl&ee: "Kber
homo lum avKrcUlitr pro ponco dtlielo
niti tmundun nndam dclieli," oto.
(Art. SO, vida above). In Ihe cmte nf
Olown TBlnlB the following was addail :
" QmiUi et bantnei n

modum ddMi" (AH. 21). For Ue
elergjcf. Art 22, •■AToii n<m («iKiftiinut
terrat Ularain, if"' wmrWi /uerini d»
JAmia, niti per uniitn annum el Bfiuni
diem, tt tune rtddaotur Irrrit domiiiit
/ewforum" (Art. 'd2). Tbe reiidt-iing
of illegal police Qael null and void :

/aela injiul* «(
contra ttgem ttrrm mnnma eomUmenlKt,
vel fiat inde jitr jitdieium XX V boro-
num." etc (55, 56}. The c«>r;ing out
of tbese priDoi|>leB naa priimiriiy tlte
duty of tbe Exrbeqnor and Ibo King**
cnart, as thp conrUot bigher iiutnnMi
of the sli^riD^a touni aad the T««t of
tbe mjeX court* of record. For the
maanrial coorts and other oourla " not
of reooid," in wblch the old eiutom*
■till prcvaili'd, in latet timei » Bpeeikl
writ "dt moderaia mitfrioordia ma
frameil, which enforced the nnifonn
bpplK-ution of the principle. (Of.
Buriven on Copjbold, iL 853, tt53.)

M

Magna Charta. 305

bridges, except where such is a matter of ancient custom (28).
Purveyance and compulsory carriage are only to be enforced
against the freeholder in return for immediate payment, or
only with the free consent of the owner (28, 80). Neither
the King nor any royal oflBcer or other person shall take the
wood of any one for the royal castles or for other uses, except
with the permission of the owner (81). Those living outside
the forests shall not be summoned before the forest courts
(44). The newly made forests shall be disforested (47). All
abuses concerning forests, warrens, foresters, sheriffs, and
their ofiBcials, shall be inquired into in every county upon
oath by twelve knights of the shire, chosen by the "good
men " of the same county (48). Common to both feudal
vassals and liberi homines is also the assurance relative to the
regulation of inheritances of personalty, and payment of
debts, especially with regard to the privUegia Jisci (26, 27).
The articles concerning the treatment of the dehita judseorum
(10, 11) are derived from the province of administration
of the Exchequer of Jews. On this side is apparent the
considerate regard paid to the lower classes of the people,
which may probably be attributed to the spiritual advisers.
The liberties granted to the Crown vassals are extended,
as a matter of course, to the relations of the private
feudal lords erga suos. The limitations imposed upon taxa-
tions are extended at all events to the city of London.
Conversely, the redress of the common grievances of the
country, which principally proceed from fiscal oppression, in
the first instance benefits the middle classes, but reaches
upwards to the higher classes also. Military vassals and
liberi tenentes stand side by side in such articles. Many
clauses refer to all the liberi homines, without regard to the
kind of property, and are so far beneficial to the villein
tenants as well. A few clauses are directly framed in favour
of the villein. (4)

(4) Legal limitations of the financial prosecution of fiscal claims (9), debts of

pmcer arc comprised in articles 9-11, Jews (10, 11), the restriction of the

16, 25-83, 85, 37, 41, 43, 44, 48, 60, attxiZta to the three old cases : "Simili

especially as to the more forbearing modo ficU de auxiliis de eivitate

VOL. I, X

306

Con3tituti<mal History of England.

s

V. ^i)t legal sanction of all these liberties and asBurances h
connectt^d witb a Dumber of temporary proviEions. But kt
tlie same time this sanction iiuitea with other articles in
forming the first foundation of a oonatitution by estates of
the realm. The form which had been hitherto observed in
the charters oould not satisfy the barons, as the question of
tlioir irrevocability had not been settled in judicial practice.
Hence they adopted the course of giving the charter, by
means of a solemn oath, the character of a treaty of peace
according to feudal custom : " Juratum est aulem tam ti partt
rtoHtra, quam ex parte bartmutn, quod hec omnia supradietA
honAfidf- et tine vialo ingenin servabuHtur."

The charter thus received the character of a joint compact.
But seeing that any oath taken by John was worthless, and
could bo remitted by the Pope, and that all the limitations of
the Government which had been assured, were, as against the
sovereign curia and the Exchequer, comparatively useless, the
appointment of a national committee with recognized rights
of resistance was added thereto, which, combined with certain
previous articles, formed the parUamentary clauses of Magna
Charta.(5)

L

London "(12); "el eiHlat Lotuton
kaheat omiun anfiqiuu liberlalef el
Ubarat eaattieludinet mm, tan per terrat
qoam per aquat. Prxtema omne* aitx
eietlata tt burgi tt vitlm tt porliu
hahmnt ommt* Ubtrlalet el Uberan ooh-
•iiatiuIjnM niua" (lU). Here ctui be
olaftrly urea llie infliieQce ot the tit;
of lion^nu, wEiliili wm Hlliod with the
bciroui, uiid wliioh coiried the Bubne-
quoDt oIuuMis roluliuK to [radc, woij^hts
will mouBure*. oa well lu u speoinl
cUuM agnttist tbo weira miulo in the
Thampi. " NuUiu dUtingalur ad
foBicndum mutw wrviliun da frodo
mUUit «» tie alio Ubm UHontida,
fonni indi dchtlur" (l&V "Otnne*
eomtlatut at huHdndi, Innlkingii H
itapiulaehii liul ad antiqiat firmat
abtatia Bul/o (nnrnuntn, <aon>(it dmii-
m'ofj maturdi notlri4 " (25). " fj'nn
I vinS til jKT Itilum ngnum

" taunlatptr/todifinnittih ptr Mcoafan,
par bvrgagiuta, per parvam rrijohIo-
rMni"(dT); " dinmci merculoriNi Aoivaal
(alram et Meurum eiire iili AnaUa H
vtaire in Anylia, moniri tl ira ptr
Amjllam Ism ptr laram, quan ptr
oguan, ad cnunuluin tl fgndatdum
tin* amniiua mulii toUii jmr anliqaaa
el mUiu oonturliulines," eta. (41); k
milder ulmiuUtmtjoa of ibo nral
forett laws (-li. 17, 48). The Ltllar
nrtkloi fomi the main contcnu of ttw
later ociuiate eharla de/orrMa.

tvmoT*] of pertumi named from thoroml
prisons, iha discharge of Uie ftmnn
meroenaries, the mlltntlon of land*
Baiiail line boalj judieio jtarium, tb«

monts, tliQ mtoration of liie londji tn
Wsli-a, wbkb liitd breii torn from thcjt
ponenon, the rclationi uf Englukd |o

Magna Charta. 307

(i.) The committee of resistance was appointed in article 61
with the following provisions. Twenty-five barons (among
them the mayor of London) who should fill all vacancies in
their number as they occurred by co-optation, are to be elected
as conservators of the charter, and are to pass resolutions
according to majorities ; and if the King breaks any article,
four out of their number shall, on each such occasion, move
before the King or chief justice that redress be made ; and
in case of refusal they may summon the communa (probably
the whole of the vassals), and take from them the oath of
obedience, " et iUi viginti quinque barones cum communa totiua
teme distringent et gravahunt nos modis omnibus quibus poterunt,
scilicet per captionem castrorum terrarum possessionum et aliis
modis quibus poterunt donee fuerit emendatum secundum a/rbitrium
eoinim, salva persona nostra et regime nostrte et liberorum
nostronim, et cum fuerit emendatum intendent nobis sicut prius
fecerunt.''

This clause is so far in harmony with the spirit of the feudal
state of the Middle Ages, as it was based upon a mutual rela-
tion of feudal protection and fealty, that is, upon compact.
The vassals thus give expression to the fundamental notion of
their relation as it existed in Normandy and France, yet with
certain important alterations. Whilst on the Continent the
individual vassal regarded himself as judge of the question
as to whether or no the lord had broken his obligation to
protect him, and frequently for a trifling cause sent in his
letter of challenge, here in England the nobility act as a
corporate body. Only in their collective capacity, represented
by definite organs, are the barons declared entitled to resist,
but the feud of the individual against the monarch is in no
wise sanctioned. As a fact, there is contained in this harsh
article nothing more than a recognition of the feudal right of
distress, which belongs to the King by virtue of the con-
stitution, and which is conceded in return to the collective

King Alexander of Scotland, and a occamione ejtudem discordim a Pascha

gt neiul amnesity : " omnes nuilas volun- a regni noatri xvi. usque ad paeem

inttn, indujnationes et rancores re- reformatam."
minimus^ omnes transgreuiones factas

y

308

Constitutionai History of England.

body of Crown vassals as agauiet the King. TLe c
liy agreement of the rights of distress was altogether so
entirely consonant vith the legal coBceptions of the Middle
Ages, tliat in this way the committee of resistance loees »
portion of its apparently revolationary character, (a)

(ii.) The second clause respecting the estates of the realm
■was intended to ensure s regnlar snmmons and right of assent
of all the Crown vassals in two particular cases. Thns when-
ever an aid {atuHium) was demanded in addition to the three
traditional cases of " hononr and necessity." this is only to b6
done "per commune eoneitium regni ttostri" (12); and this
19 to apply also to the auxilia of the city of London. In
all cases, however, a rommune consilium was to be convoked,
whenever scutages were demanded instead of the feudal
military services. To that commune congilium the barons were
to be sommoaed in the following manner (Art. 14) : —

" Et ad kfObendum commune consilium regni de aiucUio ami-
dendo, alUer quam in tribtis cfuibus prediet'u, vd dc tctttagio
<u«id^ndo,tummonerifacicmua arehiepiacopot. epUeopot, (Abattt,
eomiUi, et majoret barones tigiUatim per litterat nostra*. Et
pr«lerea faeiemtu aummoncri in cfenerali per rieccomitet tt
batlivot noatroa omnes Uloa, qui de nobit tenent in capite, ad certrnn
diem, scilicet ad termintim qaadriginta dierum ad minua, <l
ad certum locum, et in omnibus Uteris iUiaa sumvioKiliomt

(a) The dsnie relating to tbe «im- quinqat barmum, tt mmf <;rma>M M*

ft lHim rf-utiu fimttiiM jurnmdt
aiBibel, quijnrarr wvliirril, rt mnUt ■•-
^tutiB jnmrf pnA Jf'Mmtit. Ommm
mlim illot dr Irrra qwi frr k el wi«ll
nu nolnerint juran n'^nti qamjm
harmiilnu de dittrittgrnde tt gmi a iwfc
no* nm fU,/aeUa«a jtirart fUMfn» it
VHfndaio nilra, tifui prrdietum Ml"

Engluh j mists uid hietoriaiM an
awnatomedto laake trtj inapprofriMa
rotnparianna bctvt^D thii utiCM. nA
the insoli'Dt rrciatMlirc-cUiucs of tbt
reada] locd* of Ihe ContiD- dI, th« CM-
■tilntion of ArTBgoD. imrl Um Uhg^
vhemw article Gl of Miiena Cbwia n
bntb ID fonn and spirit isry d""
in character tn tlie indecent i
of the eontiueiital Taauls.

g:D>gcof Art.6I aa followa:-

(fRip» gaajlra^nta ditrum,
gmaUHor baronf* rtfrrani anm
ad PuidiHX rk iUii vigitUi mil
toroafhu, «f tlli vigMi quinqufhart
oon eommutta latiiu tcrrc diilriitynit
•I gmvlmitl not modi* rmutibiu, gvttas
peleninl, leUinet per ntpfionem eattro-
ruM, tfTTurum, pouanonan et aliit
modii. quOms p^rranl. dotite fuerit
mmdatum Kmnduni mhilnuia torvm,
aaJm pmona ttotlTa tt rtginrr XMfr*
tt librmrvm notlroruai, tt mm /uerii
efHetiitatiim, intrndttil nct-vi lieul pHu*
/tcmmt. EtotiicnniptemlarTUdtUTra,
Jltrrt,quod tut prtdicla omnia eirquenda
fanbU KOMdalit prtdielartm vtginti

Magna Chxirta.

309

causam summonitionis eocprimemvs : et sic facta simimonitione
negotium ad diem assignatum procedat secundwm consilium
illorum, qui prsesentes fuerint, quamvis non omnes summoniti
venerintJ*'

The English barons in arms, allied with the Church and
the city of London, and with the consent of the country never
laid claim to more than this, even when at the height of their
success. They claimed no right of assent to the issuing of
royal ordinances, no right of summoning a covr de baronie, no
conventions assembled to deal with the grievances of the
nation or generally with the voting of taxes ; but only a right
of assenting to two positive alterations in the legal conditions
of feudal tenure. (6)

The possible germ of a special peers' jurisdiction was con-
tained finally in —

(iii.) The clause dealing with amerciaments (21) : ** comites
et barones nan amercientur, nisi per pares sues et nonnisi
secundum modum delicti,** the phraseology of which reminds
us of the peers' court which arose in later times. Since a
legal distinction between the greater and lesser vassals had not
as yet been drawn, there was actually contained in this clause
nothing more than a general promise of the traditional
administration of justice, nothing more than the "judiciuin

(h) The clause concerning the sum-
mooing of the marjnum consilium for ex-
traordioury auzilia, and for the purpose
of fixing the scutages, has, like other
passages, been much distorted by
political parties. This article is only
directed against the arbitrary taxation
of John, against the raising of the hide-
tax from two to three shillings at the
commencement of his reign, against the
raising of the scutage from £1 to two
murkd, and against the continued ex-
action of it without any occasion for a
campaign, and above all against the
raising of an impost upon the personal
property of the Crown vassal (1203),
in direct opposition to the feudal com-
pacts and the most solemn assurances
of his predecessors on the throne.
Only in those cases which contain a
pobiiive alteration in the legal con-

ditions of feudal tenure is a ri^ht
of assenting claimed. Not a word is
said of assenting to the promulgation
of royal ordinances or laws; not a
word about a right to summon a cour
de baronie for the exercise of a juris-
diction over the Crown vassals ; not a
word about an ancient national as-
sembly for dealing with the national
grievances, or for the voting of taxes.
As every investigation in detail
destroys the favourite tradition of
a ^* feudal pctrliament in arms," of a
permanent feudal curia, and of an es-
tate of the realm formed by **• the proud
barons of the twelfth century," so are
these circumstances connected with
Magna Charta fatal to the general
conception of the Curia Regis which
antiquaries have imagined.

L

parium " which in Art. 89 had been assored to all free men of

the realm, (t-)

Magna Charta accordingly contains mnch less of formal
constitutional law than has been looked for in it. But it
contains the leading traits of the English character and
constitutional ayatem The Norman magnates had now been
compelled to make their choice between the island and the
Continent. In England they could not shelter tbemaelTeB
against the monarchy behind the walla of their caatles, but
were obliged, as individnal resistance was impoasible, to break
through arbitrary power in a collective body, making common
cause with the clergy, and backed up by the sympathiea of
the people, and to win for themselves and the people common
rights and guarantees against auch despotism, and thus base
the constitution primarily upon personal liberty, and upon a
uniform legal protection accorded to person and property.
This nobility, which had for generations been the first to
bear the oppression of the absolute monarchy, and the
burdens of the state, had learned to sympathize with tbe
people's wrongs, and thus began to realize its vocation of
placing itself at the head of the nation in the new consti-
tution that was being formed ; in this sense Magna Charta
was also a pledge of the reconciliation of the classes. Its
origin and its confirmations kept ahve for centuries the
feeling of the community of certain fundamental rights for
all classes, and the consciousness that a nobility cannot
possibly assert rights and liberties without also guaranteeing
to the weaker classes their personal hberty. Since the right
of property, and the family rights of the lilifri kominei had
been for once and all uniformly framed, since a separate right
for nobles, citizens, and peasants, was no longer possible,
from this time onwards, all struggles are undertaken only
with the object of securely restraining the personal govern-
ment ; and as long as the quarrel takes this direction, eo
long do we find people and clergy on the side of the nobles.
Upon the foundation thus won further eflforts could not tend
(i.) Id tliia tense ttiia cUuio was alao uodentood ia pnctioe (below, p. 315),

Magna Charta.

311

towards asserting exclusive privilegeSy but only towards regu-
lating the political sovereign rights according to law, and thus
gaining a constitutional co-operation. By Magna Gharta
English history irrevocably took the direction of securing
constitutional liberty by administrative law. In this sense
Hallam's words are true : ** The Magna Gharta is still the
keystone of English liberty. All that has since been obtained
is little more than a confirmation or commentary; and if
every subsequent law were to be swept away, there would
remain the bold features that distinguish a free from a
despotic monarchy."

But because the charter forms the beginning of living con-
stitutional rights, that is of enforceable rightSy protected by
permanent institutions, England has ever again recurred to
it, under the best as under the worst monarchs. The place of
the former *' confirmation of the laws of Eadward/' is now
taken by the ever-repeated demand of the people for a " con-
firmation of Magna Gharta." Its practical sense laid such
great weight upon written documents, that before the close
of the Middle Ages this confirmation had been thirty-eight
times demanded and granted*!

t There is probably no country and
no petty state in Europe which has
not, at some time of pecuniary or
national distress, received ita Magna
Gharta; but these long catalogues of
grievances and promises were as a rule
speedily forgotten. Nothing but its
practical aim of regulattog the sove-
reign rights, and class and private law,
could have availed to make the English
Magna Gharta the living foundation
of the constitution, and could have
given it the energy requisite for crea-
ting hundreds of later parliamentary
statutes. The practical knowledge (»
political government, — a knowledge
confined in those days to the temporal
and spiritual magnates of that time,
and which manifested itself in the
formation of the official nobUity after

Henry L, is remaikaUe. The moat
important difference between thii
Magna Gharta and those of the Gon-
tinent lies in its aiming to secure real
legal protection for all classes of the
people, without attacking or diminish-
ing the political sovereign rights, which
had been already developed. It proves
to us in this direction, how personal
and political liberty can only arise and
become permanent through modermtioii
and puolio spirit, and not throogh
narrow-mindea separation of the upper
classes horn the lower. In tills sense
Pitt onoe spoke those words so olleii
quoted in the Upper House: **To
TOUT forefathers, my lords, the English
barons, we owe our laws," etc. (qf.
Mackintosh, Hiskny, toL iL, tad atmo
1215).

CoTistitutional History of England.

CHAPTER XIX.
ST&e S\x%i attnnpt at a ffloljetnintnt bg-tEsiateB of t&r I

In scarcely any other European country did the parlia-
mentary constitution have Buch a slow and difficult birth as
in Eugland. The principal cause of this difficulty, national
disunion, had ceased, it is true, in the thirteenth century.
But in the meantime the political government had taken an
exclusive form, which did not easily admit of the insertion of
a corporate estate. In an early matured development the
monarchy had brought its financial, military, judicial, and
police organization into a bureaucratic system which could
only be controlled by a single will; and which, in case of
disunion in this wiD, fell immediately into confusion. The
prelates and the temporal lords themselves had felt this fact.
Hence Magna Charta did not claim any immediate partici-
pation of the estates in the executive, but merely insisted on
legal limitations to the exercise of royal sovereign rights, and
in an extreme case, demanded the suspension of the personal
government until the grievance was redressed.

The result confirmed only too strongly the necessity of this
modest beginning. The representative committee of twenty-
five barons was chosen ; their names have been preserved to
na, as also the writs for administering the oath to the " corn-
King John had, however, only accepted Magna
Charta because he never intended to keep it. The charter
was nowhere registered, and would have been suppressed,
had the barons not circulated copies of it over the country

First Attempt at a Government by Estates of the Realm. 313

for preservation in churches and monasteries. The Pope,
intent only on the interests of the power of the Church, on
demand immediately released the King from his oath. A
Bull disapproved and condemned the whole proceeding, de-
scribed the agreement as an illegal, unauthorized, and dis-
graceful compact, and declared the barons to be worse than
the Saracens. The monarchy had been but taken by surprise,
and still had the upper hand, even in the person of an un-
worthy monarch. Accordingly, John withdraws, and being
lord of the financial power and the castles, collects by means
of the preponderating power of the royal treasury a mer-
cenary army, for which the nobility of the country is no
match, even in a righteous cause. Despairing of the issue,
the insurgents call a French prince and a foreign army to
their aid ; a desperate struggle begins, in the course of which
John suddenly dies, on the 17th October, 1216.*

His legitimate successor was a child of nine years of age.
For the first time since the Conquest the personal govern-
ment was in the hands of a minor. In that stormy time the
great Earl of Pembroke undertook the government, as Pro-
tector. It was the first instance in English history of a
statesman at the head of a victorious party being summoned
to apply conditions such as those proclaimed in Magna Charta,
which he himself, although he had not drawn them up, had

* Immediately after the granting of
Map:na Charta, John despatched an
embassy to the Pope, to get quit of
his oaths and promises. Already on
the 24th Augu&t, 1215, the condemna-
tory Bull wtis published. The Pope,
as supremo head of the Church, and
feudal suzerain, repudiates tlie actions
of the barons, and declares all that
has been done not binding (Bymer,
i. 2, p. 67 8eq.)y and shortly afterwards
I)rocee(l8 to excommunicate the barons.
Tlie di^^pute now took a very unfor-
tunate course, as tiie barons lacked
both money and unity. It was not
until the landing of Prince Louis on
the 2L>t May, 1216, that the struggle
took another turn, before the final
ibHue of which John died. The cir-
cumstances, which point to a possible,

though not probable, death by poison,
have been in modem times again in-
vestigated by R. Thomson, " On Magna
Charta" (1829, pp. 535-554). With
John's death the situation became so
much changed, that a number of the
barons immediately forsook the cause
of the French prince; at the council
held at Bristol on the 11th of Novem-
ber, 1216, the papal legate releases the
barons from their oaths to the prince,
and then occurs the first confirmation
of the charter (1 Henry III.), with
the omissions which Blackstone has
enumerated, pp. xxix.-xxzi. (see also
" Select Charters," p. 399). For the
French prince matters now take such
a turn, that he withdraws with the
tolerably favourable aiticles of peace
of the 11th September, 1217.

approved and accepted in hia capacity of mediator between
the conflicting parties. Ab a matter of fact, at the Conncil
of Bristol, with general approbation and even with that of
the papal legate, Magna Charta was confirmed, though with
the omission of certain articles. It runs " Quia queedam
capiiula in priore charta continehantur, qux gravia ft Hubiialiiiia
videbantw, scilicet de scutagiis . , . plucuit stipradictis prelatU
et magnatibua ea esse in respectu qtiousque plenius concilium
habmrimus."

Besides the fine bold features of a national spirit that was
awaking to liberty, the charter displays the first picture of
an immediate contrast between State and society in an in-
complete constitution, and the difBculty of reconciling this
contrast. To this difficulty just those three articles were
sacriSced, which contaiaed the first basis of a constitution of
estatea of the realm.

(i.) Article 61 dealt with the formation of a national com-
mittee to uphold the proTisions of the charter. The com-
mittee of resistance had been called into being, but its
appointment had resulted in a civil war, in which the barons
had paid allegiance to a foreign prince. The first act of
their resistance was thus marred by a blot, which in the
changed condition of things after John's death at once led to
dissensions among the barons themselves. The article accord-
ingly was tacitly allowed to drop as rendered nugatory by the
disappearance of the cauee. In the following decades the
party of the nobles involuntarily returned to the practice of
the committee of resistance ; it was reserved for the following
period to frame a countitution, which was able to maintaiit
itself without the rude help of violence.

(ii.) The clauses dealing with the voting of scutages and
extraordinary aids by a commujie coHcilium regni (Arts. 12 and
14) were omitted, and also their extension to the aiurilia of the
city of London. The barons, under the Protector, now stood
in the room of the King, and could not well resign the many
fertile sources of income for the carrying on of the Govern-
ment, arising from demesnes, forests, and the protection of

First Attempt at a Government by Estates of the Realm. 315

Jews. But the convocation of a tax-imposing assembly (in
the meaning of article 14) seems to have appeared impractic-
able to the Protector and his friends, and for very simple
reasons. The ever-recurring phenomenon, that the first con-
stitutional ideas, which immediately proceed from a resist-
ance to the political power, are incapable of realization, is
thus confirmed. As the convocation of a national council
was only to take place on account of the scutagia and auxilia
of the King, only vassals who paid to the Crown could have
been thereby intended, that is, the tenentes in capite, but of
them every one. But were then greater and lesser Crown
vassals to be summoned without distinction, whilst the
great lords were still loth to concede to the hundreds of
squireless knights and petty possessors of plots of land, a
real equality with themselves ? The great vassals could not
exclude their pares in feudal possessions from that right of
assenting ; and yet in the customs of the past no ground was
discoverable for allowing them a curtailed right of voting. A
return was accordingly made to that old custom of court-
etiquette, according to which, the distinguished lords had been
hitherto summoned to court by letter, " sigiUatim per litteras
nostras,'' If all the rest were only summoned collectively
by the Vicecomes, it might perhaps be presumed that the
majority of them would not appear. But still a parliament
after the Polish fashion would have arisen, with hundreds of
representatives consisting of petty possessors of single small
estates. Still less inclined would the great prelates feel to
deliberate on an equal footing with the lesser abbots and
barons, or with an excessive number of lesser knights. Hence
can be explained, why the assembly thus projected was never
brought together, and why that clause was never comprised
in any later promulgation.

(iii.) The clause concerning the amerciaments of the barons
per pares sues (Art. 21) was indeed retained in word ; but was
immediately interpreted by practice to mean, that those
amerciaments should be recognized in the Exchequer or in
the King's Court, per barones de scaccario, vel coram ipso rege

316

Constitutional Hiatory of England.

(Bracton), or coram connilio regis, as it rans in a writ of
8 Hen. III. The regency of the barons itself thus acknow-
ledges that the law has been satisfied if tho matter has been
referred to a commission consisting o£ vassals of the Crown —
just as the jiulicium jiarium has in general been hitherto
treated. The result waa the concession of a legal hearing
before the supreme tribunal.

In like manner the further coarse of the constitutional
struggle proves the truth of the remark, that the most
righteouB resistance to despotism, and the noblest aspirations
of a national spirit, are not sufficiently powerful to imme-
diately found political liberty, but that continuous labour and
a positive reformation of the political system are needed ; and
to these Magna Charta was only able to give the impulse.
After some degree of tranquillity had been restored, a second
confirmation of the Great Charter took place in the autumn
of 1217, with the omission of the clauses referring to the
estates, but with the grant of a new charta dc fortsia, intro-
ducing a vigorous administration of the forest laws. In 9
Henry lU, Magna Charta was again confirmed, and this is
the form in which it afterwards took its place among the
statutes of the realm.**

** Ab to thaconfirmatioiiBof Ua|rii>l
Charta, a cucoiid conflrroation t&«»
plnoe (2 Hen. IlLX again with gome
alterstioni, wbich sro cIsBBiSed by
Blackitone, xixvL-xii viii. (fif-C lutrte rs,
SH). Among the adilitiona is a claiiBe
relating to the recnoval of tho adtil-
tarine caatles of the baroiu and anotlier
agaioil alienntiaaB to martmikm. Thu
new oonflrmution tahea place in 9
Henry lIL.ou the 11th February, 1224,
I aguiu-with certain ohaageH (Uharteis,
T 853). Tho odmisHiun of lh« laet-
I named veraiaa among the Eaglish ool-

fl oF a

1 far c

ta from tbia time onward ne further
chaQgea were made in the text. AU
later oonfinnalinnB refer to the t«it
aa thua eatahlished. Borne miatakea
nroBB purely from the fact that it was
not the original doconient of 9 Henry
HI. (Bloolutone, GO-CT) that wan
ouj.ied, tut that the text ww taken

from an htpexinoit under Bdwaid F.
In the February of 122li Henry UL
uudertakea nomliially the goTeraaent
in persoD, without oanflnniog Magna
Chartaarresli(c/.bc:low,nolel). BUck>
stone, however, does not speak of thia
as a revocation, but oulj Hays: "Th«
King ia wid to have rovokod all tbe
charlora of the foreat" (Mallh, Paris).
At the conflrruBtioD of 49 Henry HI.,
1261, when Henry was the captlre of
the barons, t be clause touohing the com-
mittee of leaiabinoe (Art. 61) wa« again
adopted into it, wltb the omiisioa even
of Ibe security reeeTTcd to the royal
person and family; without, howevar,
alter the King's liberatioo, any notlcu
whatever being taken of it. From 28
Bdward I. antil tho latest oonfirmatioa
(4 Hen. V.) twenty'uine resolutiuna
were passed by Parliament (■ouHnniDg
the obarter.of which not lesstlian liiur-
teeu ««rii in the reign ol Edward UI.

First Attempt at a Government by Estates of the Realm. 317

Two years later, Henry III. personally assumes the reins
of government at the Parliament of Oxford (1227), and begins
his rule without confirming the two charters. At first the
tutorial government still continues, which had meanwhile,
even after the death of the great Earl of Pembroke (1219),
remained in a fairly orderly condition. The first epoch of
sixteen years of this reign must therefore be regarded purely as
a government by the nobility under the name of Henry III.
The regency had succeeded in removing the dominant influence
of the Eoman Curia by the recall of the papal legate, Pandulf,
to Eome (1221), and in getting rid of the dangerous foreign
mercenary soldiery (1224). To raise an extraordinary revenue
by means of aids and scutages, conventions of prelates and
barons were at this time repeatedly summoned ; not indeed
according to the letter of Article 14 of the charter, but in
such a manner, that according to the discriminating judgment
of the regency in conjunction with the prelates, the most
illustrious members of the barony were summoned in com-
paratively large numbers, who then, after some discussion,
granted the subsidies demanded. (1)

(1) Tlie general history of this
period lias been impartially written by
liappenberfr-Pauli, iii. p. 489-875.
Compared with the older descriptions,
the Peers' Report on the dignity of a
Peer contains tlie most Hober criticism.
An authentic digest of the information
respecting 135 concilia^ and similar
assemblies Tinder Henry III., has been
given by Parry (" Parliaments and
Councils," pp. *24-49). For the first
epoch of sixteen years the following
events must be regarded : In 2 Henry
III. (Council of St. Paul's) : second
confirmation of Magna Charta, for
which the prelates, earls, barons,
knights, " et lihere tenentes omn^s de
recfjio" vote a fifteenth. In 9 Henry
III. {curia of Westminster, 25th Decem-
ber, 1224): solemn confirmation of the
two charters, combined with the voting
of a fifteenth. In 11 Henry III.,
January, 1227 (council of Oxford):
the King personally assumes the
Government. •' The King declares
himself of age, and by his own autho-

rity cancels the two charters, as made
and signed when he was not his own
master, and on the ground he was not
bound to keep what he was forced to
promise" (Parry 27 quoting Matthew
Paris, Hody, 304). The correctness of
this assertion, which has not been
otherwise confirmed, is however rightly
doubted, as the government by the
nobles, which still continued, had
certainly no interest in setting aside
Magna Charta. In 15 Henry III.
{colloquium at Westminster) : an auxi-
Hum de quolibet Bcuto was demanded.
The secular magnates consented; the
prelates asserted that ecclesiastical
persons were not bound to submit in
this matter to the resolutions of lay-
men. The aid was, however, granted
after a prorogation a few months later.
In 16 Henry III. (7th March, 1232,
colloquium of Westminster) : an auxi-
Hum generale was demanded. The
temporal Crown vassals declared that
they were not bound to any aid, as
they had done personal military ser-

With the diHgraceful dismissal of tlie chief justiciary,
Hiihert de Burgh, there beginB a aecoiid epoch of a personal
rule of Heory III. (1232-1252), which for twenty continuooa
years, presents the picture of a confused and undecided struggle
between the King ajid his foreign favourites and personal
adherents on the one aide, and the great barons, and with them
soon the prelates, on the other. Untaught by the evil expe-
riences of favouritism shown to foreigners under Stephen and
John, the weak and frivolous Kin g put himself at once entirely
in the power of foreign favourites. The conduct of the
basiuess of the State by Bishop Peter dea Roches (of Poiton),
called forth a storm of indignation among the temporal mag-
nates. At the colloqumm at Oxford (17 Henry III.), the earls
and barons refuse to appear in person, and declare "that
they will never obey the summons of the King, but will
choose a new King, unlesa he dismisBeB the Bishop of Win-
chester and the lords from Poitou." When on the third
sammons the barons appeared armed, the King declared
sentence of banishment and confiacatioQ of their estates. At
the nest collo<iuium at Westminster, the Primate threatens the
King with excommunication unless he changes hia mode of
government. The King on this occasion gave way ; ho dia-
missed the Bishop of Winchester and the objectionable
counsellors, and declared an amnesty with the refractory
barons ; and then began for a few years tolerably friendly
relations with the magnates, who still continued to grant the
necessary supplies, (2)

Januarr. 1236), euria of Uwbm, at
nbioii the ptorinonei, anim, or ttaiula
o( Mi^ctoD arc reartlved by the spirilukl
and leiiifKiTul barona preicut, " wbidi
bave heea finai time immL'morial oon-
aidcrud as tbe oiileit act of (tatiito
law" ("Pari. Hiabirj," i. 32; Ookfc
"Inst,," ii. 96). Tbe Peers' Beport
<i. i6V) acknoAtedges that the auUio*
ritf oi R amall number of barons «
BULuinontd, must be itiU ooiiHidered m
sufficient for IcgUlalivo ools. Tbe
enactniiitit itwlf culU ilscir a "pro-
vine;" the nuao often used U aii
eaily epoch "Staluta," ia oft«a ax-

Tic« out of tbe kingdom. The prelate!
gavo the evasivo answer, tliat luanf
ct tbfir invited meniberB viete nut
present On lUe 14tli Seplembei
leoUoquiaiH of Lambeth), however, llie
grant of n subaid)' WW mode, in tbe
name of the clerg;. and the earls,
bolons, knights, and liheri lunaine*
et tiOaui (Fiwdera, 1(! Hen. HI.),

(2) The autlmiilative preccdontB of
thia period ate ; lu 19 licary 111. a
oouncll of the prelates, barons, and
"all other Crown vaiisali," who vote
a ouuaidcrahte avxiliam (Ulose Itolla,
19 Hen. lU.). In W Henry UI. (20th

First Attempt at a Government by Estates of the Realm. 319

But the incapacity and the incorrigible frivolity of Henry
III. very soon aggravate his position. The Bang's uncle and
his relations again form a court government, his French kins-
men seize upon the great offices and fiefs ; and in order to
obviate the probable opposition of the magnates to the
ministers of the Grown, the great offices of State begin to be
left unoccupied, the central administration being conducted
by office clerks. In this critical time one special incident
again occurs, a confirmation of Magna Charta. In 21 Henry
III. the King finds himself, in consequence of pressing money
embarrassments, again compelled to make a solemn confirma-
tion of the charter, in which once more the clauses relating
to the estates are omitted. Shortly afterwards, as had hap-
pened just one hundred years previously in France, the
name '' parliamentum** occurs for the first time (Chron.
Dunst., 1244; Matth. Paris, 1246), and curiously enough,
Henry III. himself, in a writ addressed to the Sheriflf of
Northampton, designates with this term the assembly which
originated the Magna Charta : " Parliamentum Runemede,
quod fuit inter Dom. Joh., Regent patrem nostrum et barones
8U08 Anglise'' (Eot. Claus., 28 Hen. IH.). The name "par-
liament,** now occurs more frequently, but does not supplant
the more indefinite terms concilium, colloquium, etc. In the
meanwhile the relations with the Continent became compli-
cated, in consequence of the family connections of the mother
and wife of the King, and the greed of the papal envoys.
The foolish compliance of the King with aU demands, and
the waste of the pecuniary resources of the country in the
vain endeavour to maintain the English influence upon the

plained by saying, that for the first
time the publication of a formal decree
of the ruulm had taken place ; but the
form and framing of the liotulus had
nothing unusual in it. It is rather
simply the language of Normandy,
according to which men gradually
begun to call the more important
enactments, " etahlUsements" or sta-
tuta. In 21 Henry III. (council of
Westminster), the prelates, earls,
barons, milites et liberi homines pro

80 et 81118 viUaniSy grant a thirteenth
of personalty. In 22 Henry III. (council
of London), the magnates appear
armed, and after long discussion the
King promises on oath to carry on
his government by means of a definite
number of distinguished men. In 24
Henry III. (council of London) the
bishops produce thirty articles against
the King, relative to violations of
Magna Charta, Hody, 320.

320

Constiiutional History of England.

Continent, tended more and more to impel the spiritnsl
magnateH to bead the opposition against the King and against
the Pope. From the year 12-I4 onwards, neither a chief
juBtice nor a chancellor, nor even a treaeorer, ia appointed,
but the administration of the country is conducted at the
Court by the clerks of the offices. The conventions of mag-
nates met these proceedings by violent public complainta,
refusal of subsidies, repeated demands that their counsellors
should be appointed to the offices of State, and finally by an
accusation of treason preferred against the justiciary, Henry
de Bath. (2")

With the year 1252 begins a third epoch of this reign of
fifty-six years (125'i-126C), in which the King comes under

{2'J Tho [mportant prewdenta in this
period are; In 21) Henrj IIL (1212)
a counoil was held at London, nt which
were ptesent " omim Anglixmagnaiet."
The royal writ tor this Msomblj ii im-
]iorluit, aa it cootaine tho express num-
mon> lo deal with State bunintwa ; ■* ad
Ironlandutw nfAitaim una eum atl'Srit
MajptaiOna niudri* gao4 lirnSiter feci'
nin «onvotari,diaTaMt ntgotii; ttatata
ocwfmiri ef (otjiu r*ifin' mufrt tpeeialtter
tangmtibtu." Aflet long discuasioa on
aid for the wm Bgainst France ^ras
refused, and H writleo prnteet sent in
(Pwrs' Ri'pnrt. iii. Appendix L). lo
28 Ilenr; III- (Council of Weelminster
Unll), prelates and buTona deliberate
separately. By oonniDti consent of
both, a commi^'Sion was appointed to
drnw up definite articles to bo eane-
tiiincd bj the whole aiiserobly ; which

■' ■ " 'o reguhite tlie eonduct

L

tion ot the estatea, howev .
joeled by tho King, and the aascmhly
was pronigaed. In tlie a«embly when
nsnia convoked, the King promise* lo
observe the liberties which he swote at
his ooronation (1320) lo maintain. A
sMitaffi'iim of twenty shilliniis is Ti>[pd
for the iDBrriage ot his oldest daughter
(Hody, 322). In 2S Henry Ul. the
magnnlcs refuse an aid for tho cnmpaign
again.t Wales. In 30 HcnrTlIl.(12ie).

Matth. Paris, A.D. 1216 (p/. Hot, CI..
28 Henr. III.). The nest inflanoa of
the use of the term in an offlcitU doeu-
ment is *2 Henry III. (Peers' Report,
i. 91, 09, 461). In :i2 Henry III., a
oounoi] at Loudon refnse* un aid, and
preacnts a list of ostional grieiaiioct,
which the Kini; promises to radrPM.
In 31) Henry III. (oouocil of London)
the magnates demand that they atuil]
have a voice in the uppaiotment of ths
ahanoellor, chief Juitiw. and treiuiiTer.
At tliis time Hi'ury III. endeannm
by popular adminiiilnitive mensnns \o
gain inaorrnce against the diaaatiifled
barnns. He personally aneniblea the
HticrilTi in the Exchequer, commenda
to their piotcelion the Church, sod
tlie widows and orphaUB: a villein it
not to be distrained on tot the dabta
of Ills lord, elcept in caee of exigency:
the conduct oF the lords tnwaidi their
tenants is to be watched over, and til*
latter arc to be protecled against ei-
ressea: the sheriOi ore not to let tit*
under dislricta in the hundred* and
other bniliwicka at rack rent. Me. In
3S Henry III. an awcnibly was hoU
in London at whieh tli<> justiciary,
Honryde Bath, wo* indicted ou acharge
orhightreeson. InSti Ucury Ill.al tlie

Sarllanient of Wc«tininsli:r tlm jiopal
emand of a tithe fmm the manow oT
the prelates for the C
poatil, on tho groand that t
aocci miut &a\ of all be re '

First Attempt at a Government by Estates of the Realm. 321

the dominant influence of the barons. Till then the dis-
contented magnates had lacked a proper leader. They now
obtained leaders in the powerful Earl of Gloucester, and the
politic Earl Simon de Montfort, brother-in-law of the King.
To the internal and external complications there now is
added the foolish endeavour to gain the Crown of Sicily for
the King's son. After long discussions the treaty for this
purpose was concluded, in which Henry involved himself in
serious obligations to the Pope. The incapable internal
government had fallen into a chronic state of pecuniary em-
barrassment, whilst the estates of the realm refused to raise
demands of hitherto unheard-of amount. The vaciUation and
faithlessness of the King, his incapacity to conduct the ex-
ternal and internal a£Fairs of his realm, his refusal to choose
any suitable counsellor, led the discontented magnates to
revert to the idea of a protectorate or regency, such as had
been carried on with tolerable success during the first sixteen
years of the reign. They no longer hesitate to obtrude the
leading officers upon the King. (8) Without calling in question

(3) Tho prccedeuta in the third
period are: In 87 Henry III., the
clergy vote a tithe for the Crusade,
the knights a scutagium for the cam-
paign in Gascony. Both charters of
libiTties were again confirmed. In 38
Henry III. (27th January, 1254), a
tH»uncil takes place in London, with
a formal summons to State business
(ad ardua negtdia nostra). The tem-
poral [>relates refuse a grant of money;
the bishops and abbots promise an aid
for the case of necessity, but only for
ttiemhelves, and not for tho rest of the
clerirv (Peer«' Report, i, 93, 94). On
the 2'(]th April, 1254 (council of West-
mirister), under the regency, in the
absence of tho King, the magnates
having bound themselves to follow the
King to Gascony, cum equh ei armU,
the sheriffs are instructed, in like man-
ner, to summon to service all the rest
of the Crown vassals who possess twenty
Hhr<ita» terrx in capite, and to send in
addition each two legates ei dtscretos
rin'lit^s to the council. In 39 Henry
III. (parliament at Ltrndon), the King
demands an auxilium. The eetatoJa

VOL. I.

claim strict adherence to the charters,
and the appointment of the chief jus-
tice, the chancellor, and treasurer, who
are not to be removed, *'niH de <ntm-
muni regni convocati concilio et delibera-
tione." The assembly was prorogued.
On its re-assembling, the magnates, on
an aid being demanded for the war in
Sicily, declared that the King had em-
barked on that affair, *^ sine concitio
8UO et consensu haronagii ; " that they
had not all been summoned according
to the provisions of Magna Charta,
and that they would not therefore give
any answer, and grant any aid without
the co-operation of the rest. In 40
Henry III. (parliament at Westmins-
ter), the magnates and clergy re-
peatedly refuse an aid for the war
in Sicily. In 41 Henry III. (parlia-
ment at London), the King, on his
promising faithful observance of.the
charters, reciives an extraordinary aid
from the clergy ; three weeks later, at
Westminster, however, both estates
again refuse tho aid for the war in
Sicily. In 42 Henry 111. (10th April,
1258) (parliament at London), the

Y

322

Constitutional History of England.

k

tli6 royal ruling power, all tlie struggles at this time directly
refer to tbe subject of appointments to the chief offices in the
King's council. In tho year 1248, the barons had raised
afresh their complaint against the " favourites," particularly
on the point that neither a chief justice, nor a chancellor,
nor a treasurer, had been appointed " in parliament." In
order to appease them another confirmation (1253) of tbe
charter took place at a convocation of tbe prelates in the
great hall at Westminster, accompanied by the greatest eccle-
siastical ceremony, with anathemas and threats of excom-
munication against every transgressor. Heury swears to
maintain the charter " so surely as he is a man, a christian,
a knight, an anointed and crowned King." Amidst much con-
fusion and rumour of war, these struggles reach their climax
at tbe council of Oxford (1258), afterwards called the " Mad
Parliament," at which the discontented magnates resolve to
appoint a sort of protectorate government. The difficulty
lay principally in tbe factions among the magnates them-
selves ; and in the participation which the lesser Grown
vassals (tbe hacheUaria Anglix) now claimed in these mea-
sures. Therefore a kind of electoral system had to be
invented in order to concede a share to these parties as well
as to the lesser tenentea in capUe. Thus an artificial and
complicated system of electoral proceedings was arrived at,
which was apparently borrowed from that in use for com-
pacts, arbitrations, and ecclesiastical meetings, where there
were two definite and opponent parties (Stubbs, li. 77).
Twelve of tbe royal council and twelve barons were to meet
together and appoint a permanent council of fifteen, which
actually for some time took upon itself all the powers of tbe
royal government. Tbe constitutional ideas of this period
are the expression of the views of the barons as a class on
the subject of their participation in the political government ;
a parliament three times a year ; annual appointment of tbe

bwoiw hold out the proBpoct of a iwm-
muni auiilium, if the King vrill (vm-
W'lil to rcfomi the administratioti of the
rcuim. The King ftotaiaea ou iMtli

thnt this shall bn doauh^

of hiB couiH-il, and (waive olhoi

wlio ahBll be ohoMU b; Uis a

themMlvw,

First A ttempt at a Government hy Estates of the Realm. 323

chief justice, chancellor, and treasurer in parliament ; the
barons to undertake to guard the royal castles ; the sheriffs in
future to be chosen by the counties. On the other hand, the
barons shall be no longer bound to appear as suitors before
the sheriff. (3*)

The regency based upon these ideas procures obedience to
be sworn to itself, then expels the King's nearest relations,
and prolongs the tenure of oflSces in its own interest. On
this point fresh dissensions arise among the nobility. An
attempt at mediation by King Louis of France results in an
advantage to the King, who for a short time once more gains
the upper hand. But the confederation of the nobles under
Simon de Montfort now has recourse to arms, and the Eang
is taken captive in the battle of Lewes (12th May, 1264) ;
Magna Charta is again confirmed, a new regency appointed
in the name of the King, and an assembly of twenty-three
barons of the party of nobles convoked as a *' parliamentum.**

(3*) On the 11th June, 1258, the
prelates, earls, and "nearly a hundred
baroTis" appeared at this meeting at
Oxford, \vhi(;h in a royal *' letter of safe
conduct" of the 2nd Juno is called a
Parliameritum. Each party choose for
themselves twelve for a committee of
twenty-four, these twenty-four then
choose four from their number, and
the four tlius elected form the royal
council of fifteen persons. The com-
mittee thus elected of twenty-four,
demands first of all the faithful observ-
ance of tlie charters which have been
so often sworn to. The appointment
of the chief justice, chancellor, trea-
surer, and other officers to be elected
annually shall for ever reside in the
committie. Three times a year a par-
liament is to be held : on the 6tli of
October, 3rd of February, and 1st of
June. In these judicial assemblies,
the chosen counsellors of the king
shall appear (whether they bo sum-
moned or no), to deal with the common
business of tlie realm, in so far as the
King commands it. For this purpose
twelve persons were appointed (two
bishops, one earl, nine barons), to re-
prosent the communitas in such further

deliberations, and especially in under-
taking the burdens of the eommunitas.
The *' twelve probes hommes,, with the
King's council in the three parliaments,
shall dial with all tlie public affairs of
the nation ; and the eommunitas shall
accept as settled what the twelve do."
Other ordinances also were resolved
upon. The assembly chose a spe-
cial committee of twenty-four (three
bishops, eight carls, thirteen barons), to
deliberate upon an auxilinm, on which
matter, however, no final decision was
arrived at A decree further ordained
that in each county *^quatuor discreti
et legales milites " are to be chosen to
deliberate on the national grievances
and report thereon at the next parlia-
ment. These are tlie main character-
istic resolutions of the Mad Parliament
at Oxford, which the Peers' Report, i.
101-127, treats of in detail. In conse-
quence of the application of the elective
principle, the central government now
fell into the hnnds of an elected national
ministry, coiisistinsjj of fifteen persons,
the majority of whom were hostile to
the King, and thus begins a systematic
party government.

324

Constitutional History of England.

But tlie victorioua party meeta from the first with but doubtful
obedience. The eoimty officers appointed by it mauifest &n
arrogant and arbitrary behaviour. During the reaction, and
the diaunion of the leaders which aoon again ensued, Prince
Edward succeeded (28th May, 1265) in escaping &om the
captivity in which he bad been kept by the barons, and with
a hastily collected army of followers Burprised the insurgents.
After the battle of Evesham, in which Simon de Montfort
himself was slain, the party of the barons appear in the
course of a few months to have been entirely scattered. (S"*)

{3'') ThaTBsolnlionBOfOiford proved
in tho evont that it was impoaaibls to
Mpplf B prini?[pli! of I'lection to tbe in-
formal and iab&nnonious vasaala or
tbe Cmwn in England. "AlinoBt a
hundred bitruDS " haA appesrail at
Oxford; but even tbis comparatively
Bmall Dumbi-r of ICBScr Crown loffiali
waB Bufflcient t« pass exirovaeaot ivbo-
lutions. ThoBO members elected b;
the leaeer Taaeale appeared only as
repreeeiitativea of the clninia of the
feudal nobility. In Ibe elections the
Cbnrcb was most |;nidginglr •1e«lt
with. But laoist of tbe leaser knigbts
also were jet ill satialied witJi tbe
oommittee of estates of tnolve, wbic!!i
was to represent tbem once and for
(tlL Even in the next parliament
(6th October, 1258), tbe " Cc»nmuni'I<u
baebEHan'ss Anglim " aenda in a sort of
loyal addresa and a complunt dirmted
to Prinoe Edward. Tbedisunionaninng
tile barons inereased. In 45 Henry IIL
(parliament at Winchester, 1261), tbe
King lays before them b papal bull,
by which he has been released from
his oath to observe (be provisioaa of
Oxford, and wbiob in tilto mtmner
nbaolrea the prelates and laity from
theil oatliB iu respect of all decrees
prejudicial to the Kin^. The Bisihnp
of WorccatEr and Simon de Montfort,
on the other hand, summon for tlie
2Ist September, 1261. an assembly at
8L Albans, to which three hnights are
aummoned from ofu'h county. The
Eiog snTomnns for the aame dny a
ooUDoil at Windsor, and oommands the
■lieriffa to send the said knights to the
King, and lo no one else, "tuvra pro-
mtisiif coUoguium habitari." The sob-

BOquent paiUamentB ii
with the view lo a compmmiK. "in M
Henry III. (parliament I3th Decembo,
1203). the dispute between the King
and the barons is referred to Ibe judg-
ment of the Kins of Frunee, as arbi-
trator. This judgment is published.
and declares the provistons of Olfonl
nnll and void. In 4S Henry HI. ([»r-
liament at Oiford, 30tb March, 1204),
the barons adhere to the assertion that
the proviisious bo solemnly Bworn to,
were based upon Magna Cbarta, aod
declare to abide by tbcm until tlu
end of their lives (Hody, 35a). Im-
meiliately afterwards the barona' war
breaks out; the King is vanqniahed
and taken prisoner in the buttle at
Lewea, on the 12th May, I2(H. On
tbe 25tb of Miiy peace is proclaJmed ;
in twealj'oine oonoties nnnsorvBtois ef
the peace were api>"inled. and writ!
(dated 4th June, 12Gt) are issued anitt-
moning a parliament, to which olv
"quaiuor dt tegaiioritiut el tfumM^
ribui Mitillbui Comltattu, ruAitimm
Irarlaturi de HtgatUt pTrdMd^' wan
aummoned. At this parliament, h»U
at London, decrees were iaanei) by tht
prelates, barona, and tbe rontmuMOai
Uttx there present, pro poet rtfpd.
But now a rupture takes place betwBMt
Montfort and Ibu Earl of OlooersMr.
In 49 Henry HI. (SOth January, ii6S),
a parliament is held in Londoti, ti>
wbiFh were summoned the Arohbiaiwp
of York, twplve bishops, mx^.S**
abbots, thirty-six priors, and the 3na«t>
of the order of the Templars, and klilr
five earia, and seventeen barona, tin
last named probably all belongfing to ,
the party of tiiuioa de M-™"*-— ^ ' " "

le UouUbrt (£MM

First Attempt at a Government by Estates of the Realm. 325

The fourth and concluding epoch of this reign takes ex-
ternally a quiet course with the conclusion of peace, an amnesty,
and the arbitrators' awards (dictum of Kenil worth). The
King once more takes back the power of appointing to offices.
Such of the rules laid down in the provisions of Oxford as
are not at variance with the royal prerogative, are confirmed
by the King with the consent of parliament ; and after severe
trials we find Henry again in the parliament at Marlebridge,
regulating the affairs of the nation as law giver, though he has
given up his foreign favourites, and has repeatedly confirmed
Magna Charta. (4)

The parliamentary progress in this chain of events touches
two points :

Reports, i. 141-145). But there ia
Itcbidcs, a clause to the effect that the
VicKComitea are to send two knights
from every county, the cities and
burghs two citizens, and the oinque
ports each four men to the assemoly
(s(^c note at end of the chapter).

(4) The imj)ortant precedents in the
fourth period are: In 49 Henry III.
(purlianunt at Winchester, 8th Sep-
trmher, 1205), the bishops were sum-
moned with the exception of the four
bishops belougin*^ to Montfort's party.
AIho a number of secular Crown vas-
sals, iuclu<ling the widows of the earls,
barons, and kuights, who had been
slaiu or taken prisoners in battle.
The lauded estates of the rebels were
confiscated and distributed amon<^8t
the ** friends of the King." The frivo-
lous and faithless conduct of the King,
however, caused the Earl of Oxford
again to appeal to arms, and to play
the part enacted in later times by Duke
Maurice of Saxony. In 50 Henry III.
(24th August, 1266, parliament at
Kenil worth), a commission of three
bishops and three barons was appointed
by the King et a haronihits consiliaribus
AnyliXj to provide for the welfare of
the country, and for those who had
been disinlierited. Tliose six are, in
like manner, to choose six others. The
papal legate and Prince Henry are to
decide as umpires. The so-called
dictum (award), of Kenilworth was
agreed on. At the parliament held

at Northampton on the 26th of October,
the verdict of the twelve was pub-
lished and confirmed. The partisans
of Montfort were restored to their
possessions on payment of five years'
income, or less, from their estates, ac-
cording to the gravity of their offenoe.
On the 18th of November, 1367, a par-
liament or commune concilium regni
was held at Marlborough, " ad metiora-
tionein regni et expeditionem justitia"
There were present, besides the mag-
nates et discreti^ also the chief justice,
the chancellor, the judges, and others
of the King's council. The resolutions,
under the name of the ^^ Statuta of
Marlcberge," must always be considered
as a portion of the national legislation
(Peers* Reports, i. 159). In 53 Henry
III. (parliament at Westminster), the
potentiores of the cities and burghs,
as well as the magnates, were invited
to the solemn translation of the bones
of Eadward the Confessor to West-
minster Abbey. After the close of
the ceremony the nolnles form a par-
liament and grant a twentieth with
the consent of the regni majoree
(Peers* Report, i. 161). In 55 Henry
III., on the 13th of January, 1271, at
a parliament of the magnates held in
London, the lords aud others who had
been disinherited were completely re-
stored to their possessions per commu-
nem assensum. In the following year
Henry III. died.

326

Constitutional History of England.

(i.) The right of the Grown vassals to assent to the in)
sition of scutayia and extraordinary aids, Is established <1
more than twenty precedents, and indeed as much by gratit
as by refusal.

(ji.) In connection with the tax-voting assemblies, the par-
ticipation of the magnates in the promnlgation of royal ordi-
nances also revives. A number of the legislative resolations
of this period were, in the later judicial practice, pat on the
same footing with the subsequent parliamentary statutes, and
were enrolled among the collections of laws ; notably, the
Prorisiones Je Mcrton (Rotuli, cl. 20 Henry III.), and the so-
oalled gtatutnm da MarUherge (Eotuli, cl. 44 Henry III.), etc.
This last is at the outset described as "prorisiones, ordina-
tiones et gtatuta siihscripta," and is similar in form and con-
tents to the statutes published under Edward I.""*

Among the varying fortunes of these struggles, the advance
of the Grown vassals towards a constitutional position is on-
mistakably evident. After numerous confirmations so much
had been achieved, that even at the climax of each successive
reaction there is no longer any question of a repeal or curtail-
ment of Magna Charta. The omission of prticles 12 and 14,
which dealt with the grant of scutagia and auxilia, was com-
pensated for by an effectual practice of grant and refusal.
All circumstances appear to concur favourably to originate a
constitution of the estates of the realm. A weak and faith-
leas monarch endeavours to get rid of the disagreeable gua-
rantees of Magna Gharta ; he is forced on five different ocea-
sions solemnly to recognize their validity. He endeavours in
the old way, with the help of favourites and offii^al clwks, to
restore personal rule ; the power of the prelates and barona

*• It is fmiQ the preeedents giveti
ot«8 1-4 (bat the above reaiilts, viz.
right ol the ' ■ ■ ■'

IniTB, most eomplel^l)' into ths "St»^
tii(«R of tho Rt'rUni " (IMIU), iilitei] bj
the Record Coiuiiii«ainn. Tlie moat
nntflble are tl.o i'mnnonm <b JftWM
(■talutea, p. I}. Ibv KLitulum Bibmttm
{p. 17), tJie iimvimmig uniol.ine Imb
year (p, 7), the ViHum de KeHUuvrIk

• Dumber of these anliuaiioiw were <p. 12X thii Staiutum da JfcuMnw

adopted into the later oallectioni of (p. 19),

First Attempt at a Government by Estates of the Realm. 327

drives him to dismiss these counsellors, to banish them, and
to accept the great officers who are directly forced upon him.
His chronic state of pecuniary emharrassment compels him
constantly to assemble parliaments : but almost every demand
ia met by statements of national grievances, which the Govern-
ment sees itself compelled to redress. Prelates and barons
vie with each other in an opposition, which is based upon
the memories of the Great Charter, upon common interests,
upon an increasing respect for class interests and associa-
tions, and upon the weakness and perverseness of the King.
The discontented barons at length find a leader in Simon de
Montfort, the brother-in-law of the King, a magnate renowned
alike as a statesman and a general. Under such leadership
the nobles succeed for the first time in vanquishing the
monarchy in open battle, and in taking captive the King and
the beir to the throne.

And yet the great successes of the barons are nentralized
with marvellous rapidity ; no parliamentary constitution
results from their victory, in the sense of the feudal constitu-
tions of the Continent ; because as a fact the material con-
ditions of a parliamentary constitution were still wanting,
alike in the form of the governmental power, and in the
formation of the estates.

In the first place, the royal rule had still the character of
absolutism. All sovereign rights still appeared as emanations
from a personal will. The possessions and rights of the
dominant class, the position of the vassals of the towns, every
form, normal or exceptional, of the liberties and franchises,
was still baSed upon the personal decrees of the king. The
limits of this power bad indeed been indicated in general
outlines by Magna Charta ; but the executive laws were still
wanting which were to introduce these principles into the
practice of the Exchequer, and of the royal county and local
magistracies. Against the decided personal will of the king,
neither the committee of the King's court, nor the bureau-
cratical Exchequer afforded a rehable protection. How should
the discontented magnates in such a constitution estabhsh a

328

Constitutional History of England.

cheek upon the squandering of the national resoiireea, the
abuse of the discretionary military,- financial and judicial
powers, unless they themselves exercised these powers ? All
poUtical administration was bo framed aa to receive its
impulse directly from the King and his personal advisers.
This bureaucratic form turned all the influence exercised by
the magnates in the direction of appointments to the great
offices and the shrievalty. They were thus in the most direct
way placed in possession of the power ; bat the inSaence and
the sagacity even of the most clear-headed leader could not
binder the immediate abuse of this power ; an abuse which
was at once itHelf felt by the opposite party, as well as by the
lower classes, and incited them to resistance. Every eiercise
of the rights of sovereignty was regarded by jealous partisans
as despotic ; and every refusal of a favour was interpreted by
adherents as an insult and a reason for revolting. Withoat
any fault, so far as ia proved, of the great leader, the un-
limited power was converted into a party instrument in the
bands of the victorious, but politically speaking inexperienced
party. The dissatisfaction and reaction that ensued, restored
the so-called " King's friends," i.e. foreign adventurers,
covetous dependents, and officious clerks to their former posi-
tions. As the monarchy is in no direction equal to the
situation, there arises that wavering and apparently aimless
struggle which we have seen.

But regarded from below also, the Crown vassallage still
lacked the form for an adequate representation as a collective
whole. Their feudal position excluded the sub-vassals, aa it
did all the other freeholders, from equahty with the Crown
vassals. In this period the Crown vassals still comported
themselves as the comniunitus tr.rrw, as a matter of coarse
and in good faith, knowing that they had the nation at their
back. In another direction, however, tlie flaprit de corjja, and
the self-esteem of military honour confirmed the lesser King's
vassals in the idea of their being pares ; whilst the prinraly
lords, who were related to the royal house, and also the pre-
lates, refused to recognize such an equality, which in point of

First Attempt at a Government by Estates of the Mealm. 329

numbers would have placed them in a modest minority. An
election of representatives of the inferior nobility to attend a
concilium regis could no more be successful in those times
than at the present. K real political performances were to be
represented, the thousands of sub-vassals, the freeholders and
the towns were of greater importance than the lesser barons.
The attempt to allow only a hundred " barons " at the
Parliament of Oxford to participate at the election of a
national committee, resulted in an immoderate assertion of
feudal claims. The personal rule is followed by a personal
opposition rule with confiscations, banishments, and bloody
struggles, in which on both sides the followers are sacrificed,
whilst the great lords introduce among one another private
warfare, letters of challenge and all the ceremonial of
chivalry; a state of things which, under an impotent and
perverse Government, appears worse than the previous national
grievances.

There was still something incomplete in these constitutional
conditions which neither the spiritual nor temporal barons
were able of their own energy to surmount. It consisted in
the onesidedness of each social class interest, so that each
party of the barons after gaining the victory, knew of no
other use for the absolute political power, than to advance
and enrich themselves and their party. In like manner from
those party struggles no form was discoverable for giving
the lesser barons a constitutional position by the side of the
greater, and for securing to the freeholders of the land the
portion belonging to them, side by side with both. Only
the negative experience had as yet been made that it was
imadvisable to form the inferior nobility into a body of
electors. The politic leader of the party of the nobles had, it
is true, found a form for the representation of the larger
communitas, but it was once more lost in the party conflict.
It was reserved to the able successor of Henry III. to
develop the third element which was still wanting in the
representation of the State.

That third factor is the collective body of the svb-vassals and

the freemen of Evglavd. Ihe communitas of the coanties and
cities had been hitherto excluded by the feudal gyetem from
immediate participation in national affairs. This defect bad
been involuntarily acknowledged on all sides. From the
commencement of the reign of Henry III, the attentions
paid to them are increased. They are requested to bring
forward, by deputies, their eomplaints against the sheriffs;
they are employed in reforming and raising the taxes ; tbey
are offered the election of their own sheriffs ; and in 1258
they are invited to choose two knights "vice oinnmm et eingu-
lorum," in order that these shall appear to deliberate upon
the auxilia, " corctvi mnsilin regis," In 1261 Simon de
Montfort summoned three knights from each county to a
deliberation upon the " State business," whilst the King in-
vited the same deputies to his council at Windsor. But after
Henry had been taken prisoner, Simon de Montfort sum-
moned, in the King's name, two knights from each cotmty,
and two citizens from a number of townships to a national
council on the 2Sth of January, 1265; and so in a certain
sense this epoch may he said to close with the birth of the
Lower House.

Note to Cbaiteb XIX. — The genns
of a repreBi'DtBtion of the thirea and
oiticA by oboeen tneinhew appeut ftt
the plow of tUU peri'>d a» first al-
tempta. Id the older political aia-
trovernal irritingB cmiDenul iItpsi
was laid npoD eTenta wliich contuin
nnlhingaboiit the participatinn of shires
and (')lipB in the (Otini; of taxes and
in lBKi"l»tion- The oldest precedent
ia said tti have DCouired in 15 John,
in a military smnmoDs, mu'oining Ibe
follniriDgclnnEe: " tbM quntiuir ditfreti
milJ'H Irnin each shire shall he oliiwca
in the first oount; court ad lequaidtim
nobiHMm de negotiU regni tualri."
Hure oDij onnGdeiitiol men ore ntMnt,
with whom (he King wishes to de-
liberate at the time when the inTBsirin
boa Fianre vas Ihroateuing ; the
qu»tion is here neither one <i( liiws nnr
of tbs granting of nidn, nnr does it
apptar wbelhri the aseembl; wns
Mtoallf held or not. In 10 Henry

IIL (IS2G) writs were addroMed tu

sberiffa of Oloaeeatet and of seven ol ^

conntii^ with tbe oommnnd to bkW
i/uafuor milUtt dt Itgalioribu* tt du-
cretiorihnt chosen by the milila and
probi homiaet of the sbire. But tba
quainor mililtt are only to sppiAr ••
ina=-- -

fnJit^torj I

the Vie

iolatinn of Mugna Charta. In sS
Henry III. {TOincil at WtstDiin*t«t)
tbe Bnerifb were ordered each to send
tn-o legcUa tt diteretot milUr* to the
oouneil. "vite onmiam et ninaulorKm
florurulimi ad, proetdtiduia, qaala aiui
Hum nohi* in tanin neortiilate fnipaidan
roiuimmf.' In lite manner, writs an
addressed (o tbe bisbopx wilb dkecttona
to iiBBimble the " ardiidiatmto*, vlra
religiimH, et nlvrum " in tbeir UiHWHi
Ui deiiheista upon a Buividy. Tba
lower clergy ore then to E«nd theji

¥Miies anil report their texiliitiotia,
ho Peers' Rcpiirt <i. Sli) ackiiuwleilgea
this to be the first dooiuueutai; eri-

First Attempt at a Governmentby Estates of the Realm. 331

dence of an attempt to send represent-
atives of corpora t ions to a council. But
the question is here only one of a
participation of the lesser vassals of
the Crown in a deliberation touching
extraordinary aids. Now for the first
time the attempt was made to grant
them a definite siiare in the proceedings
side by side with the greater barons,
in the person of two representatives
chosen from tiieir midst, instead of the
general collective summons by the
sheriff, projected by the charter. In
like manner the two knights mentioned
in the writ, were not bunimoned direct
to parliament, but only to appear
*^ coram coiyiilio no»tro*' (Parry, Par-
liaments, xiii.). This event is of im-
portance as being the first form of a
representation, though only of the
Crown vassals, and only for money
grants. In 42 Henry III., at the Mad
Parliament at Oxford, this elective
principle adopts a new form, about a
hundred barons being convened to the
parliament itself, that is, for the most
part lesser barons, and a committee of
twelve chosen from those there as-
sembled; anappli&itionof the principles
of Huffr.ige, which at last leads to a
civil war. But here also it is only the
Crown vassals that are meant. In the
summer of 1261 (45 Henry III.), the
Bishop of Worcester and Earl Simon
convi»ked an assemblv at St. Alban's
for the 21at September, 1261. with
the order that three knights of each
county should api>ear, to deliberate
in common uj)on nntional affairs. The
King, on the other hand, fixed the same
day for a council at Windsor, and
commanded the sheriffs to send the
said knights to the King ^^ supra
promissis coUoquium hahiturV* Ihis
was certainly an attempt to convene
representiitives of the shires for a
lejrislative assembly (Peers' Report, i.
133); but it was made in a tumultuous
and discordant manner, and its result
was BO unsucc) ssful, that it could not
lank as a precedent. In 48 Henry III.,
at the Parliament held in London on
the 24th of June, 1264, whilst the
King was the prisoner of the barons,
by orders issued to the conservators of
the peace four knights were summoned
from each of twenty-nine shires in the
following formula : " Vobis maudamiLB
quatuor de legalioribut tt discretioribua

militibtu dicti eomitatus, per asgensum
ejusdem comitatus ad ho^> electos, ad no8
pro toto eomitatu iUo mittatis. Ita quod
nnt ad nos Londini, in oetavis, etc.,
nobiscum tractaturi de negotiie (nostris
et regni nostrt) prssdiclis" But the
question here touches only the restor-
ation of the national peace, and a
deliberation oonceming it, with four
trusted men. As the **fideles nostrt,**
are mentioned, it is evident that only
Crown vassals can be intended. It is
likewise proved that the grant of a
twentieth in this year was only made
by the prsdati et magnates. (Parry,
Parliaments, xiii.). It was not until
49 Henry III., at a Parliament held
in London, on the 20th of January,
1265, that the first precedent of the
summons of deputies of the shires and
cities occurs. The King, who was still
a prisoner of the barons, issued personal
writs to one hundred and twenty-two
clergy and twenty-three temporal
barons, **ad tractandum nobiscum et
cum eoncilio nostro, neenon et aliis
arduis reani nosiri negotiis.*' And
then further, ^^Item mandatum est
singulis Vicecomitibus per Angliamy
quod venire faciant dwts milites de
tegalioribus ei discretiorihus militibus
singuUtrum comitaiuum, ad Begem
Londinij in octabis prxdictis in forma
supradicta. Item in forma prxdicia
scribitur civibus Lincoln, et cseteris
Burgis Anglise, quod mittant in forma
prxdicta duos ex discretioribus tarn
civibus quam burgensibus suis. Item
mandatum est baronibus de probis hom^
inibus quinque porluum, quod mittant
quatuor de tegalioribus et discretiori-
ot«,*' etc. The text of the writs
addressed to the sheriffs and towns
has indeed not been preserved to us,
but probably nearly agrees with those
addressed to the Cinque ports. " Ita
quod sint ibi in octavis prasdiciis no^
otscum et cum prselatis et magnatibus
regni tractaturi et super prxmissis
auxilium impensuri" etc. With this
act a form of summoning the communi-
tates regni originates with the follow-
ing innovations : —

(i.) Not only were representatives of
the lesser Crown vassals convened, but
the shires and a number of towns as
such, were represented by two members
of the body of the community of the
shire and the citizens.

332

Constitutional History of England,

(jL) Theae repreaent&tivea wore
directly convened to deal with tlie
busineas of tlie DutioD ; do longer bb
foimt'Tly, mtrely for (be aiilitary levies,
or for peace iiegottatious, or for partiou-
laijadicial anditdiiiiLiiiitrtitivepurpoBea.

This is therefore ths set which origi-
natcd the lulur LoweF Uoubo. Tlie
niBJority of the older hiatoriana of the
Constitutian have rightly recognised
this; u, for inatanae, Spt'lmnn, in \x\a
"GloBeariuto," under the word "Far-
Iiamentuni," and again in hja apecial
treatise od ParliiimeatB. The Bunie
result ia deduoible frnm the reprint of
the Farliumuutary writs by PrvDDu
(lG59-16C4),and from Dugdale's "Sum-
mon*," hnt priacipally from the Peers'
Beporta on the dignity of a Peer, vols.
L aud V. Among more recent treatiBea,
this has also been auknowledgi-d na a
safe deduction by Eatlam ("Middle
Aeea"), and Parry (''Parliamenta,"
lii.). The Bumraons of 1265, Jiowuver,
dncB not as yet show how far the con-
Yocation of the aliirca nnd cities was
conetitulionitlly ncct^Beary for the pub-
lication uf decrees nnd the delibpmtlon
opou Bubsidies. Tbe oiroumslances

attending the couventioii were of

Buch an extraordinary kind, that the
neoeBHity of a repetitiou did not as yet
result from them. It was with raeh
councils almost as with Henry the
Second's assembly of notables : the;
oeaee again, simply owing to the UA
that the King no longer summons aueh
eitraordiuury asaomblies. After tlifl
overtlirow of Bimou de Montfort and
bis party, all that we bear of is the
restoration of the ancient constitutioa
and nutional rights. Tbe further
eoncilia held by Ueurj III. are aum-
moned in the ordinarj way by per-
sonal writs addressed lo a Dumber of
prelates and magnates ; only from
tbose oouncila tbe later nioney'gr>tila
proceed ; only from tliem the Mututea
of MorlebriJge. The evi-ut of IS65
was of moment in tlie satno way a*
tbe Assizes of CluTBiidon nnd Nortb-
tunptou a hundred years before : the
lesser vassals and the (hwholdera lud
for the first time bfen combined into
a body, and bad the oouKioasneM
that to them belonged uudu ourtaia
ain'nmatanoes a shuv in Ifae I

( 333 )

CHAPTER XX.
^f)e (ZDIass-telatfons of tj^e ^nglo-i^orman $ertolr.

At the close of this period we must summarize from all the
conditions, which we have hitherto traced in detail, the
influence of the feudal system upon the formation of the
Anglo-Norman estates. After the close of the first century
from the Norman Conquest, the law work of Glanvill displays
to us the English feudal law complete in its technical develop-
ment. The "Liber Niger" (edit. Heame) gives a sketch of
the greater feudal estates in the same period, while the col-
lection of Testa de Nevill (edit. 1807) furnishes one for the
close of the period.

At the beginning of the period the Norman Crown vassals
evidently regarded themselves as a ruling class ; the sub-
vassals were looked upon almost as a middle class, the rest
of the population as vulgar roturiers, as nearly as possible like
the class liable to the " taiUe " in France. The feudal system,
by blending ofiBce and property, and by turning all relations
of dependence into those of service, had everywhere the
tendency to create an hereditary ruling-class and an hereditary
serving-class. In England it was the power of the monarchy
which checked this process of development. The royal power
was here strong enough to keep the spiritual and the temporal
power, the military and civil departments, and the personal
right of honour, as well as the hereditary right of property,
within their fixed and proper limits, to make every higher
right in the State, dependent upon higher performances for

L

the State, and not to allow the nobility aud knighthood to
become an aristocracy of birth, but to keep them upon the
level of a " clasB-right." The imperfect development of
estate privileges is decidedly the strong side of these instita-
tions ; and one which rendered the formation of a vigoroaa
parliamentary constitution possible in the next period-
Through the power of the monarchy, in England, the com-
bination of property with State duties and with political rights
was guided into grooves different from those on the Continent,
and formed the following degrees : —

I. Stjt ffilnss of tjje Citcattt Fassnis, which is subject to
the greatest change, embraced in its original distribntion
after the Conquest those men, who had already on the Con-
tinent enjoyed the rank of count, or who had brought whole
divisions to the army. The estates of the twenty greatest
foodaries in Domesday Book contain, according to the ordi-
nary computation ; 793, 439, 442, 298, 280, 222, 171, 164,
132, 130, 123, 119, 118, 107, 81, 47, 46, and 33 knights' fees
with various appurtenances. In an analogous position with
regard to property were the bishops and many abbots. If the
comparative smallnesa of the knights' fees be borne in mind,
and the constant diminution of the lordships by subin-
feudation, it will be seen that they were originally much
smaller than the duchies and earldoms of the Continent. Of
still greater importance was their want of compactness, which
dated from the Anglo-Saxon period, the possessions of the
four greatest feudatories being scattered throughout from six
to twenty-one counties. Between these lay the royal demesnes
and the estates of lesser vassals In all the counties. The
landowners accordingly could not consohdate themselves, for
the strict law of escheat on failure of an heir to the fee, or
confiscations, would often bring back the same estate to the
Crown several times in a single century. The great feuda-
tories of the time of the Conijuest are all found during the
first century among the rebellious vassals. The three greatest
grants were recalled by the Conqueror himself. As a rule,
however, the older lordships remained intact, and vera

The Class-relations of the Anglo-Norman Period. 335

referred to in the Exchequer as extraordinary fees under the
name of ** capital honours." Their sub-vassals who were
scattered throughout the counties were summoned by the royal
Vicecomes. The formation of a compact military power was
thus actually and legally hindered by the prohibition of private
fortresses, and by the oath of allegiance paid by the sub-
vassals to the King. The same impediments checked the
power of forming great feudal courts, which became in later
times more and more confined, owing to the system of itinerant
justices and the permanent central tribunals, and was further
diminished at each successive re-grant. The Norman Period
was certainly not deficient in external splendour. Many a
manorial household formed a small court with the ancient
court offices, which were sometimes even hereditary. Many
lords are described as being owners of parks ; certain of them,
with royal permission, possessed a fortified castle. In the
charters addressed to their men and tenants, they made use
of the style of the royal charters : " Dapifero meo et omnihus
hominibus meis, tarn Francis quam Anglis.** But with all this
splendour there was no solid foundation, and most especially
the support found in faithful vassals was lacking. After all,
the eminent position of these lords was more an actual than
a legal one. The barones majores, indeed, appeared in the
military array as bannerets; their reliefs, wardships, and
marriages form the principal items in the Exchequer (Dialogus
de Scacc, ii. c. 10), and in the rating of the relevia and
amerciaments, they had the undesired honour of a higher
scale. As a matter of course at the royal assizes, the barones
iTMJoreSy being summoned to court by name, were put before
the squireless knights. But if in spite of these things, no
hereditary dynastic families arise in England, and the position
of the great vassals remains based merely upon class-rights
and privileges, as in the Anglo-Saxon period, when the great
Thane, as such, has no greater Weregelt than the county
Thane, it is due to the conjunction of the following circum-
stances : —

(i.) Firstly, to the difference in origin, because in England

the lord's position was not founded upon Seigneuralty (that
is, the transference of military service from the Bmall to the
great landed estates), but upon the police protection of the
HlafoTil. Besides this the monarchy did not allow any
extension of the manorial, judicial, and police powers to arise,
and no privileged right to a court of peers, and no exception
to military service ; but fcy the assize of arms it rather
raised to a living military institution that popular array
which in the northern counties had always remained able
to take the field. The haughty bearing of the martial classes
against free civilians found therein an effectual barrier.

(ii.) It was also due to a difference in its development.
Afttr the reign of Henry I. the great bishop, Roger of Salis-
bury, whose family for a himdred years occupies so eminent
a position in the administration of the realm, is to be regarded
in some measure as the founder of a new ofBcial nobility,
the distinguished members of which not only find their way
into the bishops' sees, but also, by grant of manors and
by marriage, into the great nobility, such as the Bassets,
Clintons, Trussebuts, etc. At the close of every two geneiu-
tions of this period the larger portion of the greater baronies
appear to have passed into the possession of other families.
As early as the commencement of the twelfth century the
great nobles of the conquering army were, in consequence of
their unsuccessful rebellion against the monarchy, dispossessed
of their original estates. Under Henry II. the newer official
nobility already forms the majority of the body of great barons,
whose descendants take the lead among the barons of Magna
Charta. Other familiea again appear in the foreground of
the barons' war. The English prelates also are not local
rulers, after the manner ol the French and German electors
and bishops, but an oflScial nobihty, which conducts the great
business of the nation in common with the secular otfioial
nobility, and on that account with all the more uniformity.

(iii.) The striving after an hereditary position for the ruling
class accordingly, in England, takes a direction not towards
the foundation of independent local lordships, but toworda a

The Class-relations of the Anglo-Norman Period. 337

participation in the supreme council of the Crown. This
personal vocation must, according to the nature of the case,
be confined to the firstborn alone. In the same manner the
heavy burdening with military service and taxation leads to a
limitation of the privilege to the firstborn, and thus lays the
foundation of the hereditary peerage, which arises in the
following epochs. (1)

II. ^§e ^econlr CDlass was formed by the lesser Crown
vassals, gradually blending with the sub-vassals. (2)

(1) On the formation of the class of
the higher nobility, and subsequently
of the knighthood, I may be permitted
to refer my readers to ray t^^eatise,
" Adel und Ritterschaft in England "
(Berlin, 1853, 8vo.), upon which, how-
ever, the authorities of Hallam and
Allen, and the older ones of Selden
and Dugdalo, have here and there had
too great an influence. As to the first
distribution of landed property by the
Conqueror, cf. above, pp. 124-128
(Kllis, "Introduction," i. 226 uq.).
The manner in which the estates of the
magnates were mingled together, is
shown by the following survey of the
number of hides (Jiidx) in Sussex, in
which county the manorial possessions
are especially numerously represented :
Earl Roger, 818 manors; William of
Warenne, 620; Earl Moreton, 520;
William of Braiose, 452 ; the Arch-
bishop of Canterbury, 214; Earl Oro,
196; the Bishop of Chichester, 184;
Bishop Oabern, 149]; the Abbot of
Fecamp, 135 ; Battle' Church, 60 ; the
King, 59; the Abbot of St. Peter, 39;
the Abbot of St. Edward, 21 ; Odo and
Eldred, 10 ; the Abbot of Westminster,
7. As to the supposed estates of carls,
haroncs majores, and minor es of this
period, cf. above, p. 288.

(2) The formation of the English
knighthood is in its final result de-
scribed in the Testa de Neville give
Liljer Feodorum in atria Scaccarii
tempore Henry III. and Edicard I. (1
vol., folio, 1807), (Record Commission).
The enumeration of all the small
(Jrown-ficfs, the tenures by frankal-
moign, and the amount of the acutagia
and auxilia paid by each Crown vassal
prove to U8, that upon the foundation
of possessions like these, no separate

VOL. I.

class could be built up; indeed, the
lesser Crown vassals were sure to loso
themselves in the mass of the sub-
vassals, who frequently possessed two,
three, four, and more knights' fees, and
in whom the old Saxon Tbanehood was
also , represented. How doubtful in
many points tiie line of demaroation
was, is shown by the county of York,
where, of one hundred and five Grown
vassals, only twenty-nine are large
land-owners ; the rest were as a rule
described as Thanes of the King,
whilst they are only in possession of
desolated lands, which at the time of
Domesday Book could not possibly
perform a knights' service. The word
** miles " sometimes designates a simple
horseman, and sometimes an important
possessor of greHt knights' fees. Even
this use of the term expresses that the
tenures of property and the perform-
ances in the commonwealth are each
considered separately, and that accord-
ingly no separat<^ class-relations are in
existence, arising from the blending of
personal rights and duties with posses-
sion. The Aomo^'um, too, dot s not ex-
press such rights. It is an established
fact, that an oath of allegiance can be
taken to a private individual for a fief
and the grant of an estate in return for
service; without them, certainly only
to the King (Bracton, ii. c. 35, sec. 6),
It is, moreover, useless to try to import
from the Continent into England, a
technical distinction between homagium
ligium and nmplum. The ligium means
the feudal oath gnnerally (Glanvill,
ix. o. 1 ; Bracton, ii. c. 35, 37 ; Fleta,
iii. e. 16, sec. 16; Britton, c. 68).
The honour of serving the King be-
longs in the first place to the greater
land-owners, and is therefore considered

338 Constitutional Histori/ of England.

The IcBser Crown vaflsals differ m no way from the greater
in respect of their tenure. They are directly enfeoffed of the
King, and ai-e competent to sit in judgment upon every Crown
Tassal, &% pares of the Curia Regis, ao soon as they are sum-
moned to it. Many of them find, in influential offices, a posi-
tion which is outwardly also eijual to that enjoyed by the great
vassals. Of ^the original number of about four hundred
harones miiwira, the majority wore probably fi'om the first
owners of knights' fees in Normandy, or younger brothers and
sous of such possessors ; and the rest the holders of small
court-offices, as the under-chamberlain Herbert, the four
cooks, the carpenter, the bow-stringer, the forester, the
falconer, the steward, the porter. Only in a few cases do the
names, like Oswald, Ealred, Grimbald, Eadgar, Eadmoud,
and .Allured, indicate Saxons.

Of the gi'eat number of the suh-tciieiites (7871) in Domes-
day Book apparently less than half are really subinfeudated
sub-vassals ; they are for the most part Saxon Thanes, and
free followers doing service, among whom formal Bubin-
feudation made only alow progress {above, p. 126). So far
as such investituie took place, the possessions of the ecclesi-
astical mesne tenures seem to be on the average somewhat
greater than those of the secular tenants. The sub-vassals,
who had themselves received more than a knight's fee, might
also themBclves have »vb-tencntes under them. The majority
of the Norman sub-vassals were probably at the Conquest the
dependents of the greater feoduries, younger brothers or sons,
servants, soldiers, or other people who had been till then
landless. About half of them, as far as can be judged from
the names, wcro Saxon Thanes who kept their old possessions
— and who had become, very much against then- will, subject
to Norman lords.

In respect of the amount of their landed property, the two
classes appear from the first equal. Their feudal possessions
WtTo comprised in the soil with its customary rights. Upon

nllthngreatcrboDourrorttialeMcrluid- Majesty
ii<tu«t«, To be a " lies« lulfjeet or Hla liahniaD

The Class-relations of the Anglo-Norman Period. 339

the estate, endowed with manorial rights, the landowner
raises through his bailiffs (prsepositi, reeves, steicards) the cus-
tomary dues ; and being generally represented by them, holds
his court in the forms of the court baron and customary court,
and by virtue of later grant a royal local magisterial court or
-court-leet. But the possession of a manor is independent of a
military enfeoffment, and we even meet with manors in the
possession of socmannu In like manner the position of a law-
man {lihcr et legalis homo) is independent of a knight's fee.

The uniform pressure which the royal power exercised upon
the greatest as upon the least of the vassals, was sure in this
state of things to make all the lesser vassals appear more and
more as one homogeneous body. Since subinfeudation was
the only form of independent disposition of fiefs, in numerous
cases Crown vassals became, in respect of newly acquired
property, under-vassals ; even the great feudatories and pre-
lates did not disdain to hold a fief by under-tenure of other
lords and of the Church. The methods of holding property
became thus so complicated, especially after the Crusades,
that all idea of a lower rank as attaching to subinfeudation
disappeared.

The development of the chivalrous fraternities had made
the dignity of knighthood a common bond of union for all
vassals. Education, profession, martial honour, and partici-
pation in the county assemblies, are the same for the whole
host of the lesser vassals. Every honorary precedence of the
lesser Crown vassals over the sub-vassals became more and
more problematical when in re-grants of manors the Crown
changed the mesne vassals into immediate vassals, and with
the sanction of the King new holders entered upon the small
Crown fees.

And when at last the statute of Quia Emptores (18 Edw. I.)
entirely prohibited new subinfeudations, in order to put an
end to the interminable complications in the tenure, when
every new possessor became from thenceforth the immediate
vassal of the lord paramount, it would have been absurd to
concede to the lesser Crown vassals, as such, the right of

340

Constitutional History of EiKjland.

taking precedence of the old snb-vassats, who had been estab-
lished for generations upon their old landed estates. From
the time of Henry II., moreover, the decisive innovation had
arisen of a money payment being more and more regu-
larly substituted for personal military service ; there was also
no further difference in this respect between the two tenures
than that the lesser baron paid his scutage to the sheriff,
and the sub-vassal sometimes to hie lord's officer, and some-
times to the sheriff.

A comparison with the state of things on tJie Continent
proves to us that the main point of distinction in England
was the alieiiahility aud dhisihilify »f the knights' fees, the
inalienability of which was the chief basis of the lesser con-
tinental nobility. In England it was impossible to maintaiD
the inalienability of the fees, for the very reason that the
feudal bond had become extended to the whole of the landed
possessions in the country ; alienability was even promoted
by the fiscal maxims of the Exchequer, to which every solvent
holder was equally agrcefible, as well as by the ease with
which the royal consent conld be obtained for all sorts of
matters on payment of fees. The period of the Crusades, for
instance, was productive of numerous and extensive aliena-
tions, mortgages, and partitions. After the acquittance of
feudal service by scutages, feoffments and subinfeudatioos
appeared altogether only as an onerous method of alienation,
through which the new bolder took over with the land, the
pecuniEiry burdens of rdei-ia, the payment of the periodical
aitxilia, and the restraints attached to feudal wardship, m&r-
■ riages, etc. The alienation earned with it also tho creation

I of new incidental ground rents, which urgently required that

I tho legislature should bring about a simplilication of the law

I of tenure. Hand in hand with this went the spUtting up of

I their land into parcels by the feudal possessors ; which was

I intimately connected with the frequent change of possession,

I and with the circumstance that the judicial power failed to

I firmly consolidate itself with the landed interest. Presently

H the Crown resolved on a re- grant in parcels in cases of e

eschwrt» 1

Tlie Class-relations of the Anglo-Norman Period. 341

and forfeitures ; then again allowed a partition among several
co-heirs ; and finally alienations even of portions of a fief
on payment of heavy fees, so that even hundredth parts of
a knight's fee are met with. Hence as early as the middle
of this period the number of the possessors of the smaller
fiefs visibly increased. Many of them are younger scions of
the families of the Crown vassals and sub-vaBsala; others
again freeholders who had been enfeoffed for their military
services, or through an act of favour; others were wealthy
persons, especially those in the towns, who at the time of
Bichard I. acquired by enfeoffment such lands as were gene-
rally sold to the highest bidder.

The combination of these circumstances in England in
the Middle Ages, did not permit of the knighthood becoming
an exclusive hereditary dignity. Not real estate as such, but
the mastership acquired in doing warrior's service gave n
claim to the honorary title of ilom'imis, or "sir," which remains
a personal dignity that the Crown vaesals were bound to take
up. This honorary title is also conferred in the Middle Ages
upon the higher clergy and graduates of the xmiversities. The
word " knight " is used to denote more specially the military
rank with it, but since no especial social rights are connected
with it, and the rights of possession and infiuence in the shire,
etc., did not depend upon it, the taking up of the dignity of
knighthood was in comparatively early times felt rather as a
burden, in consequence of the high fees chargeable, and was
from time to time enjoined by royal command. Already in
these times the Exchequer rolls contained innumerable entries
of fees which were paid for a delay (pro respcctii. militiai).
Those poBsesHors of knights' fees who had not acquired the
formal dignity of knight now call themselves esquires (scutarii).
In their shire, the esquire and knight were sufliciently known
by their position in the county court. On the other hand, since
the Crusades, the adoption of family arms had become more
and more an established custom, which in the mihtary array
had been rendered necessary by the wearing of armour.

The main issue, the sura total of services to be rendered

"42 Constitutional Ilisloty of England.

to the State, became finally the same for all ; the knighthood
at the close of this period forms an entirety — a freed and
definite station, in which no contrast between noble and
burgess landowners ever ai'ose, and without prejndice to the
social claims to superior honour advanced by old possessors
and families.

III. ThemasBofthereatof thefttEljoIlJttsanatrnnntSappeared
from the standpoint of the Norman knighthood as *' tniUnhhi,"
a kind of " appurtenance of the soil." The royal assurances
after the Conquest contained indeed in yeneral a guarantee
for tlie protection of all existing rights of property. But
the mass of the ceorls (rillinii) were still further pressed down
by Norman arrogance, as well as by the form of the local
police regulations during this period, so that they were with
regard to the landoAvner, in a precarious position, and witbont
a right of possession protected by law. As against the lowest
fltratum of the peojile the monarchy allowed the propertied
class full sway, just as it had upon the Continent created
ft "bondmen" peasantry. Moreover, in the Eschoijuer there
was that " pcm^c iiiimiiahlr," which knew full well that the
enormous money payments which fiefs had to render to tb«
Crown, must after all he raised through the peasants, and
ultimately fell upon them.

Better possessory rights on the other hand were giren
in Domesday Book, under the headings of liheri hmnineg,
s<jcmiinni,biirije)isfs. Many among these were old allodial pos*
sessors, who became more uniformly subjected to the bordeos
of the feudal system, the more the principle was carried out
that this kind of possession also could be maintained by
"redemption," that the inferior possessor must bear the
burdens of the vassals, and the Sason those of tho Norman.
The extension of feudal principles to it, is evidently the result
of an increasing practice, which originating from the Ex-
chequer and the Curia Reijia, was at last embodied in the
imiversal maxim that "all landed property in the country"
is held of the King, either immediately, or mediately through
a mesne lord. The legal details of these relations with

The Class-relations of the Anglo-Norman Period. 343

regard to private rights will probably never be completely
explained. (3)

But with regard to public law the following circumstances
intervene and lead to a gradual amelioration of their position.

1. The revival of the county militia after Henry II.'s assisa
<le armis. Even in the feudal militia the military service
of such persons had certainly been customary and indis-
pensable as a reserve. Those thus equipped {servientes) how-
ever appear there only as servants of their lords ; whilst the
assisa de armis summons them as a national levy of their own
duty, i.e. of their own right.

2. The constitution of the civil courts had allowed all lihere
tencntcs to continue to act as lawmen in the hundred court,
which was now certainly in a state of decay. With the
beginnings of the jury system their participation became ex-
tended. In commissions appointed to take evidence, whose
province became more and more only to establish facts, a par-
ticipation of credible inhabitants of the neighbourhood was
requisite. In addition to the knights, other lihere tenentes
were accordingly regularly appointed, but they were not to be

mere villani or rustici.

(3) Tlio common law relations sub-
sisting between freeholders, tenants,
and villeins, can only be perceived in
some degree from the law books, and
consider.ible gaps are left in the hibtory
of their development after the later
Anglo-Saxon era. For the period im-
mediately following the Conquest, the
list given above (p. 128), taken from
Domesday Book, serves as a source of
information. The liberi homines (ad
nullum Jirmam pertinentes) who now
and then occur, are probablvold allodial
peasants against whom at nrst no claim
could bo made, and who were only
gradually bent down under the judicial
and financial practice of the feudal
system. Liberi homines appear in con-
siderable numbers only in the coun-
ties of Leicester, Lincoln, Norfolk, and
Suffolk ; liheri homines commendati
occur principally upon ecclesiastical
estates. The "Dialogus" shows the
light in which bureaucratical opinion

held the yillcins : ** decretum esty ut quod
a dominis exigenttbu$ meritis interveni-
ente pactione legitima poterant obiinere,
mU inriolabUi jure eoncedereiur ; aete'
rum autem nomine suceeMtonis a tern-
poribtis tuhactiB gentis nihil vindicaranU
de aetero studere tenentur devotis obre^
quiit Dominorum suorum graiiam emer-
cari," etc. (Dial, de Scacc, i. c. 10).
In the law works of Glanvill and
Bracton the increasing pressure upon
the villani appears to nave reached
such a pitch that former villeins and
those who had been free possessors
from their birth, are comprised under
the common expression villenagium
(Ellis, i. 81). From that time they
form the " vUleins regardant " in con-
trast to the landless ** villeins in gross"'
(the remnant of old serfdom). Hero
also oppression and denial of justice
was undoubtedly the source of peasant-
subjection.

3. The criminal jurisdiction and police control of the tuna
Vicecomitis drew to it the whole of the adult populatioii, lo
give account of the preservation of the peace and to pass a
annual magisterial review, i.e. " view of franc-pledge." h
spite of much that was hurdensome in it, it gave rise ta
a useful habit of common service for the whole people. Is
the local police tribunals, which had become so numerooslt
Bubdivided, and which regulated their proceedings accordii^
to the pattern of the turnns Vicecoinitis, the dearth of frte-
lloldcrB caused the villani to be constantly employed in a
eervice as lawmen.

4. In a Btill greater degree, and systematicaUy, did Has
become the custom iu the courts leet of the towns, in which ■
considerable burden of taxation was evenly distribated mi
thus produced the idea of a civic equality. The varioas
ranlis and descriptions of property here become inseparably
blended together. Ibe sum total of all those who bore scot
and lot, are now described as " lihcri homines " or " freemen,"
as men fuUy bound by duty, and fully entitled to tlieir rigbtf.
The towns become the nucleus of a new class-formatioD.
framed on the old relations subsisting between lilieri homiiiti,
eocviaiiiii, and filUmt.

In the whole picture of these class relatione there are foani
in Bpite of all the pressure exercised by a fiscal and police
regime, important germs for futm-e times. However modest
the measure of political privileges which these shire and
city unions were primarily to gain, the most important founda-
tion of a parliamentary constitution had been already laid ;
which was, the habitual and personal meeting together for
public business, the local and ]>ei'iodical co-operation of th«
State-bureaucracy with the individual communities.

( 345 )

THIRD PERIOD.

THE PERIOD OF THE GROWTH OF
THE ESTATES OF THE REALM.

CHAPTER XXI.

©1)0 CTtnturB of oraani^mg Statutes — '2t|)e 5Bnfon of tje
Central CGobcrnment h)it|) tfie Constitution of t|)e Counties.*

Edward I., 1272-1307
Edwaud II., 1307-1327
Edward III., 1327-1377
Richard II., 1377-1399
Uexry IV., 1399-1413

Henry V., 1413-1422
Henry VI., 1422-1461
Edward IV., 1461-1483
Edward V., 1483
Richard III., 1483-1485

Almost three generations had passed away smce the last
year of Henry II.'s reign, and the land had not yet found

* Among the sources and works of
reforeuco for this period wo must place
before all others the State records, and
particularly the Statute Rolls which
<'xist as the official publication of the
Parliamentary legislation of permanent
validity from G Edward I. to 8 Ed-
ward iV., and which are the basis of
the official collection of statutes of the
Realm (1810, etc.). As the next source
are to be considered the Parliamentary
Rolls, that Ik, registrations made by
the officials of the Chancery of the
more important proceedings in Parlia-
ment, now printe<l as ** Rotuli Par^
iiamcntorum ut et Petttionea et Placita
in Parliamenio " (vol. i.-vi. 1832, fol.).

The proceedings of the Continual
Council are printed in Sir H. Nicolas,

"Proceedings and Ordinances of the
Privy Council of England from
10 Richard IL to 33 Henry VUI."
(7 vols. 8vo, 1834-1837) ; see also the
Monograph of Sir F. ralgrave, **An
Essay upon the Authority of the
King^s CouncU" (I vol. 8vo, 1834).
As to the Exchequer, Madox gives in-
formation for this period. As to the
judicial system, see Foss, ** The Judges
of England *» (1848-64, vols, ui., iv.).
The general collection of the State
records, Rymer, "FoBdera, Conven-
tiones,*' etc. extends to 1391.

Of the law books, Britton and Fleta
belong to the commencement of this
period, as does also Homers *' Myrrour
ftux Justices," (cf. Biener, **EngL
Geschw. Ger.," ii. 387, eeq.). The

rest. John's reign had left behind it the indelible impression
that even the Great Charter did not as yet afford Buffident
protection to person and property against a despotic form
of government. Furthermore, it had become evident that
nobles and prelates alone were not equal to the new task ;
Magna Charta Itad at first only engendered party struggles.
Accordingly, during the vicisBitudes of Henry lll.'s reign both
parties involuntarily resorted to the same measure, to give
stability and equilibrium to the nascent constitution, by
admitting the middle classes in groups distributed according
to communities.

By the side of the great feudatories, whose participation
in the government of the realm had since the days of Henry
HI. been immutably eatabhshed, a middle class had sprung
into prominence in the knightliood, owing to the improved
position of the sub-vassals and the wealthy freeholders. Their
position in the county court, their homes, and their family
connections had given the knighthood a solid influence in
the towns also, in which likewise a new middle class, but
one still inferior to the knighthood, had sprung np from
other sources. The monarchy had to make up its mind to
give these middle classes a share in the government of tho
realm, if it did not mean, in its struggles with the magnates,
to part with its influence to the committees of the barons, as
had been the case under the inglorious roign of Henry III.
The experience of the Provisions of Oxford and of the Barons
"War were of paramount infinence upon these times. With
Magna Charta and the manifold limitations it imposed upon
tho administration of the realm, with the great eoncessioDS
made to the Church, and the growing power of the 1
hood and the boroughs, a government snch as the kinggJ

best aulhority upon the ptBctieo of tho stiliitioDulHisUirvof Englnnd,

omits oro tho BU-csUed Tear BooIih, ■■Middle Aget,"' rap. viii.

tiiat is, the coHefltion ot ctuea forniinir auppleinents to it : LapponbcTg-Pkidt.

preMdeTit determined ia tho central "GMOhichl(< Eajtsland*, vols, it., t.;

raurla, ftara Edward U. 0( lepil bnl nlmvv oil, Stubba, •■ Coiutitntk '^~

IliBtorr, RocTOB, "Hilt, of the Englith History " (1874. «M<^. volt, V

law," ydU. ii. and iii., deni* Willi tbi- whoKi chief merit — ^ -

period. Of the treatises upon the Cod- )Im in this period.

kni^dBH

^^

LHstlUR,

autitnttngi^H
ii. M)d«^H

Tlie Century of Statutes.

34T

England had formerly carried on by an Exchequer and a
number of confidential counsellors, was no longer possible.

The firm establishment of these conditions became the
task of the times throughout a series of statutes, beginning
with Edward I. the greatest monarch England had seen since
iElfred the Great, and the one whose rule constitutes the most
glorious epoch of the Plantagenets. The bitter experiences
of his father had taught him that a participation of the
estates in the Government could not be refused. Firm and
shrewd of character, he resolved to give new strength and
stability to the throne by means of those very institutions
which had proved ruinous to his predecessor. With the
statute of Marlebridge a legislation was begun which now
made such progress, that at no other time throughout the
Middle Ages was so much law positively established as in the
century of the three Edwards. For this legislation no object
appeared too great, and none too small. Lord Chief Justice
Hale states emphatically that in the first thirteen years of
Edward's reign, English law made more progress than in all
the centuries from that time until his own day.**

The greatness and the i>eculiarity of this legislation lies

** Of tlie fertility of the legislation
•luring this period, the following ab-
breviated list of the reign of Edward
I. may give us a survey : 3 Edw. I.,
Stat. Westminster 1 ; 4 Edw. I., Stat,
do extenta Manerii; Stat, do officio
Coronatoris; 6 Edw. I., Stat, of Glou-
cester; 7 Edw. I., Stat, dealing with
alienations in Mortmain ; 10 Edw. I.,
Stat, of Rutland; 11 Edw. I., Stat,
de Mercatoribus ; 13 Edw. I., Stat.
Westminster 2, Stat, of "Winton, Stat.
Civitatis Londini, Stat. Circumsix?ctiD
Agatis, Confinnntio Chartarum; 14
Edw. I., Stat. Exoniffi; 18 Edw. I.,
Stat. Quia Emptores (WcstminBter 3),
Stat, de Judaismo, Stat. Quo Warranto,
Stat. Modus levandi fines ; 20 Edw. I.,
Stat, of Waste, Stat, de Dofensione
Juris, Stat, de Moneta; 21 Edw. I.,
Stat, de iis qui ponendi sunt in
Assisis, Stat, do Malefiictoribus in
Tarcis; 25 Edw. I., Stat. Confirraa-
tionis Chartarum ; 27 Edw. I., Stat.

de finibuB levatis, de libertatibus, pcr-
quirendis, Stat, de Falsa Moneta; 2S
Edw. I., Stat, dealing with wardshijv
and reliefs, Stat, dealing with accused
|)er8on8, Stat. Articuli super Chartae ;
29 Edw. I , Stat, amoveas manum ; 8£^
Edw. I., Stat, do Protectionibus, Or-
dinatio forestsB. Stat, dealing with
measurement of land, ord. of Inquests ;
34 Edw. I., Stat, de Gonjunctione
Feoffotis, Stat, on Amortization, ordo
ForestsB ; 85 Edw. I., Stat de Aspor-
tatis Religiosorum, and so on to a
still greater extent under Edw. III.
This stupendous stream of legislation
may bo explained also by the cir*^
cumstanco that the half century of
tho incapable government of Henry
III. had piled up in all directions the
demands made ui)on the legislature.
Tho merits of Edward I. are also fully
acknowledged by Blackstonei iv. 425-
427.

in the constant realization of a single fundamental idea ; the
combination of all the functions of the secular executive power
with the existing greater unions of communities — a combina-
tion by which the people became penetrated with the con-
aeiousness of its political duties, inspired with an idea of
political unity, and competent to take the preservation of
peace and order in their own hands. In this profound system
of legislation, as also iji Magna Charta, could be perceived the
hand of that well schooled bureaucracy which from the close
of Henry the Third's reign resumed its normal activity, and
continued the internal consolidation of the constitution, under
the guidance of a high-minded monarch, and which (in spite
of a cessation under Edward IL) finally accomplished under
Edward III. the building, in the course of a single century,
of the new edifice from the heterogeneous materials at hand.

The necessary cohesion of the counties, hundreds, and
boroughs, was ah-eady existing, thanks to the retention of
the Anglo-Saxon judicial system, to the now perfect recon-
ciliation of national contrasts, and to the opportune transfor-
mation of the juiUviniit jini-iiini into the jury aystem. The
country was indebted to the harsh rule of the Norman period
for one great result, viz. the habit of the wealthy classes
of being eager and ready to perform the behests of the
State in military, judicial, and police functions.

The essential unity and power of the executive also euated,
thanks to the strong development of the royal sovereign
rights, to the strict management of the Exchequer, to the
judicial bench of the Cnria licf/in, and to the elements of a
council of State, which had been rising into prominence from
the time of Henry III.

The fault lay only in the insufficient combination of the two
elements, for which neither the officialist system of Bhirgeretas
and local bailifTs, nor the itinerant commissions BuEGced;
because such institutions in the hands of a despotic govern-
ment became the passive tools of oppression, and under a r
of grandees were converted into mere unstable and viol
party instruments.

The Century of Statutes. 34{>

This gap had been filled up in the former period by com-
mittees of parishes, so far as temporary needs required ; that
is, when the royal officer, who stood aloof from the people,
could not determine questions of fact and local questions^
except on the testimony of the neighbours on oath, i.e. by
means of the provost and four men of the villages, and by the
representative body of twelve men or more from the greater
unions. In this way the framing of Domesday Book had
been brought about ; in this way from time to time an estab-
lishment of inquests of office {ad quod damnum, etc.) ; the
police functions of the court leet ; the new method of deter-
mining the question at issue in civil actions, and the question
of guilt in criminal cases ; the ratings for military service, and
the first ratings for the hide-impost and income-tax. What
was now to be achieved was the permanent and uniform
blending together of these elements so as to form an organic
imion of the central government with the government of
provinces, districts, and towns — such an organic union as in
our own time forms the problem which the German Empire
has to solve. The essentials were —

1. That the rules of administrative law should be as clearly
defined as possible, seeing that the fundamental articles of
Magna Charta did not as yet suffice for securing a fixed ad-
ministrative rule, and for the protection of the subjects.

2. The formation of the system of juries into permanent,
uniform, and organized institutions of justice, and of military,
civil, and financial administration.

3. The development of the higher and lower district offices
(justices of the peace, coroners, constables, etc.), for all such
dispositions and measures of the executive as could not be per-
formed by the juries, but only adequately by individual officers*

In this manner the organic union of the English Govern-
ment with the counties, hundreds, and boroughs was brought
about ; so that the exercise of the undiminished prerogative
rights passed by virtue of legal authority to the officers and
committees of the provincial unions. Thus arises the world-
renowned system of English self-government, the indepen-

350

Constitutional History of England.

dent elements of whicb bad existed already in the farmer

period.*"

I. A blatdlnt} of the miliftnni syatem with the constitution of
the shires, to form an organized militia (originating in the
reign of Henry III.) during this period became necesBary,
both for the national defence, and on account of the military
power of the barons within the realm. The personal liability
of tbe owners of knights' fees to serve, still formed the basis
of the ordinary military system ; but the feudal roll had
already shi-unk considerably, Tbe growing opposition of the
clergy had greatly restricted the feudal ser-v-ices of the clerical
crown vassals. The administrative maxims of the Exchequer
had, in the case of re-grants of laud, rather aimed at acquiring
great revenues than at tbe pei-manent interests of national
safety ; many groups of estates were granted under the names
of " baronies," for the purpose of raising the great uleviuni
of a hundred maiks, whilst the number of tbe shields was
reduced. The dividing up of knights' fees into parcels ren-
dered impracticable the fiu:nishing of troops for real purposeit
of war ; frequent alienations brought tbe system of holdings
eutii'ely into disorder. In all directions the insular position
of the country showed its influence. The military conditions
existing on the Continent, the hundreds of baronies and for-
tified towns all competent to wage private warfare, the count-
less castles, the short campaigns and petty sieges were not
to bo found in England. The few castles and fortressed towns
were as a rule in the hand or under the control of the King.

•■• TliB cora[ilirnled cletnil* nrp
given more eihanatiTely in my "Gcii-
obiclito des Self-goreninient, ' ISrii).
pp. IW-2M. The modern Enelish
nutoriaiui appear ioolined to aeci'pt
thin conception of the deTelopmeat of
tbeir constitution. ThoB gtiibbs, '• The
priaciplo of amnlgniuating llic two la ten
and nntionalitics by inpci-impositiK
the better connilidnled Noman aupor-
•tructuTG on the bettor consolidated
Englioh ■abitmrtnro, mns tbiough Iho
whole policy. Tbe English Byatem t/a»
strong in the cohcaion of its lonut or-
Saniini, the asBOoiatiDD or indiTidoaU

in the Invmsbip, in llie hiitnlrcil, and ■
in tbe fbire. The ^'o^mau HyBteni vw
Btrong ia itK higber iSingrs, in ihi> <i1«w
relation to tbe Crown nt the t«iifinta
in chief whom tlis King had enriohd'
(StubbB, i. 278). " Th-- poculiar line
of Edward's reforma, the ever pencp-
tible intention of pUcinc ™Ph tnembCT
of tbo body politic in dirwt and in-
mediale relation with tbe royal pa^rr,
in jnalice, in war, and in tauUa~
soems f^ reach its fnlfllmont i
creation of the Purliament of I
(gtuhba,ii.29

The Century of Statutes. 351

Hence had resulted a state of affairs, in which the summons
of the feudal militia only appears as a mustering. The
owners of the knights' estates pursue, each according to his
inclination, either agriculture, or military service for pay, or
again the highly esteemed State service. A standing feudal
militia only appeared essential for the border lands, which
accordingly retained a diflferent military organization. Hence
as early as the time of Henry II., the system of the purchase
of immunity by scutages had begun. This purchase of dis-
charge becomes gradually the rule; after Edward II. the
scutage becomes absorbed in the general ground-tax. A
complement was now found in the county militia, in the
form in which the Assize of Arms (1181), had remodelled it,
but which had not as yet attained to its full effectiveness. It
now receives an elaborate code of organization. With the
consent of Parliament the statute of Winchester, 13 Edward I.
o. 6, declares the liheri homines who were capable of bearing
arms liable to serve in the militia and bear arms from their
fifteenth to their sixtieth year. In like manner as in the con-
stitution of the Roman centuries, five degrees were formed of
incomes of 15, 10, 5, 2-5, and under 2 pounds of silver.
Every possessor of lands of an annual value of £15 or 40
marks in money was to provide himself with a breast-plate,
an iron helmet, a sword, dagger, and horse ; of £10 to £15
the same, except the horse ; those possessing £5 to £10 in
land, a quilted doublet, an iron helmet, a sword and dagger ;
those with 40s. to 100s., a sword, bow and arrows, and dagger ;
those worth less than 40s. in land, a sabre, pike, and small
weapons ; those of less than 20 marks in personal propertj',
similar weapons. By this rating according to money value,
the possessors of knights* fees, citizens, free tenants in
villeinage, and householders, are ranked together in degrees ;
the wealthy freemen of the boroughs also, without regard to
landed estates. At the same time the more special provisions
of the Assize of Arms (Henry II.) continue in force ; the King,
by virtue of these provisions, causes those bound to serve to
be registered and taxed by his commissioners, and the dis-

352

Constitutional Historif of England.

obedient to be punisbetl. In every bundred a chief conetable
ia appointed ; in tbe old tithings and vUliilte, tbe rillage bailiff
is generally made a petty constable, and receives in addition
to his old magisterial functionB, a now military office. An
inspection of the troops (" view of armoiu- ") is to take plooo
twice a year. In the interests of the general peace the militia
stood at all times under the orders of the sheriff. When
war threatened, however, the King sent a commission of men
experienced in war to bring the militia of the district " into
military discipline." The donble relation that now existed,
that of a claim of the Crown to feudal services arising from
tbe feudal bond, and to the service of the national levy, by
virtue of tbe militia code, was for a long time turned to ac-
count somewhat arbitrarily, in spite of the manifest unfair-
ness of making claims upon tbe communities for equipping
and maintaining tho soldiers, in addition to the heavy taxa-
tion of tbe boroughs and freeholders. Under Henry 11. and
Eichard I. the militia burden was frequently reduced to this
extent, that every two mtii bound to military service had to
equip and maintain a third, or every three a fourth, Or every
eight a ninth mim. But the reri'uw of the nobles at the
beginning of Henry tbe Third's reign repeatedly demanded
with less consideration a forty days' service at the expense
of tho townships, or of tbe county, or else the supply of
mnnitiona of war and provisions. Under Edward I, and
Edward 11. these equipments at private cost were frequt
required. (1)

(1) An offioiul rci«rt by Sic Riibitt
Cntton oontaios n Ucjicripliou of tlje
methoda of raising Holdiera iu this
treanltioDQl period (cf. manuMript In
thoCotloiiLibrarr.Jalingf. ej Under
Heury 111, oae mftn was to bo furniBhed
for eviTy two acres of land, to do ierr ioa
for forty days, nnd nl tUo public KX-
nense of the tunnihip (Dora, Claus. H
UcD. 111). In the rollowiug yrar the
men of tbe kniglita' feoa down to twenty
abillings yearly valua were ordered to
provide thtiawlves with iniinitiolia nud
proviMooB for Ibrly dny« at the cxpeow

lentjx—

of tbe county (Dora. ClaUH. IS Hun. II
in. 8). In -il Henry III. the lika
■ervici'B were demanded for the (Mn-
paJKii in Oascony t^ot. Vaac. ST
ken. IU.). Ii> I Bdwanl I.. Ibere nu
t\ lew of henTj-armed troop* provt*
■ioned by the county. In 1 Kdnid L
one mau and ujunitions for aumi
weeks were roLiuired from eiieh town-
Bhl|i. Under ICdward II. thcro ««m
repeated mobiliialinn* nmpd'bit* iin>-
yriit. In ID LMword III. a Ivv* of
knights takes plucti, and a deflnito
number of iionemen were ordered fnM'

TTie Century of Statutes.

353

Against this system, but above all, against the employment
of the national militia upon foreign service, a perfectly
intelligible opposition at last arose. According to 1 Edward
III., stat. 2, c. 5 and 7, no one shall be compelled to go
beyond his shire, except when necessity and a sudden irrup-
tion of foreign foes into the realm requires it. According to
25 Edward III., stat. 5, c. 8, no one shall be compelled to go
beyond the realm under any circumstances whatever, — nor
beyond his county, except in cases of urgent necessity, — with-
out the consent of the Parliament. The regular service was
thus restricted to the county, and to the purposes of national
defence. All that went beyond this was dependent upon the
sanction of Parliament. Both statutes were further confirmed
by 4 Henry IV., c. 13; and especially the Commission of
Array is so framed as to prevent the introduction into it of.
new penal clauses. After the statute of Edward III., the
militiamen were, as a rule, maintained at the expense of the
Crown, with the exception of the mere wars of deftoce waged
against Scotland and Wales. After this there became mani-
fested in the military department, as also in all the other
departments of State, the gradual transition from specific
performance into money payment, by the formation of a body
of paid troops from select numbers of feudal and county
militia, {a)

the counties with the option of a
satisfaction in lieu thereof, according
to a fixed scale. In 11 Edward HI. a
levy is made of feudal vassals and men
of the boroughs and townships from
their sixteenth to sixtietli year, the
incompetent and aged to contribute
to the expenses ; the objections raised
by Parliament were rejected. In 16
Edward III. every man possessing
lands to the value of £5 is to furnish
an archer for the King. In 20
Edward III. a levy is held of the towns
and townships. In 21 and 25 Edward
III. London furnishes three hundred
archers.

(a) At the commencement of Edward
the First's reign the most unequivocal
truces are found of the inefficient

VOL. I.

formation of the feudal militia, and of
the king's embarrassments in con-
sequence: e.g, in 5 Edward I. "Pari.
Writs," 213. At the conmiencement of
the reign of Edward II. a so-called
*tatutum de miliiibu» was published in
the old fashion as an ordinance of the
commander-in-chief, which was issued
on the occasion of a parliament, and
was enrolled by command of the King
(Reeves, ii. 288). The contents of the
statute had, however, chiefly to do with
the obligation to take up a knight-
hood, and financial interests, and not
the military discipline of the feudal
militia. The chief progress made at
this period lay in the development of
the county militia. The constables of
this militia occur apparently us early

2a

The constitution of an army for foreign service at this period
vas as follows. The mass of the horsetnen 'was still made up
of the feudal nobility and their followers, under the titles
of barons, knights, esquires, and men-at-arms, among which
last class were included all heavy-armed troops without dis-
tinctioQ of rank. It was still the office of the marshal to
arrange the heavy cavalry into equal squadrons (con-
stabiUarix). The infantry, on the other hand, which was as
a rule five to eight times as strong in numbers, formed com-
panies of a hundred men each under constables or " cert-
tcnara," and was divided into pikemen and billmen, and
heavy and light archers. In the Welsh campaigns it appears
that troops in uniform were already met with, and companies
of labourers, miners, and gunners occur as new elements.
After the parliamentary enactment of 25 Edward III., it was
found more convenient to raise such troops partly by com-
missions for the enlistment of volunteers in the counties, and
partly by contracts undertaking to supply them. The King
contracted with an influential lord as eondottiere lot the
supply of greater or smaller bands, at a daily rate for man,
horse, equipment, and arms. The external decay of the
feudal militia side by side with this new system does not
imply that together with the feudal array the martial spirit
and training of the great landowners had ceased. But a
division of labour was introduced, according to which the
duty of serving in the heavy cavalry was undertaken by pre-
ference by those who felt fitted for it, especially by younger
sons, in return for pay. Altogether this division leads to the
enhancement of the power of the great barons. Those of the
lesser vassals and of the younger sons whose inclinationt
turned towards military service, marshalled themsetvea agiun
in the form of a retinue round the petty courts of the earls
and great barons. And here again wore formed standing
companies of sub-vassals and landless men of a chivalrous
turn, skilled in the art of warfare, dressed in the colo

The Centura/ of Statutes.

and bearing the badges (liveries) of a landowner, and in
which the comitates of Tacitus revives in a new shape. The
history of the French war shows us that the better tactics,
mobility, discipline, and arming of these masses gained the
day over the cumbrouH feudal armies of France. The fact of
the simiiltaneons existence of the feudal and the county
militia enabled the strong features of the old and new system
to be combined, and rendered it possible to select for the
cavalry and infantry the most warhke and tlie most skilled
elements. The retinues of the great barons served like stand-
ing cadres, not merely to keep the heavy cavalry in constant
training, but also to perfect them in tactical manceuvring, so
that in this direction also the English cavalry, in spite of
its moderate numbers, was a match for the unwieldy n
of the French. (1*)

{!'') Compared with ilie dacajing
feudul Bjalem of the Contineal, where
the landlord, an Buch, still led bia
tcnnnts (with oil the deFects which
arms fronj the heterogenenas ctaaactet
of the companies, the diffloultj of
tactioal d la posit iun, nnd wajil of diBui-
plino), lliia ByBtcm, blending the feudal
militia and the nationiil arnij, was de-
ci'Iedl; to be preftrTod. On the Con-
tinent the deBoietioiea were oountei-
balnneed hy the fact that the enomy
snfTered also from the miie fiinlts.
The still sinw ptngrCM made b; miselle
weapons pro-lueed in tlie atming of the
troops a tendency tonsTds strengthen-
ing the body-armonr. whiob, in spite of
all the eiperiencei of the Cnisfldes,
remained atnays the eame, and beranie
at length a caricature. King James
might well say in praipe of armour thnt
it not merely protect od the wearer, but
preTented him also from inflicting any
injury on others. Yet an atlaok of
borBrmen against infantry was regarded
as irresistible nntil the inTention of the
new lactioal iafanlry arrangement.
On the Continent this arrangement was
first seen in the new system of the
phnlanx. In the glorious strngglea of
the Bwias against Anstria nod Bur-
gtindy. In England it was manifested
in the fiirmation of a light inhntry,
which, oieraiied to act in few tinea.

checked (lie onslaught of the cavalry
for the moment by puliflodes, and
through the more perfect construction
of their bows, by discbargee thick as
bait pierced the heavy armour with
mtirderons eOeot, and then stormed
with furious speed into the brtachei
they had made. When the two systems
encijunlered euch otiier in the great
French wars, the English method
showed its decided superiority. The
contracts made with lords and knights
as tn furnishing soldierB are lo be
found in greitt numtwrs in the archives
from Edward III. down to the close of
this period (Grose, "Military Anti-
quities," vol. i. 71 trq.y As instances
of the composition of snob armies, I
CODflne myself to the followiog ; At the
embackatian of I34S, tliere were 2500
knights and HU.OOO followera uid
infantry soldiers (Villani, p. 94S). At
the siege of Calais, thirteen earls,
forty-fonr barons and bannerets. 1(M6
knights, 4022 esqtiires, aonstables, and
cenlenarii, 5104 rintfiuirtt' and mounttd
arebera, 19,954 fbot-soldiers nnd Welsh-
man ("Archreol. Brit.," vi. p. 213;
Pauli, T. p, 657). At the levy onder
HpntT v., a dulte was to appear with
fifty horBes, an earl with twentv-Sve. a
baron with sixteen, a knight with six,
an esquire vtith four, a bowman witli
one borae (Bymer, p. 227 •«{.). In the

356 Constitutional History of England.

At the close of this period the relation of the two systems
of armameDts had become reversed. The ordinary and
imiform national defence ia the county militia. The old
feudal militia still conBigted principally of the namerone
followingB (liverieB) of the greater Crown yaasals, that is, of
very heterogeneous elements; but it was employed ae an
active force now only in the northern counties on the Scotch
border. The necessary military stores had been since the
time of Henry III. deposited in the Tower of London, under
the charge of a balligtarhis. In this period we, meet with an
attUiator ballistarum for military weapons and accoutrements,
and a galeator, armourer, bowyer, and fletcher, who were
eubsequently united in the fifteenth century under the Master
of the Ordnance.

II. The exercise of the jiuUcial power becomes conneeied
with the eountij in a new fashion by means of the now estob-
liahed system of jurB-WU^'S- A.t the close of the former
period the three principles of the new judicial system had
become applied, which now were raised to permanent fun-
damental laws :

The separation of the administration of justice from tht
question of evidence ;

The concentration of the administration of justice tn
persons of learned judges appointed by the King ;

The constitution of juries of the hundreds and t
appointed by a royal oficer, to determine the question offatt. ■

The institutions of benches of judges, which, from the

council protocols under Honry V. and Iween offic^«r anc] soldier. A miliUn

VI., the constitution of ihe Bmnllpr sumnioiiB in the uril* of 9 Bdwatd it

detaf^hraents destined foe flold and shows us that the namb«r of the com-

garrison duty 'were slteied aa notd bntatit Crnnn vassala, or, at all cnaili,

required. In the CBvalr; the bnnnoret of those liable to be called ooL

deceived three ehillinitB, the kninlit amnunted almost to 200. For in-

twa ahillinea, the esquire twelve ponce diTidaal oontributions relating to llM

daily poy; the foot-soldiery, the ttwhers, military organiiation of thia period Mi

OHTpenlers. nnd other labourers six- farlher io N. Harris Nii'haUa. "Tbs

punce and leas. Here eTervwliere the fitege of Carlavejtiok," in 23 Rdmud L

fwit-soldier appears treated separately, (London, 162H. Ito), wilh a reprint ef

Had the reliitinn betweeu the light- the "Itolls of Arms," by Jn, Wri^t.

armed and heavy-artnod, the horsemnii " ' "* '

and the foot-soldieT, was no longer tliat
betweea muter and serrant, but be-

ce tn jfe|_

The Century of Statutes. 357

time of Henry III., appear somewhat more permanently
filled, now become connected with the counties by deputations
of their members. In civil proceedings the blending of the
two was primarily caused by the complaints occasioned by a
plurality of commissions of evidence at the central court.
To redress the delays and expenses thus occasioned. Magna
Charta had promised that the system should be reversed, and
the justices of the realm were to come into the county — an
arrangement which, however, proved hardly practicable in
the method then pursued; This system was definitely
organized by the statute of Westminster 2, 18 Edward I. c. 8:
** Justices of Assize shall be two justices of the realm, ap-
pointed on oath, who should take to them one or two honour-
able knights of the county." The sherifif henceforth summons
the jurors only jpro forma to the next terminal sittings at
Westminster, ** unless before that *' {nisi privs) on a certain
day the justice of assize appear in the county, which from
this lime was regularly the case. After further consolida-
tions by 27 Edward I. c. 4 ; 12 Edward II. c. 8 ; and 14
Edward III. c. 16, the whole of the functionaries of the
central courts enter into an organized connection with the
civil assizes through the medium of periodical commissions.

An analogous course was taken by the criminal jurisdic-
tion, which remained for a considerable time in a more un-
settled state. The deputation of special commissioners for
penal justice, ''justices of oyer and terminer,*' still often took
place, since political stmggles as well as the combination of
penal justice with the police control and the financial interests,
caused greater variations in this department. Gradually,
however, the commissions of oyer and terminer addressed to
the justices of the realm, as well as the more comprehensive
commissions of gaol delivery, became the established form in
which the penal justice of the central courts entered into con-
nection with the juries of the county. Through the regular
union of the civil and criminal commissioners, the newer ordo
judimorum was carried out in practise. The separation of
the question of law from the question of fact now forms the

358

Constitutional History of England.

fundamental character of the English judicial syBtem in ■
a different fashion from that indicated in thejWic
of Magna Gharta. For these reforms there were accordi^
needed express enactments of Parliament, as being deviatiom
from the charter. But after standing instruments for unitini;
and developing the common law had been gained in the
central courts, the consolidation of juries, which had been
formed in the earlier period, took place in a threefold direction.
(i.) Sfee tlbl'l twiy existed after the assitm of Henry II., by
virtue of statute only, for the originally enumerated cases;
and then in this form, that four Imights of the shire appointed
for the purpose, and twelve jurors elected by them, Tsere to
decide the principal question at issue. These form accord-
ingly a court of decision " per judicium parium t^el per legem
terree." Practical necessity had, however, extended the proof
by commissiona of twelve persons on oath as "'jurata " to
the whole civil procedure. In this more accessible and
cheaper form their verdict became limited to the question
of fact, and the method soon became so generally followed
that the circumstantial asgim with the four knights Ib leas
and less frequently used. At an early period, also, pro-
ceedings in evidence are taken before the civil jury ; at first
in the form that the witnesses who were present at the recep-
tion of documents, combined with and delivered their inform-
ation to the jury ; and again, that they, independently of the
jury, gave their version of the facts at the judicial sittings.
The transition to examination of witnesses in another fashion,
and to other modes of taking evidence, was brought about in
fc the practice of the courts. A taking of evidence before tli«

K jury was tolerably well developed at the close of the Mid<IIi>

I Ages (Fortescue de Laud. c. 26).

P (ii.) ^!)e grnnli furp was primarily connected with the county

F assemblies which the royal justiciaries had to hold at periods

I which became more and more regular. Their presentment

L duties consisted in summoning the individual hundreds, and

I causing the presentment made them to be inquired into and

I confirmed by a special jury of each hundred. This procedais

TJie Century of Statutes. 359

must, however, have appeared a waste of time and labour,
and from the desire for a quicker despatch of business a
change took place, the first traces of which are visible in the
year 1368. It had been found practicable to utilize the full
assemblies of the county court for these inquisitiones also, as
a grand inquest, or grand jury, in the face of which the pre-
sentment juries of the individual hundreds gradually decay.
The great committee of the county absorbs the committee of
lower instance, and makes use of the presentments of the
communities, as also the information of the individuals, only
as means to promote justice. In this manner accordingly
the grand jury takes upon itself the duty of indictment, and
in the face of it private prosecution more and more dis-
appears. When about the same time the institution of
justices of the peace had been established, a similarly con-
stituted grand inquest was also applied to the quarter sessions
of the justices of the peace.

(iii.) ®6t pettj) {urg in criminal cases, which Bracton
and Fleta represent as a continuation of the presentment
jury with partial changes in its composition, severed itself
from the other in the course of practice. The principal
separation was brought about by 25 Edward III. c. 8, accord-
ing to which every indictor (member of the jury of present-
ment) may be challenged in the second jury (verdict-jury).
And when soon afterwards the court of presentment became
merged in the great jury which was formed of the county
assembly, both jury courts appear under the names of the
*' grand " and *' petty " jury in permanent separation. No
reliable trace of a hearing of witnesses and other modes of
taking evidence before this jury, can be discovered in the
whole of the Middle Ages. It is still always regarded as an
inquisitorial commission of the community which has upon
oath to try the indictments confirmed by the grand jury, and
finally to decide from their knowledge of the vicinage and
from information there collected *' an cidpabUis sit vel non.**
And on that very account ** neighbourhood" was an essential
condition, and after the practice had become looser in the

360

Constitutional History of England.

time of Edward III., it was required that at least six him-
dredora, aud in Fortescue'a time four hundredors should Bit
upon tilt! verdict jury. (2)

In this way the fundamental maxim, " Veritas in juraton,
jugtiiHa etjmiicium in jure " (Bracton, 186, b) became realized.
Gammon to all three forms is the tender regard paid to the
equality of the parties and the impartiality of the jurors.
This system of " fair trial " is the best and the most enduring
basis of Eughsh judicial life. After it had been carried out on
a great scale, the necessity arose of consolidating the duty of
serving on a jury. Originally the jurors in the county as
also in the sub-districts were chosen from among the tradi*
tional lawmen, that is, they were leijules mUites, Uberi tt
legates homines. But the duty of serving as juryman was by
its nature built upon a broader basis. For judging an
habitual participation was necessary, which was only prac-

(2) An iild fundamental error coa-
BiJorsthiij Ihorougli nri^LnlzAtina lucun-
nected wilh thu proviiiioiiB of Miigna
OluirU, vhHniaB the guarantee of tlia
judicium parium in Art. 39 of tho
ohnrter actually fonned an impedimctiC
to rcfotm. Much na »uoh ^>^o^ll wa«
pnotionlly required, publio opinion
adhereil as tenaciouHly M uTtr to tlie
Anglo-fiaion principle of conalituting
nonurtof toes UDiliNirej of till) liundmt,
uppoiateil to find UieTtrdict. Buttlm
oppuBilioD naa, Ke luiglit be expectid,
moBt ke*>D in oritnitml cases; nnd tbu
slower course of (leie1u|iuiPDt of tba
vatdict jury can be also thus aiplniaed.
The prACtit« »f the courts fouaii a
remedy nt first in this way, that it
oansed the accused la submit volun-
tarily to Ihe verdict of a Jarata, in
place of tlie oustflmary proor lu cose
the accused refused to do this, no otber
MpeiiiBnt waa knovni, but tlinl of an
udministrative moasure, tfae so-called
pfine/oTle rt ilvn (above, p. 190). In
this there was an evusion of the prin-
ciple bj a Bophtstical trick, which,
practisail on thu Coutincut in muob
)trt'e(fT dimensions, leads to turtura.
whilat III England it remains rratric ted
In a middle course, nnd is in Int^-r
times wen uckn<iw lodged in this fmm
by Act of Purliaiueut {viiU rolgiave,

ii. tS9, I'JO). By tUis firm adhcrrnM
to llio.old ordo jWicforuiii it is also
expliiiiied why in the crioiinal osalem
such importance was still attached to
appoiuting a number of kiiighta at tha
shire, as pant, on the commissions uf
justices. The bare fundamnotal Idea
of the jury is. that the estnblishmHil
of fact in Uie trial (Ibe itetermiDntioa
o( the baa<-u of the judgment of th«
court) should procL'cd froiu the district
and I'ommunity coDccmid, becauao tlia
knowleilge jHUwsaed by the Tieitug*
of persons, tbingi, and cironnittBnaM,
cannot he <iis|>en8vd with, and leMt
of all. where the presiding justioea oalj
come at slated times from long di*.
tauces. and it is an eslablish>-d pria-
oiple that they sball be stmngera to lb«
county. At tlie close of this period
FurtcBoue in his " Landi'S L^^mn
Anglim" regarded the criminal jury
still only aa u practical in>titutiiin for
judicial procteclinpi on evidence. Tha
annual pattiut|)ntion of thouunda in
the practical odm in Ist ration of jutticg
became potitlcully im|>ortant: oa alao
wus the nuwiT and more uniform dis-
trihulion of tlie judicial burden oraonc
knigbts, freeholders, and boroughs,
wliioli hiis become a ^ndam^nlal prin<
oiplc of reprisautation in Parliiunvut.

The Century of Statutes. 361

ticable for the greater landowners. In stating the question
of fact, an exact knowledge of the district of the vicinetum
was requisite, as well as personal integrity, and for this the
smaller freeholders were as well qualified as they were indis-
pensable. Participation in delivering judgment might appear
as an important political right ; the summons on the newer
commissions of evidence appeared as a newly established
service, and the taking part in such could scarcely become a
subject for class-jealousy. The danger now rather lay on one
side in the burdening of the poorer classes with this duty,
and on the other in the diminished trustworthiness, the cor-
ruptibility, and timidity of these elements. Therefore it was
necessary to fix upon an average scale of landed property, to
which the duty of serving on a jury should attach. In dealing
with the evil result : " that otherwise the rich would go free
and the poor constitute the juries," the stat. Westminster 2,
c. 88, enacts first that only freeholders of twenty shillings
value in land should be summoned to the assisa. By 21
Edward I. stat. 1 ; 2 Henry V. c. 8, this rating is doubled ;
only persons of forty shillings income from land (or one-tenth
of the rating of a knight's fee) should be summoned. (2*)

The fact that the royal justices of assize presided in it pre-
served at this time the character of the county court as a
court of common law. In contradistinction to the ordinary
sittings of the county court, prelates, barons, knights and
freeholders still appear before the royal justices of assize ;
from each township twelve citizens, and from every village
the village bailiff with his four men. This suit royal of the
prelates and barons, which was again expressly confirmed by
the Assize of Clarendon, hindered the courts of common
law from being divided into separate courts for the nobles,

(2*^^, This has been at all times the presentment jury of the sheriff. In

practical side of the question. The other places acts of viol enoe are spoken

wealthy bribed the sheriff, in order to of with which the jury are threatened

get free from service; tie parties en- by the litigants (22 Ass. pi. 44). The

deavoured to entertain and bribe the gradual disappearance of a Magna

poorer jurors. In 1 Edward IV. c. 3; Assisa composed entirely of kniglits

1 Richard III. c. 4, the* reasons pro- (of which we have an instance as late

pouuded npcak of the abuse of poor and as the year 1348) is connected with the

unconscientious persons sitting on the aversiou against serving on a jury.

362

Constitutional History of England.

knighte, citizens, and peasants ; and even though the i
classes display a constant tendency to be quit of the sai
court in the county court, and though the statute of Mea
permits representation by prosy, and the statute of Mai
borough releases persons of higher rank than a knight tram
appearing in the sheriff's touru, yet a liability to appear on
Bpecial summons still remains. The origin of a privileged
court in England is confined to the jurisdiction of the peers
over their members which s].)rang up under Edward II.

After all these changes the old office of sheriff has in
' great measure lost its independent jm-isdiction. In this
capacity it remains only an instrument of the supreme conrt
for functions in which a provincial organ is indispensable, for
instance for the issue of sammonses, for executions, and for
the empanelling of a jury. "Under Edward I. the BberifTfi
judicial competence for civil matters is restricted to petty
suits not exceeding forty shillings ; to which are added his
inquisitorial, police, financial and administrative functions.
Through its police control, its privileges, and its fees, the
oEBce is however still sufficiently important to be the object of
solicitation. Manifestly in order to fall in with the wishes of
the knighthood, the attempt was therefore twice made to fill
the sherifTa office by a county election. The fijst attempt
was made in 1258 by the statute of provisors, but ended in
pure party elections, and was subsequently annulled. The
second attempt (28 Edw. I.) had for its result that after seven
years tlie sheriffs were obliged to be deposed m mnsne, and
others appointed in their places. The suffrage proved inuppU-
cable to the judicial and police officers. The sheriff accordin^y
remains an under-oEScer of the Exchequer and the King's
court, and is proposed for the King's sanction by the treasurer,
the chancellor, the barons of the Exchequer and the juatidarii
(9 Edw. II. stat. 2), as is done in effect at the present daj.
He had to possess sufficient real estate to carry his respousi-
bility, and was not allowed to farm out his office, (2")

The Century of Statutes.

363

The indirect effect of these magisterial institutions, was
finally the further decay of the regular hundred and manorial
courts. No new law, no reform, was extended to them ; the
absolute validity of judicial documents in evidence is as a
rule confined to the royal com-ts of record ; the want of a jury,
of a right of distraint, and of summary penal jurisdiction, was
enough in itself to make them impracticable, and to bring
the jurisdiction over the villuni (copyholders) more and more
completely to the regular courts. Even where a landowner
has been granted as a franchise the right of appointing a
bailiff by the damida ^^non omittas,'' 13 Edward I. c. 29, the
sheriff may execute every order of the court in such franchise,
if the bailiff does not do it properly. Of course fragmentary
remnants of the old regime still occur. The infangtheft and
outfangtheft were, under Edward I., occasionally put in force
by manorial courts, and as late as 1285 two cases occur in
which a court baron passes sentence of death for felony.

III. The exercise of the police power becomes connected with
the county in a new way, by the office of {ttfttice of i^t peace,
which had been formed after a long series of experiments.
The parliaments of this period begin with complaints of the
insolence of the magnates, and of feuds and brawls, which
after the times of the Barons* Wars appear again periodically.
Hence there resulted together with the militia code a formal
police-code in the statute of Winchester, 13 Edward I., which
begins with the words: "As day by day robberies, murders,
arson, and thefts, occur more frequently than they ever did

the monarchy was involved in a con-
flict with the great barons on account
of the appointment to the great offices
of State. This statute secured on the
one hand the constitutional influence
of the council, and on the other a
certain impartiality in making the
appointments. The idea was that the
chief officials of the permanent council
should exercise the right of proposal.
In 14 Edward III. stat. 1, cap. 7; 23
Henr. VI., cap. 8, accordingly the
Lord Chancellor, the Lord Treasurer,
the President of the CouncU and the

three presidents of the central courts
of law were mentioned. In Fortescue's
time all justices of the realm were wont
to meet together with the great officers
and members of the council of State.
These are all only variations in the
course of business of the council of
State; in like manner as the custom
of proposing three candidates to the
King also originated from practice.
As to the still considerable fees at-
tached to the office of sheriff, cf.
Thomas, Exchequer, 51.

364 Constitutional History of England.

before" — therefore tbe old poHce regulation tonching the
" hue and cry " was strongly enjoined, the landlord was made
responsible for the guests he harboured, the hundred for
reparation of damage done within its district, and a more
extensive duty to do militia service, and a system of watch
aud ward introduced. But there was also a concurrence of
various social reasons for extending and multiplying the pro-
vince of the police-power. Town and country life in England
bad not become quite separated each from the other, and
there existed free intercourse to such a degree that the com-
munities, having become mistrustful on account of their
liability to make compensation, had frequently to require that
suspicious characters should find security for keeping the
peace and for their good behaviour. With the comparatively
early decay of villeinage aud with the introduction of free
transactions of hiring and letting, the intimate bond between
property and labour became loosened in many places. By
free intercourse and unfettered industry, the unstable rela-
tions between property and labour became welded together,
and capable much earlier than on tbe Continent of being
regulated by comprehensive laws. Tbe numerous industrial
enactments, which in Germany must be looked for in the
police regulations of towns, and in tbe statutes of guilds,
appear here as subjects of general legislation ; at first as
royal assisa and ordinances, and later as parliamentary
enactments. To these belong the legal fixing of tbe price of
bread, beer, firing, and other necessaries of life. na»ix« venalium

(at tbe Rame time with regulations against adulteration), tho
most important of which is called the assign piinis et eereviaim

(51 Henry III. c, 5), all of which are continued as periodical

tariffs. Regulations affecting the bakers' trade, tbe prepa-
ration and manufacture of leather aud woollen cords, tbe
preparation of malt, brick-making, tbe coal trade and sale of

Irewood. market police-rules, and the general provisions
r a trade-code form a very complicated legislation. (3) To

The Century of Statutes. 365

these were added the police laws affecting labour, which stand
in the place of the " law of socagers/* and of the guild and
urban police institutions on the Continent. The first statute
of labourers, 23 Edward III., cap. 1, was promulgated after
a great national calamity, which had diminished the number
of working hands, and increased the ordinary rate of wages.
By it the working men are ordered to serve every employer
of labour at the customary wages. Connected with it there
became defined in practice the notion of combinations, that
is, of prohibited unions for obtaining an increase of wages.
Further connected therewith is the prohibition of giving alms
to able-bodied beggars. By 12 Bichard II. c. 7, every labourer
is forbidden to leave his place of abode without a certificate of
the magistrate that there is a good reason for his doing so ;
whosoever is found wandering about without such certificate
can be apprehended and put in the stocks. Those who are
unable to work shall return, in case of need, to their birth-
place to be supported there. According to the strength or
weakness of the successive reigns so does the rigour of the
labour police vary (13 Bichard II. cap. 3 ; 14 Bichard II,
c. 1. 2 ; 2 Henry IV. c. 5 ; 4 Henry IV. c. 15 ; 5 Henry
IV. c. 9; 11 Henry IV. c. 8; 9 Henry V. c. 9, stat. 2;
8 Henry VI. c. 24 ; 27 Henry VI. c. 3 ; 17 Edward IV.
c. 1 ; 1 Henry VII. c. 2; 3 Henry VII. c. 8). But a warning
to exercise moderation existed in the rebellion of the peasants
under Richard II. The statutory tariffs of bread and beer
were intended in some measure to act as a counterpoise to
this. Elements of a police des moeurs were also contained in
the comprehensive meaning of the term " common nuisances "
by which disorderly and immoral houses were punished ; in
laws affecting luxury in dress, food, and other extravagances
— the [last-named in connection with fantastic practices
which the paid soldiery brought back with them from the
French wars. To this head belongs the dinner law (10 Edw.
HI. stat. 3), de cibariis utendis, which allowed for dinner and

mannfactiirea from 2 Edward III. A kind of general trade code resulted
downwards (cf. 19 and 20 Yiot. c 6i). from 8 Edward lY. o. 4.

36fi CmnHfrntitrnMl Hittory ef England.

Jiffuci^ tvD effuMs; the ^e«i kvB agsinst Iniury (37
E4v. in. e. 9-14) rditing to dreas md meab, repealed, it
■ ba^m the fanavmgjnear^biit putlj ratiTed noder Edward
IT. fliiinJiwuuitaiT to tke aborr there existed besiilee i
■^■■■17 pcBil power tesifiog in the King's Bench, &s
cHiM aanM, •• «cQ as the nj^ <rf the magisterial police to
aaiDn* the fiadiBg of a seearitjr br good bebaTianr in ease*
«f oCaaane ads of paUie iiiunonlit3r> The idea of nuisuHft
cadvaeea, Woiea, a immlier of di^ntes between neigh boors ;
aaong odwn abo the first lonns ol lu^way regnlationB, and
a hi ^ w ay polaee. Farther ccoineeted with these follow
fa™*™e and fiflhing lavs in an almost innamerable series.

Tb deal with thia oomidicated system there had existed
hHbato metelj' ttie abetiffs loom and the oourts-leeL
ttBMWigl. the Great Cbaiter bad withdrawn &om the Viet-
CMM* the rojnat enmiBal aeeosations, vet there still remained
to him the first lutetlnmee, the talking of seoorttv, the poiiee
imfmntio, as well as the fimetioiis of poiiee magistrate, wherv
petty "™™**' eases were eeneoned. The inyestigation in
these eoorts was. however, somewhat different from the pro-
ceeding of the present day. It did not take place puliUcly
before the commnnitj, bat in and by the community itself,
with eonstaut sommonings of bailiffs and Uvmen, with
examinations on oath as to knowledge, ignorance, and belief.
It was not only that this constitnted the heaviest burden of the
judicial duties of the people, the commnnity baring to be
summoned en matte; the further and main fanlt was unmis-
takable, that the terms and forms of a court were inadequate
for the preventive purposes of a police of this description,
which presupposes a much greater amount of activity. The
local conrts-leet were on this account just as little equal to
the performance of such tasks as were the shmff and bis
under-bailiffs. Experience mode it ever more clearly felt,
that assemblies of the commnnity neither in pirno nor yet in
committees conld conduct a police administration in the fot;
in which it was then constituted, owing to the '
character of the system of preservation of the peace a

m the foEa^^^
le extend^^^l

:1

The Century of Statutes.

367

police laws for trade, labour, and morals. So soon as a police
system by virtue of express enactment, takes the place of
patriarchal regulations, the carrying out of these regulations
by single officers, and their more summary enforcement, must
lead to the creation of a judicial office.

As early as the reign of Eichard I. a first attempt was
made to associate with the sheriff, district-deputies, custodes
plncitorum coro7iae, or coroners, who were described in the
capitula of 1194 as custodes placitorum coronm. Their func-
tions consisted in keeping a watchful eye on the royal taxes,
rights, and dues, and are probably identical with those of the
later coroners. Edward I. gives these officers exact instruc-
tions how to proceed with a commission of inquest chosen from
the neighbourhood in the case of unusual deaths. After 28
Edward III. c. 6, they were chosen in the county court from
among respectable landowners, and presented to the King for
his appointment. This first formation did not develop itself
further ; it confined itself to inquests as to causes of death,
to cases of embezzlement of treasure, and to assisting the
sheriiBf in certain cases. The monarchy was probably not
inclined to extend the powers of these chosen officers. It
is likely that in early times, as a consequence of the inade-
quate principles of their election, they proved themselves
inadequate officials. (3*j

(3") Without doubt the cororuUor
occurs under John and in Magna
Charta; and is described in detail in
the law books of Bracton, Fleta, and
Brittoii, c. 1. As to their procedure,
a very thorough ordinance, 4 Edward I.
de officio coronatorU was issued ; and it
is also described in the stcUutum WalliiB
(12 Edw. I. c. 5). In addition to the
itinerant financial commissioners, other
persons also, who were presented from
the county itself to the King, could
exercise a control over the maintenance
of the rights of the revenue and the
Crown ; out of this there was formed an
inquisitio after the manner of a sherifTs
toum, with commissioners of the town-
ship, which was to intervene in the
vacations between the periodical court

days, whenever a speedy investigation
on the spot was needed. Violent deaths
and cases of treasure trove thus became
the principal province of the coroner.
According to the oldest indications we
possess, this officer was to be presented
to the King by the chancellor, the cur-
rent formula for which, a ^^hreve de
corona tore eligendo** is very ancient.
The jury to be summoned by the
coroner is to be collected from the
nearest villages to the inquUitio (per
eorum sacramentum inquisitionem fa-
ciant dehomine oceUo\ and it was re-
garded as understood, that at least
twelve jurymen must be present, and
twelve be of one accord in giving their
verdict. Special qualifications were not
required of this ex tempore commission.

368 Comtitutum^ Bistory of England.

Towards the end of Edward the First's reign, in disorderly
times and districts, a kind of court-rnrLrtial under jusliea tif
trail baston began to be instituted, wbich was also in ]a.ia
times occasionaUy repeated, but met with opposition on
account of its too summary character. Shortly aft«r
Edward II. ascended the throne, eomervatortM pacu wen
appointed in every county, who were to reside continaally
in their conntiea and visit all parts of the same, " to vateti
over the observance of the police code of Winchester, and
the royal detn-ees relating thereto." This also remuned
only a passing attempt. Sat a very eerious occasion for
the appointment of local police magistrates arose j at tite
accession of Edward III. After the deposition of Edward II.,
bis criminal spouse and her followers feared that general
disorder would ensue. They therefore caused by ordinance
(1 Edw. ni. c. 16) the appointment in all the counties of police
magistrates, chosen from the ruling faction — " bonnn ffent
et loyaux ttsgigneeg a la tfarde de la paix," to act as assistants
of the sheriffs and of the itinerant justices. In the following
year police-magistrates were appointed with a commission of
oyer and lermhif.r, that ie, with real penal powers. Bnt these
again ceased when the occasion for their institntion disap-
peared, and the change of party took place. The idea of the
appointment of police-magistrates from the district of the
county bad in the meantime become popular. In 18 and 20
Edward III. new attempts and new proposals were made. In
21 Edward III. the commoners make a proposition to the
King, to appoint about six police magistrates in each county
^two lords, two knights, and two men of the law. The
difference of opinion on the matter lies principally in this, tfaitt
the King and council cleave to the royal prerogative of ap-
pointment, whilst the estates lay the greatest weight apon
the election of great landowners. But in the meanwhile tha
tlisputes with the labouring classes bad arisen, wbich neeeaai-
taU-d the statutes of labourers (23 Edw. 111. c. 1 ; 25 Edw. HI.
8). For the putting of these laws into execution according
to their spirit and their letter commissioners endowed wiUi

The Century of Statutes.

369

extraordinary powers were appointed, who were to hold their
sittings four times a-year in each county. The idea of apply-
ing the principle of election to the statutes affecting labourers
could not for a moment be entertained. These police-magis-
trates, appointed by royal nomination, proved successful, and
agreeably to this precedent, after long experimental forma-
tions, there ensued at last in the year 1360 the appointment
of district police-magistrates, as a permanent institution,
by 34 Edward III. c. 1. " In every county of England there
shall be assigned for the keeping of the peace, one lord, and
with him three or four of the most worthy men of the counties,
together with some learned in the law, and they shall have
power to restrain offenders, rioters, and other barretors, and
to pursue, arrest, take, and chastise them according to their
trespass or offence ; and to cause them to be arrested and
duly punished according to the law and customs of the
realm, etc., etc., and also to hear and determine at the King's
suit all manner of felonies and trespasses done in the same
county according to the laws and customs aforesaid." (3**)

(3**) The origin of the oflBce of justice
of the peace is treated of at length in
Reeve's History, ii. 472 ; iii. 216, 242,
265, 290; iv. 154. The old work of
Lambard, ** Eirenarchia, or the Office
of Justices of the Peace," is still in
use in various editions, from 1581 to
1619, 8vo. Still more detailed is
Dalton's " Justice," 1618, last edition
1697 fol., which contains historical
notices, and much confused matter.
Historical excerpts from Hardy are
contained in the ** First lieport on
Constabulary Force," pp. 192-202,
(1830). The historical notices contained
in Blackstone are tfiken from Lambard,
especially the vague and cnnfueed ex-
pression that there existed, according
to common law, conservatores pctcis
either by custom or by feudal tenure,
with the obligation to maintain the
])eace, or such as had been chosen from
the peoi)le in the county courts (Lam-
bard, 15-17). By the proceedings of
1 Edward HI. c. 16 the choice of the
guardians of the peace was first of all
taken from the people and then given

VOL. I.

to the King (Lambard, 20). This pas-
sage, which has been copied again and
again, must have given rise to the erro-
neous idea that there existed in England
elected or manorial justices of the peace.
Officers chosen by the people, occupying
the magisterial office of justices of the
peace, have never existed in England
since the CJonquest. I'raditions of this
sort, which are also Tep( ated in Ck)ke,
Inst., ii. 459, 558, 559, date from the
constitution of the Anglo-Saxon town-
ships. For the Norman period they
are, on the showing of the records,
false, and incompatible with the whole
course of the development of legislation
touching justices of the peace. The
elected custodes pacts of this period
are partly the coroners, partly the re-
cruiting officers of the militia, partly
the constables in the police admini-
stration, and partly anomalous person-
ages, with whom in times of civil war
experiments were made for a short time.
These are officers having the right of
first interference, of prosecuting the
presentments before the courts of law,

2b

370

Constitutional -History of England.

After many new proposals had been mode, Parliament
demanded that the police magistrates should hold common
sittings four times in each year ; this was granted, and by
36 Edward III. c. 12, it became law. In the ensuing year a
petition was addressed to the King to the effect that he might
be pleased to allow the knights and burgesses in Parliament
assembled, to elect " the justices of the peace, and the
justices of labourers and artificers," and that the persons so
elected should not he again removed. The reply ran, thsl
Parliament might propose the persons, but that the King
would appoint according to his pleasure. Once again, in
50 Edward III., a petition was presented, praying that
Parliament might appoint the justices, and that they sboolii
not bo deposed without the consent of Parliament. Thft
reply to it ran, that the judges should be appointed by
King and his (permanent) council, and herewith the el
question was settled for ever,

In this period, also, tbe more honourable title "josj
occurs in addition to, or instead of, the older term,
lodea pacU." The form of the commissions was at the
mencement of Richard n.'s reign already similar to that
our own day, and became gradually consolidated as a com-
prehensive instrument of penal justice, and police,
especially the newly promulgated police-laws. The di

of the commissions of peace were at this time twofold :

ftt moat with tbe lijjht of enforcing
the giving of Becurily; but not roysl
jtuticei or recunl witli the ripht to
pMi jadgmenl. and endowed with the
nmnerouBeitrfiordinBry and diecretioa-
»ry powers of jneticei of tha ptkce.
Jost aa little have luuiinriftl j'listiOFS of
the peace ever eiiat^d in Euglnnd,
Tbe uiurpntions of the Dobilky uiicler
the Hoiue of IdDOHdrr, and ftt the
> time of (lie Wnn of the Itoeeg, only
I produced oiitifUHd contvptions of the
cind, «nd in a few ciui's also Last;
■nd ilDpalitic granta. But when sfaae
of thiaVind, toudijng the prjmlof tbe
priTiloga of nppoiuting juetices of the
peMo, OGouirea in a diailer fur the

luajB

Abbot of St. Attnn'i, end rane od At
tnal before the Kint,-** Bench (10
Hen. vn.}, the ooiirt draturad. in eoa-

n>oralo by anoh a ftnuE, to any p«t>na,
the right of appointing myal Jiiitl<'a,
aei'ing that thit wai a prenigatiirtt in-
npariible from Uie Crown. |juiib«nl
hininlf ouiir<-8Be« (1. e. 3) thu "all
odloii'B fur the malnUoianoe of the
pence are originally derivtjd from tlw
Sing, and ilut no aukt, pari, at baton.
as BDch. hu ft gimttt nuUiorily lo
mnintain the peace tluui any piirela

The Century of Statutes. 371

(i.) The preservation of the peace according to common
law ; that is, apprehension, arrest, enforced bail, and all
other police functions, which traditionally lay in the jurisdic-
tion of the Norman provincial magistrates.

(ii.) Analogous functions according to the statute of Win-
chester, the statute of Westminster, and the later laws relating
to the police control over trades and labour, which became
more numerous with each succeeding generation. Actual
criminal penalties were only inflicted by them when they sat
in a body in quarter sessions, with the assistance of a jury.
Their commission was drawn up on this matter in such
general terms, that they exercised a concurrent criminal juris-
diction with the itinerant justices. In another direction,
there were especially reserved to them, by the framing of the
statutes, jurisdiction over a number of smaller offences against
the regulations affecting trade, morals, and labour. No
intention could yet be perceived in this materially to restrict
the application of the jury. But the framing of the more
recent police laws, gave them also in their own persons a
comprehensive jurisdiction, which was to be exercised with-
out a jury. It was not until the statutes of the following
period that this became extended to an administration of
summary justice without a jury, even against the accused
person who denies his guilt. (8*^)

The justices of the peace themselves must, according to
the petitions addressed to Parliament, be chosen from the
great landowners, whilst King and council look upon know-
ledge of the law as an essential qualification. As a body,
they were now according to local needs really composed of
both elements. The influence of the nobles under the house
of Lancaster first introduced a fixed qualification (18 Hen. vi.

(B**) According to 15 Kichard II. o. them against the previous ordinances

2, their duties were to establi^sh the and statutes, and to puDiuh them ac-

tactsof violent disposseBsion; according cordingly on their own confession, as

to Heur. IV. c. 4, sec. 2, " the justices if they had been convicted upon

of tlie peace are for the fuiure to inquest." The statutes of the follow-

have the power to hear on oath all ing period extend this gradually to

manner of labourers, servants, and their an administration of summary justice

TiiuBters, and artificers, touching all without n jury even against the accused

things which have been perpetrated by denying his guilt.

372

Constitutional History of England.

c. 11). The juBtice of the peace is to possess lands of the
yearly valne of £'20 (the rating, in those times, of a knigbt't
fee) ; however, when suiBcieiit landed proprietors were ncrt
available in the comity, who were skilled in law and itt
administration, the Lord Chancellor was anthorized to place
on the commisBion other persons learned in the law. By
virtue of this clause, the rivalry between the landowners ao<l
the juBtiees of the peace learned in the law or " the quonun,"
continued down to the eighteenth century. The renimcit-
tion of their right to legally fixed daily allowances, which
became more and more the custom, at last brought about
the disappearance of the mere professional officials from the
commiBsion of peace. (3")

(3''} In the clause uf the commis-
Bion, in which " two or mora " juatioes
of the peace are authorized to try and
to JD(I<^, the proviso a added, thnt
■moDg this nnmbei one or more should
kI ways be appointed by name (" qaurum
ali'guem valrum A. B, C. D. iinuin ette
txiluTnut"}. ThoHO thui nppaioted are
the members skilled in the law, vho
on this aocouut are lechuicall; called
"the qnorum." In later btalutca it is
kIbo Bpcoifltally determined wbetlier
the JUBtice of the peace w to act inde-
pendeDtly, or whether he is to a^t with
the assistance of a colleague learned in
the law. This oflice of justice of the
peace, filled both by leiryers and la.iid-
ownera, i» in fnot only a new combina-
tioQ of elements that had long existed,
a new blendins of property and oftice.
The King could from lime immemorial
appoint justices of oyer and terminer to
hold the criminal courts ; by the new
arrangement he is obliged to appoint
them by ptoference Irrau among the
resident landowners of the county.
The itinerant justices had their poi'nf
iCapaui, or oeotre of graviry, in the
Toyal conncil, and in the ceutral coorts
of law ; the justices of the peace have
theirs iu the oouuly, and form in tiicir
periodicnl sittings a corporate body,
which now becomes permanently eon.
nectoil nith the juries of the district,
and forms newly organixed dialric'
administrations for police purposes, ii
the widost sense of the term. In tlie

of the itinerant jturtiMa,
in addition to the justict:* of the retla,
lords and knigbta of the county wm
also appointed, but only as aiMXjndaiy

Krsonagea, whose pnrlicipatioD (ooa
»me a purely nominal one ; in ttM
eommiaeion of the peace the pmkt-
sional officers are only cotloagtiea wai
BLseittants learned iu the law, wb»
gmduallj retire before the permatnat
influence of the great landed propria
tors. As the noo-eccpptance of stltH'txll
(after 14 Richard II. c. II) waa da-
olarcd to be required of the honour (tf
lor<ls and biinnereta, the nnn^poept-
auce of wsfes altogether, soon appcKRd
called for by iwnsiderBlioua of hoDom,
aad thus Uie rush of lawyn» and
small landownera to the oommlBica
of the peace diminished. The gnat
landed proprietors thus ubtainod cau-

Sensation on a pnter loalD for tluli
scaying manorial oourts. tint far tba
pmclical purpo*e« of the police coolni,
t)ie requisite stability and the nrnninsij
force was thua gained. InaamncJi a«
the justiceaof Ihe peace were appmnM
for the district of^the county, and ■•
their official jurisdiction was finm the
first to bo exercised "as well wUhia
as without the FrancluHeB," the; btild
autliority over the disconnectol maaO'
rial diBtriola. And herein already <n
perccivo tho principal rt>ason why tb*

The Century of Statutes. 373

This new system of police control, as it steadily progresses,
thrusts into the background the old institutions, and first
of all the district police court of the sheriff. The tumus
Vicecomitis remains, it is true, side by side with the justices
of the peace. To the sheriff is also reserved the right of first
interference, of inquisition as well as criminal jurisdiction in
petty penal cases, with the co-operation of the townships.
So far the relation remained one of rivalry, but to the dis-
advantage of the sheriff, whose unpopularity still continued,
and whose police jurisdiction was doomed to further decay in
consequence of the inconvenient change of office from year
to year. Sheriffs were deprived of the important powers of
preliminary inquiry by 1 Edward IV. c. 2, 3 (1461). Their
functions were restricted to a jurisdiction of first instance,
and the taking of indictments, and the actual order of arrest :
all further proceedings had to be left to the next quarter
sessions. But, on the other hand, the execution of penalties
still remained to the sheriff; for which function the organiza-
tion and financial administration of the sheriff's office was
originally framed, and for which they remained suitable.

The same course of development was taken by the manorial
and borough courts-leet, which had branched off from the
sheriff's tourn. For a certain time they still competed with
the office of the justices of the peace ; that is, they acted by
means of a continued summons of the assemblies of the
townships for the purposes of the inquest and police convic-
tions. They still continue, but in principle are restricted to
their old jurisdiction at common law, except where the
criminal jurisdiction over new penal offences has been ex-
pressly given them by statute law, as was done frequently
in the province of police regulations affecting labour and
trade. In this condition of free competition, the court-leet
(except in very few places where accidental circumstances
kept it alive) becomes gradually overshadowed and choked
by the newer and more vigorous institution of justices of the
peace. These were at all times accessible, whilst the court-
leet was only opened twice in each year, and then only for a

374

Constitutionai History of England.

ehort time. The juBticeB of the peace gain from generation
to generation new and effectual penal powers, whilst the court-
leet, ae & rale, remains restricted to a cumbrous inquisition,
and to the peualtiea of the common law. At the close of
Edward the Third's reign (51 Edw. III.) Parliament again
prays that no penal offencee shall he sent to the jnaticfsof
the peace, which ought to he decided in the Icets of the land-
ownera and boroughs. The answer ran, that the laws which
had hitherto been enacted (police regulations) could not be
maintained, if this petition was granted. From that time the
decay of the leets silently proceeded.

The subordinate functions of the maintenance of Uu
peace, which were exercised as a jurisdiction of first instaoe*
in the townships, tithings, and rillala, by reeves and the
lawmen of the district, in the form of committees of the
township, together with the duty of giving infonuatioQB,
passed gradually into the ofGce of the reeves of the town-
ship, who now subordinated themselves to the justices of Um
peace as they formerly did to the sheriffs toum. Thes«
inferior functions follow the course of development of the
higher ones. In the place of the indicting township, there
now appears at the sessions of the justices of the peace, a
tithing-man, who, from the time of Edward III., bears the
title of constable, a name taken from his militia functions:
he makes bis presentments there, and keepa watch over the
peace in his district (jnst as the chief constables did in the
hundred), with the old duties of a guardian of the peace,
and various new othcial functions which liave been sticcessiTeljr
imposed upon him by the pohce laws relating to trade, labour,
and morals. (3")

(30 It WBB n diviainn of labour,
by virtue of which tho dut; of making

Erraeotmi'Dt, UB nell as that of appre-
tnding the lireitkeT of the pt>aoe. paBsed
to tho nmaUble nlonc. According to
the statute of MarlebridgD (52 Ue-d.
III.), the nhole towDnhip was onlj to
appear in case of njurder ; In all ollici
CKSos (ho sheriff wne to bo content if
the picTOiI appeanid witb (our man.

In the private leeta, too, the lUInn
of the lawmpn to appear wa« M>TW
rigaruuBly re^^rdvd, 1 h« f urrent liiud-
vett aecordiiipl}' fill mom and ni'4«
into the bnnds of the rvovn olonn, *lio
oame to be often oullt-d " noimijihl^''
Id conaequonee of bts ofHcinl tluliM in
the milttla, lu Ihn »iiituii« «rs UmI
witb [biB 1111? fiift in l:l Kdwanl IIL
) ruf^unlrtl ia Uit aiv*

The Century of Statutes.

375

IV. IJL^z connection of tj^e financial atimtntettation toitf) t]^

countg is bound up with a system of local taxation which
dates from earlier times. The dues of the county unions con-
sisted for a long time only of services and matters rendered
personally and in kind, whilst the central government had
even in early times adopted a properly organized revenue
system. Supplementary payment in money is already found
in Norman times, in consequence of the innumerable amercia-
ments and fines. The oldest payments in money were fines
inflicted for the neglect of duty by individuals or communi-
ties; others served for procuring the necessary ways and
means for the fulfilment of a common duty. Directly or in-*^
directly, taxation was thus a complement of the judicial,
police, and military services owed by the greater and smaller
unions, in the imposition of which the pattern of feudal
burdens pervades the lower spheres as well, distributing taxa-
tion according to the scale of freeholdings, houses as well as
land, and profitable rights. In the practice of administration
three grades became formed, which although they are only
incidentally mentioned in the oldest statutes are presumed to
have existed.

1. The ** tithing" or " town-ley " (levy) served to discharge
the amerciaments and fines of the township, and answered
to the duties which the Norman constitution laid upon the
tithings. Such were amerciaments for escaped offenders, for
the harbouring of breakers of the peace, outlaws and those
for whom no security had been given; amerciaments for
neglecting to keep the paths, highways, drains and smaller
bridges on roads belonging to the township in repair ; fines for
the neglect of accusations before the court. Where a special
court leet had been granted to the township, the expenses of
keeping the stocks in repair and other outlays connected with

like times which followed as the more
lionourable title, and now drives the
older designations from the popular
language. Towards the end of the
fourteenth century, it had become the
ordinary official title of the reeve (of. 2
Edw. m. c. 3 ; 3 £dw. III. o. 14; 25

Edw. III. Stat. 1, c. 6 ; 36 Edw. III.
stat. 1, c. 2). In the west of England,
however, townships are still found with
two tithing-meiif of whom the first is
constable of the King, the second
simply ** head-borough" (Lambard,
*' Conatables," pp. 9, 10).

376

Constitutional History of England.

^

the local court were added to these : in somewhat later times
again, amerciaments for olTences against the militia code, sacli
as failui'e to furnish troops, neglect to keep the weapons and
archery butts in repair, etc. Naturally such contributions
vere raised by the local authorities, that is, by the provost with
the four men who represent the township at the sheriff's toam.
After the name "constable " appears, in the fourteenth cen-
tury, in the place of that of provost, the name " constable's
tax " is the prevailing designation for the same thing. The
manner of distribution affected the same persons upon whom the
military, judicial, and police duties altogether fell, that is, the
freeholders, and consequently the lawmen of the court leet.

2. The hundred-rate served for the payment of the amercia>
ments and fines of the hundred, for the maintenance of thti
hundred- court, to make good the disbursements of the ctuef
ooDstahle after the introduction of the mUitia system, for the
keeping of the bridges of the hundred in repair, and for con-
tribntions to the county as we shall mention below. It appears
to have been apj>ortioned by the bailiff (later by the chief con-
stable) among the individual townships, where we meet with it
again as " town cess," that is, as a common burden,
oldest statutory mention of it is in 18 Edward I. c. 6.

3. The county rate serves for the amerciaments and
of the county, for certain expenses of the county court, prison^
bridges, and certain niihtai-y expenses. The raising of the
county contributions appears to have taken place originally in
such a manner that the sheriffs distributed them over the
hundreds. By 3 Edward I, c. 16, 18, it was indeed enacted
that the itinerant justices should raise these amounts from
the persons liable to pay; but as such indiridual rating
probably appeared to be impracticable, the older manner
remained the prevaiUng one, which was to distribute the
payment over the whole hundreds, and from these to divide
it among the townships, by which method a fixed and fiiir
proportion in the contributions was attained. But when the
proportions had been definitely fixed, the whole hasinoss of
assessing the taxes fell upon the townships.

im II

4

The Century of Statutes.

377

Such being the chief causes for the levying of imposts, there
arose accordingly a certain practice of assessing the neighbour
by the neighbour, to which people became accustomed by the
Norman inquest. The increasing expense of keeping the
roads in repair, and of the mustering of the militia, as well as,
later on, the furnishing of armed contingents which was ex-
pected of the districts, and many other local necessities, caused
on all sides the institution of committees of assessment. (4)

Meanwhile the time drew near when the employment of
commissions of the townships could no longer be disregarded
for the State taxation also. The raising of scutagia by the
Vicecomes took place indeed according to the feudal registers ;
but even here the frequent change of ownership and sale of
plots led to many disputes and to much arbitrary action.
Still more numerous were the complaints of unfairness in
making the tallagia assessments. Hence at an early period,
instead of the sheriff, the itinerant commissioners of the Ex-
chequer were charged to negotiate with knights and boroughs
on these points. For great disputes as to rights of the Crown
"juries of inquiry" were frequently appointed. But when
the Assize of Arms (1181) introduced service in the militia,
with classification according to property, Henry II. could not
avoid employing a number of knights and legales homines
sworn in for the purpose of acting as commissions of the
townships. When the raising of a Saladin tithe (1187), the
collection of Eichard the First's ransom, and the levying of a

(4) As to the first formation of the
county, hundred, and local taxation,
compare the Report on Local Taxation
of 1843, pp. 5-7, and the memoir of
the Poor Law Board on Ix>cal Taxes of
1846, p. 45. The want of legal pro-
Yisions as to assessments only proves
that the general principles of the feudal
and judicial duty decided the method.
The report quotes as statutes which
presuppose a local taxation, 52 Henry
III. c. 24, touching tlie payments to
be made by the township when their
lawmen fail to appear at the accu-
sation proceedings before the sheriff
or coroner ; and 2d Edward L c. 12, 22

(Magna Gharta), according to which
no township was to be forcibly com-
pelled to build bridges where this had
not been customary at the time of
Henry II. Thtse quotations prove
that the laws of the Middle Ages only
occasionally touch upon these matters
to remove individual abuses. But spon-
taneous growth prevails in no system
of taxation. It was in this case the
Norman system of government with
its administrative system of fines, which
had set the military, judicial, and police
duties in motion, in accordance with
the temporary necessities of the State.

378 Constitutional History of England.

general hide-tax in the same reign (1198) led to an entirBl^
new assesBment of taxes according to the amount of hides
and of income, the appointment of knights of the shire and
others was for practical reasons unavoidable. This system
was continued under Henrj III. For the assessment of the
eameattiiim of 1221 two knights were to be chosen in full
county court " according to the will and advice of the count;
court." For the income-tax of 1225 (A) the assessment took
place on a sworn declaration of the person liable to taxation,
disputes were settled by a jury, the amounts collected by the
reeve and the four men, and paid to four knights of the ehire
of the hundred (Charters, 355). The income-tax of 1232 (A)
was assessed by the reeve and four men elected by the town-
ship as "assessors" upon their oath (Charters, SOO). The
income-tax of 1237 was assessed upon the oath of the reere
and four men of each township, with the assistance of elected
"assessors;" the assessment was verified by four knights
and an ecclesiastic (Charters, 366). This method pursned
by the assessment commissions continued as a rule uniformly
under Edward L, and was among other cases employed in
the towns for the assessment of the wool-tax that had then
been introduced. After 25 Edward I. the committees of the
township appear as a permanent institution. The ordinance
prescribes that in each township four men shall be chosen,
who shall report their assessments to the county autborities,
who are thereupon to go from hundred to hundred and from
township to township to hear complaints and to correct errors
in the assessment. Nine years later (1306) it is decreed that
a commission (jury of twelve men) of every hundred shall
deliver their assessment to the assessors of the county. For
this purpose they shall go from township to township and
make with the provost and the four men a correct assessment.
The assessment commission of the county proceeds again from
hundred to hundred and from township to township, to see
that no wrong has been done. But the more frequently the
hundreds and counties agreed upon a fixed rate of contribution
to the local taxes for the sake of simplification, the nearer did

The Century of Statutes.

379

the application of the like proportions to the State taxes come.
In the eighth year of Edward the Third's reign a widespread
assessment of individual townships at fixed sums had come
into practice, and from that time it became the custom to
assess boroughs and townships according to these propor-
tions, which are taken as a basis for taxation as between the
townships. The assessment and the collection from the indi-
viduals was left to the communitas, (4*)

V. Now that the county-union had become a firmly organized
entirety for military, judicial, police, and taxation purposes,
it was further developed by the atensfon of tfte SgSUm of

district unions to a consitierable numj^er of borougiis ; in the

majority of them in a more limited extent, but yet through
the application of the same principles, so that the constitu-

(4») Tlie proceeding's taken upon the
first attempts at taxing the whole in-
come arising from personal estate are
treated of in Palgrave, ** Common-
wealth/' i. 275. At these first attempts
a threefold process was adopted : (1)
All inhabitants (with the exception of
the Crown YOi^sals) were compelled to
prove on oath the full value of their
income, as was done in 8 John. (2)
An inquest was appointed to test the
case where the OHth of the taxpayer
was doubted or called in question, as
happened in 9 Henry III. (3) By direct
asifessmcnt by inquests, which are
formed of townships or hundreds, in
16 Henry HI., and then repeatedly oc-
curring until Edward H.'s reign. In
the course of this period the position
of Vicecome* in the assessment had to
be quite given up, as the reclamations
against it were interminable. But
the itinerant justices were unsuitod to
the duty on account of their deficient
knowledge of places and persons. Thug
also a permanent necessity compelled
the adoption of the inquest system.
Complaints that one was assess^ too
high and another too low, were also
made to the Exchequer, out of which
a writ of xqnaliter taxandum was issued
(Coke, "Inst.," ii. 77). The township,
for its part, was competent to rai^e
the amount of the tax by distmining
movables and money (Heyburn v. Key-

low Mich., 14 Edw. II., B. R. Rot.. 60)
or by civil action. The most important
information as to the assessment of
taxes under Edwar<1 L we owe to the
treatise of T. Smith, "The Parish," 1857,
and enpecially the advantage of being
able to make more correct use of the
'* iiiquisitiones nonarum** These tn-
quisitiones (of. Cooper, "Account," i.
286-293) arose under the stat. 14
Edward UI. stat. 1, c. 20, by which
one-ninth and one-fifteenth were voted
to the King for the extraordinary needs
of the State and for war purposes, and
which in this case were fix&d at one-
ninth of the civic income, upon the
ninth lamb, sheep, and wool-skin (the
poorer classes being exempted). At
the same time the clergy had granted
one-tenth of their spiritualities and
temporalities according to the rating
of 1292. AU this led to a complicated
assessment, for which three successive
commissions were now appointed. For
each county respectable persons were
appointed by name, to act as cusestors
and venditori tor the assessment busi-
ness, and who by sworn men assessed
the ninth on com, wool, and lambs ;
and then again the old Church tax
and its relation to the ninth of the
actual produce. The digest of the ac-
counts for twentv-seven counties still
exists in the Exchequer, and is printed
as Nanarum Jnquisitionet (1807, fol.).

380

Constitutional History of England.

those of ifi^^

1 jary.
of V^^

tion!) of the boroughs resemble, on a smaU scale, those of U
counlj.

1. In the militia system the boroughs are in principle
incorporated with the counties, and furnish their contingents
according to townships, parishes, and hundreds just like the
country. For London, however, a separate militia system
soon arose, owing to the fact that the county of Middlesex
was included in the government of the city. A small number
of other towns obtained in this period by chatter the " right
of a county," and together with it a special civic militia.

2. In the judicial administration a special court-leet bad
become in the preceding period the characteristic'mark of
the civic constitution. To certain cities a civil jurisdiction
was also granted after the new pattern of judge and jory.
But the more important civil and criminal cases were x
decided by the itinerant justices with a jury of the coanty.g

8. The police administration also shows in the citiel
gradual overshadowing of the court leet by justices of ^
peace. The number of the cities in which at the close of
the Middle Ages the court leet was still of importance was
probably not very considerable. The place of the court leet
is taken in very important eases by the justices of the peace
for the county, whose Jurisdiction is expressly granted "aa
■well within as without the liberties," and therefore within
the separate civic districts. The good understanding sub-
sisting between the towns and the knighthood, as well as
reasons of practical convenience, explain why on the part
of the cities no opposition was raised on principle. Besides
this, the respectable landowners and lawyers of the towns were
also nominated as members of a commission of the peace.
Nevertheless, the later city charters, after Richard II., were
frequently framed with a view to a separate commission of the
peace, whose quarterly sessions became an ordinary criminal
court for which the town issued its own list of jurors.
Side by side with this a rival jurisdiction of the justices of
the peace for the county generally continued to exist. Til*
special requirements of the market police were provided for

The Century of Statutes.

381

in a special department of the clerk of the market, which
under the name of a ** court of the clerk of the market "
enacted penalties for certain offences against the market laws,
and under the name of a " court of pie-powder " served for
the decision of certain market disputes, and for the inspection
of weights and measures.

4. In the local taxation system the smallest boroughs
ranked as townships or parishes, though the majority ranked
as hundreds. London and some others, on the other hand,
ranked as counties.

The number of boroughs becomes according to this system
considerably increased. Under Edward I. fifty-four new ones
are enumerated ; under Edward II., sixteen ; under Edward
III., twenty-eight ; under Henry IV., three ; under Henry VI.,
four ; and under Edward IV., two ; so that the number of
those places which possessed a kind of municipal constitution
at the close of the Middle Ages exceeded two hundred. (5)

(5) On the extension of aelf-govem-
ment to the municipalities, cf. Gneist.
**Ge8ch. d. Communal-Verfas." 194-
204. With respect to the State govern-
ment they are secondary formations.
The exercise of magisterial authority
could, from the nature of the public
business, be only confided to larger
unions. English self-government is
accordingly based upon the counties
and hundreds, that is, upon unions of
districts and bailiwicks, and not upon
townships. It is only the city of
London that properly speaking has the
character of a county. From this down
to a number of small market-towns,
the municipal constitution forms only
an imperfect application of county self-
government to a local union. The legal
bases of the municipal constitution
may, with Stephen and Merewether, be
referred to the same heads as in the
former period: —

1. The towns form a court loet or
some other separate judicial district.
It is, however, not suflBciently appre-
ciated that by the iutroduction of the
jury system and the justices of the
peace, the form of the old judicial
township was changed, and with it
the participation of citizens also. The

real life of judicial and police admini-
stration must be looked for in the
assizes, the justices of the peace, and
the jury. But the leet jury still re-
tained a right of proposing the mayor
or provost ; and this right in process of
time developed itself so far, that in
some places the leet jury actually elects,
whilst in others it only presents for
election (Scriven, " Copyhold," ii. 8G0).
In performing their police duties, the
lawmen of the leet could also pass
bye-laws which had the force of law
within the district.

2. The boroughs are still in the
position offirma hurgi. It is, however,
a fact not sufficiently appreciated by
Merewether, that this relation was
materially altered by the right of the
counties and cities to grant taxes.

3. The class of burgesses still con-
sists of the resident householders, who
are included among those paying ** scot
and lot." The ordinances dating from
the era of the house of Lancaster stiU
recount theold cliaracteristics of citizen-
ship, such as being sworn to the King
and the town; living by their liveli-
hood, merchandise, or crafts; house-
holding in their own persons and names;
bearing tax and talliage, lot and soot.

382

Constitutional History of England.

H

I

Tbese are the bases of Belf-govermnent by which the central
governmeut now entered into a firm bonii of union with the
county government, by wbich the classes of society, though
differing in their landed and indut^trial interests, now become
united together to fulfil their political duties ; and, filled with
the coDBciouBuesB of pubUc duty and a common zeal for the
general welfare, all gain the capability of taking part in the
government of the country. The recognition of personal
liberty by Magna Charta is followed by the political liberty
which calls the existing middle classes to take part in the
gOTemment of the realm in the form of county and municipal
nnions. The political self-consciousness thus strengthened,
from this time onwards unfolds itself in its firm national indi<
Tiduality, and challenges comparison with the great civilized
States of the Continent.***

It ha« been frequBQlly rtsmarked Ihnt
the EnglLHh towtiB liave never atluiiied
to the iinpurtuniM) of those ot the Gan-
UDeaU Tbeir sttiviagurtec Bepuration
luta onlr as louf; bb the old rigimt
of the NonnSin Viae/ioinUet. So booh
M those eanaei fell to the ground,
lh«nki to the centnil courts and tlio
altered position oTtlie sheriffii, the (owub
lemBined unresUIingly In the roilitriry
and otbec Bjstenu of the county iiiiH;r>
and fOODtenled themselrce with more
reatrioled imiDunities. Their pnrticipa-
tton in the jury and Id the oomiiilisiaiiB
of peaop, as woU bb equaJity iu respect
nt taxation, kept thorn in HCtive inter-
course with the knighthood. Trxjle
and industry moreover Gii«led fmrn
time immemorial in the country also;
conversely many landowners had also
town houses. The administnitian of
the prorinoial police mngiHtratcs g&ined
respect and popnlarily. In short, the
reasons are not foiiiiij in Englaad,
which in Qermanj forced the cities to
ahut themselies off in fant and law and
ta become fortresses, in onlet to avoid
I ihwingtlie lutof the peasantry, llonoe
e municipal governioent in En);liiiid
tc the reverse of that in Qonaaiiy— it
uiUte weaker part of seir-govemuiunt i
and thus muy be eiplaiiied Uia eonie-
what subordinatu po.iliun of the muni-
eipol deputies in the Lowor Houue.

J

thodgh they exceed the koigbti
ehirt-s in number.

••• The quiPt but grand signil-

of this period is tbornnghly upprvoiaM
by Mitcaulny ("Hisloi^," cap. 1.);
" Bl«rile and ohscnro an is that portion
of our annals, it is tbore that we most
seek for the origin of our freedom, odt
prosperity, and our glory. Than H
wua that the great English pnonle
were formed, that the national em-
racier began to exhibit thnae peonlntri-
ties which it has ever since retained,
and that our lathers beeauie emphati-
cally islanders, ialunden not mmely

■- ■ibienl pnaiiion, but in tbair

ii^ir feelingi, and their man-
en first appeared with dla-
Ihat onnstitntion which has
ever since, through all changea, pt«-
served iU identity ; that onniililnitoa
at which all the other frvo rouBtiln-
tions iu the wnrld are onpiea, md
which, in spite nf some defeotai de-
serves to be regBTdud as the best imddr
wbicb aoj gn:at sooi>?lj has evof jtk
existed during many ages. Then it
was that the House of Commoos. Ilta
archetype of all the rcpruentativa ••■
serublioawbicli iJ'i« III "' " "

polSi

old
sitliugB. 'I'll "

and rupiilly i

-■ffrt

The Century 0} Statutes.

383

Absolute rule is now superseded by a tonstftuttonal Qobetn-
ment accortifng to lalo ; a government which by means of
permanent political institutions gives to the rights of the
individual, and to the participation of the people in the
government of the land, those guarantees which were aimed
at in Magna Gharta. The constitution of the Government
and the division of power are now as follows : —

1. The ordinary administration of justice is consolidated in
fixed judicial bodies, or central tribunals. These represent the
most durable formation of the era of the rise of the estates
(cap. 22).

2. The conduct of the highest political business becomes
consolidated in a standing state council or permanent council
(cap. 23).

3. The participation of the prelates and barons in the
central government of the realm is fully established owing
to their being periodically summoned to the royal council;
in union with this they form the Parliamentum or Magnum
Concilium, which at the close of this period has developed
into an hereditary council of the Crown (cap. 24).

4. The participation of the communitates in the central
government develops into a House of Commons (cap. 25).

The whole development of the government by estates of the
realm confines itself, however, to the temporal side of tfie
State, which is now confronted by the gradually increasing
isolation of the ecclesiastical hierarchy (cap. 26).

rival of the imperial jurisprudence.
Tben it was that the courage of those
sailors who manned tlie rude barks of
the Cinque Ports first made the flag of
England terrible on the seas. Then
it was that the most ancient colleges,
which still exist, at both the great
national seats of learning, were founded.
Then was formed that language, less
musical indeed than the languages of
the south, but in force, in richness, in

aptitude for all the highest purposes
of the poet, the philosopher, and the
orator, inferior to the tongue of Greece
alone. Then, too, appeared the first
faint dawn of that noole literature, the
most splendid and the most durable of
the many glories of England." Upon
the obscurity described by Maoaulay
as existing, light can in most cases be
thrown from the fundamental bases of
this political system.

384 Conetitutional History of England.

CHAPTER XXII.

S^e QTomts of Common lab).

TttE establishment ot a definitely secured jadicial i
in the spirit of true monarchy begins with Edwai
The firmest barrier against arbitrary dcciaiona under :
personal government was formed in this period by three
corporate official bodies under the names of Court of King's
Bench, Court of Common Pleas, and Court of Excheqaer.
-They may be designated the three ordinary Courts of Common
Law, Bide by side with which certain special conrta of Uu
Norman feudal system still continued, to which I shall i
at the close of the chapter.

1. EfjE Court of filing's I3mtl) had already under ]
III. become organized as a nearly permanent court, in i
the King claimed the right to preside in person. This
tribunal was on that account still to follow the person of U)e
King OB a "Curia coram Rege ubicunqiie J'ucrimua in Anglui."
With this condition, the court consiated of a bench of four
or five jusliciarii, whose president from Edward the First's
time was called " CapitalU Justicarius ad pUieila coram Htgt
tenenda," and may to a certain extent be regarded as a '
succeBBor of the old high justiciary, but only for judie
business. In this court are combined—

1. The placita coronas or criminal cases, extended ho ij
include petty ofTeuces, but in such a manner that, as & i
the same cases can also be dealt with by the justioeB (
peace at the quarter sessiouB.

1 01 tlu

aUnM

■ Hdom

1 whioh

The Courts of Common Law.

385

2. The police control, which was from the first combined
with the exercise of penal justice; the judges are in their
oflScial capacity the supreme conservatores pads.

8. The constitutional appeal from the lower courts; in
this sense Bracton calls the judges '' caj>itale8, generalesy
perpetui et majores, a latere regis residentes, qui omnium aliorum
corrigere tenentur injurias et errores,** that is to say, a higher
tribunal for the courts of the land, with the exception of the
Exchequer, which in its capacity of supreme court of finance,
stands in the same rank with it. (1)

II. Wbt (iDottrtof (i^ommon ^leas as a permanent court of
law for civil actions between private persons, in which no

(1) The fonnation of the Court
of King*8 Bench is intimately con-
nected with the discontinuance of the.
ofiSbe of Capiialis Jtuticiarius Anglix.
After the Battle pf Eyesham, Ileniy
III. did not again nominate to this
office. In 52 Henry III., however,
Robert de Bruce was by patent ap-
pointed to be " Capi talis Justiciarius
ad placita coram nege Unenda" and
from this time this is the ordinary
title of the president of the King's
court, who is no longer to be governor
general of the realm, but only a repre-
sentative of the royal power in its
judicial branch (Foss, ** Judges of
England," ii. 135; iii. 18). The
number of his assistant justices was
under Edward I. as a rule four, in the
later years of the reign three ; under
Edward III. at first three, and then
again four (Foss, iii. 19, 342). For-
tescue (writing in the middle of the
fifteenth century) says, that four and
sometimes five justices sat in the
King's Bench. As to the jurisdiction
of the King's Bench, cf. Reeves, ii.
247, 248. If the King was within the
realm, the court, according to Norman
custom, was certainly always obliged
to follow him. Edward I. and Edward
III. insisted upon this, in spite of the
petitions of Parliament (Foss, iii. 339).
Under Richard II. also a circuit was
made to Coventry and Worcester.
But in the second half of this period
the sitting at Westminster became the
mle of practice, with the reservation
of A change of place in time of war and

national' calamities. The kings have
never expressly renounced their tra-
ditional right of presiding in person.
John, from the fifth to the sixteenth
year of his reign, was frequently present
at the sittings (Foss, ii. 4), and also
held circuits in person in company
with certain of his councillors. Henry
III. also sat in person in judgment on
certain important cases, and notably
in an action brought against the bur-
gesses of Winchester administered
severe justice (Palgrave, i. 292).
Under Edward I. and II. we meet also
with isolated instances of the King
presiding in person (Palgrave, Privy
Council, 62). Circuits undertaken by
the King, so long as the separate in-
stitution of itinerant justices lasted,
occur until Edward III.'s accession to
the throne (Palgrave, Commonwealth,
i. 292). And even after the itinerant
justices had ceased as a separate in-^
stitution, the King sometimes took
part in the circuits of the justices of
his realm. Under Henry VI., on the
other hand, it was, according to For-
tescue, no longer •* customary " for the
kin<]:s of Etigland to sit in c^>urt and
deliver judgment themselves (Foss,
iv. 215). Edward lY. is said to have
once sat for three days in the King's
Bench, but only ** to see how his laws
were executed" (Allen, Prerogative,
93). Hence we perceive that the
monarchy was finally restricted to its
old formal authority in the department
of the administration of justice.

2o

386

Constitutional History of Kngland.

royal rights were involved had also, &0111 Edward I.'b time,
its special president, under the name of a Capitalis Justiciariiu,
and its regular seat at Westminater. To oppose the eicesaiye
centralization, the statute of Gloucester (6 Edw. I. c. 8)
prohibited the royal central courts of justice from dealing
I with claims not eiceediog forty shillings ; these petty cases
were reserved to the county and local courts. Nevertheless
the number of actions had increased to such an extent that
from the time of Edward III. the number of justices waa
augmented from three to sis, and occasionally to seven. In
answer to complaints from the estates, the assurance was
repeatedly given that communia placit^i were no longer to
be heard in the Exchequer. The administration of justice
by the King in person was also given up in these cases. (2)

III. ^f)£ Ci^ourt of <£ic!jEqutt now becomes separated, in
its capacity as a financial tribunal, from the administrative
central gnvemroi-'nt of the Exchequer. The carrying out of
the fundamental provisions of Magna Cbarta rendered K
change in the administration necessary for a great part of

(2) The indepeodent fomiatioa of
Iho Court of ComuiOQ Pleaaia, accard-
ing b> ibe osreCol reAcorchcs o( Fois
(ii. 160 »tq.), of viibsoqucnt, dale to
MftgiiH Cbiita. The Germanio 00a-
cepliou or the judicial office, pnd the
deaire to keep froe frota the infliiencea
ot coDtt faiour oc dUfaiour, showed
itself more atrongl^ here than olae-
whtre. The ncceosity of a fixed and
ilelerniinate admiiiiBtratioa of justice
in ordinarT oivil dispulea bu been
most faeenl; felt, especiallf under
Jobn's EyBloin of goremuieut, nho
bad, in the eleventh yiiir of his reign,
eat in judgment at not less timn
twenty-four places. Tbi» gave rise
to the clause of Hugaa Cbarta
" Communia plaelia rum Mgunnfur
mriam Bt^ ted Uneantar iii aligito
eerlo htat." Under Hcnrj III. tliii
UBurance wua acted upon in so far
tbnt ciril aolioos were for the axatt
pniL dealt with In a special diviBion
of the King's court, aud indeed at
'Wutmlnstur. But it was not till after
tlie aeoessino of Edward I. that Gilbert
de PrcpUiQ was de&uitcly dEwi^-iinted

ofl rvipflalMju>(io>iiKiuof thtsdiviaion
(Fuss, iii. 20). The namher >it Uu
assistant jnstices Taried undur EdvkfU
I. hftwitiu four and sii; Duilat B4>
ward 11, was as a rate six: in &-lt
Ednnnl 11. a avvoiilh was addoil to
their number. Utidcr Henry VI. tba
number onoe reached eight. The oB-
cial name of this court is " OnmnaiM
Baneum" and in contraiMsijiictinn, tba
Kiug'« lieneh is calleil "bniKiim ngia^
or "baixmm tuntrMn.'* Tb*t asaimma
given in Magna Ctiarta as to ling fixed
seat nf this conrl of taw was not
fullowed out I'l the Icttnr: a rrnioral

135. ITS. 177 *ra.: iiu lU: :il» hl;
iv. 13). But in the scoond half nf Um
period tbe sictinci at WmtralnsUi
mnat bo roKnrdiil as esUtilisiiMl by
law. Tbe limitation of it« n>ni|i«lKlc«

evasion 1>y uieatw of l!<'tii»>s iBIaeli-
stone, iii. 3G). A* to tbe lirotlatioa
of tbe eotniaimia plaeita, of. Fuss, it.

The Courts of Common Law. 387

the Exchequer business. Free persons and free property
were at all times to be judged *' according to the law of the
land, and the customary forms of procedure." A number of
Barons of the Exchequer accordingly associated themselves
into a judicial body for this department of business, which
may be compared with the judicial division in the German
" Kriegs und Domanen Kammer " in later centuries. To
make these judicial decisions independent of the influence
of the heads of the department, the judicial division after
Edward II. also received its own president or Chief Baron,
who was as a rule chosen from among those persons legally
qualified for the judicial oflSce, and was often expressly
appointed for life.

Notwithstanding this, the position of the court continued
to be a somewhat subordinate one. Its members were usually
appointed from among the higher officials of the Exchequer
department, from whom it was difficult to eliminate the
financial spirit. Hence it is the more readily conceivable
that the retention of the old method of assigning ordinary
pleas to the Exchequer now led to loud complaints. In 5
Edward I. a royal writ was addressed to the barons, which in
general terms prohibits them from dealing with communia
placita, as being contrary to the letter of Magna Charta.
This was repeated in the statute of Rutland (10 Edw. I.),
with the remark, that in this manner the King's suits as well
as those of the people were unduly protracted. As, however
(probably in consequence of the interest in the court fees),
the rule was often evaded, it was again repeated in the Articuli
super Chartas (28 Edw. I.), and then once more in 5 Edward
II. In later times the rule was again evaded by fictions. Yet
in substance a better state of civil and penal justice was
attained by the separation of the courts, which could be no
longer compared with the condition of things in the former
period. (3)

(3) At this time the Treaeiirer and for cases which were to be decided upon

the Chancellor of the Exchequer are argument, a number of barons formed

regarded as hading officers of the a Court of Exchequer Chamber. The

Exchequer, side by side with whom, appointment of a Capitalia Baro by

388 Constitutional Biftory of England.

IV. ^f)c tontinuous consolRiatfon of ri)c stnft and the coane
of bTieinesa of the bcnt&ES of tw^ocs, is further shown in the
following alterations. The judicial benches gradaally absorb
the separately appointed itinerant justices. Under 18 Edmid
I. c. 30, the Justices of Assize and Nisi Prius were to be
appointed from the sworn justices of the King. Accordiflj
to 27 Edward I. c. 3, 4; 12 Edward II. c. S; and 14
Edward III, c. 16, every justice of the central courts and
every baron of the Exchequer may, if he is a profeseiooal
lawyer, sit as itinerant justice on any case, it bi.'ing im-
material into which court the matter was introduced. Where-
as the itinerant justices were originally lielcjuti prrneijiu,
tbey now gradually appear as deh-tfati of the permanent
courts. The commissions which were formerly Beparats
were now assigned to them in union, and became more aod
more systematic. Under Henry VI, the maxim was cstabli^Iied
that every justice of assize represents the whole tribunal in
which the action has commeaced. Thus the most dangenios
feature of the old judicial commissions disappears. About

royal patent only dates from Hay 30(lj,
iai7 [Fom, iii. 196, VJ»: Thomas,
Ezohequer, 107, IDS). The numlnr
of the oueuor jndgei wui four, Ave,
or lis (Fou, ill. 1B6 ; ir. 233). Tbom
RBBeuors were as a rule promoted
nniler'offleiaU ; their pn)' remained
duiint; the vhole period far below
that of Ihe juilKiarH (FitK. Lii. 44|.
Only the oflJoe of Chief Baron wns aa
a rule fllleil by irrvientci ad legem,
tihence also, aisnrdin^ to i Edward
III. a. 16, the Chief Baron oan be ap-
pointed a justice of UBaize, " Ef he
helonte to the Bwnra aerjeanti of the
Kinp." It was not antil the tine of
Ibe Tudor dynasty that the barona
were put on a perfect equality with
the juBtiova both in qualilicatiun and
rank iFoisa, v. 409; tI. 17). The m-iro
ooneeivable is it, that the poblle, aa
well as the lawyoi*. Tie wed with
uQwillineeycs ciTil ■rtion« brought
into the Exnhei|ucr. By the Slalutum
dr. SHiaxitio. 51 Henry III. {12(IC),
it had been atrcHdy prociili'd tlint the
trcaaurfr aad the barons tliould bind
tlieuuelreB by oath not to intvrforo

in the afRtire of private individDsli
whilst tbey were eogageil in tnoncl-
me the King's biuiaeM: exoepting
only complaints against offleera of tb*
Exoheqner, who retain their eichuir*
judicial pnvilege in the court itaelf
(Fou, ii. 196). But it waa not mOH
Edward L's r^igu tliat it w«a adtno*-
lodged, that the parttrs havn a rfgfat
to sncli nan-inlerfercaoo aiviinline t3
tbe prinoiplea of Slaen* Clinttn (I'm*,
iU. 22). When in htter tSuix* Ihnr*
arose out of the oMvial (Koitiou of
the Iiord ChaQi\'IIor a riiMr equity
jnriadirtion, whinh acteil aooinliiig la
the principleiof adminintniiiin jartin
without a jury, in addiiion to 1^
judges, the chief of dopartinmita, t*
the Iressurer, and the ('bA-nndlnr iJ
the Exchequer, participuU-^l In ihl*
new artangument (Thnimu, Mub-riAla,
il.). The old EK'he.|n«r ii|.|-ani frau
that time to be •lis!i<i1v>>il mlu fnor
divisions; which, however, iir^ nuily
formed of the same |>prH>ns : |I) TIm
Court of AwouLilB, (2) The Ourt nf
Beocint, (3) The Court of Pleu.and ID
The Court of Bxebequar In &|«i|gh

■■ - ^

The Courts of Common , Law.

389

the middle of Edward III.'s reign the special itinerant judges
disappear before the ordinary justices of the central courts.
In addition, it is true, special commissions of oyer and terminer
were still addressed to the local judges as necessity required
in turbulent times. After the introduction of the oflSce of
justice of the peace, however, the local criminal commissions
acquire a permanent judicial form, and thus the organization
of the judicial oflSces was completed, (a)

The higher judicial staff now forms a paid and learned
official class, as a rule distinguished by titles, as knights-
bannerets, knights, or knights of the Order of the Bath. A
motion made in Parliament that it should itself pay the justices
their salaries, was rejected, (b) As personal servants of the

(a) The statute 13 Edward I. and
the foUowiDg statutes aim at employ-
ing the whole staff of all the courts
in the civil assizes: 27 Edw. I. c. 3
and 4; 14 Edw. III. c. 16. But with
the circuits of the justices of assize a
general commission of oyer and terminer
became now more and more regularly
combined, addressed to the Lord Chan-
c<;lIor, certain high officers of State,
barons, the justices of assize and their
representatives, for dealing with all
crimes and a hirgc number of offences,
supposing that they have been com-
mitted and have been presented in the
county. But the right accorded by the
statute of Westminster 2 of appointing
special commissions for special cases
still remained reserved. By 2 Edward
III. o. 2, the assurance was given that
such commissions should be regularly
issued to justices of the realm, and
only in urgent exceptional cases to
other persons (Coke, Inst., ii. 419;
iv. 152). This was followed by a more
extensive commistio <id gaolas deliber-
andaSf for clearing the county prisons,
in which the separate prisons were
named under the great seal. A further
forum deprehensionis was thereby
originated, the first-named commission
only embracing a forum delicti com-
miiti, Henoe, as early as the reign of
Edward IIL, the staff of the special
itinerant justices diminishes (Foss, iii.
859-360). They are last mentioned in
the yean 1883 and 1349. Pecuniary

interests also tended towards the same
end ; as every justice of the realm in
his capacity of justice of assize obtained
the considerable addition of £20 to his
salary. The commissions of oyer and
terminer, which were still specially
appointed, were only to be appointed
in u^-gent cases, and then in an impartial
manner, not by the magnates, and not
by the parties, but by the authorities
themselves (2 Edw. II. o. 2; Coke,
lust., ii. 419; iv. 152). According to
20 Richard II. c. 3, no man is to be
justice of assize or of gaol delivery in
his own county, and no ** magnate of
the realm " is to sit with the judges
in the assizes.
(6) The personal position of the

i'ustices of the realm shows us their
honourable standing, nearly on a par
with that of the highest officers of the
realm. Personal disrespect towards
them was punished with great rigour
(Foss, iii. 43). Their salaries remained
during this period comparatively uni-
form, £40 for the chief justices, forty
marks for the puisne judges and the
chief baron. The justices and the
chief baron always received an addi-
tional pay of £20 as being justices of
assize, and many judges besides re-
ceived additional emoluments. Under
Henry VI. the chief justice of the
King's Bench had 180 marks ; the chief
justice of the Common Pleas 140 marks
(Foss, iv. 227). The official costume
was the same for the whole staff of

390 Constitutional Ilistm-y of England.

King tbej are paid out of his pereonai income, and snbjeeitd
to his personal penal power. For example, Edward I. deposes
his chief justice, Henghant, and inilicts a fine of seven thonsaul
marks ; the other justices were fined from three to six tbonsaixl
marks for extortion, and probably, also for corruption. This
penal jurisdiction was not questioned in the century embraciiig
the reigns of Edw. I., II. and III., and was repeatedly pot
in force. But still more stringtnt was the precedent made is
Richard the Second's reign, when the justices took part in
the feud of the great nobles, and returned a doulitful optoioo
aa to a royal ordinance. After the failure of an att«mpt«l
coup d'etat, all who had been implicated in delivering tbe
opinion were condemned to death by Parliament for hi^
treason, and the chief justice, Trcsilian, was executed, whilat
the sentence of death passed on tbe rest was commuted into
one of banishment ; the legality of this proceeding waa also
maintained at the accession of Henry IV, This importud
event left behind it for later times the impression that Uie
independence of a State tribunal required the judicial office
to be strengthened by the power of tbe lauded interest, which
support was in process of time found in the Upper Hod

Loase.i^^

, „ . Mth hia ]iere(mttl judicial anlhoritr.

taken by juBtic«>, of. Fuse, iii. 300. appointment is aconn1in{;lj not i

Tbe jutticaa were nel^teil from omong ut a nilo sahji^t [o rer<i«slion (db

the number of tb? graduated udvocatea, bttu ptiuilo), Init tliej an! also n.

i*. King"* scrji-atiM, Even in the pre. to lite King's peteouiJ pt-nnl juiiadie-

o^inj; periixl Fom reokoiiii anionc 206 tion, nrhloh was Hpporniitljr procdbd

jmtiriarii about 125 men of tbe li^gnl by an inqniijhjnn atsciniblj appnitittd

profession. Under Henry IlL oat of for the purposp (Poas, iii. 2li2j In «

100 juiliciarii ho only finds eleven of very lummary anr) baity manner Bd>

whom it may notbe ifBumed tliat tlioy ward III. pmowled In dbniia* and

liave prRcliaed in si>Die way or other as nrrtst several juaticm (Foas, iii. Stt)

advocutea. In thie periwl It can in in tbe year 1310, and again On ttan

almost ev(My individual cafe be dt>«- later for a more aerioui couae (ram,

iiitcty hIiowu tliat the jnaticea have iii. SfiSy. In later tttnea diaoijiliRan

been advanced to their poHitinti from nunixhmenta bad almost diaappnuva

the Ireal profeBaion. In conformity bf rnuon of irregularity in the (noiliiot

vith tbe iild prinoiplca of a. judMvm ol the bu>iDe«B of the rourla. But ■

parium, the juatieea reoaive the boDoiir more leiinni aide tn their reaponatlalitf

of kuigbtbom!, and usually even the showed ilatlf in 10 [lielianl II, T««

bigber rank lanquam banartUi (Pose, justices were at that time inunjimd in

Iii. 362, Bill). a popular luiuult, and a third «u

(a) TbopeTsonHlreBpoustbilityoftho exeeuled fur Li).-b treoKm. Rubnt

judesa was derived from their poaition Trceilian bud allowed biu><-lr l« Im

M delegates of the King investt^ with employed, agneubly to the y

The Courts of Common Law. 391

The ordinary course of the civil and criminal justice in
individual decisions had after this time attained that steadi-
ness and stability which was in keeping with the spirit of
Magna Charta. The law to be applied has now the distinct
character of "judge-made law." From the thirteenth century
dates the definite distinction between common law and statute
law. The latter is the law proceeding from royal ordinances
and resolutions of Parliament ; the former is that created
by the blending of the Anglo-Saxon customary law with the
Norman feudal system, and the older maxims in the judicial
administration of the curia regis and the county courts. The
further development is now found in the central courts. " The
common law rests in the breast of the judges of the court
of common law ; " it is a judge-made law from the very begin-
ning of this period, and in so decided a form that the authority
of the law books very soon dwindles, while the collections
of precedents, or year books, become the living source of law.
To maintain the unity of this law, analogous principles are
formed to those of the German common law : no customary
right can maintain itself against the statute law ; the custom
must be legitime prsescripta — ^that is, must have existed
anterior to Eichard I. ; it must also be ratiouabUis — that
is, practice excludes such customs as are in antagonism to
the leading principles of the law of the land.

wiKhes of tho King, to bring about that compulsion hod been used towards
u counter-revolution. A defeate<l party thi'm, and were in like fashion con-
8ou*:ht for this purpose to gain the denined to deatli and to confiscation,
<lc'ci»ion of the highest judicial authori- hut the sentence was commuted into
ties, that an ordinance formerly issued banishment. See as to these events
ill conformity with tho law wtisillegjil, Foss, iv. 3, 4. 102-108. The later
and '*the authors of it guilty of high judicial stuff remained so far outside
treasrin and punishable with death." the great party t'euds, that even at the
The Lord Chief Ju>tiee, who bad change of dynasty under Henry IV.,
already Khown himself servile to the Edward lY., Richard III., and Henry
power of tho day, collected his justices VII., the former iusticeg were con-
in all secrecy and ha.-te to deliver the firmed. Under Edward IV. only the
re(|uired opinion. The coup d'et^iU two Chief Justices were excepted, of
hnwever, completely failed ; the Chief whom one was already a fugitive
JuMtice fled, was apprehended, con- (Foss, iv. 380). The dread felt by
(h iTiTied by Puriiunient to death for the justices of a collision with Parlia-
high treason, and executed on Feb- ment is notably shown in their refusal
ruary 19th, 1388. The other justices to give any opinion as to the extent of
were also put on their trial by the the personal privileges of the High
Luwer House, in spite of their excuse Court of Parliament in 32 Heury VI.

392

Constitutional History of Enptand.

I *'

w

A natural effect of the iustitution of judicial benches «
the development of a special legal profession. Aboot tiu
time at which the central courts became permanently fixed it
Westminster, ve find the first traces of inns of jarists, at
first comprising students, advocates, and nnder-officers pro-
miscuously, but still (like the courts of law themselves) at
a great scale, and with a strongly prominent eaprit de corf*.
In 20 Edward I, the first attorney's code was published ;

icording to which the Chief Justice was to admit a certain
'number (about 140) of efficient " AttnrnaH et Apprentilti yw
curiam acqiuintur," and exclude all others. Under the nkmc
of inns of Chancery, there then became formed small law
schools for the preparatory study of the law ; somewhat latrr
the practising advocates combine, and form the four Inns of
Court that still exist. In Fleta's work we meet with pro-
fessional degrees in servieiitfs, namitores, attornati, apprentilit
A statute {4 Henry IV. c. 18), orders an examination of all
attorneys by the judges, and a registration of their names
upon a roll. About the same time the highei: class of advo-
cates begins to separate itself more decidedly from the lower
class of attorneys, and to form in the four inns of court a
sort of university. In conformity with the system of goilds
there arises the degree of mastership, of sen-irna ad legem,
serjeant-at-law, doctor juris; which is conferred by royal
writ, and forms an intermediate step to the class of official
judges. The Serjeants are appointed as substitutes for th«
justices in the assizes, as such receive a salary, and are after-
wards advanced to the bench. Two Attornnti Regie for guard-

ig the royal privileges are met with as early as the reign of

dward I, Towaids the close of the period, after Edward IV.,
the two Crown advocates were distinguished by the titles of
King's Attorney, and King's SoUcitor. In 11 Edward IV.
there appears for the first time the solemn official title of an
" Attomiiliis Generalis in Anyltti cum potentate dcpulandi <
108 ac officiiirios sub se in qiutltnuiqiit: Curia de lUcordo," (i

TTie Courts of Common Law.

393

The procedure and the staff of the central courts still
remain formally connected with the chancellor. From his
office as officina jmtitise proceed the writs commencing actions^
and all commissions under the great seal. As clavis regni the
chancery of the realm is accordingly open at all times. The
number of regular writs of daily use (writs de cursu) had in-
creased to such an extent that in 12 Henry III. j&fty-one
of them were sent to Ireland. Five such formvlad actionum
(de recto, martdauncestor, novell disseisin, de nativis, de divisis
faciendis) could even under King John be issued by the chief
justice without reference to chancery. These writs are
accordingly no longer writs of grace, but fonnula actionum,
which are granted to litigants upon proper demand. Under
Edward I. the assisting counsellors of the chancellor were

parties to conduct such actions in per^
Bon. The clergy had formerly been
the counsellors both in the household
and the law-court; *^nuUu9 elericiu
nisi causidicus." For many reasons
the papal throne now wished for a less
frequent employment of the clergy.
Even Richard I. had been obliged to
dismiss his Archbishop of Canterbury
from the office of chief justice; and in
the provincial councils it was deter-
mined **n€ advocati sint clerici vel
eacerdotes in foro seculari** Glass
jealousy bad a similar effect. The
noble Normans had in quite early times
enjoyed a certain education in the prac-
tice of the law ; laymen of lower rank
filled numerous situations as clerks, in
the Exchequer, with justices, sheriffs,
and bailiffs of every kind; and the
Norman administrative law shows us
that the laymen thus educated cer-
tain Iv bad little more to learn of the
clerici. Now, about the time that the
central courts became established at
Westminster, inns for lay-iurists began
to be formed. Under Edward IV. a
student in the inn required £28
yearly; the nobility sent their sons
thither **in order to keep them from
vice, and to educate them in music,
dancing, history, and other accomplish-
ments." A modem compilation of aU
the historical records of the origin of
the advocates' inns is given by Foss
(ii. 200 ; ill 46 «eg. 370-390 ; iv. 195

seq.y 251 seq.). It is, however, impos-
sible to form a clear picture from these
fragmentary notices. In 18 Edward I.
st. 4, there only 'appears the designa-
tion *' countour.*' In 33 Edward I.
counUmn^ attoumees, apprentis; in 28
Edward I. c. 11, contours e sages gentz,
14 Edward III. c. 16 calls the class
of segeants-at-law substitutes for the
justices of the realm for the assizes.
It was not until towards the close of
the period that Fortescue gives ua
more connected information. At this
time ten smaller inns of Chancery had
been formed, side by side with which
stood the four great inns, Lincoln's
Inn, Inner Temple, Middle Temple,
and Gray's Inn, which provided the
liigher education for the practice of the
law. No one was to be admitted to
the degree of serjeant-at-law ** qui non
in prasdicto legis studio sexdeeem annos
ad minus antea complevit " (Fortescue).
It was bound up with such expensive
ceremonies, and imposed so many re-
strictions from considerations of honour
upon the practice of an advocate, that
it was frequently refused (Coke, Inst.,
ii. 214 ; Foss, iv. 223), but was a requi-
site qualification for all justices of the
King s Bench and Cbmmou Pleas. The
mention of an Attomaius Begis begins
with the commencement of Edward I.'s
reign; in most years two Atiomaii
Begis were spoken of (Foss, iii. 44,45),
boUi with a small salary of £10.

also allowed to issue in plain cases new actionet uttU* (wvlt
in cnnsimili ca«u), bat in more difficnlt cases only after obtain-
ing tlie consent of the members of Parliament learned in
the law. (f)

V. The jiirisdictio ordinarivt thus formed does not, hoTem,

exclude a system which still continued in a restricted degrM,

viz. t&e snsirm of special toucts, a continuation of the Nonntt

method of the administration of justice. These are the mili-

•J, the Court Marshal's, and the forest courts.

The military jurisdiction of the high constable aaA
larsbal had proceeded from the regulations for the feudal
militia, and since the creation of hereditary feudal oScte
'l>ad under that name attained a fixed form, though onlj
with a limited scope. Even in our day there exists in
the archives a roll of jilacita exercUu^ regis dating from 21
Edward I., in which the high constable and marshal pre-
sides in the name of the King. An application to it of tlw
forms of the county jury could, of course, in war times hi
never thought of. However, in 2 Richard II. the Commons
endeavoured nevertheless to extend the provisions of Magna
Charta to this department also. They petitioned the King
that this court should not decide on cases of treason and
Jelony, "seeing that the said court decided according to the
.w of arms, and not according to the common customs of

(() Aa to tlie (KinimeDiromcDt nf an
Mtioo liy writs, cf. Patgrnve. Privy
Council, pp. m, 17. Al the close of
the Hiildle Aget the Dumber of the
admiuiblo formulnrj writs de curau
bul already oonMderably iniTeoscd,
as ia showQ by Ibe troutise de natura
breeium, liatiiig froin Edwonl IV. By
30 Edward III. e. 15 it wan eonct^
tbnl prot^eedingB by parol and de-
cIsinOB or tlie raurts should be in Ihe
Engllab language : wliilet the rcgi»-
trations nnd protoeoU of the courts
should be eiiucbcd in the Latin offioiDl
language. A onmeried picture nf ttie
pr;,elie.; «<■ it ciintcd under Ii.lwnr(l I.
u uiPjnl.-J \,y llie law work of UrittoQ,
written in Frfiiili, which hna been re-
pnhlii>lieil in a rriliO'il ivlilion (Kichols.

"Brin

/'London, iSBS.atola.). Tbia

new edition regards Britton a* s (os-
deneed adaptation to later ideas of
Bracton. which must b« plaivd aflar
]2IH>.and is somewhitl morp refyaittbu
Flota's work. As to the ollur sourMl
of law of this time. cf. Biimu, Dm
Engl. Gesohw. Grricbt., ii. 286-20^
Frum Kdwnrd U. date the cnllactiaH
of Ihe dooisioas of cent ml eoartji. whic^
under the name of Year Books, •!•
tend through two hundreil ixinnauuin
yrarri, iu presence of wbirb Uiit umi aT
the law bookH (notably th<'si< antrtlor
to Brillon) olmost diani-l>«»ni TI>a
criminnl procedure is BiiiMil-^ Iti "cmh-
parisun with the eivil. I ■
the working timo of tl
the reulm was at this |< '
the hours of tlio in

j'ulock <Po^, i

The Courts of Common Law.

395

the country.** In 13 Richard 11. c. 2, the assurance is given
that no dispute shall be dealt with therein, which can be dealt
with in an ordinary court according to the law of the land,
but only " contracts and other matters relating to records
of arms and war, within and without the realm,** reserving
an appeal to the King. However, the right of the King
remained undisputed to order in time of war military courts
with summary procedure for all manner of offences to be
held by the high constable or marshal, or their deputies.
A curia militaris of this description is frequently mentioned
under Henry IV. ; it was continuously constituted upon French
soil, and even in the commission appointing the high constable
(Edw. IV.) the King commits to him : '* plenum potestatem ad
cognoscendum et procedendum in omnibus cavsis de et super
crimine laesse majest^itis, caeterisque causis quibuscunqite, sum*
marie et de piano, sine strepitu et Jigura judicii.'' Apart from
an irregular use made of it in the violent times of the later
wars of the Roses, the military jurisdiction in actual time of
war continued as a constitutional institution down to the
Petition of Right under Charles I. (1)

(1) The militaiy courts contain the
elements of a chivalrous martial law.
The legal equality of the classes in
private law, liowever, and the divided
interests of the knighthood, did not
allow of any further expansion of a
special martial jurisdiction. But in
consequence of the French wars and
their contact with the nobility of the
Continent, a collision of class feelings
with the common hiw had unmistakably
come to pass. Nobles and knights de-
manded the retention of the knights'
court, at all events "in affairs of honour
and for the maintenance of the de-
grees of rank; " especially for disputes
touching arms, precedence, and other
family distinctions ; whilst the common
law of the central and county courts
did not take cognizance of these ob-
jects, and especially not of satisfaction
for simple affronts. For a considerable
time longer the knights' court exercised
a real jurisdiction ; in it especially
diieli had a place for afiairs of honour
trhkht ^^for want of witnessei, could

not be decided otherwise," as in the
quarrel between Norfolk and Henry of
Lancaster under Richard II. Even in
the middle of the fifteenth century two
coses occurred : in 1446, a duel be-
tween an armourer of London and his
journeyman, under the authority of the
High Constable and Earl Marshal ; in
1453, a duel between John Lyalton and
Robert Norres, on account of an ac-
cusation of high treason. At the latter
the High Constable presided, before a
vast concourse of people in Smithfield.
But as a jurisdictio extraordinaria the
Court only enters in subsidium by writ,
and in this weakcnc<l form is called a
" court of honour." When the French
wars had ceased, and the pretensions
of the nobles had wasted away in the
bloodshed of the wars of the Roses,
the court, as a magisterial department,
became extinct; for the spirit of the
parliamentary and county constitution
was antagonistic to its continuance.
After the period of the wars of the
Boses such writs were no longer issued.

396

Constitutional History of Englaml.

2. The maiutenance- of the King's peace in the royal resi-
fdenee and its precincts was reserved, as well as the jarisdictiia

over the servants of bia household. There existed (or tliii
purpose a court held before the Steward of the HousehoU,
and the Marshal as household officer, which n'ithin lis ephan
of action excluded all other courts. The principle of thejwj
was applied to it : in civil actions arbing between coortien
the jury is only constituted of courtiers ; in other cases ■

LiBOmmon jury is empanelled (3 Edw. III. c. 2). Au appeal
1 to the " King in his palace," which is delegated to tk

' King's Bench. (2)

3. Lastly, the special administration of justice in farwt
cases was also reserved. The concessions made by the CkArt*
de Foresta merely extend to the less rigorous exercise of tlu
ancient rights of the King, without introducing the restrictiooa
of Magna Charta. There remained accordingly in thia pro-
vince a purely administrative justice without a jury. Onee
every forty days the lower foresters assemble and form t
forest court (coui't of attachment or woodmote) to lay inforni'
ations as to offences against the forest and hunting laws,
which were noted by the verderer. Thrico a year tbe
verderers hold a forest court (court of swanimote) upon tbt-se
informations and for the decision of disputed rights of pastore.
The upper court of the forest for more eerioua cases is formed
by two itinerant justices, the one travelling tlie whole of the
north, and the other the whole country south of the Trent
{court of juatice geat or court of the chief jiutice in cyrt). (8)

and the former court of luw Ihus lioka
down into u herald's nIGce. Moreover,
after Henry VIll., Ihe horoditaryoffl<»
of higb conalnble was not again filled
(Coke, iDBt., iv. p. 124).

(■21 The Court of tlio Steward of the
Huutehold wna competeot ia dispute*
between the aerranti of the royal huuse-
hold and in treapaasei within the pre-
i^ncta of the paliice, even when only
one of the partjeB Ib a royal servant:
and ID oiuca of debt and contract
where both parties belonged to [i:ie
royal houeebofd. The precincts of the
palace eiteiided to a twelve-mile radioa

from the tojal residence. This jut*-
diction was norct niboidinat<-d lo tii*
King's B<>noh until in Edward IIL't
roig:n ft writ of error befnru the Kinc
"in his [lalaco" was tutTndtMwl
(Thorns' "Book of the Court. ' pp.
30a, 303).

(3) For tb«< administraUon ofjuilte
in forest cusvs then exiatoil nntU
Uicliaid I. a nmniM jutlieiuHut ■«•
niam /orcoldnim. ftriil thon s aunmlsulia
of (our jvticiarii with nudcr-oRlotola
Tbo CfiarUt di Fontta pioTiilr* fyt an
eicepdingly nnncrons aUlT of Cdm^ i
ulBcials. In cveiy great foratt |l

The Courts of Common Law.

397

Besides these older special courts a 'new administration of
justice proceeded from the newer administrative system of
the permanent council : the equity jurisdiction of the Lord
Chancellor, the Courts of Admiralty, and the penal jurisdiction
of the Star Chamher, to which I shall refer in the next
chapter.

are to be four verderers as supervising
administrative officials and forest
justices. Under them are twelve in-
spectors of forests (regarders) for sur-
veys, investigation of contraventions
of the forest laws, clearances, etc.
Under them the foresters with the
duty of preserving both wood and
game, giving information against and
prosecuting transgressors. Besides
these there are rangers (gamekeepersX
agistors (inspectors of pastures), wood-
^^^ards (keepers of woods), stewards and
beadles as court attendants and exe-
cutive officials. As head of the depart-
ment there is a Gliief Warden of the
Forests. This administrative sphere
was regarded in the Middle Ages as
freed from the restrictions of the com-

mon law, and was entirely left to the
royal ordinance. In the Charta de
Foretta of Henry III. the heavy burden
of the general suit of court at the
sittings of the courts of the forest was
abated. Some mitigation of the bloody
punishments that were threatened was
obtained under Henry III. through the
Assize of Woodstock, 1184 (limitation
of capital punishment to the third
offence, etc.). The popular complaints
as to arbitrary afiforestations continued
for a long time, though the antagonism
of the magnates was in later times
somewhat lessened by the fact that
they were allowed to participate to
a limited extent in the privileges of
the forest right.

Constitutional History of England.

CHAPTER XXIII.

^fte ^cmifincnl ot (2f ontfnuiil <!I^ountil— 'QTIjc CTourt of (Tiiantn!!.

The corporate coDstitution of the central tribunals appean
as the stronghold of the modern judiciitl sj'Htem, that pillar
of the rising constitution, whifh aa it gradually rose via
strengthened hy the consolidation of the connty nnd muni-
cipal unions into fixed corporations. Beyond doubt tbeie
existed an intimate connection between both these formationa
and tbe fundamental laws of Magna Gharta. The one is
called forth and rendered effectual by the other ; the one is
a natural deduction from the other. These permanent
elements of the political system, however, form only a firm
encircling bond, within which the great sphere ofthe ordinal?
business of the State is reserved for the deeisinn of the
King. There is now formed from among the counseltore for
this ronnd of businens a tTontfuutil or ^|}muantnl (Tountfl,
which first took tbe form of a governing body, when undor
Henry III. a regency became necessary for the first time
After Henry III. had substituted for it a personal government
with foreign favourites and nnbordinate clerks, the bamtm
and the prelates demanded in opposition thereto that Uie
great offices of State shoald be filled by "suitable" persona,
and after a bitter struggle took the matters into their own
bands. But though at that time the issue was in a violent
party government, Edward I. from tbe standpoint of tbe
monarchy recognized the demand ae righteous, and carried it
into effect. It is as a spontaneous creation of tbe monarchy

Pe}Vfnanent or Continual Council — Court of Chancery . 399

that we now find, in addition to the Exchequer and the
central courts of law, a continual or permanent council for
the efficient despatch of State business, which discharged in
joint deliberation the highest affairs of the State, and thus
became the centre of the parliamentary system that was
now beginning.*

I. W^t functfons of tj^e ^etmaiunt (ZDouncfl may be com-
pared with those of the cabinet council of our day. But
we must not leave out of sight the comparative simplicity
of the times, the separation of Church and State, and the
hitherto personal character of the rule of the Norman kings.
The following heads may be in some measure distinguished
from one another : —

1. Advising the King upon the issue of ordinances in
the general province of Government.

2. Resolutions as to war and peace, treaties with foreign
powers, summons of the feudal and county militia, measures
for the organizations of paid armies, and for their general
direction.

3. Besolutions touching measures in case of national dis-
tress and tumult ; appointment of extraordinary commissions,
and instructions for such cases.

4. Advising the King where the jurisdictio extraordinaria
was to be exercised, which was reserved to the King for the
most important cases.

5. Eesolutions upon petitions of private persons, corpora-

♦ The formation oT the pennanent
council has received a new elucidation
by the reprint of the protocols of the
council in the work " Proceedinjjs and
Ordinances of the Privy Council of
England, from 10 Kichard II. to 33
Henry VIII.," by Sir U. Nicolas (7
vols. 8vo, 18H4-lis37); upon this was
founded the monograph of Sir Francis
Palgrave, **An Essay upon the Au-
thority of the King's Council " (1 vol.
8vo, I834X which for the first time
att4>mpted to give a consecutive picture
of this political body and its relation
to the Pnrliumonts of the Middle
Ages, but sometimes went too far in

the conclusions drawn. Hallam has
turned these modern sources to account
(against Palgrave, vide ** Middle AgCH,"
c. viii. 3 note). Among the older
literature, the work of M. Hale, " Juris-
diction of the Lordd' House of Par-
liament" (I79G, 4to), is stiU valuable.
The recent treatise of Dicey, ** Privy
Council " (Oxford Essays), is now out
of print. The novelty of the forma-
tion of the Council can be perceived
in Edward I.'s reign in the still* un-
settled designation, ^^ Continual Qm-
seil** (Nicolas, i. 3), *^S€oretum Oou'
cilium** (Heming, b. IL), **Familiar6
Concilium " (M. Paris).

400 Constitutional History of England.

tions, and counties, toucliing complaints of finaQcial opga^
sioa, abuse of oEBces of trust, deficient legal protection, ud
applications for and grants of pardon. These form tin
ordinary current business of the council. In coDseqnence a{
the malpractices of the Vicecomites and local hailiffs, of tfa«
necessity which had arisen for the reniodeUiug of many in-
stitutions that had suffered under the throes of former cod-
stitutioaal struggles and under the haughtinues of quamisoiiu
magnates, such was necessarily its ordinary sphere of actintj;
especially now that the Commoners in the national Ess«mbli«s
were soon to become the mouthpiece for national grievonMS.
Throughout the whole of the Middle Ages, the Parliaments
are regarded as assemblies "for the redress of wrongs ind
remedy of abuses," With each Parliament petitions flowed
in, claiming every sort of relief, not merely in public mattes,
hut frequently also in petty private affairs, from all classes (A
persons, and on all kinds of subjects. The " poverty of tbt
petitioner," the power and the number of his opponents, uxd
the inadequacy of the common law, form the ordinary motiTca
for appeal to the council. Herein can be perceived the
fundamental idea that "the King in council is there as Ha
final resource for every grievance, which the ordinary tribocals
are powerless to redress." (1)

(1) The aphere of aolion of the
ouiinoil mnf be bent compnred to a
nmlorn oabinet ooanoil, id whioh tlie
wkolD of the basineM of the oentral
ffnToniincnt is romprUeil, so far as it
hn« not been assigned to the courts
tat ciMiaion uomrdia); to ooDBtitutionnl
]lr<noinIe^ortotbeChu^oh todeal vith
■ivonling to its indepeDdent 'rul,-.
^> the deacriptlon wbiok Sir H.
NIpoUb, vol. i. p. 1, givea of it. Its
iphi'rv of nclion is the same as thnt
Wlllrh llin Norman kings inrormally
mind liy coii6deatiit] ptrsona and
■■niiiiiplliin, whom the; frBqacnlly
t-limiip'il. Tlje pro^BB of the ope
li ■■'•i|) III the corp<imte DHture of tbu
ttntl'iiml lH«iY. Palgrave (" Privy
C'"ilM"M,'" l>. »4) rightly Miiroei that
iHt) i<"<in>'<l «<» looked unou oa a
^tii)i*r1f Piiiiititnled "oonrt fbr tlio

Cmim mwali Al n tuatt«r of bci
the olauae of MuKna Ohnrla touehoj<
the amereiammlr of the Cn-wn ■ n-~i'-
ftr pan» nut' Waa regai^I«] u OW

Slicd with, when the Dauucil flxed lite
ne. TowBfdB Ihn ExFihninHt. tat.
the oanipeten[<e of the ooaocfl au
not legally liefind : al linui ini|>iitiiui
flnaneial busiDCsa was t. > ; '

Under the repenry i.i" ■■
feadnl nardahipa.ponscM
leaecB, etc, were Keor^ •'\ -
to the Lorda, iacludini^ <i
eernJnK lunatics, who ui :
brought before throiiuti'
might bo made iis t" i
mind. In other caaca >, - - ■■

aooidental tliat rittinjp a

Permanent or Continual Council — Court of Chancery. 401

For the discharge of this mass of business it was enacted
(6 Edw. I.) that all petitions should in the first instance
be examined into by the judicial officers to whose department
they belonged ; and that only matters of importance should
be laid befora the King and his council. In 21 Edward I.
the King appoints "receivers of petitions," which were ordered
to be assorted into five classes ; (1) for the Chancellor, (2) for
the Exchequer, (3) for the Judges, (4) for the King and
Council, (5) such as have already been disposed of. In this
manner they were to be " reported " to the King. The
appointment of receivers for this purpose soon became an
established institution, which is described in Fleta's law
book as a *' Curia coram avditorihus specialiter a latere Regis
destinatis,'* "they who have n9t to decide, but only to make
a report of what they have heard, in order that the King
may determine what shall be done touching the parties."
Under Eichard II., when the council had already entered into
more intimate relations with the magnvm consilium of the
peers, the petitions are divided into three classes ; (1) bills
of grace and offices, which must be answered by the sovereign
in person ; (2) biUs of council, which the council may dispose
of; (3) bills of Parliament, which may not be answered with-
out consent of the Parliament.

The resolution on the report of the receiver could be made
in one of three ways : —

(i.) Immediate decision, generally written on the upper
margin of the petition by a member of the council : under
Eenry V. and VI. generally by the chamberlain.

(ii.) Appointment of a special commissioner to redress any
extraordinary injury to the petitioner requiring a speedy
remedy. This is a delegatus a latere to whom a commission
of oyer and terminer was issued in the Chancery upon writ,
or by a mere writing.

(iii.) Beference of the matter to the Exchequer, or other
Bourt, especially to the Chancery. From Edward I.'s time
the answer *'sequatur in cancellariam** was a frequent one,
lad given generally under the privy seal.

t. 2d

402

Constitutional History/ of England.

Tlie rules of procedure of the council were tliemselws ■
' Bubjeet of tbe royal right of ordinance, bat under the house
of Lancaster, for the sake of greater solemnity, were frequentlt
iHSued from Parliament. For example, the regatations d
the council of 1406 were issued in Parliament, aud registcni
as an Act, Those of 1424 were annexed to the Act of Appoint-
ment. Those of 1430 were drawn np in the coancil,
to by the lords, read in the presence of tbe three eeti
and then signed by the council (Stubha, iii. 251). (!')

(!■) Ai to the nldest metboda ot
proomlure, osp^ciany the Brrangemetit
of putitioiiB hito groupB, cf, Pttlgrave,
pp. 23, 79, A» lotl1ofoTmofthe^eBo-
. lutintii, we find timt—

(i.) The immedJBte persoonl deci-
■inn wA oompar&tiTel; rare, and oven
In the case of these margiDal rescripts
it U rreqaenll; muntioneil thnl Ibef
nere ieaned " on report being made in
the counuil." Heury V. often signed
bis decrees with his own blind; nnme-
rouH royal orders occur nlw without
signature (NIodIm, vol. vi. p. 211).

(ii.) The nppoinl
Dommis^oQer by a i
and termi-ner was h contiountion of tbe
older peraonal adrainistralion of just Joe,
and led to colllBiooB with the ordinary
iurisdiolion of the central conrts,
against which the Pnrlianionts beK^Q
quite early In remonstrate. The eiat.
WeetmiuBtet 2 (13 Edw. I.) alrendy
gives the assurance, that no writ of
treapnas ad audiendam tt terminandum
should be issued in any other manner
than before tbe juatieea of one or the
other benoh, or before the otherjUBtii:taB,
eirept it be a heiuoDB treqiow wbieb
demanded ipetidy redreBS. All such
oBilUttncea (rids note 3") were, how-
ever, so equivocally and uncertainly
fnuned, that they jet left room for the
goutieniement permneL

(iii.) The reference of the matter to
the Cbancary (cf. Hardy, "Introduc-
tioD to Close Ralla," p. 2H) led to the
Lord Cliancellor'B office becoming; a
supamte court of law.

The later rules of procedure under
Hunry VI. are known in detail and
ingtrucUve. The rules for the ndmi-
niBtration of the council ('2 Hen. VI.)
contain among otbcn the fotlowiag:

The council shall oot intetfa* li
matters which are to be dodjnl «•■
cording lo oommon law/ein^'pt mhtn
one party is too powurTnl to rntvit
lists with tlie other, or forotbetnqMl
reasons ; The clerk of tbe txiaaal iM
select the bill of the poarost pkMiC
which shall be llrst read And ansMci;
One of the King^s aerjeantc «lis& («
sworn, to lead his best amutanea Is
plain liff,_w>tliout fee, under ]

<rMta
p.t»^

of dinninal (Nicolaa, rolv
152). A Bimilor spirit is
in the regulations of 8 Be
oonnoil was to interfere " if theii tart-
ships found too much power on sot
side and too little no the othdr." Dm
oounoU had to hear, to deal wilb, 10
Dommunioate, to appoint with retimm
to, and to djcrjdu npoo. matltM Ui
before it. Chortere ot pardon, giaali
of parsonngeit and offices, and dAr
tDtXten of grace and [aTom, bekog b
the King personally. Uo lupiea rf
^r^t moment and imporlaDae, H shsO
deliberate, but not pass final jadcvMl
without the King's advice. Who*
the number of votes in the conndl i>
Ciqual, tbe matter must be laid bcAn
the King, and the decigion Ml to
him alone (Nicolas, vol. v. p- 33). la
8 Henry VL c. I. there folfow certrin
orders for rognlatiog tbe oae of flw
signet, privy, and ^reat seal, «at)B|
the prerogiitjva (Nioolaa, vul. Ti. f.
185). In tbe Oottonion niaiiuwirl|4ii
there are orisiDal dwrt-ts nf Ik*
cjiuncil (probably dating from 3!

ItrejndieB

of the King or of any otbor nonnii, tt
bos been lonnd well that all bOh to

Permanent or Continual Council — Court of Chancery. 403

II. W^t personal constttutfon of t)e council corresponds to
this sphere of business. It consists of the persons whose
assistance the King requires for determining matters of the
highest instance ; to use a modem expression, the heads of
the departments of State, with a number of persons, whom
he has thought fit to summon to a continual dehberation on
such matters. Foremost among the officials is : —

(a) The Lord Ch(mcellor, and in addition to him the chief
clerk of his office, the Master of the Bolls, as well as some
higher clerks (reporting counsel), being the persons who at this
period represent the most varied legal and official knowledge.

(b) The principal members of the central courts, ue, the chief
justices and the other justices.

(c) The directing members of the Exchequer, the Treasurer
and Chancellor of the Exchequer.

(d) The principal officers of the royal household, before
all the Kind's Chamherlain, who continued for centuries a chief
member of the council. Next to him the steward of the house-
hold, and after the administration of the royal court had
become farther subdivided, the treasurer of the household, the
controller, and the maitre de garderohe.

(e) The Keeper of the Privy Seal. Now that the Chancellor
had become a chief officer of the realm, the King was again
in need of a cleric in the confidential position of a personal
cabinet secretary. Under Edward III. such a one appears
as a minister of State, with a formal oath of office (14 Edw.
III. c. 5), under the name of Keeper of the Privy Seal ; later
known as Lord Privy Seal.

(/) The Archbishop of Canterbury as Primate appeared,
conformably to the position of the Church, to be so essential
a member, that in 10 Bichard II. he submits a solemn
protest, wherein he claims for himself and his successors in

Trhich the King assents shall be de- justice, the King's decree is taken in

livered to his secretary, in order that order to send them to the council,

he may draw np letters under the which then assigns them to the proper

royal signet to the Keeper of the court, except when the petitioners

Privy Seal, and thence from the Keeper are unable to prosecute according to

of the Privy Seal to the Chancellor." common law (Nicolas, vol. tl p. 29).
Where petitions concern matters of

404 Constitutional Sistory of England.

office the right of assiBtiog at all the sittings of the rojt!
council, be they general, sp&cial, or secret (Rot. Pari., iii. 229).

These are plainly the chief elements of the counciL But
yet a clear distinction bet-ween them was wanting in the tint
of Edward I., II., and III. As occasion reqaired, lowor
officials were also Bummoned to attend the council, to ffw
opinions and information, and to receive orders ; sach u
King's Serjeants, Chancery clerks, eseheators, iUnennt
justices, and others. A de£nition of the ordinary membetl
began to be made when the rival power of the p&rliamenta
first took cognisance of the constitution of the council. When
differences of this sort first arose, the following were desigoAtod
as members virtvte officii : the Chancellor, the TreasnroTi
Privy Seal, Chamberlain, and Steward (Eot. Pari., iiL 78).
These five were regarded as the chief members and mansgen
of the current business. Moreover, during the whole of tlM
Middle Ages there was no president of the council other tlm
the King himself, to whom it is naturally open to honour ft
member with the temporary conduct of the business. Par
instajiee, in the latter part of Edward the Third's reign, th«
Biahop of Winchester was mentioned as "Capitalia Secnti
Condlii ac Gubemator Magni Consilii," In cases of personal
impediment, the regent of the realm was for this ressoa the
natural president of the council, as in I Henry VL, the Daks
of Bedford, and later the Duke of York.

The somewhat fluctuating form of the council bccanu
modified from the time when, under Richard II. and under
the house of Lancaster, the estates of the realm began to tak«
a more decided share in the Government. In these later
times there appear seldom fewer than ten and genoraUjr ft
greater number of spiritual and temporal lords as members of
the council ; with them sit the highest officers of State, now as
ordinary members, and no longer mingled with the under-
officials who were occasionally summoned. The growing power
of Parliament particularly aimed at subjecting the Lord Chan-
cellor and Keeper of the Privy Seal, as the two bearers of
the decisive national seal, to a definite responsibiUtj. In

Permanent or Continual Council — Court of Chancery. 405

all material points this was attained under the house of
Lancaster. In the eighth year of Henry IV. the King in
Parliament agrees that, for the maintenance of the laws of
the land, the Chancellor and the Keeper of the Privy Seal
shall not allow any warrant, grant by patent, judgment, or
other matter, to pass under the seal in their possession which
should not so pass according to law and right, and that they
shall not unduly delay those that must pass. Attempts to
prosecute the Keeper of the Privy Seal were made as early as
Eichard II. Under Richard II. and Henry IV. the members
were appointed annually, but their appointments regularly
renewed, unless accusations of bad behaviour or petitions to
be discharged from serving intervened. Their annual pay was
graduated according to their rank, as were also the fines for
neglecting to appear at the sittings. In a process of poUtical
crystallization, the purely personal conseU du Roi of the Nor-
man kings had now become a department of State. (2) But
as the body was too large and too heterogeneous in its consti-

(2) The personal oonstittition of the
council has been ascertained by Nico-
las from the protocols of the great
coancil with more exactness than in
former times. The Lord Chancellor is
everywhere conspicuous as the principal
personage for the formal procedure,
though he is not president of the coun-
cil, and by no means always the most
influential person in it. The impor-
tance of the office of the King's Cham-
berlain is new : he is indebted to the
influence of the magnates in the council
of the realm for his improved position.
In 15 Edward III. he expressly swore
to obey the laws of the realm and the
Great Charter. In 1 Richard II. he
became a member of the regency. His
functions are to endorse petitions, to
formulate royal immediate decrees, and
communicate with Parliament. In 11
Richard II. and frequently later he was
impeached by the estates. The posi-
tion of the Keeper of the Privy Seal,
as he was first called in 13 Edward III.
c. 5, is also new ; later he appears as
Clerk of the l*rivy Seal (2 Richard II.) ;
as Guardian de Privy Seal (Parliament

Rolls of Henry IV.); as Ijord Privy
Seal (34 Henry VIII.). This, however,
did not exclude laymen and ecclesiastics
from being also employed as secretaries
of the King, and on confidential special
commissions, in which sense ** King's
clerks ** occasionally occur under John
and Henry lU. As to the older con-
stitution of the council, cf. Palgrave,
p. 20, teq. ; Nicolas, vol. i. p. 8. The
statements of the latter relating to the
period of Henry VI. have been made
very carefully. The royal council con-
sisted in 2 Henry VI. of twenty-three
persons: the Duke of Gloucester, the
Archbishop of Canterbury, four bishops,
the Chancellor, the Treasurer, tne
Keeper of the Privy Seal, the Duke of
Exeter, five earls, four sires, and two
TR^Mtetirs, Thomas Chaucer and William
Alyngton (Nicolas, voL iii. p. 1 48). The
salaries, fixed according to rank and>
length of service were : for the Arch-
bishop of Canterbury and the Bishop of
Winchester at 800 marks; for a bishop,
earl, and the lord treasurer 200 marka;
for a baron and banneret £100 ; for an
esquire £40 (Nicolas, vol. ilL 155).

tution or varied business, delegations and commissions were
issued, some of which form the nucleus of independent

departments.

III. ^I)e commissions anb ticlcgniions of tfie cauntti were

chiefly necessitated by the f&ct that more specially legal ami
technical questions came before the council, in the case of
which it seemed proper to form a narrower committee tor their
treatment and decision, or rather for passing an opiuioa
which was to influence the ultimate decision of the King.
The personage most suited, by reason of his position and his
undcT-officiala, for the discharge of these more intimate func-
tions was the Chancellor. Hence the sub-commission was
. most frequently composed of the Chancellor and the justiciaries
I of the two central courts, and hence are issued " tUrreta per
curium canceUarix et omn^s jiiaticinrioa," or " decreta lanetUam
ex assensu omnium jmticiarioritm et alwriim dn Rei/is corifUio."
In the first century of this period even formal proceedings are
somewhat frequently taken before the Chancellor and the
judges in Westminster Hall. Commissions of this description
take the place of the extraordinary judicial commissions of
prelates and borons which, in the former period, the Nonnau
kings were wont to appoint for the Crown cases reserved.

As a permanent institution there next arose a kind of com-
mittee for appeals from the Exchequer. As this did not
remain subordinate to, but was co-ordinate with the central
courts, an appeal could only He to the King ; that is, to the
"King in council." It was a matter of deUcate questions of
financial law, which were well suited for a special council of
men well versed in matters of business. Hence a commission
was at first formed of the Chancellor, Treasurer, and two
justices ; but it was subsequently laid down in 31 Edward 111.
stat. I, c. 13, that the Chancellor and Treasurer should
meet together and have the documents laid before them,
summon the justices and other experts accordiug to their
best judgment, demand reports of the barons of the Exchequer,
alter the Exchequer decree according to their opiuion, and
remit it to the Exchequer for farther consideration.

Permanent or Continiud Council — Court of Chancery . 407

Still more important was the creation of a separate Court
of Equity, which proceeded from this system of delegations.
Certain petitions and questions touching property were, from
their peculiar nature, not so well adapted for hearing before
the justices of the realm as before the Chancellor, who might
still be looked upon as the prime authority and chief repre-
sentative of a more universal juristic education. In course
of time deficiencies and hardships were conspicuous in civil
justice, which could not be redressed in the ordinary course
of justice, either because they were ill-suited for a jury, or
because they could not be decided according to the funda-
mental principles of the common law (such as fraud, accident,
trust, that is, actio and exceptio doli). Hence there sprung
up a '* remedial jurisdiction," supplendi et corrigendi juris
civilis causa, analogous to the praBtorian jurisdiction, in which
the Chancellor proceeding according to asquitas (that is,
principally according to the principles of the Roman and canon
law), directs his reporting secretaries or Masters, and then
decides per decretum. The most frequent cases of this equitable
jurisdiction from Bichard II. to 87 Henry VI., were cases of
conveyances to uses inter vivos; but even in those early times
the sphere of action was probably a wider one, and from the
very nature of the jurisdiction, the office of Chancellor con-
tinued until the close of the Middle Ages to be fiUed by
ecclesiastics. (3)

(3) The delegations of the council
and the equitable jurisdiction of the
Lord Chancellor have one and the same
origin. The establishment of sub-corn-
missions of the Council was primarily
an administrative measurCi and not a
constitutional institution. It was only
after the lapse of time that such
creations, owing to continually arising
needs of the same kind, adopted the
character of magisterial departments.
It is only juristical pedantry which
would at once make of these ex tempore
commissions formal departments of
State. Upon the authority of Hale a
so-called ** concilium ordinarium** or
" concilium legale^* was said to have
existed, being composed of the Pri?y

Council, certain great officers, judges,
and others. But neitlier the expresoirtn
** concilium ordinarium ** nor ** legale "
occurs in the official records; nor do
we find any regulation as to its mem-
bers or procedure. We can, accord-
ingly, no more make a magisterial
department of this institution than of
the shifting judicial commissions of the
Norman period. Under Edward III.,
for example, proceedings were t'rc-
quently assigned to the '* Chancellor,
Treasurer, and others of the King's
council" (Reeves, iiL 386). In 44
Edward III. a difficult case was heard
before **the Chancellor and all tiie
justices of the King's Bench and Ci;m-
mon Pleas " (Foss, iiL 337). Even in

408

Constitutional History of Ejigland.

It ie qaite conceiv&ble that these functions occasioned con-
flicts ■vrith the Parliaments, which are chiefly aimed at the
ciril jurisdiction of the Chancellor, but partly also at the pesal
jarisdiction exercised hy the King in council, the aboljtioD
and clear definition of which were equally impracticable. In
25 Edward III. the Commons protest against any one being
brought before the council on account of his freehold, or on
account of such suits as affect life and limb, and against
any one being fined by informations laid before the conneS
or one of the ministers, nnleas such legal procedure shall have
been " formerly customary." In the answer to this the
extraordinary criminal procednre was expressly reserved;
" mea de chose que totithe vie on membre, contempt on exeetita"
it shall remain as formerly customary (Palgrave, Council, 85).
It was apparently agreed that the assignment of ordinaiy
actions to the courts was to be understood " mlco jure regig,"
that is, with reservation of extraordinary catute majont to
the King ; but the Parliaments wished to co-operate in this.
In 27 Edward ni. the Commons themselves expressly consent

Mulier tinieii, under Edwnrd II., Weet-
minat^r Mall wa* named M the pisce
■t whi<rh the Chanorllnr holds liia
n; thU pinco vsa called " Xiiq-

n Ba„f

"(Fob

77).,

A the

(iltin^ vtcro dewribed u beiue "■/»
jJma canrellaria " (Rut, cl. 25, Ednard
III.). Tbe Admiraltj Court vvt an
inetaom of such detri-atioiu of the
roanoil, which wM on (iul<«me of a
Bperial cnmmiMton of tbe King, vith
a jariBdictioD in the ptiTtt, titid over
offenoea committed un the high ccdb :
|ier1iap«eligliDga«eiirlTaj Edsard i,,
nith powers more limited in later
tiiuea on motions of the estat«t nnder
Bichard 11. Another delrgation is
formed b; the Court of Re<|Di»ta onder
the I>ird Privy Seal (Sp«ioe,"Eijoit-
ablo Jurisdiction," i. 351). The pmc-
tiral Deed for a rtmidy for the olumri-
nessof therommonlaw.led to tbe Inter
jarisdiction over "eqnilablo ohligs-
tiooB." the fulBIment of «hich wai left
by the common law to the oonsci^nce,
whilst the common wants of life and
Uie existing ilewt of law i

mat^sterial compulsion for tbeii fulfil -
ment(IieevBa.iii. ISS). From the Urns
nf 2 Edward HI. the auigninent iJtlia
matter with this riewQDderUiefafmDla
"tequalur in eaHeeHarian" btcaam
more and more fnnnent, and aocm ^lO
with the farther addition •'fiat ulterimt
jutiinaintametUaritti natpaUilfiitari
per (wminunMi U^em, venial in eaaof-
laria el ottfndat Jm tvum : jtol altmM'
ria ceuiMf an Iryem faiUrUaritr " (FdH,
iiLlTS; Hardy. "lotKiductionlaCiOOT
Roll.." p. 126). yrom U* tin» of
RtrhHrd IT., or at all evenle under lh«
bouse (iri«nenat«r, the jiiriwIielioouTor
I'ses »tan<Ia promicenUjr rortli as IIm

Crinoipal object (Rmvcs, iii.38l|. Bat
.'fond doubt thespeFial juri*dBtiaai>(
the Clianeellor was also a dolcgnlinn of
tbe KiDg'a maneil (Palgmtv. I'rtfj
Council, 35 ; (^pcuoe, ** Equitable Jiirl».
diDlJan,"i.T09~Tl(l: HalUro,-HlddU
AKe^" note x.1. EriKland had tba*
ftltnined to the necemu; mmpMlnB
of its systrm of priralc law, whirh
wus aocompliahed in German; by Iba
n««ptlon of Ibreign law.

Permanent or Continual Council — Court of Chancery. 409

to an extraordinary criminal procedure against clerics who
appeal to the papal chair ; in the statute even imprisonment
for an indefinite time, '' during the King's pleasure/' is
threatened, as well as forfeiture of lands and personal property,
of those who should refuse to answer for such a contempt
before the King, or his council, or his chancery, or before his
justices (Palgrave, 39). In 42 Edward III. c. 8, upon a com-
plaint raised by the Commons, it was indeed promised in
general that none should be required to answer before the
courts except by regular judicial procedure. But the extra-
ordinary power of the council remained unaffected by this, and
in turbulent times, such as followed under Bichard II., it was
exercised with a wide scope by the council and the chancery,
for the maintenance of peace. But in civil procedure the
Chancellor's writ of subpoena gave rise to a new petition (13
Kichard II.) "that neither the Chancellor nor the council
after the close of Parliament should issue any ordinance
against the common law, and the old customs of the country,
and against the statutes that had been passed or that were
to be passed in that Parliament, but that the common law
should take its course without respect of persons, and that
no judgment once delivered should be annulled but by due
course of law " (Palgrave, 45). The answer ran with the
usual ambiguity, to the effect that the former customary
procedure should remain in force, " so that the King's royal
right be assured," and if any one felt aggrieved " qu'il
monstre en especial, et droit lui soil fait'* (Palgrave, 70).
Protest was not raised against the extraordinary judicial power
of the King in general, but only against such proceedings
on the part of the council, without sanction of Parliament.
In the stat. 17 Bichard 11., protest was only made against
citations before the King's council and the chancery based
upon false information (Beeves, iii. 194). In 1 Henry VI.
the Commons complain of the citations before the council
and the chancery, in matters " in which a legal remedy is
afforded by the common law ; " in like manner a writ of
subpoena was not to be issued until the justices of one or the

410

Constitutional History of England.

other bench had first tried and attested the fact, that the
plaintiff had in this case no remedy at common law (Pal-
grave, 50, 51). In 8 Henry VI. jurisdiction was reserved to
the council in quite indefinite terms ''bo often as their lord-
ships should find too great power on the one side, and on
the other too great weakness," or if they should otherwise
find "some reasonable cause" (Palgrave, 81). Finally, in
the stat. 81 Henry VI. c. 2, the offences were specially men-
tioned by name for which the council was wont to sunmion
offenders before it, and the procedure defined that was
therein observed, especially the more rigorous courses, by
which disobedience to ordinances under the privy seal or
under a writ of subpoena were to be prosecuted as contemptus
regis (^Palgrave, 84, 86). This extraordinary penal jurisdiction
was in later times exercised in the Court of the Star Chamber,
and was, therefore, frequently designated by this name. (3*)

IV. The position of the l^oril Ct)anallor as i)tall of t|)t
(ETt^anttrp brpartmrnt forms in a certain sense the keystone of
the constitution of the council. As the great office of the
Chancellor had remained the common bond of the central
courts, it also serves as chuis rciftii for other business of the
King's council. All solemn decrees of the King in council
here received their authoritative character. The Protonotarius
of the Chancellor managed the preparation, despatch, and
registration of the State treaties in the treaty rolls. The rest
of the State business was recorded in the charter, patent,

(3') The opposition of Parliament to
the juriwiioti«»n i»f the King in ci»uncil
l>ei:ins fn»m the tinif ^hen l*arliiinient
had l»*^^>^me con6<»liilattil into a united
K>iy (Ilallanu nott- xi.: Sjvnoe, "Equi-
tablf Ju^i^diotion." i. 34»i-3ol). In a
dooii.iou which afterwards bfO;ime
famous, the "Chaiul'i^'r CiiM?" (Croke's
•* KejK^rt/' vol. V. c. i. p. ItJi^), the
judges aoknowleti^rttl **that the c«»urt
of 5*tar CLambf r had exisli'd Ions: l« -
fore the pro«*laimini: statute 3 Henry
VII., a^ a ven.- high and honouruble
court/* The aK>ve evidence shows
how far this a^umptioo was well
founded. There here lemained a field

of action for the administratiTe powers,
in spite of the advance of definite
legal arrangement in the politicid
rights of the realm. The practice of
tl.e chancery succcedt-d better in de-

m

tilling for itself mt^re exactly the
difiertrnt branches of its civil juris-
diction, as to which Spence (^ Equi-
table Jurisdiction of the Court of
C h ii.cer}-," vol. i. 334 sfq^ 42o req.,
400-G83* tV,«-2-710) affords us the most
comprehensive survi y. A controversy
as tu the respective advantages of
** Bench " and *• Otlice " had already
begun within these narrow limits
during the 31iddle Ages.

Permanent or Continual Council — Court of Chancery. 411

close, and fine rolls. The most numerous administrative
documents belong to the province of the Rottdi literarmi
clausarum, " Close EoUs," so called because they were issued
with the seal under cover, in contradistinction to the littene
patentes, which were addressed to all faithful subjects. Here,
as elsewhere, centralization and the transaction of business
by means of writing mutually influence each other. In the
preceding period royal orders were still sometimes given by
word of mouth in the Exchequer, even in judicial matters.
Now writing became the unconditional rule, and the import-
ance of the great seal at the same time increased. Apart from
charters, which are publicly issued in Parliament, and in
which the mere '' sign manual " was for a long time retained,
the use of the great seal is regarded as essential for all writs ;
in it the development of the English State from the gouveme-
ment personnel is symbolized. From the time of Henry III.
it is really the clavis regni, the faithful companion of the
King, even in a foreign land. As the history of the great seal
is thus identical with that of the most important State
documents, Sir H. Nicolas began to write its biography
(Nicolas, vol. vi. p. 148, seq.). The order to use the great
seal can be given, either by word of mouth, or in writing ;
but a document only becomes a solemn State Act when the
great seal has been actually affixed. In cases of the King's
absence, a duplicate of the great seal was given to the
Chancellor for vnrits de curm which were issued by him upon
his own responsibility, but this duplicate was always given
back after the occasion for its use had ceased. For non-
official correspondence the privy seal was at first used, and
when this also had attained a political meaning, the signet.
As early as 28 Edward I. c. 2, the assurance was given that
no common law writ should be issued under the piivy seal.
The struggle against the privy seal which commences from
that time marks the struggle of the estates against the
gouvemement personal. (4)

(4) The Lord Chancellor as head of ance with the development of the use
the chancery attains greater import- of the seal (Nicolas, ** Proceedings,"

412

ConsttitOumal Sistory of England.

The staff that was necessary for the discbarge of this mtilli-
hrions jadicial and chancery business, consisting of a (AM
as well aa of a nnmber of reporting counsellors or " Masten
in Chancery," and clerks, received its form in this period.
Among the nomerons staff of clerks the cbief of the office lunr
stands ont conspicnonsly as the Cialns Hotnlonim CanceUanm
Domim Brgit. He was first descrilied by tUis name in the
Patent BoU, 14 Edward I. Under Edward n. this Master of
the Bolls was specially appointed by the King, took a special
oath of ofiSce, and was inducted into his office with great
pomp (Foss, iii. 327). The appointment was very generallj
made for life, or " qvamdin bene ft JulHiter ee ffcsserit in
ofieio" yet sometimes otherwise " qitamdiu nobis placufrit"
(Foss, iv. 4). From this time he was regarded as Vice-chan-
cellor, and was ranked in the stat. Richard 11. c. 2 in
precedence to the jostices of the central courts. (5)

ml. *i. p. I4S> The nmt iniHaUint
SotaJi which hare been parlly pnb-
Iwhvd bj- the Beoord CoBOiuuiali are
tb« (bUiiwing : —

(•) n<Chiri«r Roll*. oonluniDg the
Kfjtl gTBDta to cities, homnghB, and
corporatioDB, lights of miukel, and the
like. Hie colleclkiii begins vitb 1
John, and nma to 7 Henrj VIIL, after
which date rarh graols were made id
the fiinn of (iBteBla. See Rolali Chai>
tanun, 1199-1206 (ed. Banlj, 1837.

(6) Tin Paiad BeUt, oo&tailliiig the
eraiita of (dGees, lands, titles, and the
ukf, whidi were iwood in open docn-
toetits vith the er«at BG&l affiinL Tbej
b(sin Bilh 3 John. Srt Hurdy, " Des-
cription of PatoQt Bolls in the Tower
of LoadoD," \S35.

(fi) The Chte BeOt, oontaining Toynl
mandati*. Icllen, and writ*, prioci-
pallj' tcaoripts addrcMed to private
pcrHtiB on prinle niatteiv, closed nn
Uie oalBide with tiie seaL The; begin
with 6 John. See Rotvli litUrantm
rJaiManim,i:ift(-I227(Uardf .vols. i.ii.).

(if) Th« Fine Jtollf, oontainiDg tha
erantsor thGCrnwaliers,iFilh the dues
tor alienation, rtlma, ronsent to mar-
tiage,ete. 8«e Uiirdj. " Botuli Fininm,"
«M above, p. 171.

Vith few eireptinn* the jrcat seal
cannot be mod without the exptrm
order of the EiDg.dtber (I) rerballf,
or (2) b; writing under hia >i^i.-t, at
(3) by writing nnder the prir; seal
sddteased to the Chanoellor. or (4 ) b;
vriling nnder the signet addressed tn
the keeper of the privy bcsI, who there-
npnn oommanicates the royal pleasnie
to the Chancellor by a warrant undnr
the privy seal. The origin of written
instniiDents Billed with the gieal sol
isciTeDinPalgmTp ("Common wealth,"
Trf. i, p. U7: Privy Ooundl, 13):

("Judges," Index, md* Beal). A juria-
tio inrvey of the royal writs anofd-
ing to the diffenmoe In their lecal
nature is given in Cobe, lost., li. 40.

(S) The staff of tho rhancery now
takes a firmly organiied form with the
groving importsaee of the otHoe in the
sdministntion of tlje r«alm. The list
of the chancellors o[ this period U
giTi:n by Foos (Judgca, vol. til.). Am
c&rly as Edwnrd II. the title •- GomoI-
lariai AngliK" iwours twice; ftnd Um
honorary title " Ijord Chaneellot ** ftooi
this tiioe cornea into gradual oso. A»
a rolo tlie chauoellora are still choBen
from the higher clergy ; nndet Edwud

Permanent or Continual Council — Court of Chancery. 413

m. amoDfs^ seTenteen ohanoellon were
four archbiahops and eight bishops,
but on the other hand also one knight
and fonr professional jurists. An at-
tempt of Parliament to thrust out the
clergy from this position, failed, and
the lay chancellors were always after
a very short time replaced by prelates
(Foes, ilL 320). The higher chancery
clerks now received the title of ^^Magis-
tri" or Masters in Chancery (Spence,
vol. i. 359 aeq.)t for as these clerks with-
out exception belonged to the lower
clergy, the custom arose of applying
their title of rank as Magutri to their
ofiSce. Towards the close of Eld ward
IIl.'s reign, we find the title of " Mas-
ters ** us^ in the documents contain-
ing their appointment (Foss, iii. 334).

In the company of the Chancellor they
are also active in Parliament, in whicn
they usually officiate as receivers of the
petitionst whilst the class of ** tners "
was formed of the prelates, barons, and
justices. More numerous still was of
course the staff of the derici de seeundo
graduy as they are now termed, in con-
tradistinction to the Magistri or derici
de prima gradu. As head of the de-
partment for the registration of the
State treaties stood the Protonotarius,
whose treaty rolls from Edward I. to
22 James I. are still in existence. The
whole of the clerks inhabited an inn
near the royid palace, and received
their salary and supply of provisions
from the royal household.

X

414 Constitutional HiMary of England.

CHAPTER XXIV.
Z^ ^aritamnit of t^ ^latts anH i3an»ms.

Fbox the time of Edward L there were connected with
the permanent council, as the seat of the central gOYemment,
certain periodical meetings of notable prelates and barons,
who became united with the King's council, into a ^* great
council ; " and then separated themselves as an Upper House
from what was afterwards the ^* House of Commons."
Edward L on ascending the throne found a condition of
things existing in which prelates and Crown vassals had
already for a generation past exercised their right to impose
Bcutages and aids, and had been summoned to deliberate
upon important resolutions of the realm. Convinced that
Huch participation in the central government was henceforth
unavoidable, he made this concession without any reserve,
and in the course of his reign extended it beyond the original
deHign. The functions and constitution of these parliamentary
uHHCjmblies assume a form from which at length proceeds an
hereditary peerage of secular lords.

1. The concilium of the prelates and barons formed, from

Hdward the FirBt's time, a constitutional hnfe (n tfje aimfnis-

tration of tf)C realm, and as a periodical council, was ordinarily
convok(Hl four times a year, so that the magnates met together
with the royal permanent council, and during the period of
me(iting formed a ** great council," in which those who were
summoned in virtue of office, ecclesiastical dignity, and
property, took their places side by side. We have here to

The Parliament of the Prelates and Barons. 415

do, not with a mere estate of the realm, in which a privileged
class of landowners claim a right to be heard, but with a
constant and regular participation of the magnates in a
political system with folly developed military, judicial, police,
and financial powers. The competence of the Magnum Con-
cilium is bound up with these prerogative rights. The un-
limited royal powers are now exercised under the constitutional
co-operation of the magnates ; the portion of the government
which remains indefinite and informal is the residue of
personal rule. Eeserving its indefinite authority, the principal
functions of the great council which still survive in the Upper
House as it exists at the present day, may be already separated
off into a quadruple sphere of action: a court of law, a
tax-granting body, a State council for the administration of
the realm, and a legislative body.

1. Under Edward I. its position as a court of law is prominent.
The parliament in this reign, is pre-eminently intended to
be a judicial assembly, to which the other functions are
annexed. In this sense (which was also that intended by
the barons in the Provisions of Oxford) Edward I. convokes
four times in each year a parliamentum, and he only departed
from this rule afterwards in very turbulent times. In this
sense in later reigns the motion was repeatedly put and agreed
to, that at least once in each year a parliament, that is a
judicial assembly of the magnates, shall be holden. Its
models, the Echiquier of Normandy, and the Parliaments in
France, and the Germanic fundamental idea by which the
secular government wears the character of a court of law,
were all of some influence upon its creation. The competence
of this court is bound up with the King's right of taking
the most important and difficult cases to his court. The
current law suits were certainly now, indeed, assigned to
the corporate central courts, as they had formerly been to
the county courts. But this delegation did not annul the
royal right of personally directing the court in extraordinary
cases (above, p. 406), as was the case in the German Imperial
Constitution, where a court of officials sat in addition to the

416

Constitutional History of Er^land.

imperial court, and a parliamentary revision of the body of
official judges was reserved. It has never been constitutionally
determined which placita belonged to the jurisdiction of Par-
liament, for the Bang never renounced his power of reserving
the most important and extraordinary cases to his personal
appointment of a, jtidicium parium ; and the estates themselves
were interested in upholding these powers, from the time
when their right of co-operation had been constitutionally
established. Hence civil and criminal cases might in the
first instance, as well as in the higher instance, be brought
before Parliament, if the matter appeared of sufficient impor-
tance. As extraordinary cases of the highest importance,
the following presented themselves :—

(a) Complaints against erroneous decisions of the central
courts, which were admitted by a royal writ of error, and now
came before the King in council, for which the Magnum Con-
cilium offered itself as the higher, more powerful, and more
illustrious body. In the year books 29 Edward III. 14
(Hale, Jurisd., 41), the justices plainly declare it to be the
prevailing opinion that the Permanent Council is not the place
to upset the decisions of the central courts. The assistance
of the great council in this matter proceeded tacitly from
the necessity which had arisen for a higher authority. (1)

(1) The parliament is now ih^ judi-
cium jmrium of tlie estates, an iuatitu-
tion which the niapnates had long
en(leavonre<l to establish. The expres-
sion " pnrliiiment " was at tlie close of
this period pre-eminently used in this
sense (Parry, ** Parliaments," xi. ; Peers*
Kcport, vol. i. KJD-lTl). In accordance
with Flet^'s text-lxMik, the Parliament
was niider Edward II. described as a
constitutional tribunal, "^c.oram liege et
dmcilio fuo in itrxneniia Doviini
RccjiSn, Procerum et Alagnatum regni^
in Parliamtnto suo.^* A change had
been made in the selection only ; whilst
in former times the royal judicial coni-
misi^ions were based ujKjn personal
selection out of niany, it was now the
class of the magnates that had become
formed into a body, which the King in

his character of chief magistrate con-
sulted. What once, in the action against
Thomas Becket, apj)eared as an extra>
ordinary convocation, is now the regular
method of its composition. The Peers*
Report acknowledges that this change
had been tacitly eflftcted, that in Rotuli
1 Edward III. all spiritual and tem-
j)oral lords were already regarded as
the natural constituents of this court;
but that the time when this change
came alx)ut could not be exactly deter-
mined (Report, V. 29G, iv. 37G). Only
in this sense tlie assurance was given in
4 Edward III. that parliaments should
bo holden aunnally, or more frequently
if necessary : Peers' Report, i. 302) ; for
neither tiie Lords nor the Commons
were interested in a frequent convoca-
tion of tux-imposing assemblies.

The Parliament of the Prelates and Barons. 417

(6) Impeachments of members of the Parliament itself.
From the moment that the great council had attained a
certain stability, the demand was raised to recognize it as the
judicium parium of its own members. The demand for a
special judicium parium for the Crown vassals had hitherto,
merely on account of the unequal position of the hundreds
of lesser vassals, never taken a definite form. Now, since
an organized body and an' external limitation existed, the
demand for a.court of peers for this narrow circle had become
practicable and unavoidable. It had been to a certain extent
prepared by that ordinance of Henry III. which had exempted
the great barons from the ordinary suit of court in the county
court. It appeared the more justifiable in proportion as the
great council began to invite the justiciaries of the central
courts to act as deliberating members at the meetings for
delivering its legal decisions. It was natural that the lords
should object to recognize their assistants of the legal profes-
sion as a judicium parium over their own persons. The new
expression, ** piers de la terre,*' occurs for the first time as
an official term, in the judgment passed on the De Spencers
in 15 Edward II.: "Accordingly we peers of the land, earls,
and barons in the presence of the King do declare that," etc.
In the proceedings against Mortimer, and in the disputes with
Archbishop John of Canterbury, the demand is still more
definitely marked. In 15 Edward III. it was raised, upon
the motion of the barons, to a statute, to the following extent,
'' that no peer of the land should be condemned to the loss
of his temporal possessions or to arrest or imprisonment
unless by verdict of his peers in Parliament." (a)

(a) A hundred years earlier, when,
in the actioi) against the Karl Marshal,
the claim for a court of peers was
raised. Bishop Peter dc Roches declared
that there were no peers in England of
the same kind as those in France, and
ihat the King, by means of his ju^Iges,
had a perftct eight to bit in judgmi-nt
upon his foes. But after the spiritiuil
and temporal lords ha<l for a wholo
generation year by year appeared at

VOL. I.

these judicial assemblies, it was natural
that they should be^in to be reganlod
as a more select |>eerage, as ^^ piers tU
la terre." The claim for such a peers'
court for the memht^rs of the great
council was morrK)ver based on the old
privileges of office of the Norman
perio<l, which had always accorded to
thu memb(*rs of the higher courts an
extraordinary and beparaie right of
ajipcaring before thoir own judicial

2b

418

Constitutional History of England.

(c) Nei^t follow accusations against the royal great officer?,
'wliicli with due regard to the depositaries of power and law,
«ouId not be sent for trial before justices, as being mere
adviserB of the royal council. They are sent as extraordinary
placita to the " King in council," which latter (or these cases
could only be " the great council." This course, in addition
to imparting to them a just importance, certainly in early
times indicates the mark of violent party passion. "With the
increasing power of the great constitutional body of the realm,
this jurisdiction extended into all three directions ; and whilst
rctaiuiug the forms of a council, became the extraordinary
supreme tribunal of the realm. (1")

2. The same body is at the same time a tax-granting
assembly for the ecnta;ira and the extraordinary aiixiiUi of
the Crown vassals. It had been firmly established by the
precedents under Henry III., that the baronage graatol
these taxes through a committee of notable prelates and
bai-ons, who being convoked by royal writ aa greater taxpayers
represented the mass of the lesser. Edward I. respected tliis

Cdwanl III. the botona bring in an
•tmpliatio QiutiuD iu respect beroofi unil
on the opiuioD uf a Bpeciully appoiutnl
<<ominiinoii of four biehups, four enrls,
uml four boroiiE, together with the laiiM
•;<■ la Iry, a ctatutu waa iisut'd iu the
Mtne Hessiuii to the effect that "do
peer of tbo realm, cronn of£cer or other
itliDUld bu arraigned on Recount of his
nSice, condemned to tho loea of bis
Itniporal possessions, thrown into prison
or arrest, tried or judged, eicept hy tho
I u.'MlTd i>f his peers ia ForliaioeQt "

■ (Pi>.Ts' Report, i. 3U, 315J.

■ (!') But in this questiua indeSmle-
I ness OS to limits was and remained the
H heritage leil by the Norman Cun'a
W Segit. Iu Mortimer's com (3 Kdv.
I 111.) the magnates prolcst tbnt Ibey nre
I not bound to sit in judgmeiil upon

I 8i -■-■ " '"■ ' ■--- ■--

h tb.

Simon de Bereaford, liecause

"r pt'er. On the other hand, they
leii Tbemiu de Berkeley, a Crown
uti viJio had been aununoned b;

rrrif (a f^aa parliammlo" (ct. Rmoit.
i. 300). The niioertiiintjr, too, ot Hn
Samm of prucedure, derived from Ibr
Nnruiin judicial aommisaioDs, lasts (or
a long while. In 11 Kichanl 11. i,
Inrds appi'Unnt move urtielea of <■-
peachment for high troosiin {tat thne
incidontB, see Pari. Hist., i. 410-410).
In recollecttnn of tlio forms of tlis oU
admiDislmtioD of jurtice, the coint fi
styled " council " (Peers' Boport, Apn
iv. 723) Bud their verdict "twMT
whioli only becomes final by the dMnI
of the King. After tho opposilicia hid
takc[i the h»lm. the comniaiu on Ibetr
side ju 21 Riclmrd U. impeach th« udh
bishop, Thomas Arandcl. ot high tn»-
Eon, nho by -'award" in ParliMMU
was oondeooed to hauisliiuenl OlW
peers were lunuied by tho lords appd-
lant, and eoDitemned to doatb Mi
iHtoiahment. Tho older rttsolutiaiu si
11 Bichard II. were for tho moat p«rt
ouuulled; in I tienr; IV.IIid Ustltw-
lutioos were dcclutnl nail nnd toiJ.
and the fonner oneti <1I fiichud U.)

The Parliament of tlie Prelates and Barons. 419

right of the vassals. But a deeply felt violation of it in the
twenty-fifth year of his reign, with the refusal of the clergy to
pay taxes, combined with war, financial distress, and discon-
tent in the country, compelled him in the conjirmatio chartarnm
<25 Edw. I. c. 6), to agree to a still wider concession, which,
as a principle, restricts the grant of all auxilia, scutagia, and
tallagia to the common consent of the prelates, barons, and
commons in Parliament assembled (cap. 25). Under each
subsequent reign this concession was confirmed, extended,
and protected against violations. This periodical right of
granting taxes gives the great council an unassailable position,
and a continual support to its other claims ; but this right
had to be early shared with the representatives of the com-
munities, which from this point were gradually gaining fi
preponderance. (2)

3. The Magnum Concilium is the supreme deliberative
council of the realm for the most important measures of the
Government. Primarily for decrees of war and peace, on
account of the important military rank of the great barons ;
but just as much for internal affairs also. Its functions are
thus far the same in principle as those of the continual
council (p. 399). Naturally the most important were reserved
for the great assembly ; but on that very account the least
important were not excluded. For these indefinite functions
the assembly pre-eminently bears the name of " concilium,'"
and not of "parliament." But the regular recurrence of the
assembly gave the magnates an ever-increasing influence
upon the Government in the following principal points.

First of all a participation in the current business of in-
vestigating and replying to petitions. As the convocation of
the parliaments was marked by the presentation of the
greatest number of petitions, it was natural to claim for the

(2) In the straits of war in 25 Ed- versal opposition to it now led to the

ward I. the raising of an aid from aU ttatvium de taUagio non conoedendo

landowners of the value of £20 for the (25 Edw. III. c. 5, 6), the origin of

campaign in Flanders was ordered b^ which is mentioned below, Chap. xxy.

the ordinance of the King in the council sec. 1.
<Peerg' Report, i. 220, 221). The uni-

420 Constitutional History of England.

referees (receivers and triers of petitions) that they should
be appointed from among the estates themselves. In the
stormy time of the " Ordinances of Ordainers " (5 Edw. II.)
this claim was established ; yet the procedure in respect of it
varies according to the spirit of the Government. In 14
Edward III. 1, c. 5, it was decreed, that from thenceforth there
should be chosen in every parliament one prelate, two earls,
and two barons, invested with the royal commission and
authority to hear on petition all complaints of delay or
violations of justice, and to bring before the next Parliament
all difficult cases suitable to be heard there. This is a kind
of perpetual committee of Parliament, like that still existing
ill the Upper House. As late as the middle of Edward the
Third's reign, chancery clerks, royal justices, and peers are
arranged together as triers and auditors, the first as reporters,
and the latter only for the purpose of preliminary inquiry.

Further, the council acquired an influence upon the appoint-
ment to the great offices. In quite early times the King
declares his willingness to appoint such persons as are "agree-
able " to the great council, yet with the reservation of his right
of appointment (Rot. Pari., iii. 258, 349). Frequently, too,
the great officers are sworn into the great council. Influential
and skilled members of the great council acquire in this
position a natural claim to a summons to the administra-
tive council, which under the circumstances could hardly
1)c refused. During the minority of the king, the Magnum
Concil'mm naturally exercises a paramount influence upon
the formation of the executive council, as at the accession of
Edward III., Richard 11. , and Henry VI. But also under a
sovereign who actually ruled, in constitutional conflicts the
magnates frequently force the ruling council of the realm upon
the King. For instance, in 9 Edward III. the Earl of Lan-
caster, as president of the council, undertakes the government
with the promise on oath that he will conduct no national
affairs without the advice of the council, and that every
member of the council who gives advice which is prejudicial to-
the realm shall be removed in the ensuing Parliament. In

The Parliament of the Pnlit^.^ and Barons. 421

12 Edward IL it wms zesoired ih^ Hnt Kmg shoold haTe
two bishops, one eari, one laroo. azbi a baron or bazm^ret of
the Earl of Lancaster, as coa^ufiocs, and all that eoold be done
without Parliament should be decokd with their consent, and
all that was done without this consent was to be regarded as
nnll and void, and set ri^it bj resolntzon of the peers in
Parliament. The great party struggles after Henry YL end
in periodical appointments, depotdtions, and condenmations
of the executive members of the Continaal Council bv the
Magnum Conrilinm^ Under the house of Lancaster the
greater part of the executire council of the realm consists of
members who owe their positiim to the high estimation in
which they are held in the great council. (3)

(4) The Magnum Concilium becomes in this manner the
law-giving assembly of the realm. The statute of Marie-
bridge at the close of Henry the Third's reign formed the
most important precedent for the regular deliberation of the

(3) Ab a deliberatiTe asKmblj of
the King, the eoneilimm of the mag-
nates has the aaine indefinite powers
as the execatiTe Continnal ConnciL
All national affairs were, nnder certain
circamstanoes, settled with their advice
as the cirenmsiances of the realm and
the monarchy demanded. There appear
here the same occasional encroach-
ments and rebuffs aa in the provincial
<liets of the Germcm states. As early
us 4 Edwsrd I. ** prelates, earls, barons,
nnd othi-rs of the King's council,
justices, and regU fideles in Parlia-
ment " resolve on war against Wales.
In the courbe of the later wars, and
in the disputes with the papal curia^
they were very frequently asked for
their consent. Where petitions were to
be considered, they were summoned
in eases where a legislative act or a
special procedure was needed for the
purpose of redress, whilst those which
were to be discharged in the ordinary
course of law and administration, only
came before the chancellor, judges,
and council (Peers' Beport, i. 245).
From this point of view the great
council participates also in the dele-
gations. The extraordinary civil and

criminal jorisdieiion of the eomicil
was repeatedly favoured by the
Ma^mm Comeilimm, but with the
moilifying circumstance that the lords
frequently came into conflict with the
permanent council as to their partici-
pation in it. In an address of the dis-
contented magnates in 10 Richard II.,
it is expressed that **the King should
amcmble the lords, nobles, and com-
mons once in each year in his Parlia-
ment, as being the highest curia of
the realm, in which all equity should
shine as clear as the sun ; and in which
both poor and rich should find a never-
failing shield and protection by the
restoration of peace and quietness, and
the removal of every kind of wrong." In
21 Bichard II., on motion of the com-
mons, a committee of twelve lords was
appointed to try, answer, and despatch
various petitions and matters which
needed to bo discharged after the close
of Parliament It was the arbitrary
acts of this committee tiiut brought
about the fall of the King (Pari. Hist,
i. 482-498). Under Henry VI. an ano-
malous ei)Och of rcvolutionnry excesHes
beginH.

422

Constitutional Nistoiy of England.

■

King with hia maguates on important and extensive i
legislation, and one which follows close on former i
precedents. Without renouncing hia traditional right t
daining, Edward I. had, at the beginning of his reign,
introduced a deliberation with hia Miiijiinni. Concilium npon
all important laws which involved a change in civil and
criminal, as well as in judicial procedure. From the statatf
of Weetminster 1, until late in the reign of Edward III., the
great council is the ordinary body for the discussion of laws,
with reservation of the occasional ordinances of the King in
council, which, after the end of Edward the Third's reign
are no longer sufficient to alter laws which had been passed
in full Parliament. This legislative position, which was in
harmony with the national' and indeatmctible legal concep-
tion of a legislation mnncnsii mdioriim h-rrx (above, p. 97),
naturally fell to the prelates and barons, so soon as their
position aa a supreme tribunal and council of the realm and
as a tax-gianting body bad hocn definitely established. Tbrir
predominant influence is also visible in the language of the
statutes, in which, since the time of Edward I. and Edward II™
the French language, as the tongue of the upper classes,
begins to ouat the official Latin. After 3 Edward 11. a
change in the phraseologj- was introduced, which, under
the name of Parliament, meant sometimes the highest
JiuSicittl, and sometimes the [fgishitirc assembly of the realm.
The latter meaning became the leading one under the following
reigns. In addition to the great council, Edward I. began to
summon representatives of the counties and towna, merchants
and others, to such deliberations as affected the narroitCT
pphere of the Commons (cap. 25). This right began to be
shared also with the Lower House as the influence of ttat
house in the province of taxation increased. (4)

(i) In 3 Edward I. the italulo Wwt-
mingliT 1 WFu passed ■■ witli the con-
aentof (he temporal audspiritunl lords
of the crnnmnnitnt." b; which phrase,
aa Dnder Ueurj III., tlia whole number
of tho vuasola eiimiuDued to the Far-
liamont U mont (Keport, i. 173, 171).

The moat iropoTlant Icf^aUtlvc ut> in
tho SaMomng genentinn wen jiMwl
with the coneurreoce of thu Sagmm
ConeQItuih but ns yet withoat tbi os-
npi'TatiaD of the oonnt; delegalc*. iul
or tho town*. For exwnple, in IS Bl-
wnrd 1., Ibe Hbitulo WeBttuiiutoi £ '''

The Parliament of the Prelates and Barons. 423

Bat in all these four directions there continues, in the
coarse of the period, an ascendency of the Magnum Con^
cilium over the executiye council of the realm ; so that
towards the close of the period, the continual council appears
occasionally as a committee of the great council. The struggles
between the monarchy and the magnates, which were fought
out under Henry III. in the barons' war, become now a
struggle between council and parliament.

II. ^i)e consttttttion of t!)e patltament of tj^e magnates had

been roughly sketched out by precedents down to the close of
Henry III.'s reign. After Simon de Montfort's parliament
had failed, Henry HI. had again adopted the customary
method of summoning by royal writ his bishops and abbots,
his earls and barons, that is to say, a selection of the latter,
to the deliberative assembly; and this order of things con-
tinued during the century of the three Edwards. The nature
of the council continued regularly to aflfect the selection of
the persons that were to be summoned.

To the parliament as a judicial assembly, only spiritual and
temporal Crown vassals could be summoned ; because other-
wise the principle of the judicium parium would have been
violated.

danis eonditionaWtuM, and the coDfirma-
tion of Magna Cbarta, **habito super
hoe cum 8UO eovcilio tractatu *' (Report,
i. 194). In like manner the form of
ezpresaion was »till retained which
called the assembly (even without any
summons of O)mmon8) a ^* Parliamnt-
turn " (as in 27 Edw. I., Report, i. 237).
In 28 Edward I. the statutes, in spite
of the presence of the commonen, were
only passed with the advice of the
great council (Report, i. 238, 239). In
3 Edward II. mention is made of the
common consent of all bishops, earln,
and barons '* in pleno parliamento ** ;
in 4 Edward II. the consent in full
Parliament is spoken of immediately
after the counties and towns have been
dismissed (Report, i. 261). In G Ed-
ward III. the clergy and the commons
were dismissed, whilst the prt>latca and
those of the council remained behind
for further deliberation (Parry, l»7).
Later in the same year, after dis-

missal of the commoners, the prelates
and barons remain (Parry 99, 100).
However, from this period parliaments
without the assistance of the com-
moners are more rarely held. Tho
assembly in 20 Edward III. (27lh
3Iarch, 1346), was still a Magnum
Concilium of that kind which, in a
marked manner, was called a "con-
vocation " (Peers* Report. App. iv. 557).
An assembly of this character is met
with also in 27 Kdwurd HI., perhnps
also in 45 Edward III., and onceagniu
in 2 Richard II. (Rot. Pari., iii. 55;
I*eer8* Report, i. 320). Occ4isionally
we still meet with laws which have
only been discussed with the justices
or the continual council, such as tho
statute of Acton Bumell, 11 Edward I.
(Report, i. 190, 206-208) ; the statute
ile prifKmihu»y 23 Edward I. (Report,
i. 2i7); the ordinances for Ireland, and
tho statute de jn-temgatira regit^ 17
Edward II. (Report, i. 286).

3

424 Constitutional History of England.

To the parliament as a tax-granting aBsembly for the pnr-
pOBes of the »cutngia, the Ifiicntts ht capile were necessarily
Bammoncd, But on this mere question of taxation the greater
vassals might be regarded as representing the lesser.

Of the parliament as a deliberative assemblj, iu addition
to the smaller council, the eccleaiastical dignitaries wen-
customary members, and the most illustrious Crown vassals,
to a certain extent, members bj birth. Moreover, since ex-
perience in military and political business was here of great
moment, there could be no objection to summoning to the
council illustrious men without Crown fiefs, and even ol
foreign family (such as the Beaumonts and Grandisons), as
can be proved to have taken place in a few cases. The
qualification for a foreigner by grant of an immediate knights'
fee was not bard to attain.

Lastly, for the parliament as a legislative assembly, a
selection of the most distinguished men (mdiorcg terra) was
from time immemorial the rule. But the more that in tbu
course of time, the business and the official staff becamu
consolidated, the more did this consolidation lead to a legal
definition of qualification on a well-balanced average, in Uie
same way as all formations of estates of the realm can Iw
ultimately reduced.*

From this point of view three groups, viz : the spiiitnil
lords, the temporal lords, and the members of the council^
were summoned to the great council.

TheJirKl i/ruiip is formed by the spiritual lords, who according
to time-hououred custom take the precedence ; archbishopSi
bishops, abbots, priors, and the heads of the religious ordas-

* Tlie qiialiflration for pniiinmenl is
known with tolerable accumcy from
the preeervnlion of tho pBrlisDienlary
writs BiDco 23 Edwanl I., und rmm
tbcir being printed and eloridsted io
the preat worlii of Fryiino (1639-1664),
ttnil Dugdale (1685), nsd in tho Bc-
Mits OD the Dignity oF a Peer. The
First I(«port bas been, on account of
ila iniportnii(>e, reprinted at four dif-
frrent times (I81S, 1820. 1823. aud
lesO). In like manner the continuii-
tjons nod completion I (voh. ii.-v.)

eoQlnin eieecdinjily impoitant mtlter
nt Ibe end of tht list or lotda i iiatliil
I'arry (Parliauienta, S2-^) gJTM ■
table of the tempotBl lords. I ban
given a complete tsbnlarj statmmol
of the naiuber of the jirolates, tms-
natcB. and memberB of the jiertnaiKal
couiieil Eummoucd to atlf iid eadi par-
linincnt froiD II Edward 1. le I
Kicbord II., in the second ■ditlon <(
my " Kiigl. VeiwaltiiDgBiecht"(lSGT.
\ol. i. pp. a82-a»7>.

The Parliament of tlie Prelates and Barons. 425

From the first it can here be perceived, that the two arch-
bishopSy and nineteen bishops must be regularly summoned
in their double character of heads of the Church and great
vassals of the Crown. Wherever these summonses are im-
perfect, it arises from vacancies, or from personal absence
or temporary impediments; or the summons is for smaller
deliberative assemblies, for which a narrower selection had
been made. The number of the abbots appears for a long
time to vary, much according to the object of the summons.
Many of those summoned deprecate the expensive and bur-
densome honour, and assert that they are not bound by
virtue of their possessions to pay suit of court to the Curia
Regis. After 15 Edward III. it was acknowledged in a
number of precedents that those were to be excused from
obeying the summons " who did not hold by barony, but only
in frankalmoign." From that time the number of the abbots
became more and more definitely fixed at about twenty-five.
In consequence of the occasional summons 122 abbots belong-
ing to different monasteries w^ere, however, summoned at
one time or another. Still more fluctuating was the sum-
moning of the priors and heads of the three ecclesiastical
orders. Of the priors, only a small number were summoned
on each occasion, and after 15 Edward III., the non-posses-
sion of a Crown fief was recognized as a reasonable excuse.
But in consequence of frequent variations, forty-one priors
were summoned, of whom only two can be regarded as regular
attendants. (1)

(1) The prelates who were sum-
moned comprue first of all the arch-
bishops and bishops. Where the ques-
tion is one of tlio grant of aids, the
summons is as complete as possible,
and during the vacancy in a see, the
representative in the spiritual office
(t.e. the Keeper of the Spiritualities)
was called upon. Occaaionally the
Archbishop of Dublin was also sum-
moned. The number of the abbots
Appears to have been gradually fixed
at about twenty-three or twenty-five;
only where the granting of a subsidy
or a crusade or the like, was to bo

debated, a greater number was periodi-
cally summoned. In 15 Edward III.,
two abbots and two priors were ex-
cused from attendance, liecause they
did not hold by barony, nor anything
whatever in capite, for which they
would have been bound to come to the
parliaments and councils (Parry, 112).
In the same year several others also
were excused from appearance, because
they only held in frankalmoign (Parry,
113). (A case of this kind occurs as
early as 12 Edw. If.). This appears
from that time to be treated as an
established reason for being excused.

426 Constitutional History of England.

The second group (the temporal lords) embraces, in the
century of the three Edwards, the earls and the barons. The
earls are still the acknowledged heads of the Crown vassal-
dom, although their dignity is only based upon patent, and
not upon the feudal possession of a county. The small
number of lords thus characterized appears to have been
regularly summoned from the first nearly in the same way
as the bishops, so that the omission of any can be explained
by minority, absence, or personal hindrance. In later times-
there is added to these the very small number of dukes,
marquises and viscounts, of like character, appointed by
patent. On the other hand, the leading principle for the
summons of the barons is very hard to determine. The
customary method under Henry III. (according to the origin
of all concilia optimatum), consisted in the King's inviting the
most illustrious and the greatest feudatories to represent all
the rest in the law-court, the council, and the tax-granting
assembly. This point of view still left a wide open field. For
instance, Edward I. summons to an assembly of the realm at
Shrewsbury in 1283, 110 earls and barons, whilst to West-
minster in -1295, only 49. The citations under Edward I.
vary between 40 and 111 ; imder Edward II., between 3S
and 123; under Edward III., between 24 and 96; under
Richard II., between 29 and 48 ; under Henry IV., between
24 and 37 ; under Henry V., between 20 and 32 ; under Henry
VI., between 15 and 42 ; and under Edward IV., between 23
and 37. In the first century of the j^eriod the change is so
frequent, that 98 lords were summoned on one occasion only ;
and 50 lords only two, three, and four times, without their
names ever occurring again. Others were summoned in their

Still more indefinite arc the sum-
monses addressed to the priors and
heads of the orders. The latter dis-
appear owing to the abolition of the
eccleBiaHtical orders and for other
reasons, so that at last only a lixtd
number of two priors remained. In
the first century of this epoch the
writs of Buninions for the most part
required appeaiance in person or by

proxy. The abbots particularly were-
excused, when grants of taxes were to
bo made, in the event of tlieir sending
a procurator (Parry, 68). But some-
times the sending of proxies is ex-
pressly forbidden, as in 6 Edward III. :
and in the course of the period the
demand of appearance in person at the
delilK»rative assembly becomes moru
and more strict.

The Parliament of the Prelates and Barons. 427

own lives, but their descendants were never summoned.
Great prominence being given to the grant of taxes, weight
was certainly laid upon financial considerations, and suck
Crown vassals only were at first regarded as paid the great
relevium of a hundred marks on change of possession. Further,
a regard to the hereditary great offices was decidedly neces-
sary, although the high constable and the earl marshal wero
only specially summoned as such after 51 Edward III. Un-
mistakable regard was also paid to certain great families.
According to the purpose and place of summons, and accord-
ing to personal confidence, there could be summoned round
a fixed and determinate nucleus of about thirty barons, a
number two or three times as great ; and in the whole course
of the Middle Ages there occurs not a single case in which
the barons have refused a place among them to any one thus
summoned. But the possession of a great Crown fief, with
all its inherent importance with regard to military service,
taxation, sub-vassals, and authority in the county, was neces-
sarily to be considered in the summons, so far as the King
was interested in having the mouthpieces of the Crown
vassals in his council. Husbands of heiresses were generally
summoned ; owners of parcels of land, where a partition
had taken place, were sometimes summoned and sometimes
passed over. Beyond these considerations the century of the
three Edwards never advanced. (2)

(2) The gproup of the temporal lords
comprises in the first century only the
earls and the barons. Under Edward
III. the dignity of a duke was first
created for the princes of the royal
house, and after 24 Edward III., it
became customary to place such a duke
of royal blood, or the Prince of Wales,
at the head of the persons summoned.
After 10 Richard II. there are fre-
quently added to these one or two
marquises; after 23 Henry VI. also
one viscount; in 31 Henry VI. three
viscounts. The difiiculty lies only in
the number of the so-called barons.
The Crown vassaldom was at all times
unequally composed of great lords,
simple landowners, and owners of small

parcels. Instead of the impracticable
universal summons, and the e<iually
impracticable election, there remained
accordingly only the royal selection by
writ. To the stormy national assembly
in 49 Hen. III. Simon do Montfort ha<l
only summoned his adherents, fivo
powerful eurls, and eighteen barons,
among them probably many lesser ones
(Peers* Report, iii. i06, seq.). After
the restoration of the royal authority,
Henry III. naturally summoned a meet-
ing of his faithful followers. This
event has been rightly described by
an old historian, whom Coke cites front
Camden, *^Statuit et ordinavit, quod
omnes iUi camites et harones Anglix,.
quibuB ip$e rex dignatus est bretia

428 Constitutional History of Efigland.

The third group of the Magnum Concilium was formed by
the members of the comicil. Not only the oldest modes of
summoning, and the object with which a deliberative assembly
was holden, but also certain recorded events prove that
originally the executive members of the council voted in
Parliament as such. In 20 Edward I. the Rotuli prove that
under the Concilium Proccrum et Magnatum, the chancellor,
the justiciaries and the higher officials of the council, as
such, are included (Peers' Eeport, i. 20&-208). Even for
the grant of taxes and the judicium parium, the right of voting
in this capacity could not well be denied to the lowest Crown
vassal. But just as unmistakably the united influence of
the great prelates and lords in the great assembly soon
asserted its ascendency over the mere bureaucratic element.
The first shock to the position of the mere officials had been
given by the Statutes of Ordainers (5 Edw. II.). But the
more decisively the idea of a "peerage" among the lords
who were summoned came into prominence, and in 15 Edward
III. attained a legal recognition, the more usual it became

summonitioiiis dirigere^ venireni ad had to "baronies," which, according tc»
Parliamcntum, tt won alii, nimi forte the rating of the Exchequer, pay the
Dominus Utx alia brevia eis dirigere great rderium of a hundred marks.
rohuMttV But it is wrong to regard It fccems that in the century of the
this as a new statute; it is only the three Kdwards a body of about thirty
description of the original condition barons became fixed as an average
of things (Peers* Eejjort, i. 395; iii. number, with the reservation (1) that
114). And so it continues in the the tenure by barony did not as yet
century of the three Edwards. Witii- give a legal title to a summons, and
out reckoning anomalous smaller de- (2) that on the other liand lesser
liberative assemblies, the number of tenants could be also summoned out
summonses under Edward I., II., and of personal confidence, and occasionally
III., varies between 24 and 123. We even euch as did not hold any tiet
cannot, therefore, douot that the sum- of the Crown. As a rule the writs of
mons by writ in this century carried summons insist upon a personal appear-
no hereditary right to a seat (Peers* ance ; but the temporal lords were for
Report, i. 325, 32G ; iii. 117, 2G5). But a still longer time allowed proxies,
the diflicult question remains still un- particularly to represent tliem at acts
solved as to what other principles the of taxation. In 35 and 3G Edward III.,
procedure acted ujk)u. Martial effici- two anomalous assemblies occur, to
ency alone cannot have been decisive ; which seven countesi^es and three
an<l just 8S little did legal distinctions baronesses were summoned, with the
exist in feudal tenure. With regard demand made uiwn them to let them-
to the gmnts of t^ixes, and the frequent selves be represented by *• trusty men.*'
mention of tenure " ]»y barony *' among The question here, which at all events
the abbots, it appears probable that the wms exj)res8ly mentioned in the latter
financial point of view was predomi- year, was the special one of furnishing
nant; that is, a special regard was armed men for the campaign in Ireland.

The Parliamerit of the Prelates and Barons. 420

to summon the prelates and the great feudatories, who
belonged at the time to the council of the realm, in the
ranks of the other peers, because this had begun to signify
both politically and socially a higher position. The member-
ship of the council becomes gradually absorbed by the members
of the great council,* who now understood their position as
forming a unity. Accordingly as members of the coimcil the
chief justices, the justices, and the councillors of the second
and third rank were now only summoned by special writ.
The justices in most cases appear merely as the assistants
of the lords. With regard to taxation and the jurisdiction
of peers the fusion of the peers in council and the peers
in Parliament appears perfected ; it is quite diflferent, however,
as to the deliberative and legislative assembly, in which the
continual council, being still a concilium in cancilio, forms^
as Hale calls it, the administrative body under the personal
direction of the King. The subjects of deliberation were pre-
pared in the smaller council ; the proceedings conducted by
ofiBcers of the council ; all conclusa recorded by officers of the
council; all decrees resolved subsequently discussed in tfie
coimcil (until Henry VI.) ; all sittings took place in the council
chambers of the royal palace, and the servants were ordered
to attend from the royal household, as is the rule to this
day. The regular sittings of the permanent council were only
periodically interrupted by these plenary assemblies of the
estates of the realm ** ad ardita negotiaJ" The convocation of
the notables for this purpose may (according to Palgrave's
appropriate expression) be called the terms of the council,
corresponding to the terms of the courts of law. That the
great council under Edward I. appeared thus to its contem-
poraries, is proved by the words of Fleta (ii. 2), which co-
ordinate it with other departments or curias, as " Curia Rc(ji»
in Parliamento.** (3)

(3) In its original position tho execu- council eeeros always to liave been pre-

tive council is an integral element of sent in Parliament, and every impor-

Parliament. In harmony with the tant act of the King in Parliament

Peers' Report, Parry (Parliaments, 116) appears to have been sanctioned by the

remarks upon IS Edward III. : ** The advice of hit coanoil. The meetings of

430 Constitutional History of England,

III. Wit Ittbelopment of tj^e fietttafaflttg of tbe temporal peerage

from these conditions becomes gradually discernible in a
few symptoms, under the dynasty of the house of Lancaster.
Here internal causes were at work, which in every process
of political formation take an outward shape when the sub-
t^tance is already finished. It was the personal importance
of the great lords for the State which silently decided this
question. For the military service of the State a great vassal
with his warlike followers was of quite as much importance
as a small county, and this importance became greater owing
to the French and Scotch wars. For taxation the baronies,
which paid the great relevium of a hundred marks, and £100,
connected as they were with periodical subsidies, profitable
wardship, and incidental feudal dues, had as much weight
as a small county, and more than that of the majority of the
small market towns, which were already summoned to send
burgesses to Parliament. In war as in the council, the great
lords are personally a prominent element, which is more and
more firmly established by their meeting together in person to
discuss the ^'ardua ncfjotia rcgni,'' This annual meeting, this
customary discussion of the great business of the State gives
them that experience, that importance, and those qualities
which engender the justifiable feeling of a birth-membership,
which at the same time has its root in their local position.

rarliftmcnt were still considered as
niectiiijrs of the King's select council,
at which the lords and commons as the
f^reat council of the King, for legisla-
tive purj)Ose8, and for granting aids,
and for their advice on extraordinary
occasions, were summoned to attend "
(cf. Report, i. 317). The statements
respecting the members of the council
who were summoned are, however, for
the most part exceedingly indefinite,
Bo much so that the higher, middle, and
lower officers are confused together. In
23 Edward I. the justices of both
benches, the itinerant justices, the
barons of the Exchequer and " others
from the council '* are mentioned ; in
1 Edward II. thirty justices and others
of the council; in 2 Edward II., "thirty-

livo of the council;" again in 2 Ed-
ward II., sixteen justices et ministrt;
in 3 Edward II., seven of the council
and others; in 6 Edward II., sixteen
justices and sixteen clerks of council ;
again in (j Edward II., ** forty-two of
the council ; " in 14 Edw^ard II., ''thirty-
two judges and of the council." The
justices, masters, and clerks of the
council were often expressly mentioned ;
after Edward III. very frequently a
number of King's Serjeants (Foss, iii.
370). Whilst the writs of summons
addressed to the magnates run "cm»»
cxteris paelaiis tractaturi" those ad-
dressed to the justices leave out
*^ cxteriny** and thus express that the
officers, as such, do not stand upon an
equality with the peers.

The Parliament of t/ie Prelates and Barons. 431

With the development of the county militia, they became also
the skilled leaders of the national array. With the institution
of justices of the peace, after 34 Edward III., they took the
head of the police control, and the quarter sessions, that is
to say, of a great portion of the criminal justice and internal
administration of the country. Their eminent personal in-
fluence in the neighbourhood of their residence and their
estates, is increased by their prominent position as the greatest
tax-payers wherever land-tax, income-tax, county-tax, and
local-tax was to be paid. Their local influence reflected upon
their position in the great council, and their position in the
council upon then* local influence. The aggregate of such
conditions becomes at all times bound up with tenure.
According to the common law succession, the whole of these
customary duties and this customary position pass to the
eldest son or other heir, and only to him. The right of the
kings to summon by their writs those whom they choose out
of hundreds, could no longer ignore such claims. The feehng
of the equality of this position had already become so strongly
developed in the party struggles under Edward II., that the
statute 15 Edward III. formally acknowledges those sum-
moned by writ as ''pares regni,'' and thus legally severs them
from the great number of the other tcncntcs in cajnte. The
distinction that subsisted between the greater and the lesser
vassals in army, law-court, administration and taxation, at
length, after a struggle that had lasted for centuries, attained
legal recognition. The house of Lancaster was now enabled
primarily to support its usurped throne upon the recognition
of the body so constituted. The legaUty of the present political
government was established by the mutual recognition of King,
Lords, and Commons ; and if this recognition was to mean
anything, it had to proceed from a body constituted according
to old custom, and not from an arbitrarily summoned number
of partisans. The council of the prelates and barons accord-
ingly from that time attained a fixed form ; the number of
those summoned became smaller and more constant in its
attendance, and the element of the new membercr who were

432 Constitutional History of England.

summoned merely out of personal confidence becomes reduced.
Frequent deliberations upon military matters as well as
military merits had also caused a number of "bannerets " to
be summoned ; but for these new members also, the writs of
summons are more and more regularly issued. Although the
royal right of personal summons is never given up, yet it
silently assumes the shape of a permanent attribute of a
permanent body.* The question was simply one of giving
legal form to what had been accomplished de facto.

But this legal form could not be deduced from the mode
of enfeoffment by the crown and the writs of summons
hitherto in vogue. The summons by writ could not, being
a single act of invitation, express or found a permanent right.
Just as little could the peerage be attached to fixed and
determined estates, for then every lesser Crown vassal might
have raised like pretensions, and every purchaser and new
acquirer of such an estate would, by virtue of the alien-
ability of the English fiefs, have been able to lay claim
to a peerage, and the royal right of summons would have
been materially restricted. In every respect this was not
intended. The development to which the State had attained
had gone beyond the idea of the older feudalism, which
under Stephen had combined the Constahularia and the
Marescalcia Angliw with certain estates. The suppression
of manorial jurisdiction over independent estates, and the
legal equality of the common law for all classes, rendered such
a relapse impossible. The new legal form in which an here-
ditary estate of the realm and nobility by birth could attain
recognition, was only that of a royal patent or a charter.
After the Conquest the sole higher title of nobility, that of the
earl, was based upon patent ; from Edward III. downwards,
a ducal dignity was also created by patent ; from Richard II.
that of a marquis. The dignities which were conferred after
10 Edward III. upon princes of the blood royal, were creations
of a purely personal character, as princes of the royal family
did not hold any fiefs whatever of the Crown. The precedence

• Cf. infra^ the Dote to this chapter.

The Parliament of the Prelates and Barons. 433

of the royal house and the higher dignities could not possibly
be disputed by the lower ranks of the peerage. According to
the principle of this title of nobility, in 11 Bichard II. John
de iBeauchamp of Holt, Grown vassal of the knight's fee of
Kidderminster, was appointed in consideration of his services
and noble descent. Lord Beauchamp, Baron of Kidderminster,
in hereditary possession for himself and the heirs male of
his body, with all the rights, etc., of a baron. Since during
the hundred years preceding this, certain barons, to the ex-
clusion of the rest, had been summoned to Parliament, nothing
else could be meant by the newly conferred "rights" than
primarily such a summons. The title " Baro " being thus
recognized as an hereditary title of nobility, its claim like that
of other titles of nobility to a summons to Parliament was
legally acknowledged. Much as this first creation lyas opposed
to the wishes of the magnates, yet it finally was decisive
as to the legal rank of the peerage. The Grown vassals who
had been hitherto summoned by writ, came thus into a new
position. Now that the newly " baronized " favourites claimed
to be an hereditary estate of the realm, a similar claim could
not be denied to those older and more illustrious barons who
were ordinarily summoned to attend. The style of " baron "
became accordingly a legally recognized title of nobility for
barons of the realm. There existed in the fifteenth century
two modes of summoning to the peerage : (1) by patent, for
dukes, marquises, earls, viscounts and patented barons, legally
recognized as hereditary by patent : and from the middle of
Henry VI.'s reign to the present time this method has become
more and more the usual one; (2) by writ for unpatented
barons "by custom." This title by custom was in the
fifteenth century hereditary for the older and more eminent,
but not for others. Mere personal summonses became rare
even under the house of Lancaster ; under the Tudors, they
entirely ceased ; and under Elizabeth the courts interpreted
a summons by writ to be hereditary, "by virtue of custom."
In harmony with the character of a personal nobility, in 20
Henry VI. the right of the peers to be judged by the Upper

VOL. I. 2 F

434

Constitutional History of England.

House was also extended to their wives, and widows; bat
beyond this it did not go. Thus took place the most difficult
birth of any hereditary nobility in the European world;
but it was a most well-earned, and therefore a durable
nobility.

Note to Chapteb XXTV. — The
origin of the heriiability of the tern'
ponU peerage is the subject of a long-
standing dispute, perpetually renewed,
because in the process of building
up the State the result took a form
decided by the reciprocal and active
influence of numerous factors, whilst
jurisprudence, heraldry, and the politi-
cal and social party views of the State
onlv take cognizance of the individual
and external elements of the phenome-
non. The Peers* Report rightly regards
the recognition of a legal peerage as
the first stop towards the formation of
an hereditary national nobility, be-
ginning with the judgment against the
De Spensers in 15 Edwara II., in
which, however, none of the bishops
took part, a circumstance which was
afterwards used, with other reasons,
for declaring the sentence null and
void (Parry, 85). In the same way,
in 4 Edward III. the earls and barons,
as peers of the realm, tried Mortimer
and his accomplice. At the same
time the protest is made that they
were not bound to sit in judgmeut upon
" others than their equals." Whilst
Ma^na Charta recognizes a judicium
paHum only in the sense of a judicial
fellowship (in which sense John granted
even the Jews & judicium parium)yihere
now springs into life the new claim of
the '* pares teme ; " that is, of a fellow-
ship of rank different from the pares
of the county. This is legally recog-
nized in 15 Edward III., the decisive
act by which the barons of Parliament
separate themselves from the other
tenentes in capite, as a nobility of the
realm. This class privilege extends
also to the time during which no
Parliament is sitting, and later even
to women and widows. The Peers*
Report (i. 313, 314) acknowledges the
importance of this act to its fullest
extent. A further weight is laid by
the Report ujxm the rules of pre-
cedence as laid down in 5 Richard II.

c. 4, by which temporal and spiritual
lords are legally mentioned as a class
distinct from the knights. More deci-
sive was the succession of the house of
Lancaster, the legal title to which de-
pended upon the recogpition of this
cx)dy. Under Henry IV., in the action
against the Earl of Huntingdon, a
further formal concession was made
when the King deputed the Lord High
Steward as his representative to bold
the Peers court, and thus introduced a
piece of the ceremonial of a feudal
eour de baronie. Aooordingly, the
number of the Upper House under the
Lancastrians became more uniformly
fixed, and owing to its limitation to
the most distinguished members,
smaller, in harmony with the tendency
of a favoured class. In noticing the
very small number summoned in this
period, we must remember that many
were often absent in foreign wars.
The martial tendency of this era intro-
duced into the writ of summons the
titles appertaining to the feudal array.
In 51 Edward III., and in 2-5 Richard
II., besides the barons, one or more
chivalers are spoken of. The style of
sieur is more rare. Under Henry VI.
a new form of expression begins to
be employed. In 3 Henry VI. the
nineteen barons summoned to Parlia-
ment were described as seventeen c^t-
valersy one mil^, one magister. From
6-9 Henry VI. all barons are styled
chivaleri ; in 18 Henry VI. twenty-
three cfiivalers, Baron de Greystock
" and others " were summoned ; in 27
Henry VI. twenty-five barons chiva-
lers^ nine barons milites^ four barons
domini de. This distinction between
chivalerSj milit^s^ annigeri, and domini^
continues until the close of this reign,
and under that of Edward IV. The
legal and practical equality of the tem-
poral barons accordingly did not ex-
clude degrees in their military rank ;
and it was only by very slow degrees
that the title of " baron,*' like that of

The Parliament of the Prelates and Barons. 435

eirl, msrqids, etcu, beouiie ui eiteb-
lidied title of Dobflhr in the modem
MDio of the tenn. the title **loid.*
on the other hand, doee not dcngnste
a dignltj created by the Crovn. bat
is omj a title of cointesy for nomerooc
otbtt oflSces and dignitiet. In geneial
the oonoeanon of a peenreonrt,apcoid-
ing to the spirit of the royal preroga-
tiTes, does not as jet exclode the
arraignment of peers in extnordinarr
eases by jnstioes with a jarr, withont
the le^pdity of the proccedines being
called m question. Against the nobles,
too, the odntinoance of a pennnal right
TCsiding in the ELing to constitnte a
coort in eztrsovdinary esses was »till
asserted. This was done most fn-

Snently in case of the prelates. In
5 Edwaid IIL the Primate in the
name of the elergy presents a petition
to the effect that siooe the arrhoishops
and bishops hold tlieir temporalities
of the King tn eapiUy they are so far
** piers de la ierrtT in the same way
as other earls and barons. Bnt tbis
spiritual peersge did not arrire at
fall matority, for the clergy laid claim
to the fSu more Tsloable rig^t of a
special ecclesiastical jurisdiction, and
os^ed the far more extensiye privi-
lege of elergy, haring almost com-
pletely severed themselTes from the
temporal constitntion.

The legal form for the heritability
of the temporal peerage is creation by
patent or charter, which definitely
declares the heritability of the dignity.
The " creation " of new barons can only
date from snch a grant ; for the ** sum-
mons" by^ writ to each separate session
had not in itself the character of a
" dignity *• conferred. The arbitrary
modem expression which speaks of a
creation of peers by ^rit, is only a
source of confusion and dispute. But
it is remarkable that for a length of
time the higher creations by patent
were proclaimed ** in Parliament." In
6 Edward III. the Prince of Wales
was appointed Duke of Cornwall, and
in like manner six new earls in 6
Edward III., ^ by common assent and
council of the prelates, earls, barons,
and others of our council in Parlia-
ment." The question here was not of
the granting of new fiefs, but of per-
sonal dignities; thus we find in 36
Edward IIL a prince of the blood

created Dnke of Clarence, though
such a dak«iiom had never existed
(Bep., L 3S6). Tarioos acts of this
sort oocnr between the years 1337-
1414, and the later jurisprudence
aaierted that such an appointment
was to be regardi'd as proceeding from
the •*whMe"leeielaturf," without per-
ceiving that if this had been the case
the peerage would hare Ueome an
exclusive fsruild. But the proclama-
tion of solemn acts of the feudal lord
in the " conr de baronie ** was an old
feudal custom, and the so-called ** con-
sent" to thi-m is a remnant of the
acclamation of the bvstanders in the
popular court, which in no case was
a condition of the raliditv of the trans-
action. Hence can be sufficieutlv ex-
plained that it was the creation of the
highest dignities which took place in
Parliament, and that occasionally other
lords were created out of Parliament
without mention being made of ** con-
sent," and that this form i»ub«e<]uently
fell again into disuse. Concitio discus-
sions on this point are containeii in
Sir Hurry Nicolas* •• Report on pro-
ceedings on the Earldom of Devon"
( App. ix.). The later procedure proves
that the kings did not allow their
right of free appointment to bo in
any wise limited by a right of Parlia-
ment to **conticnt." The patent of
appointment defines at the same time
the manner in which the dignity shall
descend, which is sometimes framed
narrowly, and sometimes extended to
embrace all the legal heirs of the
body. Upon this are based the varia-
tions of heritability which remain to
the present day. But after heritability
by patent was made the rule, anil the
number of tie new ** barons by patent "
increased from generation t<'> genera-
tion, it was impossible, having rt^gtini
to the legal equality of tho pi'erago, to
put the original sttK^k in a lower posi-
tion than the new. The oKior mem-
bers who were continuously summoiuHl
could now claim an honHiiUiry right
by writ, ** by prescription," ns was also
assumed by the Peers' RcjKJrt (i. 342),
with tlic very just remark that tho
newer creation ** by {vatcnt " could not
possibly have appcaretl as tho Iwttor
and more advantageous method, if
there had ever existed a jiei-rage by
virtue of the tenure of certain estates,

436

Constitutional History of England.

i.e. a baron J by tenure (Rep., iii.
119).

It waa not until the power of nobility
had made progress under the house of
Lancaster, that this old feudal con-
ception comes so far into prominence
that in II Henry YI. the earldom of
Arundel was directly claimed and re-
cognized as a " barony by tenure ; " so
that the habit arose of assuming the
existence of a mode of tenure " by
service of attending the legislative
assemblies," which, with all the deduc-
tions made therefrom is historically
and legal Iv erroneous (Peeraj^e Report,
iv. 26'J, 2*70). The seats of the lords
in Parliament were based upon custom
within this body, and formed so far a
special corporate customary law or law
of Parliament In II Richard 11. the
ecclesiastical and temporal peers ac-
cordingly claim **as their liberty and
franchise that all cases of high nature,
concerning the lords of Parliament,
should be awarded in Parliament.
For that the realm of England never
was or shall be ruled by the civil law ;
nor was it their intent that a case of
80 high a nature as this appeal should
be tried by the course, process, or order
used in inferior courts, and this claim
was willingly acknowledged by the
King, but did not 8UcctM?d in estab-
lishing any deviation from the prin-
ciples of the common law. Accord-
ingly the justices in 7 Henry IV. made
a distinction between the riglit to the
name and title of a peerage, and the
right to a seat in Parliament. The
latter they nrped was an exclusive
question for the King and the peers;
tne former, on the contrary (l)eing a
private claim of family rijjht) was a
common law point, and belonged to
the jurisdiction of the ordinary courts
of law (Nicolas, •* Proceedings/' iii. 57,
ieq.). But as to the peers who were
summoned by writ, the practice of Par-
liament accepted the important limi-
tation, that the writ c^^rtaiuly did not
confer an hereditary |)eerage and an
hereditary nobility, where the indi-
vidual thus summoned had not really
taken his seat by virtue of the writ —
a masim which was fiually establislied
in the case of Edward Nevill, in 8
James I. The appointment by patent
was in other directions expressly and
repeatedly recognized by the tribunals

as a personal dignity, apart from any
real connection with any definite landed
estate, and it was particularly declared
by Lord Justice Holt that this barony
by patent forms ** a title of dignity and
parcel of the name." The long list of
the later peers was created by patent,
and the mere summons by writ has
long since fallen into disuse, except
for a special case. In 22 Edward I.
for the first time the custom is met
with of summoning to Parliament the
son of a duke, a marquis, or an earl,
out of courtesy, even in his father's
lifetime, under the title of a second
barony, which the father holds either
really or nominally; and this custom
has been observed down to the present
day. The summoning of the son in
addition to the father was only regarded
as a personal ad interim measure ; such
a peerage is merged in the principal
peerage, when the succession arises,
and thus creates no hereditary dignity.
The still continuing dispute as to
whether the English peerage was not
originally a barony by tenure, arose
from social ideas. All classes of society
wish, not to acquire their politicsd
rights, but to enjoy them by virtue of
tenure, and by inherent right. Hence
the social conception always kept re-
curring to the favourite idea of an
estate of the realm based merely upon
possession ; whilst the English peerage
is not built upon the bare possession of
privileged estates, but upon personal
summons to the council of the realm,
summons which only became by cus-
tom hereditary in a direct ratio to the
customary performances entailed upon
the tenants of great estates. The
favourite social ideas which are in
constant contiict with this fact, even
in the Middle Ages, gave rise to a
work entitled, " Modus tenendi Par-
liamentum" which according to one
manuscript is intended to bo an ex-
position of *' How William the Con-
queror adopted the mode of summoning
Parliament from Edward the Con-
fessor." The tenant of thirteen and
one-third knights' fees is, according to
this document, able to claim a right of
summons to Parliament as a baron;
that is, a recognition as belonging to
an estate of the realm ; and the tenant
of twenty knights* fees as an earl, — an
opinion which is apparently based upon

TTie Parliament of the Prelates and Barons. 437

a mere calcnlatioii of the amount of
ihertUvia. Sir Edward Coke seriouBly
regarded this manuBcript as a genuine
legal authority, and modem investi-
gatiouB endeavour to prove a higher
antiquity for it by placing it as far
back as Edward L In that case it
would only prove that even in those
days feudalism was a favourite hobby.
Its positive statements were almost
in accordance with the condition
of the Parliament in the fourteenth
century, which the author endeavours
as far as possible to refer to custom
of time out of mind (Select Char-
ten, 502). But it is not necessary

when examining the many curious des-
criptions of the ^^ Modus/' which are
at variance with documentary legal
history, to think exactly of a feudal
Pseudo-Isidor ; they are rather similar
transformations to those which occur
even in our own day in the drawing up
of all gCDealogical trees, and are the
conceptions of a herald's office and not
of politics and public law. Good re-
marks on this point are made by Pauli
(** Bilder aus der Englischen Yorzeit,"
1858, p. 65, ieq.}, together with vivid
sketches of the procedure in Parlia-
ment.

END OF VOL. I.

LOKDON : PRnrTED BT WTLUAM CLOmM AVT> SOWS, UmTEO,
STAMFORD flTRKBT AXP CHARXKO CROM.