TIGHT BINDING BOOK
Pages are missing
03 > DO
166201
OUP- 880— 5-8-74— 1 0,000 .
OSMANIA UNIVERSITY LIBRARY
Call No. 3 ^2** ^^ Accession No. JO iT
^) oi .fiw
before the aate last
Title C
This book should be returned on or before the aate last marked below.
THE
CONSTITUTIONAL HISTORY OF ENGLAND
A COURSE OF LECTURES DELIVERED
BY
F. W. MAITLAND, LL.D.
, CAMBRIDGE: at the University Press 1919
First Edition 1908 Reprinted 1909, 1911, 1913, 19*9-
PREFACE
" I have written a course of lectures in six months on Constitutional History. Do I publish it? No." The lectures written in six months, which Professor Maitland told the Cambridge Law Club would not, be published, were delivered during the Michaelmas term of 1887 and the Lent t^rm of
1888, and were specially designed for the needs of under-
f
graduates of the University of Cambridge reading for the Law Tripos. The last word of the last lecture was written on April 7, 1888.
Let us observe the date. Maitland had been recalled to Cambridge as Reader in English Law in 1883 and this is one of his early courses of academic lectures delivered before his election to the Downing Chair in the summer of 1888. It was written seven years before the appearance of the History of English Law, nine years before Domesday Book and Beyond, ten years before Township and Borough, twelve years before the Introduction to Gierke's Political Theories of the Middle Ages. From inttgnal evidence it would seem that sonae of the earlier lectures were composed before the completion of Bracton's Note Book in 1887. Much of the ground which is here covered was afterwards traversed with greater delibera- tion and more elaborate scrutiny; some part of the journey Maitland had never the leisure to retrace. Yet the student of his work will find in these early discourses many of the
vi Preface
seminal ideas which were subsequently developed in the History of English Law, and here, as elsewhere, will admire the union of high speculative power with exact and compre- hensive knowledge of detail. This volume then is not a specimen of Maitland's polished and mature work ; it does not claim to be based upon original research; for much of his information the Reader of English Law was confessedly con- tent to draw upon the classical text-books, Hallam, Stubbs, Dicey, Anson, the study of which he frequently commends to the attention of his audience. Yet although the manuscript was laid aside, and the larger theme was abandoned for more special researches into medieval law, the author would some- times admit that, did time allow, the course of lectures upon Constitutional History might be worked up into a shape worthy of publication.
There is much to be said against printing work which was not intended for the press, and I should not have ventured to recommend the publication of these lectures but for three compelling reasons. The first is that the lectures cannot detract from Maitland's reputation; but must, on the contrary, if possible, enhance it; showing, as they do, that the profound student was also a brilliant populariser of knowledge. The second is that the lectures contain several new and original ideas, which Maitland had no opportunity of expressing in his later work and which we cannot afford to lose. The third is that, there is no book, to my knowledge, which provides so good an introduction to the study of English Constitutional History or which is likely to be more highly valued by practical teachers of the subject at our Universities. I can vouch good and lawful men to warranty. Professor Dicey, Sir Courtenay Ilbert and Mr C. R. L. Fletcher were kind enough to look over the manuscript and concurred in urging its publication.
Preface vii
The editor's part has been insignificant The lectures are printed as they were delivered, and there has been no attempt to rewrite, expand or compress wherever the manuscript was fairly written out. In a few places however the manuscript took the form of brief notes which have been expanded with as strict an economy of words as is consistent with grammar. In one place the substance of a missing page was happily recovered from notebooks kindly lent to the editor by Dr Pearce Higgins of Downing College and Mr A. H. Chaytor of Clare College. For the references and remarks in the foot- notes the editor is responsible, save where they are followed by the initials of the author. The references to the Statutes have been verified.
Help has been generously given by many friends, in particular by Sir Courtenay Ilbert, who has contributed many valuable suggestions with reference to the last section of the volume. The editor will be grateful to his readers for any further suggestions by means of which a second edition of the book, should one be called for, may be made more fully worthy of the author and the subject.
H. A. L. FISHER.
NEW COLLEGE, OxroRa May 1908.
ANALYSIS1
Outline of the course. Sketch of public law at five periods, (I) 1307, (II) 1509, (III) 1625, (IV) 1702, (V) the present day. Reasons for this choice of periods. The first and last sketches will be the most thorough.
PERIOD I. ENGLISH PUBLIC LAW AT THE DEATH OF EDWARD L
A. General Characteristics of English Law and Revietv of
Legislation.
(i) Before 1066. Dooms of the kings and witan ; substratum of traditional law (folk right) ; local customs ; theory of the three laws, West Saxon, Mercian, Danish ; formalism of traditional law ; Roman law unknown ; influence of the church ; characteristics of the dooms
Pages i — 6
(ii) 1066 — 1154. What law had the Normans? Survival of English law ; confirmations by William I and Henry I. Law books : Leges Edwardi, Willelmiy Henrici Primi\ fusion of English and Norman (Prankish) law. Genuine laws of William I; charters of Henry I and Stephen; Domesday Book . . . 6— 10
(iii) 1154 — 1215. Henry II as a legislator; Constitutions of Clarendon (1164); growth" of Canon law; study of Roman law; 4 assizes ^possessory assizes and grand assize; assizes of Clarendon (i 166) and Northampton (1176). Law books : Glanvill (circ. 1 188) ; Dialogus de Scaccario; the first Plea Roll (1194) . . 10 — 14
1 Printed copies of this analysis or syllabus were supplied to those who attended the course of lectures. A few slight changes have been made, where the order of topics in the lectures does not correspond with that laid down in the analysis.
x Analysis
(iv) 1215 — 1272. The Charter: various editions, 1215, 1216, 1217, 1225; its character; beginning of statute book; Statute of Merton (1236), of Marlborough (1267); the Barons' war. Study of jurisprudence: Bracton (ob. 1268); Roman law and English 'case law'; evolution of common law 14 — 18
(v) 1272 — 1307. 'The English Justinian.' The great statutes, 1275 Westminster I, 1278 Gloucester, 1284 Wales, 1285 West- minster II and Winchester, 1290 Westminster III, 1297 Qgnfirmatio Cartarum ; their character and permanent importance. Edward as an administrator. Law books : Britton, Fleta. The first Year Book, 1292. Check on growth of unenacted law. Roman law ceases to be studied. Growth of class of lawyers. € Common law,' contrasted with statute, local custom, ecclesiastical law ; not yet with ' equity '
18—23 B. The Land Law.
Reasons for starting with land law .... 23 — 24
Theory of tenure. Subinfeudation : stopped by Statute of Westminster II ; the feudal formula A tenet terram de B. Tenure and service. Classification of tenures: (i) frank almoign; (2) knight's service; the knight's fee; homage, fealty; aids, reliefs, primer seisin, wardship, marriage, fines on alienation, escheat ; (3) grand serjeanty; (4) petty serjeanty; (5) free socage; incidents of socage tenure ; (Note, classification of tenures not a classification of lands ; the same land may be held by several tenures. Note military service done only in the king's army ;) (6) villeinage ; villein status and villein tenure ; tenementum non mutat statum . 24 — 35
Definition of freehold ; liberum tenementum opposed to villanum tenementum; afterwards also to chattel interests. Treatment of chattels; testamentary causes go to court Christian; no wills of freehold ; primogeniture, its gradual spread.
[The manor and its courts; court baron and customary court; who were the judges? Had every manor freeholders? No more manors to be created (1290).]
Feudal ideal ; — no connection between lord and vassal's vassal ; this ideal to be had in mind that we may see how far it is realized
?v35— 39 C. Divisions of the Realm and Local Government.
(i) The shire; its history; shire moot; ealdorman; sheriff; the Norman earl (comes) and Norman sheriff (uicecomes). The county
Analysis xi
court (shire moot) not feudalized ; its constitution ; its political importance ; quasi-corporate character of county ; acts as a whole for many purposes ; election of coroners (i 194) ; struggle for elective sheriffs ; the county (court) represented in parliament . 39 — 44
(ii) The hundred ; its history ; hundred moot : quasi-corporate character of the hundred ; its duties ; represented in the eyres by jurors. Hundreds in private hands ; the court leet and the sheriffs turn ; the Serjeant of the hundred 44— 46
(iii) The vill or township ; its duties ; represented in the eyre by reeve and four men ; election of the reeve. Relation of the township to the manor 47 — 52
(iv) The boroughs; each borough has its own history; generaliza- tion difficult. Privileges of boroughs may be brought under several heads : (a) immunities ; (b) courts of their own, like hundred-courts ; (c) elective officers, baillivi, praepositi\ (d) collection of royal dues, thejfirma burgi\ (e) guilds. The city of London. The notion of a corporation (juristic person) not yet formed ; but the greater towns have what are afterwards regarded as the powers of corporations
52-54
D. Central Government. Retrospect : —
(i) Before 1066. King and witan; actual composition of witenagemot; theory that it had been a folk moot; the bishop; the ealdorman; the thane (minister regis). Tendency towards feudalism. Powers of this assembly; election and deposition of kings, appointment of officers, legislation, judicature, etc. ; but really there is little central government. Kingship increases in splendour ; but rather in splendour than in power .... 54 — 60
(ii) 1066 — 1154. Title to the kingship; practical despotism of Norman kings ; tradition of counsel and consent maintained. The Curia Regis, how far formed on feudal lines ; number of tenants in chief; suit of court a burden. The curia Regis in a narrower sense; the administrative body; the officers of state, justiciar, chancellor; the exchequer and its routine 60 — 64
(iii) 1154 — 1216. Definition in Charter (1215) of commune consilium regni. Who were the barones majores and what was a baroniat Line of demarcation gradually drawn among tenants in chief. Assemblies under Henry II; consent to legislation and taxation. The administrative and judicial body ; professional judges under Henry II; itinerant judges ; the barons of the exchequer
64—69
xii Analysis
(iv) 1216—1295. Changes in the Charter. Grpwth of repre- sentation; parliament of 1254; later parliaments; events of 1261, 1264, 1265 ; doubts as to constitution of later parliaments; parliament of 1295 becomes a model ...... 69 — 75
Constitution of parliament of three estates.
(1) Clergy: the bishops, their two-fold title; abbots; the inferior clergy; praemunientes clause; parliament and the con- vocations ......... 75 — 78
(2) Baronage : difficulties created by demand for a strict theory ; tenure by barony and barony by tenure ; barony by writ ; a distinct theory of hereditary right supersedes a vaguer theory of right by tenure. Judges and other councillors summoned ; their position
(3) Commons: communes and communae\ the electors in the shire ; representation of the county court ; the boroughs ; demesne and other boroughs j the electors in the boroughs ; non-representation of the palatinates ........ 85 — 90
Magna Concilia as contrasted with Parliamenta : specification of terms . ... ^ ...... 90
The Concilium Regis \ growth during minority of Henry III; relation of council to parliament, as yet undefined.
1. Legislation ; in parliament, in a Magnum Concilium, in the permanent council. Line between statute and ordinance slowly drawn.
2. Taxation ; sources of royal revenue, profits of demesne lands, feudal dues, profits of justice, sale of privileges and offices, eccle- siastical dues, tallage of demesne lands, customs; extraordinary revenue, Danegeld, carucage, taxes on movables. Consent necessary to taxation; charter of 1215; practice under Henry III and Edward I; crisis of 1297; the Confirmatio Cartarum and De Tallagio non concedendo ...... 91 — 96
v^he kingship ; becoming hereditary ; coronation oaths. ' The king can do no wrong ' : — meaning of this. Theory of kingship in Bracton; the right to revolt Modern notion of 'sovereignty' in- applicable; denied by current doctrine of church and state. The king as a legislator ; Glanvill and Bracton on Quod principi placuit, etc. Legislation by means of new writs; can the king make new writs? — a limit set to this power ..... 97 — 105
Analysis xiii
E. Administration of Justice.
The courts are (i) communal, (2) feudal, (3) royal, central and permanent, (4) royal, local and temporary (visitatorial), (5) eccle- siastical. General principles as to their competence.
The king's court to start with, (a) a court of last resort when justice denied, (ff) a court for the tenants in chief, (c) a court for pleas of the crown . . .... 105 — 107
Growth of royal jurisdiction : —
(i) Criminal. Pleas of the crown; in Canute's laws; in Leges Henrici Primi; gradual extension by means of the ideas of (a) king's peace, (b) felony. The appeal and indictment . . 107 — in
(ii) Civil. Lines of progress, (i) evocation of causes quod nisi fcceris, etc.; (2) no one need answer for freehold without writ; (3) royal procedure of grand assize; (4) royal possessory assizes; (5) writs of praedpe'y contempt of king's writ; (6) king's peace; action of trespass. The king's court offers advantages to suitors, e.g. trial by jury Ill — 115
History of procedure. Archaic procedure; proof comes after judgment and is an appeal to the supernatural : oaths ; compurgation ; formal witness procedure ; ordeals ; (after Conquest) battle. Germ of jury-trial not to be found in England ; but in prerogative procedure of Prankish kings ; the Prankish inquisitio ; trial by the oath of presumably impartial neighbour-witnesses ; introduced into England as a royal privilege; Domesday book. Generalization of inquest procedure under Henry II; regale benefidum\ (i) grand assize, (2) possessory assizes, (3) the jurata in civil cases, (4) the accusing jury (connexion with Ethelred's law disputed), (5) the jurata in appeals and indictments; peine forte et dure. Jurors still witnesses at end of thirteenth century. Local courts never attain to trial by jury 115—132
The courts in the time of Edward I. Work of (a) communal, (b) feudal courts, rapidly diminishing: Statute of Gloucester, (c) The king's central court has divided itself; extinction of the justiciar- ship; (i) king's bench, (ii) common pleas, (iii) exchequer, (iv) king in parliament, (v) king in council. History of the (d) visitatorial courts; justices in eyre; the more modern commissions, (i) assize, (2) gaol delivery, (3) oyer et terminer ...... 132 — 141
M. b
xiv Analysis
F. fietrosptct of Feudalism.
Notion of a c feudal system,1 as a system of European common law introduced by Spelman, popularized by Wright and Blackstone ; an early effort of comparative jurisprudence; it is valuable, but differences between various countries are great and should not be overlooked . 141 — 143
Attempts to define feudalism. How far was the feudal idea realised in England?
Tendency towards feudalism in Anglo-Saxon law; the territorial iza- tion of legal relationships; its economic causes, (i) The thegnage; the thegn as a landowner; military duty and land-owning; folkland becoming terra Regis. (2) The duty of having a lord imposed by the state. (3) Grants of jurisdiction. (4) Dependent landowners ; villeinage . 143—151
Feudalism in the Frank Empire; benefirium and fcodum ; the, breaking up of the dominium. Jurisdiction in private hands. The kmgjprimus inter pares. Relation of the Duke of Normandy to the king of the French.
In what sense William introduced feudalism. The theory of tenure : all land brought within it ; a quiet assumption ; feudal tenure not the mark of a noble or military class. So far as feudalism is mere private law England is the most feudalised of all countries
152—158
Gradual development of doctrine of military service by means of particular bargains, not completed until scutage is imposed and feudalism is on the wane. Elaboration of 'incidents of tenure* is also gradual ; burdens of wardship and marriage unusually heavy in England.
But political influence of feudalism is from the first limited, (i) Oath of allegiance exacted. (2) Man never bound by law to fight for any but the king ; private war never legal. (3) Duty of all to serve in army irrespective of tenure is maintained. (4) Taxation not limited by feudalism. (5) Feudal justice has but a narrow sphere; communal courts retained and not feudalised. (6) King's court and council not definitely feudalised • , . 158— -164
Analysis xv
PERIOD II.
SKETCH OF PUBLIC LAW AT THE DEATH OF HENRY VII. A. Parliament.
1. Its Constitution.
- History of the three estates.
(i) Clergy : — bishops, abbots ; non-attendance of clerical proctors.
(ii) Lords : — the dukes, marquises, viscounts. Peerage by patent and peerage by writ. Barony by tenure. Number of peers. Idea of 'peerage'; right to trial by peers admitted, but within narrow limits. Court of the High Steward. The peerage not a caste. Preponderance in the House of Lords of lords spiritual.
(iii) Commons : — Number of members. The county franchise ; the forty shilling freehold. Number of boroughs represented. The borough franchises. Wages of members.
Arrangement of Parliament in two houses; when effected. Functions of the two houses. Wording of the writs . 165 — 177
2. Jrequency and Duration of Parliaments.
Annual Parliaments. Statutes of 1330 and 1362. Intermissions of Parliaments become commoner under Edward IV . 177 — 178
3. Bit sine ss of Parliament.
We must not start with a theory of parliamentary sovereignty; such a theory the outcome of struggles .... 179
(i) Taxation : — here the need of Parliaments is established. Direct taxation without consent of Parliament becomes impossible. History of indirect taxation. Benevolences. Parliamentary taxation; taxation of clerical estate. Money grants to be initiated by the Commons : form of grants. Tonnage and poundage. Wealth of Henry VII. Change in the king's financial position. Purveyance and preemption. Audit of accounts and appropriation of supplies
179—184
(ii) Legislation. Changes in the legislative formula. Original equality of commons and clergy. Declaration of 1322. Gradual coordination of lords and commons. Magna concilia. Legislation by the king's Council ; ordaining and dispensing powers. Forms of bill and statute. Royal dissent. Growing bulk of statute law: character of the statutes ...... 184—^0
xvi Analysis
B. The King and his Council.
The king's title : events of 1327 and 1399. Title of Henry IV, Edward VI and Henry VII. Legitimism of the Yorkists 190 — 195
His powers or 'prerogatives': their wide and indefinite extent The character of the kingship varies with the character of the king ; but law varies little. Thus the (so-called) 'New Monarchy1 is intro- duced without change in the law. Fortescue's theory of the king- ship . . 195—199
The Council: its constitution; its constantly changing character. Royal minorities and regencies. The Council as a council of regency. Under Edward IV and Henry VII it becomes strong as against the people, weak as against the king. The king's seals; 1 ministerial responsibility.' Functions of the Council . 199 — 203
C. Administration of Justice.
Decay of feudal and communal courts. The justices of the peace ; their history ; their ever-growing powers ; summary penal jurisdiction; their connexion with the council. The three courts of common law. The commissions of assize, etc. The nisi prius system. Trial by jury ; changes in its character ; in civil cases ; in criminal cases ; grand and petty juries ; peine forte et dure. Appeals and indictments. Fortescue on the jury . . . 204 — 213
Jurisdiction of the Parliament (i.e. for this purpose, House of Lords) : — (i) trial of peers, (ii) writs of error, (iii) impeachments. Contrast between impeachments and acts of attainder; early instances 213 — 216
Jurisdiction of the Council, (j) as courts of error, — this sup- pressed; (2) as a criminal tribunal of first instance; statutes and petitions against it; gradual acquiescence of Parliament; jurisdiction of Council acknowledged by statute ; question as to the legality of the jurisdiction; the Act of 1487. (3) Jurisdiction of Council in civil cases ; growth of the Court of Chancery . . 216 — 221
The chancellor and his powers. Petitions to the king for civil relief referred to the chancellor. He is warned off the field of common law; but acquires an 'equitable' jurisdiction. Nature of Equity ; becomes a supplemental system of law . . 221 — 226
Analysis xvii
D. General Characteristics of English Law.
Common Law ; its conservatism ; its development under Edward IV and Henry VII ; new forms of action. Text books and reports.
Statute law ; characteristics of medieval statutes ; growth of economic legislation.
Remarks on criminal procedure. History of the law of treason
226 — 236
PERIOD III.
SKETCH OF PUBLIC LAW AT THE DEATH OF JAMES L A. Parliament.
1. Constitution of Parliament.
(i) House of Lords. Disappearance of the abbots ; legislation as to the appointment of bishops. Number of temporal lords.
(ii) House of Commons. Number of members. Creation of new boroughs.
The clergy have practically ceased to be an estate of the realm ; taxes still voted in convocation, though confirmed by statute
237—240
2. Privileges of Parliament.
4 Privilege J now an important topic.
(a) Freedom of debate ; Haxey's case ; Thorpe's case ; Strode's case; Strickland's case; Wentworth's case; Elizabeth's views and James's; events of 1621.
(b) Freedom from arrest; statute of 1433; Ferrer's case; Shirley's case ; statute of 1604.
(c) Punishment for contempt; cases of Storie, Parry, Bland, Floyd 240—245
3. Jurisdiction of Parliament.
i.e. of House of Lords, (a) as a court of error, (V) in trial of peers, (c) in impeachments : revival of impeachments ; their importance. Jurisdiction as a * privilege 9 of House of Lords. Acts of attainder
245—246
4. Functions of the Commons in granting money . 247
5. Right to determine disputed Elections.
Claim of Commons to decide disputes as to elections ; Nowell's case; events of 1586 247 — 248
6. Parliamentary procedure.
The outlines now drawn ; proxies and protests of the lords ; the king in tbe House of Lords 248
xviii Analysis
7. Frequency and Duration of Parliaments.
Long Parliaments of Henry VIII and Elizabeth ; long intervals without a session; old statutes as to annual Parliaments not repealed. Important results of long Parliaments . 248 — 251
» B. delation of the King to Parliament.
vMPHability of Tudor Parliaments ; forced loans ; forgiveness of the king's debts ; growing independence of Parliaments under Elizabeth and James.
* Supremacy of king in Parliament made apparent by (i) acts of attainder; (2) forgiveness of the king's debts; (3) repeated settle- ments of royal succession; will of Henry VIII ; (4) 'the Lex Regia of England' (1539) and its repeal; (5) acts enabling the king to revoke statutes; their repeal; (6) interferences with religion. Sir Thomas Smith on supremacy of king-in-Parliament . 251 — 255
But in many directions the king's power is ill defined ; constitu- tion of the Council Want of definition illustrated :
(1) In legislation. The ordaining power; instances of pro- clamations ; resolution of the judges in Mary's reign ; parliamentary protests. Council in Star Chamber enforces proclamations 255 — 258
(2) In fiscal matters. The 'impositions'; Bates' case; Coke's opinion ; difficulty caused by wide extent of undoubted prerogatives, e.g. as to debasing the coinage. Benevolences. Monopolies ; statute against them ; sale of privileges in the Middle Ages . 258 — 261
(3) In judicial matters, (i) The Court of Star Chamber; theories as to its origin and legality ; Plowden's opinion ; statute of 1562; Coke's opinion. Connexion with the now well-established Court of Chancery. Its procedure; arbitrary punishments; use of torture, (ii) The Council of the North, (iii) The Council of Wales; doubts as to its jurisdiction. Usefulness of these courts, owing to decay of old local courts, (iv) The High Commission ; Coke's opinion as to king's ecclesiastical supremacy ; his opinion as to the Commission, (v) Commissions of martial law ; the Court of the Marshal and courts martial; precedents under Edward IV; proclamations of 1588 and 1595 .... 261 — 267
Prerogative and law ; illustrations from Coke's career ; the quarrel with the ecclesiastical courts; the king no judge; quarrel with the High Commission; opinion as to impositions; as to taking extra- judicial opinions from the judges severally; quarrel with the Chancery; case of the commendams\ his disgrace ; the four p's which ruined him.
Analysis xix
Why controversy collects round the writ of habeas corpus ; its history ; statutes as to bailing prisoners. Is the king's command a cause for imprisonment? cThe resolution in Anderson.' Coke's change of mind.
The gathering storm. Where is sovereignty ? . . 267—275
C. History of the Army.
The feudal levy ; its clumsiness ; scutage. The Assize of Arms ; the Statute of Winchester ; the village constables. Commissions of array ; statutes of Edward III and Henry IV. No standing army. Act of Philip £nd Mary as to musters; its repeal. Act of Philip and Mary as to keeping armour. Situation in James' reign. Difficulty as to (i) martial law, (2) obtaining money for payment of troops. Pressing for the navy legal » 275 — 280
D1. Local Government.
E1. General Characteristics of Law, especially Criminal Law. F1. Legal History of the Reformation.
PERIOD IV.
SKETCH OF PUBLIC LAW AT THE DEATH OF WILLIAM III A. Constitution of the Kingship.
theory of Restoration and Revolution. The Convention Parliament and the Convention ; were they Parliaments ? Attempts to legalize their acts. James' 'abdication'; its date; existence of an interregnum. Was there a Revolution?
Settlement of the succession ; the forfeiture clause. New coro- nation oath ; history of the old oath ; charges against Laud of tampering with it; quarrel as to its meaning . . 281 — 288
B. Constitution of Parliament.
(i) House of Lords. Expulsion and restoration of the bishops. Number of the lords. Abolition of the House in 1649.
1 Maitland appended a note to the effect that these subjects would be treated * ii time serves.' Time did not serve, but the Legal History of the Reformation is briefly summarised later — pp. 506 — 13.
xx Analysis
(ii) House of Commons. Number of members ; new boroughs ; prerogative of giving members to towns falls into disuse. Constitu- tion of Cromwell's Parliaments. Electoral qualifications ; forfeiture of borough charters. Qualification of members; the projected exclusion of place-men by the Act of Settlement Disputes as to elections decided by the House 288 — 292
C. Frequency and Duration of Parliaments.
Laws of 1641, 1664, 1696. Chronological summary of sessions
292 — 297
D. The Question of Sovereignty.
The theory of Hobbes. In 1625 three claimants for sovereignty : (i) king, (2) king-in-Parliament, (3) the Law. Opinion of the judges in the Ship-Money case; the king above statute. Logical flaw in the royalist argument : — it does not go far enough. The claim of 'the Law'; Coke's theory as to void statutes; past legisla- tion renders it difficult to maintain this claim ; what cannot statute do? The issue lies between (i) and (2), and is decided in favour of (2). The progress of the dispute may be seen in several different departments . 297 — 301
E. Legislation.
Dispute as to (i) ordaining power; proclamation of Charles I; abolition of Star Chamber; (2) dispensing power; doubts as to its limits ; treatment of it at the Revolution ; (3) suspending power ; treatment of it at the Revolution ; case of the Seven Bishops
302—306
R Taxation and Control over Finance.
Under Charles I ; the impositions ; the forced loan ; the Petition of Right; the ship money; legislation of 1641. Taxation by James II. The Bill of Rights.
Appropriation of supplies; events of 1624 and 1665; impeach- ment of Danby ; beginnings of the civil list. The Commons and money bills; the 'tacking' in 1700. Taxation of the clergy. Abolition of military tenures, purveyance, preemption ; grant of the hereditary excise 3°6 — 311
Analysis xxi
G. Administration of Justice.
Abolition of Star Chamber, High Commission, Councils of the North and of Wales. Restoration of High Commission by James ; denounced in Bill of Rights, Escape of the Chancery.
Change in the commission of the judges ; enforced by Act of Settlement Independence of jurors ; Bushell's case.
*xThe habeas corpus; Darnel's case; Eliot's case; the Act of 1679; excessive bail forbidden.
The era of impeachments; various points settled by decision. Changes in the law of treason. Acts of attainder. Disputes between the Houses as to the jurisdiction of the House of Lords, (a) as a court appeal from Chancery, (b) as a court of first instance.
Jurisdiction of the Council in admiralty and colonial cases
311—320
H. Privilege of Parliament.
(i) Freedom of speech; Eliot's case. (2) Freedom from arrest; arrest of the five members ; extent of the privilege. (3) Power to punish for * contempt'; what is contempt? Assertions of privilege above law 320 — 324
I. Military Affairs.
The commissions of martial law; billeting of troops; impress- ment, 'the power of the militia/ Settlement at the Restoration; growth of the standing army; commissions of martial law under Charles II and James II. Settlement at the Revolution; the first Mutiny Act; control of Parliament over the standing army. Necessity for annual sessions. The remodelled militia 324 — 329
PERIOD V. SKETCH OF PUBLIC LAW AT THE PRESENT DAY (1887-8).
Preliminary.
i. Though concerned chiefly with England we must remember that England is no longer a state but is a part of the United Kingdom.
Incorporation of Wales in England. Union with Scotland; 'personal union ' in 1603; legislative union in 1707; scheme of the
xxii Analysis
union ; the ' fundamental conditions.1 Relation of Ireland to England in Middle Ages; Poynings1 law; questions as to authority of English statutes and judicial power of English House of Lords; Act of 1719; Act of 1783 freeing Irish Parliament from subjection; union of 1801 ; articles of the union. No federation of three kingdoms, but a complete merger in the United Kingdom of Great Britain and Ireland.
Colonies and Dependencies; general principles as to laws in force in them; subjection to legislature of Great Britain and Ireland; taxation of the American colonies. Abolition of slavery and other instances of legislation for colonies. Colonial constitutions ; crown colonies and self-governing colonies; wide powers of legislation given to colonial assemblies.
Distinguish institutions which are merely English, from those common to Great Britain or to the United Kingdom or to all the king's dominions; e.g. there is no English Parliament, no English nationality, but English courts of law, English domicile.
Now it becomes important to distinguish carefully rules of law from rules which however punctually observed are rules of ' positive morality/ 'customs or conventions of the constitution/ 'constitutional understandings'; these are much interwoven; reason of this, our conservatism of form 330 — 343
A. The Sovereign Body.
I. The kingship; statutory settlement of succession; queens, queens' husbands. 'The king never dies.1 Coronation oath; declara- tion against Popery; king must 'join in communion with1 English church. Royal Marriage Act No legal mode of deposing king.
Infant and incapable kings; common law makes no provision; king never legally incapable; minorities provided for by occasional statutes; events of 1788 and 1810 when George III was insane; great seal used without king's assent . . . 343 — 346
II. The House of Lords. Lords Spiritual ; legislation as to the new bishoprics. Irish bishops have come and gone. Mode of appointing bishops.
Lords Temporal; increase of numbers; representatives oi Scottish and Irish peers ; mode of making peers . . . 347 — 351
III. The House of Commons, (i) Fluctuation in number; the Acts of Union 351 — 352
Analysis xxiii
(2) Qualification of electors in counties and boroughs. The reforms of 1832-67-84. Present state of law.
Distribution of seats. Parliamentary and municipal organiza- tions become distinct. Tendency towards equal electoral districts, but still distinctions between borough and county qualifications, causes of disqualification ...... 352 — 364
(3) Qualification of members. History of parliamentary oaths. History of * office ' as qualification .... 364 — 370
Mode of election ; introduction of the ballot 370
Determination of disputed elections , 370
Modes of ceasing to be a member; expulsion; Wilkes' case
37I—372
IV. Frequency and Duration of Parliament. Frequency depends on Triennial Act of 1694; (N.B. Act of 1664 repealed in 1887); duration on Septennial Act of 1 7 1 5, Why annual sessions necessary. Legislation as to dissolution by demise of Crown . . 373 — 374
V. Privileges of Parliament, (i) Freedom of speech; exception out of ordinary law as to defamation ; Stockdale v. Hansard, Wason v. Walter. Reporting. (2) Freedom from arrest; now of little importance. (3) Power of punishing for contempt ; treatment of this power by courts of law ; actual use of it . . 374 — 380
VI. The Work of Parliament. Other functions besides passing statutes; inquiry and criticism; examination of witnesses. Essentials of a statute; each House has large powers of regulating its own procedure; questions as to whether both Houses have really consented to what on its face professes to be a statute.
The omnicompetence of statute ; it may not be a * law J in the jurists* sense; instances of particular commands given by statute. In the eighteenth century Houses attempt to govern as well as legis- late by statute. In the nineteenth century vast new powers have been given to ministers and law courts, and Parliament interferes less with particulars ; but the power exists and is exercised, e.g. disfran- chisement by statute of A, B, and C, corrupt voters, also Acts of Indemnity, also appropriation of supplies . . 380 — 387
B. The * Crown ' and the ' Government'
Difficulty of dealing with this subject owing to the growth of 1 constitutional understandings/ maintenance of ancient forms, and unwillingness to expressly take power from the king . 387 — 388
xxiv Analysis
Historical fieview. Revolution settlement; large prerogatives left to William III which he was expected to exercise. Positi^pof Privy Council and growth of Cabinet. How the Cabinet was flfally possible. Attempt (1700) to stop by statute the growth of an inner council; repealed 1705 ...... 387 — 390
History of the great officers; chancellor, treasurer, keeper of privy seal, president of council, secretaries of state, chancellor of exchequer, admiral; treasury and admiralty in commission. These or some of these form an irregular inner council, with whose concurrence a king can exercise prerogatives ; they have the seals ; importance of the seals of office; no need to summon other councillors 390 — 394
, Cabinet government of modern type slowly evolved ; king ceases to be present at cabinet meeting ; solidarity of cabinet slowly established (i) political unanimity, (2) common responsibility to Parliament (though not to the law), (3) submission to a ' Prime Minister.' Gradual retirement of king behind his Ministers, who are now expected to be in Parliament; he ought to take their advice, and choose them in accordance with wishes of Parliament (later, of House of Commons). All this * extra-legal.' King's legal powers have not been diminished; on the contrary since the establishment of ministerial system have vastly grown owing to modern statutes. King's own sign manual or consent given at a (formal) meeting of Privy Council necessary for countless purposes. Other powers given to this or that high officer (cabinet minister). Distinguish prerogatives (i.e. common law powers) from statutory powers of king
394—400
Present State, (i) Necessary existence of Privy Council. (2) Its legal constitution. (3) And actual composition. (4) King may consult such privy councillors as he pleases and this is legally a meeting of the Privy Council. (5) Large powers of king in Council. (6) Necessary that king should have certain high officers (e.g. two Lords of the treasury, otherwise he cannot lawfully get the money that Parliament has voted). (7) Customary composition of the 'Cabinet' out of these high officers; as a body it has no legal powers. (8) But almost every member has large legal powers. (9) Customary composition of 'Ministry.' (10) Solidarity of Ministry, maintained by customary rules as to resignation and acceptance of office, but not recognized by law; ultimate sanction a refusal of supplies, (n) Legal tenure of high offices during king's pleasure. Choice of Prime Minister. (12) Relation of Cabinet to the Privy Council;
Analysis xxv
formal meetings of Privy Council (i.e. of king with a few ministers and sometimes a royal duke, or officer of household), at which king's powers are exercised in accordance with policy of Cabinet. (13) Many, but not all, royal powers must be exercised by Order in Council; but every (or almost every) exercise of royal power requires authentication by some high officer. Form of an Order in Council. Classification of delegated powers .... 400 — 407
Of some of the high officers and their legal powers, (i) The Lords of the Treasury, (2) the Secretaries of State; large legal powers in governing England of (Home) Secretary. (5) Board of Trade. (6) Local Government Board. (7) Education Department, etc. Illustration of actual working of government system 407 — 414
Object of illustrating these statutory powers : — Blackstone's state- ment that the high officers (e.g. secretaries) have few (if any) legal powers of their own, has become utterly untrue, though still repeated by text writers. The old theory (never very true) that * legislative power is in king and Parliament, executive power in king' now requires serious modifications. Many powers of great importance are given by statute not to the king but to some high officer — e.g. power of making rules for the government of police given to Secretary of State. The requisite harmony between those who have these powers is obtained by the (extra-legal) organization of the Cabinet. Our law now knows not so much 'the executive power' as many executive (better, governmental) powers. This is obscured by talk about 'the Crown'; 'the Crown' is often a cover for ignorance; the king has power.} and the high officers have powers, but the crown lies in the Tovvcr.
Difficulties as to limits of king's prerogative powers; because instead of them new statutory powers are used; but a prerogative does not become obsolete by disuse and the clear words of a statute are necessary to take it away . 415 — 421
. f.^ C. Classification of the Powers of the Crown.
Shall deal with many in subsequent sections; but here (i) recall powers relating to constitution, assembling and dissolving of Parlia- ment and turning bills into statute; (not correct to speak of king as having a * veto * ; he must actively assent ; assent last refused by Anne); (2) note power of making war or peace; question as to power of ceding territory ; power to make treaties, but treaty does not alter English law; illustration, extradition treaties; ambassadors; aliens; (3) appointment of offices . • • « • 422 — 430
xx vi Analysis
D. The Fiscal System.
Retrospect: the Crown lands and king's private estates, the national revenue and king's private revenue, gradual establishment of these distinctions. The 'ordinary' and Extraordinary* revenue; decline in importance of former. History of hereditary excise and civil list; a king with a salary 430 — 438
History of Consolidated Fund and of National Debt. Charges on Consolidated Fund. Present sources of revenue. Most taxes imposed by permanent Acts : but supply granted only from year to year. Function of House of Commons in granting and appropriating supplies. How supplies expended; necessity of royal sign manual; method of voting supplies 438 — 447
E. The Military System.
Army. Annual Mutiny Acts; Army Act 1881 ; nature of its contents; * Military law'; prerogative of making articles of war; billeting and impressment of carts ; terms of soldiers' service how far fixed by statute; conscription in the eighteenth century; the command of the army. ...... 447 — 454
Militia. The 'constitutional force'; models of 1662, 1757, 1786, 1802, 1853; suspension of the ballot; present plan 455 — 459
Navy. Contrast between treatment of Army and Navy ; Acts of 1661, 1749, 1866. Pressing sailors .... 460 — 462
F. Administration of Justice.
Put on one side Judicial Committee of Privy Council; its great importance .,......, 462 — 464
a. System of Civil Courts. The great changes of the nineteenth century. The (new) County Courts ; the Court of Chancery ; the domain of modern equity; Chancery procedure; fusion of Equity and Common Law; the High Court of Justice; the High Court of Appeal ; the House of Lords.
Court of Appeal, House of Lords. General rules a:s to their competence. Present relation of Equity to Law . . 464 — 473
b. System of Criminal Courts, (i) Courts of Summary Juris- diction formed by justices of peace. (2) Quarter Sessions. (3) High Court. Writs of error to (4) Court of Appeal and (5) House of
Analysis xxvii
Lords. (6) Court for Crown Cases Reserved. Trial of peers and impeachments before the House of Lords. Some notes on Criminal Law . 473—478
c. Government and Justice: — (i) Independence of judges secured; (2) king has no powers over Civil Justice ; but (3) has legally large powers over Criminal Justice; power of pardon; power to stop criminal proceedings ; (4) * the king can do no wrong ' ; meaning of this; petitions of right; (5) king's officers can be sued^nd prose- cuted in ordinary way even for official acts , . y/T 478 — 484
G. The Police System.
Continued decline and fall of sheriff; his present position. The parish constables; Act of 1842 ; special constables. The new con- stabulary; its government. Position of police constable; law of arrest; constant increase of police constable's statutory powers. Suppression of tumults ; Riot Act; use of military force 485 — 492
H. Social Affairs and Local Government.
Only possible to hint at the existence of this great field of law which constantly grows wider; but at least its existence should be known.
Organs of local government :—
(1) Justices of Peace 493 — 495
(2) Municipal corporations; the reform of 1835 . 495 — 497
(3) Poor Law Guardians; the reform of 1834 . 497 — 498
(4) Sanitary authorities; acts of 1848 and 1875 . 498
(5) School Boards, 1870. Progress of democratic representative government; bill (Act?) of 1888 for County Councils . 499 — 501
The new duties thus cast on the Englishman : some of which are active duties, e.g. to register child's birth, have it vaccinated, and sent to public elementary school. Also notice Expropriation Acts.
501—506
J. The Church.
Medieval theory of church and state; a denial of ' sovereignty,' Jurisdiction of ecclesiastical courts ; temporal effects of excom- munication; the Canon Laws; statutes against heretics. Endowments, not 01 * the church/ but of churcaes. The Reiurmation 506—511
xxviii Analysis
Subjection of church to king and Parliament Legislation as to dogma and ritual. History of convocations ; their impotence
History of attempts to enforce conformity on Catholics and Protestant Dissenters ; Blackstone's account of laws against sectaries and papists. History of toleration. Present state of the case; remaining religious disabilities; laws against Jesuits; heresy an ecclesiastical offence. Present condition and powers of ecclesiastical courts. Legal position of clerk in English orders contrasted with that of catholic priest and dissenting minister ; the former a ' status ' ; 1 the church ' not a corporation, nor even a definite body of persons
514—526
K. The Definition of Constitutional Law.
Such terms as 'public/ 'constitutional,' 'administrative1 law, not technical in England; Austin's use of them, and Holland's. Theory that constitutional law deals with structure, administrative with function; difficulty of taking this as outline for a code. Interdependence of all parts of the law; e.g. main outlines of 'constitutional law ' of Middle Ages are determined by 'real property law'; constitutional struggles of seventeenth century not to be understood without knowledge of criminal procedure . 526 — 539
PERIOD I.
ENGLISH PUBLIC LAW AT THE DEATH OF &DWARD
THE FIRST,
A. General cJiaracteristics of English law and revieiv of legislation.
i. Before 1066.
The oldest English laws that have come down to us are those of Ethelbert, king of Kent, and we have good reason for believing that they were the first English laws that were ever put into writing. Ethelbert became king in 560 and died in 6 1 6. The laws that we have must have been published after he had received the Christian faith ; we may attribute them to the year 600 or thereabouts. Thus the history of English law may be said to begin just about the time when the history of Roman law — we will not say comes to an end, for in a certain sense it has never come to an end — but comes to a well marked period : — the reign of Ethelbert overlaps the reign of Justinian. Not only are Ethelbert's the earliest English laws, but they seem to be the earliest laws ever written in any Teutonic tongue. It is true that on the continent the German nations which overwhelmed the Roman Empire had already felt the impulse to put their laws in writing ; the Lex Salica> for example, the law of the Salian Franks, is considerably older than anything that we Englishmen have to show, but it is written in Latin, and for centuries Latin continued to be the legal language of the new kingdoms. But our earliest laws are written in English, or Anglo-Saxon, and until the Norman Conquest all laws were written in English, though
M. . I
2 Constitutional History PERIOD
Latin was commonly used for many legal documents, con- veyances of land and the like. Seemingly it was the contact with Roman civilization in the form of Christianity which raised the desire for written laws. Beda, who died in 735, says that Ethelbert put his laws in writing 'juxta exempla Romanorum/ It is possible that some collection of ecclesi- astical canons served as a model. We do well to remember that the oldest laws that we have, however barbarous they may seem, are none the less Christian laws. ' God's property and the church's 1 2-fold. A bishop's property n-fold. A priest's property 9-fold. A deacon's property 6-fold. A clerk's property 3-fold': — this is the first utterance of English law. This it is well to remember, for it should prevent any glib talk about primitive institutions : Teutonic law (for what is true of England is true also of the continent) when it is first set in writing has already ceased to be primitive ; it is already Christian, and so close is the connection between law and religion, that we may well believe that it has already under- gone a great change.
We have two more sets of Kentish laws, a set from Hlothar and Eadric, who seem to have been joint kings of the Kentings, which we may date in 680 or thereabouts, and a set from Wihtraed, which comes from 700 or thereabouts. Wessex takes up the tale ; in 690 or thereabouts king Ine, with the counsel and consent of the wise, published a set of laws. Then we have a gap of two centuries, the greatest gap in our legal history. The laws of Alfred, which come next in order, may be attributed to 890 or thereabouts. They show us that during the two last centuries there had been no great change in the character of law or the legal structure of society. Alfred disclaims all pretension of being an innovator, he will but set down the best principles that he has been able to find in the laws of Ethelbert, of Ine and of the Mercian king, Offa. The laws of Offa of Mercia, who died in 796, have not come down to us.
Beginning with Alfred's we now have a continuous series of laws covering the whole of the tenth century and extend- ing into the eleventh, laws from Edward the Elder, ^Ethelstan, Edmund, Edgar, and Ethelred ; the series is brought to an end
I Anglo-Saxon Dooms 3
by a long and comprehensive set of laws coming from our great Danish king, Canute. We have no one law that can be ascribed to Edward the Confessor, who, however, in after days acquired the fame of having been a great legislator.
These Anglo-Saxon laws or dooms — as they call them- selves— after having lain hid in MS. for several centuries, were dug up in the sixteenth century as antiquarian curiosities. Lambard published some of them in 1568 under the title Archaionomia. In 1840 they were published for the Record Commissioners with a modern English translation under the title Ancient Laivs and Institutes of England \ they were again published in 1865 with a German translation by Dr Reinhold Schmid1. These editions contain, besides the dooms, a few brief statements of customary law, forms of oaths and the like. The whole material can be printed in about 160 octavo pages. We have nothing from this period that can be called a treatise on law, and we have but very few accounts of litigation. On the other hand we have a large number of private legal documents, conveyances of lands, or land books as they were called, leases, wills and so forth ; these were collected and printed by J. M. Kemble in his Codex Diplomaticus ^Evi Saxonici.
I have spoken of ' sets of laws ' and have refrained from using the word code. Once or twice it would seem as if an attempt had been made to state the existing law ; but in general these laws seem to be new laws, additions to the law that is already in force ; we may compare them to our modern statutes and lil^e our statutes they pre-suppose a body of existing law. I will not say that they pre-suppose ' common law/ because I think that the phrase implies law common to the whole kingdom, and how much law there was common to the whole kingdom in the days before the Norman Conquest is a very difficult question. In the twelfth century, some time after the Conquest, it was the established theory that England was or had been divided between three laws, the West-Saxon, the Mercian and the Danish. The old laws themselves notice this distinction in a casual way ; but we have little means of telling how deep it went. It is highly
1 The best edition is now that of F. Liebermann, Die Gesctze dtr Augelsachsen^ 2 vols., Halle, 1903 and 1906.
I — 2
4 Constitutional History PERIOD
probable, however, that a great variety of local customs was growing up in England, when the Norman Conquest checked the growth. Originally there may have been considerable differences between the laws of the various tribes of Angles, Saxons and Jutes that invaded Britain, and the Danes must have brought with them a new supply of new customs. But this would not be all ; the courts of justice, as we shall presently see, were local courts, courts of shires and of hundreds ; resort to any central tribunal, to the king and his wise men, seems to have been rare, and this localization of justice must have engendered a variety of local laws. Law was transmitted by oral tradition and the men of one shire would know nothing and care nothing for the tradition of another shire.
The written laws issued by the king and the wise cover but a small part of the whole field of law. They deal chiefly with matters of national importance, in particular with the preservation of the peace. To keep the peace is the legis- lator's first object, and is not easy. The family bond is strong; an act of violence will too often lead to a blood feud, a private war. To force the injured man or the slain man's kinsfolk to accept a money composition instead of resorting to reprisals is a main aim for the law giver. Hence these dooms often take the form of tariffs — so much is to be paid for slaying an eorl, so much for a ceorl, so much for a broken finger, so much for a broken leg. Another aim is to make men mindful of their police duties, to organize them for the pursuit of robbers and murderers, to fine them if they neglect such duties. But of what we may call private law we hear little or nothing — of property, contract or the like. It is easy to ask very simple questions about inheritance and so forth to which no certain answer can be given, and like enough there were many different local customs. There was as yet no body of pro- fessional lawyers, law was not yet a subject for speculation ; it was the right and duty of the free man to attend the court of his hundred and his shire, and to give his judgment there. This must not, however, lead us to believe that law was a simple affair, that it consisted of just the great primary rules of what we think natural justice. In all probability it was
I Roman influence 5
very complicated and very formal ; exactly the right words must be used, the due solemnities must be punctually per- formed. An ancient popular court with a traditional law was no court of equity ; forms and ceremonies and solemn poetical phrases are the things which stick in the popular memory and can be handed down from father to son.
A great deal has been done by modern scholars and a great deal more may yet be done towards reconstructing the Anglo-Saxon legal system. Besides the primary sources of in- formation that I have mentioned, the evidence of Caesar and Tacitus, the kindred laws of other German tribes and books written in England after the Conquest may be cautiously employed for the purpose : but for reasons already given I do not think that this matter can be profitably studied by beginners ; we must work backwards from the known to the unknown, from the certain to the uncertain, and when we see very confident assertions about the details of Anglo-Saxon law we shall do well to be sceptical. One point how- ever of considerable importance seems pretty clear, namely, that the influence of Roman jurisprudence was hardly felt. There is no one passage in the dooms which betrays any knowledge of the Roman law books. German scholars are in the habit of appealing to these Anglo-Saxon dooms as to the purest monuments of pure Germanic law; they can find nothing so pure upon the continent. But we must not exaggerate this truth. Roman jurisprudence did not survive in Britain, but the traditions of Roman civilization were of great importance. The main force which made for the improvement of law was the church, and the church if it was Catholic was also Roman. Thus, for example, at a quite early time we find the Anglo-Saxons making wills. This practice we may safely say is due to the church: — the church is the great recipient of testamentary gifts. We may further say that the will is a Roman institution ; that these Anglo-Saxons would not be making wills, if there had been no Rome, no world-wide Roman Empire; but of any knowledge of the Roman law of wills, even of so much of it as is contained in the Institutes we may safely acquit them. Suppose a party of English missionaries to go
6 Constittttional History PERIOD
preaching to the heathen, they would inevitably carry with them a great deal of English law although they might be utterly unable to answer the simplest examination paper about it ; for instance they would know that written wills can be made, and they would think that written wills should take effect, though they might well not know how many witnesses our law requires, or whether a will is revoked by marriage. In some such way the church, Catholic and Roman, carried with it wherever it went the tradition of the older civilization, carried with it Roman institutions, such as the will, but in a popularized and vulgarized form.
I have spoken of the Anglo-Saxon dooms as the dooms of this king and of that, but we ought to observe, even in passing, and though this matter must come before us again, that no English king takes on himself to legislate without the counsel and consent of his wise men. Legislative formulae are of great importance to us, for we have to trace the growth of that form of words in which our Queen and Parliament legislate for us to-day. Here is the preface of the laws of Wihtraed : * In the reign of the most clement king of the Kentish men, Wihtraed, there was assembled a deliberative convention of the great men: there was Birhtwald, Archbishop of Britain, and the fore-named king, and the Bishop of Rochester, Gybmund by name ; and every degree of the church of that province spoke in unison with the obedient people. There the great men decreed these dooms with the suffrages of all, and added them to the customary laws of the Kentish men'; — and so on until the end of the period, until the laws of Canute: "This is the ordinance that king Canute, king of all England, and king of the Danes and Norwegians, decreed, with the counsel of his ' witan ' to the honour and behoof of himself."
ii. 1066-1154.
The Norman Conquest is an event of the utmost import- ance in the history of English law ; still we must not suppose that English law was swept away or superseded by Norman law. We must not suppose that the Normans had any com- pact body of laws to bring with them. They can have had but
I The Norman Conquest j
very little if any written law of their own ; in this respect they were far behind the English.
Since 912 these Norsemen had held a corner of what had once formed a part of the great Frank kingdom; but their dukes had been practically independent, owing little more than a nominal allegiance to the kings of the French. They had adopted the religion and language of the conquered, and we must believe that what settled law there was in Normandy was rather Prankish than Norse. They were an aristocracy of Scandinavian conquerors ruling over a body of Romance- speaking Kelts. No one of their dukes had been a great legislator. Such written law as there was must have already been of great antiquity, the Lex Salica and the capitularies of the Prankish kings, and how far these were really in force, we cannot say. The hold of the dukes upon their vassals had been precarious ; but probably some traditions of strong and settled government survived from the times of the Carlovings. For instance, that practice of summoning a body of neighbours to swear to royal and other rights which is the germ of trial by jury, appears in England so soon as the Normans have conquered the country, and it can be clearly traced to the courts of the Prankish kings.
There is no Norman law book that can be traced beyond the very last years of the twelfth century ; there is none so old as our own Glanvill. Really we know very little of Norman law as it was in the middle of the tenth century. It cannot have been very unlike the contemporary English law — the Prankish capitularies are very like our English dooms, and the East of England was full of men of Norse descent. We must not therefore think of William as bringing with him a novel system of jurisprudence.
The proofs of the survival of English law can be briefly summarised. In the first place one of the very few legislative acts of William the Conqueror of which we can be certain, is that he confirmed the English laws. ' This I will and order that all shall have and hold the law of king Edward as to lands and all other things with these additions which I have established for the good oi the English people/ Then again, after the misrule of Rufus, Henry I on his accession (uoo)
8 Constitutional History PERIOD
confirmed the English law : ' I give you back king Edward's law with those improvements whereby my father improved it by the counsel of his barons.1 Secondly, these confirmations of Edward's law seem to have set several different persons on an attempt to restate what Edward's law had been. We have three collections of laws known respectively as the Leges Edwardi Confessoris, Leges Willelmi Primi, Leges Henrici Primi. These are apparently the work of private persons ; we cannot fix the date of any of them with any great certainty. The most valuable is the Leges Henrici Primi, which has been ascribed to as late a date as the reign of Henry II, but which the most recent investigations assign to that of Henry I. It is a book of some size, very obscure and disorderly. The author has borrowed freely from foreign sources, from the Lex Salica, the capitularies of the Prankish kings, and from collections of ecclesiastical canons — one little passage has been traced to the Theodosian Code ; but the main part of the book consists of passages from the Anglo-Saxon dooms translated into Latin, and the author evidently thinks that these are, or ought to be, still regarded as the law of the land. The picture given us by this book is that of an ancient system which has undergone a very severe shock. So the compiler of the Leges Edwardi Confessoris has borrowed largely from the old dooms. His book did much to popularise the notion that the Confessor was a great legislator. In after times he became the hero of many legal myths ; but as already said there is no one law that can be attributed to him. The demand for Edward's law which was conceded by William and by Henry I was not a demand for laws made by Edward ; it was merely a demand for the good old law, the law which prevailed here before England fell under the domination of the Conqueror1. Thirdly, Domesday book, the record of the great survey made in the years 1085-6 — the greatest legal monument of the Conqueror's reign — shows us that the Norman landowners were conceived as stepping into the exact place of the English owners whose forfeited lands had come to their hands ; the Norman repre-
1 For a fuller account of the law-books of the Norman period see Pollock and Maitland, History of English Law, 2nd edn. vol. I, pp. 97 — no. Stubbs, Lectures oil Early English Hislury, 37 — 133.
I Norman Legislation 9
sents an English anteccssor whose rights and duties have fallen upon him. The same conclusion is put before us by the charters of the Norman kings, the documents whereby they grant lands to their followers. It is in English words that they convey jurisdictions and privileges : the Norman lord is to have sac and soc, thol and theam, infangthief and outfang- thief, — rights which have been enjoyed by Englishmen, rights which can only be described in the English language.
At the same time it must be admitted that there has been a large infusion of Norman ideas. Occasionally, though but rarely, we can place our finger on a rule or an institution and say ' This is not English/ Such is the case with trial by battle, such is the case with the sworn inquest of neighbours which comes to be trial by jury. More often we can say that a new idea, a new theory, has been introduced from abroad, this as we shall hereafter see is the case with what we call feudalism. But still more often we can only say that a new meaning, a new importance, has been given to an old institu- tion. The valuable thing that the Norman Conquest gives us is a strong^kingship which makes fbjrjriational unity.
No one of the Norman kings, among whom we will include Stephen, was a great legislator. The genuine laws of William the Conqueror are few ; of most of them we shall speak by and by. The two most important are that by which he severs the ecclesiastical jurisdiction from the temporal, and that by which he insists that every man, no matter of whom he holds his land, is the king's man and owes allegiance to the king. From the lawless Rufus we have no law. Henry the First on his accession (noo) purchases the support of the people by an important charter — important in itself, for it is a landmark in constitutional history, important also as the model for Magna Carta. Stephen also has to issue a charter, but it is of less value, for it is more general in its terms. It is as adminis- trators rather than as legislators that William the First and Henry the First are active. The making of Domesday, the great rate book of the kingdom, is a magnificent exploit, an exploit which has no parallel in the history of Europe, an ex- ploit only possible in a conquered country. Under Henry the First national finance becomes an orderly system, a system of
io Constitutional History PERIOD
which an orderly written record is kept. The sheriff's accounts for 1132 are still extant on what is called the Pipe Roll of 31 Hen. I ; this is one of our most valuable sources of infor- mation. It has been casually preserved ; it is not until the beginning of Henry II's reign that we get a regular series of such records. To illustrate the Norman reigns we have also a few unofficial records of litigation. These have been printed by Mr Bigelow in his Placita Anglo- N or mannica. The genuine laws of William I and the Charter of Henry I will be found in Stubbs' Select Charters. The so-called Leges Edwardi Confessoris, Willelmi Conquestoris, and Henrici Primi are among the Ancient Laws published by the Record Commissioners1.
iii. Henry II ( 1 1 54-89), Richard ( 1 1 89-99), John ( 1 199- 1216).
The reign of Henry II is of great importance in legal history ; he was a great legislator and a great administrator. Some of his laws and ordinances we have, they have been casually preserved by chroniclers ; others we have lost. The time had not yet come when all laws would be carefully and officially recorded. At his coronation or soon afterwards he issued a charter, confirming in general terms the liberties granted by his grandfather, Henry I. The next monument that we have of his legislation consists of the Constitutions of Clarendon issued in 1164. Henry's quarrel with Becket was the occasion of them. They deal with the border land between the temporal and the ecclesiastical jurisdictions, defining the province of the spiritual courts. During the anarchy of Stephen's reign the civil, as contrasted with the ecclesiastical, organization of society had been well-nigh dissolved — the church had gained in power as the state became feeble. Henry endeavoured to restore what he held to be the ancient boundary, to maintain the old barriers against the pretensions of the clergy. These Constitutions are the result. To some
1 The Leges Edwardi Confessoris and the Leges Henrici Primi may now be read in Liebermann's Gesetze der Angelsachsen. For a full and valuable com- mentary on the latter document see Stubbs, Lectures ont Early Ehglish, History, 143— 65- For the Leges Willelmi see Stubbs, Select Charters, p. 84.
I Growth of the Canon Law \ i
extent Henry failed : the murder of the Archbishop shocked the world, and shocked him, and he was obliged to surrender several of the -points for which he had contended. Never- theless in the main he was successful ; by the action of .the royal court which now becomes steady and vigorous a line was drawn between the temporal and the spiritual spheres, though it was not exactly the line which Henry" tried to define, and though for a century and more after his death there was still a debateable border land. The Canon law was just taking shape, a law for ecclesiastical matters common to all Europe. One great stage in its development is marked by the Decretum Gratiani, the work of a Bolognese monk, composed, it is believed, between 1139 and 1142, i.e. in our King Stephen's reign. The decrees of ecclesiastical councils, ancient and modern, genuine and spurious, were being elaborated into a great system of jurisprudence. The classical Roman law, which for some time past had become the subject of serious study, was a model for this new system. We have to remember that throughout the subsequent ages Canon law administered by ecclesiastical courts regulated for all Englishmen some of the most important affairs of life. It did not merely define the discipline of the clergy — all matters relating to marriages and to testaments fell to its share. A great deal of the ordinary private law even of our own day can only be under- stood if we remember this. The fundamental distinction that we draw between real and personal property, to take one example, is the abiding outcome of the division of the field of law into two departments, the secular and the spiritual. Why do we still couple ' probate ' with ' divorce ' ? Merely because both matrimonial and testamentary causes belonged to the church courts.
We have just mentioned the revived study of Roman law. In Southern Europe Roman law had never perished : it had survived the dark ages in a barbarized and vulgarized form. Then in the eleventh century men began to turn once more to the classical texts. The new study spread rapidly. In 1143 Archbishop Theobald brought hither in his train one Vacarius, a Lombard lawyer. He lectured in England on Roman law; it seems that Stephen silenced
12 Constitutional History PERIOD
him ; Stephen had quarrelled with the clergy. But he did not labour in vain; the influence of Roman law is apparent in some of Henry's reforms, and it has even been con- jectured that Henry as a youth had sat at the feet of Vacarius1. To the early part of his reign we owe certain measures of the utmost importance. The text of the ordinances or assizes whereby they were accomplished we have lost. An assize (assisa) seems to mean in the first instance a sitting, a session for example of the king and his barons ; then the name is transferred to an ordinance made at such a session — we have the Assize of Clarendon, the Assize of Northampton, and, to look abroad, the Assizesof Jerusalem; then again it is transferred to any institution which is created by such an ordinance. Henry by some ordinance that we have lost took under his royal protection the possession, or seisin as it was called, of all freeholders. The vast importance of this step we shall better understand hereafter. He provided in his own court remedies for all who were disturbed in their possession. These remedies were the possessory assizes of novel disseisin and mort d'ancestor; there was a third assize of darrein present- ment which dealt with the right of presenting to churches. Doubtless these possessory actions were suggested by, though they were not copied from, the Roman interdicta. The dis- tinction between a possessory and a proprietary action was firmly grasped ; proprietary actions still went to the feudal courts while the king himself now undertook to protect possession. All this will become more intelligible hereafter. But if the thought of protecting possession or something different from property was of Roman origin, the machinery employed for this purpose was of a kind unknown to the Romans, it was, we may say, a trial by jury. This new procedure gradually spreads from these possessory actions to all other actions. Henry himself extended it to proprietary actions for land — in the form of the grand assize. The person sued might refuse trial by battle and' have the question * Who has the best right to this land?' submitted to a body of his neighbours sworn to tell the truth. More of this by and by
1 For a fuller account see Pollock and Maitland, History of English Law, vol. j, pp. 118-9.
I Henry II 13
when we come to the history of trial by jury; our present point is that by providing new remedies in his own court Henry centralized English justice. From his time onwards the importance of the local tribunals began to wane; the king's own court became ever more and more a court of first instance for all men and all causes. The consequence of this was a rapid development of law common to the whole land ; local variations are gradually suppressed ; we come to have a common law. This common law is enforced throughout the land by itinerant justices, professional administrators of the law, all trained in one school. During the latter part of Henry's reign the counties are habitually visited by such justices.
By the Assize of Clarendon in 1166 reissued with amend- ments at Northampton in 1176 Henry begjin a great reform of criminal procedure. Practically, we may say, he introduced tKe~g5fms"oT~trraI by jury : the old modes of trial, the ordeals and the judicial combat, begin to yield before the oath of a body of witnesses. From 1181 we have the Assize of Arms which reorganizes the ancient military force and thus estab- lishes a counterpoise to feudalism. From 1184 we have the Assize of Woodstock, which for the first time defines the king's rights in his forests. The establishment of an orderly method of taxation and the decline of feudalism as a political force are marked by the first collection of a scutage in 1159 — personal service in the army may be commuted for a money payment — and by the first taxation of personal property, the Saladin tithe of 1188.
Two great books illustrate the legal activity of the reign. The Dialogus de Scaccario describes minutely the proceedings of the Royal Exchequer. It was written by Richard Fitz Neal, Bishop of London and Treasurer of the Exchequer. The other book is a Treatise on the Laws of England, commonly attributed to Ranulf Glanvill, who became chief justiciar (prime minister and chief justice we may say) in 1180, This book, known to lawyers as ' Glanvill/ was written in the very last years of the reign, 1 187-9. It is the first of our classical text books. It gives us an accurate picture of the working of the royal court. The law contained in it is mostly land
14 Constitutional History PERIOD
law: as yet it is with land that the royal court is chiefly concerned. We can see that Roman law has been exercising a subtle influence ; the writer knows something of the Institutes and occasionally copies their words; but in the main the king's court has been working out a law for itself. It is only with the king's court that the writer deals. The customs which prevail in the local courts are, he says, so many, so various, so confused, that to put them in writing would be impossible. However by the action of the royal court a certain province has been reclaimed from local custom for common law; that province is * land-holding' about which there are already many uniform rules. The book thus marks an im- portant stage in the development of common law1.
Henry's reign finished, we look onwards to Magna Carta. Under Richard the tradition of orderly administration, of the concentration of justice in the king's court was main- tained. Richard himself was an absentee king ; he never was in this country save on two occasions and then but for a few months ; the country was governed by justiciars, by men trained in the school of Henry II. Our materials for legal history now begin to accumulate rapidly. Not that there is much that can be called legislation ; but it now becomes the practice to keep an official record of the business done in the king's court Our earliest judicial records come from the year 1194; thenceforward we have the means of knowing accurately what cases come before the king's justices and how they are decided. During the first half of John's reign the country was decently governed, though the legislative and reforming activity of his father's day has ceased. But then John casts off all restraints, becomes involved in a great quarrel with the church, in another with the baronage, unites the whole nation against him, and at length in 1215 is forced to grant the great charter.
iv. Henry III (1216-72).
The great charter, from whatever point of view we regard it, is of course a document of the utmost importance2. The
1 Pollock and Maitiand, history of Jiiiglish Law, vol. I, pp. 161—7.
2 An admirable commentary on Magna Carta was published by W. S. McKechnie in 1905.
I Magna Cart a . 15
first thing that strikes one on looking at it is that it is a very long document — and a good deal of its importance consists in this, that it is minute and detailed. It is intensely practical ; it is no declaration in mere general terms of the rights of Englishmen, still less of the rights of men ; it goes through the grievances of the time one by one and promises redress. It is a definite statement of law upon a great number of miscellaneous points. In many cases, so far as we can now judge, the law that it states is not new law ; it represents the practice of Henry ITs reign. The cry has been not_that the law should be altered, ]}ut that it should be observed, Jun particular, that it should be^pbserved by_the_kjng. Hence- forward matters are not to be left to vague promises ; the king's rights and their limits are to be set down in black and white. Apart from the actual contents of the charter, which we must notice from time to time hereafter, we ought to notice that the issue of so long, so detailed, so practical a document, means that there is to be a reign of law.
Now Magna Carta came to be reckoned as the beginning of English statute law ; it was printed as the first of the statutes of the realm. But to explain this we have first to remark that of Magna Carta there are several editions. We have four versions of the charter, that of 1215, that of 1216, that of 1317 and that of 1225, and between them there are important differences. Several clauses which were contained in the charter of 1215 were omitted in that of 1216 and were never again inserted. It seems to have been thought unadvisable to bind the young king to some of the more strjpgent conditions to which John had been subjected. The charter of 1217 again differs from that of 1216. Substantially it is in 1217 that the charter takes its final form; still it is the charter of 1225 which is the Magna Carta of all future times. That there were four versions is a fact to be carefully remem- bered ; it is never enough to refer to Magna Carta without saying which edition of it you mean. As we shall hereafter see, the whole history of parliament might have been very^ different, had not a certain clause been omitted from the charter of 1216 and all subsequent versions — a clause defining the common council of the realm.
1 6 Constittttional History PERIOD
Now the charter of 1225 came to be reckoned as the beginning of our statute law. This in part is due to accidents. The lawyers of the later middle ages had no occasion to go behind that instrument ; the earlier ordinances so far as they had not become obsolete had worked themselves into the common law ; but every word of the charter was still of great importance. So when the time for printing came Magna Carta, i.e. the charter of 1225, took its place at the beginning of the statute book. It was constantly confirmed ; Henry confirmed it in 1237; Edward confirmed it in 1297 — thence- forward down to the days of Henry IV it was repeatedly confirmed; Coke reckons thirty-two confirmations. It was one thing to obtain the charter, another to get it observed. It was a fetter on the king, a fetter from which a king would free himself whenever he could , and the nation has to pay money over and over again to procure a confirmation of the charter : — that the king is bound by his ancestors* concessions is a principle that is but slowly established.
Magna Carta then, however ill it may be observed, con- stitutes what for the time is a considerable body of definitely enacted law. From the long reign of Henry III we have not much other legislation ; legislation is as yet by no means a common event. The interest of the reign is to be found not so much in the laws that are made but in the struggle for a parliament. Gradually, as we shall see hereafter, Jliejdea of what the national assembly should be is undergoing a change^Tt is ceasing to be that of a Jeudal assembly of barons, it isbecpming that of an assembly of the three estates of the realm — clergy, lords and comirfons ; the summoning oFknights of the shire in 1254, and of representative burgesses in 1264 are the great landmarks. Still there are two important legis- lative acts. The first of these is known as the Statute of Merton made in 1236. It contains provisions which are in force at the present moment. Among its other noticeable clauses, we come across the famous declaration of the barons that they will not change the laws of England. They have been asked by the clergy to consent that childrefrborn before the marriage of their parents should be deemed legitimate : — their reply is ' Nolumus leges Angliae mutaxt' Between this
I Legal growth under Henry III 1 7
and the next great act, there occurs the great crisis which we know as the Barons' War. The discontent of the nation with Henry's faithlessness and extravagance comes to a head in 1258. After stormy years of quarrelling, a leader is found in De Montfort ; the insurgents are victorious at Lewes (14 May, 1264), and then defeated at Evesham (4 Aug. 1265). But a great deal of what they wanted is gained. The statute made at Marlborough in 1267, commonly called the Statute of Marl- bridge, chiefly consists of a re-enactment of certain concessions which had been obtained from the king during the revolu- tionary period, concessions which we know as the Provisions of Westminster of I2591. The grievances redressed in this instance are for the most part the grievances of the smaller landowners.
But it is not only or even chiefly by means of legislation that English law has been growing* The reign of Henry III is the time when a great part of the common law takes definite shape — in particular the land law. The king's court has been steadily at work evolving common law ; that law is carried through the length and breadth of the kingdom by the itinerant justices. As yet the judges have a free hand — they can invent new remedies to meet new cases. Towards the end of the reign indeed complaints of this grow loud. It is more and more seen that to invent new remedies is in effect to make new laws ; that the judges while professing to declare the law are in reality making law ; — and it is more and more felt that for new laws the consent of the estates of the realm, at all events of the baronage, is necessary. But law, judge-made law if we like to call it so, has been growing apace. The justices have been learned men, mostly ecclesiastics, men notv ignorant of Canon Law and Roman Law. A great law book is the outcome3. Henry of Bratton, or Bracton as he is commonly called, died in 1268 ; for twenty years he had been a judge. Sometime between 1250 and 1260 he wrote his treatise on the Laws of England. He owed a great deal to the work of an Italian lawyer, Azo of Bologna, and we can plainly see that the study of Roman law has had a powerful
1 Printed in Stubbs* Select Charters, pp. 400 — 5.
8 Pollock and Maitland, History of English Law, vol. I, pp. 106 — 10.
M. o
1 8 Constitutional History PERIOD
influence on the growth of English law: — it has set men to think seriously and rationally of English law as a whole, to try to set it in order and represent it as an organized body of connected principles1. But the substance of Bracton's work is English. He cites no less than 500 decisions of the king's judges. English law, we see, is already becoming what we now call ' case law ' — a decided case is aniul
ought to be followed when a similaFcase arises. We see. also that the growth of EngfislTlaw, especIaTry^nd~"law, has been very rapid. Glanvill's book looks very small and meagre when placed beside Bracton's full and comprehensive treatise. We may indeed regard the reign of Henry III as a golden age of judge-made law: the king's court is rapidly becoming the regular court for all causes of any great importance, except those which belong to the ecclesiastical courts, and as yet the judges are not hampered by many statutes or by the jealousy of a parliament which will neither amend the law nor suffer others to amend it Also we now hear very little of local customs deviating from the common law ; as the old local courts give way before the rising power of the king's court, so local customs give way to common law. The king's court gains in power and influence because its procedure is more summary, more rational, more modern than the procedure of the local courts. Their procedure is never improved, it remains archaic; meanwhile the royal court is introducing trial by jury ; all the older modes of trial are giving way before this new mode. In 1215 the Lateran Council forbad the clergy any longer to take part in the ordeal. In England the ordeal was at once abolished, and the whole province of criminal law was thus thrown open to trial by jury. J
v. Edivard the First ( 1 272-1 307),
Edward I has been called 'the English Justinian.1 The suggested comparison is not very happy ; it is something like a comparison between childhood and second childhood. Jus- tinian, we may say, did his best to give final immutable form to a system which had already seen its best days, which had
1 Select Passages from the Works of Braeton and Azot ed. F. W. Maitland (Selden Society), 1895 — with a brilliant introduction*
I The English Justinian 19
already become too elaborate for those who lived under it. Edward, taking the whole nation into his counsels, legislated for a nation which was only just beginning to have a great legal system of its own. Still it is very natural that we should seek some form of words which will mark the fact that Edward's reign is an unique period in the history of our law. Sir M. Hale, writing late in the seventeenth century, says that more was done in the first thirteen years of that reign to settle and establish the distributive jgstice of the kingdom, than in all the ages since that time put together. We can hardly say so much as this; still we may say that the legislative activity of those thirteen years remains unique until the reign of William IV ; for anything with which we may compare Edward's statutes we must look forward from his day to the days of the Reform Bill. Now Hale, I think, hits the mark when he says that more was done to settle and establish the distributive justice of the kingdom in Edward's reign than in subsequent ages1. The main characteristic of Edward's statutes is that they interfere at countless points with the ordinary course of law between subject and subject. They do more than this — many clauses of the greatest importance deal with what we should call public law — but the character- istic which makes them unique is that they enter the domain of private law and make vast changes in it. For ages after Edward's day king and parliament left private law and civil procedure, criminal law and criminal procedure, pretty much to themselves. Piles of statutes are heaped up — parliament attempts to regulate all trades and all professions, to settle what dresses men may wear, what food they may eat— ordains that they must be buried in wool — but we may turn page after page of the statute book of any century from the fourteenth to the eighteenth, both inclusive, without finding any change of note made in the law of property, or the law of contract, or the law about thefts and murders, or the law as to how property may be recovered or contracts may be enforced, or the law as to how persons accused of theft or murder may be punished. Consequently in Hale's day and in Blackstone-s
1 The History of the Common Law of England, 4th edn., 1779, P» r5*«
2
2O Constitutional History PERIOD
day, a lawyer whose business lay with the common affairs of daily life had to keep the statutes of Edward I constantly in his mind; a few statutes of Henry VIII, of Elizabeth, of Charles II he had to remember, but there were large tracts of past history which had not supplied one single law which was of any importance to him in the ordinary course of his business. To a certain extent this is true even now, even after the^vigorous legislation of the last sixty years. There are at lea§t two statutes of Edward I which you will have to know well — the De donis conditionalibus and the Quia emptores terrarum — these still are pillars of our land law; to pull them away without providing some substitute would be to bring the whole fabric to confusion. It is well to remember the dates of the great statutes.
1275. Stat. Westminster, I. 1278. Stat. Gloucester.
1284. Stat. of Wales.
1285. Stat. Westminster, II. Stat Winchester.
1290. Stat. Westminster, III.
1297. Confirmatio Cartarum, with new articles.
But Edward was not merely a great legislator, he was a great administrator also, a great organizer. Take any institution that exists at the end of the Middle Ages, any that exists in 1800 — be it parliament, or privy council, or any of the courts of law — we can trace it back through a series of definite changes as far as Edward's reign, but if we go back further the object that we have had in view begins to disappear, its outlines begin to be blurred, we pass as it were from sunlight to moonlight, we cannot be certain whether that which we see is really that for which we have been looking. Shall we call this court that is sitting, the King's Bench, or the Council, or the Parliament ? it seems to be all and yet to be none of these. In Edward's day all becomes definite — there is the Parliament of the three estates, there is the King's Council, there are the well known courts of law. Words have become appropriated — the king in parliament can make statutes; the king in council can make ordinances; a statute
I Growing Insularity 21
is one thing, an ordinance is another. It is for this reason that any one who would study the constitution of older times, should first make certain that he knows the constitution as it is under Edward I.
The vigorous legislation of the time has an important consequence in checking the growth of unenacted law. Hence- forward the common law grows much more slowly than under Henry III. Its growth is hampered at every turn by statuA — the judges are checked by the now admitted principle that changes in the law are not to be made without the consent of parliament. Law continues to grow, but it can grow but slowly; the judges are forced to have recourse to fictions and evasions because the highroad of judge-made law has been barred. Two law books come to us from Edward's reign, Britton and Fleta, both written in 1290 or thereabouts ; Brit- ton in French, Fleta in Latin ; both are little better than poor epitomes of Bracton's work, epitomes which take notice of the changes introduced by the great statutes. We learn from them an important fact : — it is plain that English lawyers are no longer studying Roman law. There can be no doubt that under Henry III Roman law was slowly gaining ground in England. To any further Romanization of English law, a stop was put by Edward's legislation. The whole field of law was now so much covered by statute, that the study of Roman law had become useless. About the same time, we no longer find ecclesiastics sitting in the royal courts; Bracton was an ecclesiastic, an archdeacon, and the great judges whose de- cisions he cites were ecclesiastics — Martin Pateshull became Dean of St Paul's, William Raleigh became Bishop of Win- chester. But the opinion steadily grew among the clergy that ecclesiastics should not sit in lay tribunals. The consequence is that from the beginning of Edward's reign, English law becomes always more insular, and English lawyers become more and more utterly ignorant of any law but their own. Thus English law was saved from Romanism ; by this we lost much — but we gained much also. The loss, we may say, was juristic ; if our lawyers had known more of Roman law, our law — in particular our land law — would never have become the unprincipled labyrinth that it became; — the gain, we
22 Constitutional History PERIOD
may say, was constitutional, was political : — Roman law here as elsewhere would sooner or later have brought absolutism in its train. It should be added that the'rapid growth of the common law under Henry III was connected both as cause and as effect with the growth of a large class of English lawyers. From the beginning of Edward's reign, it is a large and a powerful class — and it is from among the members of this class that the king chooses his judges. And now a new form of legal literature appears. From 1292 we get our first law report — the first of the» Year Books. The Year Books are reports of discussions which took place in court — of the arguments of counsel and the opinions of the judges. The series extends from Edward I to Henry VIII. Together with the text-books of Glanvill, Bracton, Britton and Fleta, they are the great source of all our information as to the common law and not only are they a source of information, but the cases reported in them were regarded as authorities — indeed they are so regarded even at the present day — if an occasion arises upon which they could be appropriately cited : — but this of course seldom happens, for the whole field of common law is pretty well covered by much more modern authorities. Still we note that from the middle of the thirteenth century our common law has been case law, that from 1292 onwards we have law reports, that from 1194 onwards we have plea-rolls1. This term common law, which we have been using, needs some explanation. I think that it comes into use in or shortly after the reign of Edward the First The word 'common' of course is not opposed to 'uncommon': rather it means 'general/ and the contrast to common law is special law. Common law is in the first place unenacted law ; thus it is distinguished from statutes and ordinances. In the second place, it is common to the whole land ; thus it is distinguished from local customs. In the third place, it is the law of the temporal courts ; thus it is distinguished from ecclesiastical
1 Five volumes of the Year Books of Edward I, and thirteen volumes of the Year Books of Edward III, are published in the Rolls Series. The Selden Society has undertaken the publication of the Year Books of Edward II. The first three volumes, edited by Majtland, have already appeared, with introductions of the greatest interest and importance.
i Common Law 23
law, the law of the Courts Christian, courts which throughout the Middle Ages take cognisance of many matters which we should consider temporal matters — in particular marriages and testaments. Common law is in theory traditional law — that which has always been law and still is law, in so far as it has not been overridden by statute or ordinance. In older ages, while the local courts were still powerful, law was really pre- served by oral tradition among the free men who sat as judges in these courts. In the twelfth and thirteenth century as the king's court throws open its doors wider and wider for more and more business, the knowledge of the law becomes more and more the possession of a learned class of professional lawyers, in particular of the king's justices. Already in John's reign they claim to be juris periti. More and more common law is gradually evolved as ever new cases arise; but the judges are not conceived as making new law — they have no right or power to do that — rather they are but declaring what has always been law.
B. The Land-System.
It may seem strange that we begin our survey of public law by examining the system of landed property, for pro- prietary rights we may say are clearly a topic of private law. That is true in our own day, though even now it is impossible for us fully to understand our modern public law unless we know something of our law of property: — for instance the right to vote in elections for members of Parliament is clearly a right given by public law, but directly we ask, Who have this right ? — we have to speak of freeholders, copyholders, lease- holders and so forth, to use terms which have no meaning to those who do not know some little of our law of landed property. But if this be true of our own day, it is far truer of the Middle Ages. What is meant by the word 'feudalism* we shall understand more fully hereafter — but here we may describe ' feudalism ' as a^state of society in which all or a great part of public rights and^aufies^aire^lnextricably inter- woven with the tenure of land, in which the tf hole governmental
24 Constitutional History PERIOD
system — financial, military, judicial — is part of the law of private property. I do not mean that feudalism so complete as this is ever found — much less that we find it in England, — we shall see that in this country the feudal movement was checked at an early date : — but still it is utterly impossible to speak of our medieval constitution except in terms of our medieval land law. Let us then briefly survey the land law of Edward I's time — briefly, and having regard to its public importance ; when you come to study real property law you will have to examine the same system more closely and from another point of view1.
We must start with this : — All land is held of the king. The person who has the right to live on the land and to cultivate it, is a tenant. He holds that land of some one who is his lord. If that some one be the king, then the tenant is one of the king's tenants in chief, or tenants in capite. But between the tenant and the king there may stand many persons ; A may hold the land of B, who holds of C, who holds of D, and so forth until we come to Z who holds immediately of the king, who is one of the king's tenants in capite. Each of the persons who stands between A and the king is a mesne, i.e. intermediate, lord ; as regards those who stand below him he is lord, as regards those who stand above him he is tenant. Thus take a short series ; A holds of B and B holds of the king; here B is lord of A, but tenant of the king.
Such is the actual arrangement. With it is connected the theory that at some past time all lands were the king's to do what he liked with. He gave land to Z (one of his great barons) and his heirs in return for certain services, Z then gave part of it to Y, Y to X, and so on until we come to the lowest tenant, to A who now has the right to enjoy the land and take the fruits thereof. This process of creating new tenancies is called subinfeudation. At the moment at wEich we have placeH~ourseTves7that of Edward's death in 1307, a new measure has very lately been taken to put a stop to this pro- cess,— the statute Quia emptores terrarum passed in 1290:
1 The subject of this section is treated with greater fullness in the History of English Law, vol. I, pp. 229 — 406.
I The Land-System 25
more of this hereafter. In passing let us warn ourselves not to accept this legal theory that there was a time when all land was the king's to do what he liked with as describing a historical truth ; at present we note that it has become the theory. No one therefore, save the king, has land that he does not hold of some one else — every other person has some superior, some lord : the formula is tenet terram illam de B.
Now in every case the tenant in respect of the land owes ( some service to the lord — this in theory is the return he makes to his lord for the land — he holds by some tenure (tenurd) by some mode of holding. Gradually these tenures have been classified : — we may reckon six tenures, (i) frankalmoign, (2) knight service, (3) grand scrjeanty, (4) petty serjeanty^ (5) free socage, (6) villeinage.
(1) I mention frqjkalrpoigti first; it can be very briefly dismissed, but is instructive as showing how far the theory of tenure has been pressed. Sometimes religious bodies and religious persons, monasteries, bishops, parsons, hold land for which they do no earthly service to the lord. They are said to. hold by way of free alms, free chsnty^er liberam elemosynam^ in frankalmoign. The theory of tenure however is saved by the doctrine that they owe spiritual service, that they are bound to pray for the soul of the donor who has given them this land, and this duty can be enforced by spiritual censures in the ecclesiastical courts. Do not think that a monastery or a bishop can hold by no other than this easy tenure ; on the contrary, though a large part of England is held by ecclesiastics, tenure in frankalmoign is somewhat exceptional — the ecclesiastics often hold by military service.
(2) By far the greater part of England is held of the king ky military service, by knight service ; in some way or another it has come to be mapped out in knight's fees. We cannot say that a particular acreage of land or land of a particular value constitutes a knight's fee (feodum militis)\ but it seems as if there had been a vague theory that a knight's fee should normally be worth ^20 a year or thereabouts. But in Edward's day we can say, that whether owing to some general rule or to bargains made in each particular case, it has become settled
26 Constitutional History PERIOD
that this particular territory owes the service of one knight, that it is feodum militis, while another has not been split into single knight's fees but owes altogether the service of five or often knights.
The service due from a single knight's fee is that of one fully armed horseman to serve in the king's army for 40 days in the year in time of war. We notice however that there has been constant quarrelling between king and barons as to the definition of this service Can the tenant be forced to serve in foreign parts ? As a matter of fact they have done so : but in 1213 they refused to follow John to France and so forced on the grant of the Charter, and very lately, in 1297, they have refused to follow Edward to France and so forced on the confirmation of the Charter. That they are obliged to serve against the Scots and the Welsh is not doubted.
The tenant by knight's service, whether he holds of the king or of some mesne lord must do homage to his lord and must swear fealty. The act of homage is this — the tenant kneels before his lord and holds his hands between the hands of his lord, and says, 'I become your man from this day forward of life and limb and of earthly worship, and unto you shall be true and faithful and bear to you faith for the tenements that I hold of you ' — then, if the lord be not the king, he adds these noteworthy words, ' saving the faith that I owe to the king.' Then the lord kisses his man. Fealty is sworn thus, with hand on book, ' Hear this my lord that I shall be faithful and true unto you and faith to you shall bear for the lands that I hold of you, and that I shall lawfully do to you the customs and services which I ought to do, so help me God and his saints/ The act of homage constitutes an extremely sacred bond between lord and man — the bond of fealty is not so close — and an oath of fealty must be sworn in many cases in which homage need not be done. The nature of these bonds we shall consider at large by and by — happily for England they became rather moral than legal bonds.
As a consequence of holding by knight's service the tenant is subject to many burdens which we know as the incidents of military tenure : it is usual to reckon seven ; each of them has its own history.
I Aids and Reliefs 27
(a) Aids. There has been a doctrine of vague extent that the I6rH can legitimately demand aid (auxilium) from his tenant when he is in need of money. The aid has been con- sidered as a free-will offering, but one which ought not to be refused when the demand is reasonable. Gradually the demand has been limited by law. In -the charter of 1215 John was compelled to promise that he would exact no aid without the common counsel of the realm save in three cases, namely in order to make his eldest son a knight, in order to marry his eldest daughter, and in order to redeem his body from captivity and then only a reasonable aid. The same restriction was placed upon the mesne lords. These clauses however were omitted from a charter of 1216. In 1297 however Edward I was obliged to promise that he would take no aids save by the common consent of the realm, saving the ancient aids. In 1275 (St. West. I. a 36) the amount of aid for knighting the lord's son or marrying his daughter was fixed at 20 shillings for the knight's fee, and the same sum for every estate in socage of £20 annual value.
(b) If the tenant in knight service having an inheritable estate died leaving an heir of full age, that heir owed a relief for his land — relevium — a sum due on his taking up the fallen inheritance — relevat keredttatem. This has been a sore point of contention between the king and his barons, between them and their vassals ; — the lord has been in the habit of getting what he can on such an occasion, even of forcing the heir to buy the land at nearly its full price. Gradually the law has become more definite. The relief for the knight's fee is 100 shillings, but the holder of a barony (a term to be explained hereafter) pays £100; the socager pays one years rent. This was already the law of Glanvill's time; it was confirmed by the charter (1215, c. 2).
But (c) the lords have contended for a certain or uncertain right of holding the land of the dead tenant until the heir shall offer homage and pay relief: — this right is that of taking the first seisin after the tenant's death, the right of primer seisin. In this case law has gone against the lords; it is established by the Statute of Marlborough (1267, c. 16) that the lord may iiot seize the land, he may but make a formal
28 Constitutional History PERIOD
entry upon it in order to preserve evidence of his lordship. Law, however, has not had the same measure for the king as for other lords — the king has a right of primer seisin — he may keep the heir of his tenant out for a year — or what comes to the same thing, he can in addition to the relief extort one year's profit of the land.
(d) On the other hand there are rights of the lord which have steadily grown and which the law has now sanctioned. If the heir of the military tenant is under the age of twenty- one, being male, or fourteen, being female, the lord is entitled to wardship — to wardship of the body of his tenant, to ward- ship j)f the land also. This means that he can enjoy the lands for his own profit until the boy attains twenty-one or the girl fourteen. He is bound to maintain the child and he must not commit waste, but within these limits he may do what he likes with the land and take the profits to his own use — and this profitable right is a vendible commodity: wardships are freely bought and sold. Here again we find that the king has peculiar rights — prerogative rights they are called. Generally, if the child holds of two lords, each lord gets the wardship of those lands that are holden of him ; but if one lord be the king, then he gets a wardship of all the lands, of whomsoever they be holden.
(e) Connected with the right of wardship is the right of marriage. This we can see has steadily grown as we trace it from the charter of Henry I to the charters of John and Henry III and the Statute of Merton (1236). It comes to this, that the lord can dispose of the ward's marriage, can sell his ward in marriage. The only limit to this is that the" match must be an equal one; the ward is not to be disparaged, married to one who is not his or her peer. At first apparently all that the lord claims is that his female tenant shall not marry without his consent — a demand which is reasonable enough while the military tenures are great realities: — my female tenant must not carry the land which she holds of me to a husband who is my enemy. But the right has grown far beyond this reason: — it is now extended to males as well as females, and the marriage of every ward is a vendible commodity.
I Fines and Escheats 29
(/) Fines on alienation. Here the law has on the whole taken the side of the tenant. We can produce no text of English law which says that the leave of the lord is necessary to an alienation by the tenant. The tenant cannot indeed compel his lord to accept a new tenant in his place ; but he can create a new tenancy ; B holds of A, B can give the land to C to hold of him, B. We do not find it laid down that the consent of A was necessary for this ; the royal judges, like all lawyers, seem to have favoured free alienation : — but we do find that the consent of the lords is commonly asked, and we do find that the view taken by the lords is that their consent is necessary. This is a battle-field during the thirteenth century ; the greater lords are opposed to free alienation, the tenants wish for it; the royal judges take the side of the tenants, except against the king. In 1290 a definite settlement is arrived at by the famous Quia emptores terrarum. That statute you must some day study as part of our existing law of real property. What it does is roughly speaking this, it concedes free alienation to all except the king's tenants in chief; on the other hand it. puts a finaLstop to the process of subinfeudation ; B holds of A, B wants to sell his land to C — he wants to convey it to C and his heirs ; he can do so without A's consent, but C is not to hold of B, he is to hold of A. A tenant may substitute another person in his place — but the creation of a new tenure is impossible — or rather, I must be exact though the words may be unintelligible to you — the creation of a new tenure in fee simple is impossible. The liberty of alienation however is not yet conceded to the king's tenants in chief; the law has one measure for the king another for other lords. If one of the tenants in capite alienates with- out the king's consent, this is a forfeiture of the land ; it is Edward the Third's day before this seventy was relaxed and a fine of one-third of the yearly value of the land took the place of the forfeiture.
(g) Escheat.^ If the tenant died without an heir the land escheated, that isTfell back to the lord — it became his to do what he pleased with. As you have been hitherto reading more Roman than English law, I had better sari| that the English heir was and is to this day a very different person
30 Constitutional History PERIOD
from the Roman haeres. Before the Conquest the church had introduced the testament or last will, and lands or at all events some lands as well as goods could be given by will. But at the Conquest the will of lands disappears. The maxim is laid down in Glanvill — Only God can make an heir, not man. The English heir therefore never succeeds under a will. This is so even at the present day, though since the Restoration, 1660, lands have been freely alienable by will. To this day the heir is a person who succeeds on an intestacy — he who takes land under a will is a devisee : but at the time of which we are speaking, Edward Fs day, the will of lands was still in the distant future. But a failure of heirs is not the only cause for an escheat, if the tenant commits any of those grave crimes that are known as felonies — there is an escheat ; he loses the land, no heir of his can succeed him, the lord takes the land for good and all.
Such in brief were the incidents of tenure by knight's service.
(3) Grand serjeanty (magna serjeantia) differed but little from this. The tenant instead of being bound to serve as a knight for forty days in the wars, was bound to do some peculiar ser- vice for the king — to carry his banner, or his sword, to lead the vanguard or the rear guard, to be his champion, the constable or marshall of his army, or the like. In almost all respects this tenure had all those incidents which we have just described.
(4) Tenure in petty serjeanty came in after-time to be re- garded as but a variation of tenure in socage. Its characteristic was the obligation to provide the king with warlike implements, a sword, a lance, or the like. It maintains its place in the catalogue of tenures merely because it was but slowly that the line was drawn between petty serjeanty and grand serjeanty. It was established by Magna Carta that where the service though of a warlike nature consisted merely in providing weapons, and not in fighting — then wardship and marriage were not due — hence a line was drawn between the grand serjeanties which in all important respects were like knight service — and the
xpetty serjeanties which were almost the same as socage1,
1 For Maitland's later views on serjeanties see History of English Law, vol. I, pp. 182 — 90. * The central notion seems what we may call servantship...the tenant by serjeanty is steward, marshal, constable, chamberlain, usher, cook, forester, falconer, dog-keeper, messenger, esquire ; he is more or less of a menial servant.'
I Socage Tenure 31
(5) Postponing to a more convenient season the etymology of the term socage, we find that tenure in free socage is a tenure by sonic fixed service which is not military: that is not the full explanation, but will serve for the present The_ service of the socager generally consists of a rent payable either in money or in agricultural produce ; very often he is also bound to do a certain amount of ploughing for his lord — to plough three days a year or the like : — this is so common that lawyers already believe, what is not historically true, that the term socage is connected with the word sock, which means a ploughshare. Now socage tenure involved some, but not all, of those burdens of which we have lately spoken — the socager swore the oath of fealty, though he did not usually do homage ; he had to pay the three aids — the aid for knighting the lord's son, marrying the lord's daughter, redeeming the lord from captivity — in the first two of these cases he paid 20 shillings for land of the annual value of £20, by way of relief he paid one year's rent ; if he held of the king in chief, the king was entitled to a primer seisin ; if he held of the king in chief he could not alienate without license ; his land escheated to the lord if he died without an heir or committed felony. On the other hand socage tenure diji not involve the two worst burdens of feudalism ; the wardship and marriage of the socager's heir did not belong to the lord. If he left an heir under fourteen the next relative to whom the land could not descend was guardian, but when the heir attained fourteen (that was full age as regards socage) the guardian had to account to him for the profits of the land.
We must not be led into speaking as though the distinc- tions between these various kinds of tenures were distinctions between various kinds of lands. The self-same piece of land might at one and the same time be held by knight service or by socage. For instance A has held of the king by military service, but he has enfeofifed B to hold of him in socage; the military service due from A to the king is a burden on the land ; if A will not perform it, then a distress can be made on the land and B's goods may be taken ; but as between A and B, it is A not B who is bound to do the service, or to pay the scutage ; A must indemnify B, if the king compels B to pay
32 Constitutional History PERIOD
the scutage; as between A and B, B is only bound to pay the fixed rent, to do the ploughing or the like. By far the greater part of the lands of England are, I take it, held of the king by military service ; to find land held immediately of the king by socage tenure is comparatively rare, but there seem to be considerable tracts which are held of the king by frank- almoign. The greater part of England therefore is held by military service, but then a great part of this is held by socage — the tenants in chief hold by knight's service, but many of their sub-tenants hold by socage. Such is the state of things in Edward's day ; but as we have lately seen, in 1290 a stop was put to the process of subinfeudation — a new tenure of an estate in fee simple can no longer be created — no new rungs can be put into the feudal ladder. How far the process had really gone, it is difficult to say, but I think that pretty often the lords and tenants stood three or four deep — we may pretty often find that D holds of C who holds of B who holds of A who holds of the king. By means of subinfeudation free socage has become a far commoner tenure than it was in the twelfth century; the lords have found it profitable to grant out their lands in return for fixed rents.
One other remark of great importance must be made — military service is due to none but the king : this it is which makes English feudalism a very different thing ifromFrench feudaiismj. Suppose that A, a great lord, held 10 knight's fees oTThe king, he might grant one of these to B and stipulate that B should do the military service due from that fee: B then will hold of A by military service ; if B neglects to do the service, then A has legal means of redress: B is bound to A to do the service ; still the service is due not to A, but to the king ; it is service to be done for the king in the national army; it is not service to be done for A in A's quarrels. This makes English feudalism a very different thing from continental feudalism: elsewhere we may find the tenant bound to fight for his lord in his lord's quarrels, bound even to fight for his immediate lord against that lord's lord ; here in England, however strong may be the feeling that this ought to be so, that the man is bound to espouse his lord's quarrels, still that feeling is not represented by law — rather it is
I Villeinage 33
repressed by law : — the only quarrel in which any one inbound to fight is the king's quarrel, the only force in which any one is bound to serve is the king's force ; our kings have been powerful enough to bring about this very desirable result.
(6) Villeinage. A very large part of England, by what- ever tenure it may be holden of the king, is ultimately held in villeinage. The word villenagium is used in what seems to us a confusing way to cover two different things, first a personal status and secondly a tenure. There is a very large class of persons who are personally unfree. The technical term whereby they are described is nativi, which means born serfs or bondsmen — thus A is the nativus of B ; but not un fre- quently they are spoken of as servi and as villani. They are unfree, but we must not call them slaves ; they are not rightless ; the law does not treat them as things, it treats them as persons ; still they are unfree ; they must not leave their lord's land ; if they do he may recapture them and bring them back ; the law will aid him in this ; it gives him an action for recovering the body of his nativus, an action de nativo kabendo. Generally, if not always, the nativus has land which he holds in villeinage, which he holds by villein services. He has land, but how far he can be said to have a right in this land is a difficult question. One thing is clear — the king's courts do not protect that right against his lord. If the lord capriciously chooses to eject him, he has no remedy against his lord in the king's courts. We find however that he is conceived to hold his land by perfectly definite services and that this is not merely the theory of the villeins, but the theory of the lords also. This we learn from the surveys which religious houses made of their manors. In such surveys we find thousands of entries of this kind — A.B. holds a virgate of land ; for this he is bound to do certain services, e.g. he is bound to work three days a week on the lord's land, and five days a week in autumn ; what is to be deemed a day's work is often minutely defined — thus, if he be set to thrash, he must thrash such and such a quantity ; if he be set to ditch, he must ditch so many yards in a day — in general everything is very definitely expressed. How far he can be said to be protected in his holding so long as he does these his due
M. -
34 Constitutional History PERIOD
services is a question which we cannot raise without first speaking of the manorial courts; but as already said, the king's courts give him no protection against his, lord. Then very generally^ we find it said that he is prohibited from selling his ox or his horse without the lord's leave, also that he may not give his daughter in marriage without the lord's leave, or at all events may not give her in marriage outside the manor; in many cases however the sum that he must pay for the lord's license is a fixed sum. The king's courts however do not protect his movable goods against his lord, any more than they protect his land against his lord : the lord may at any time seize the chattels of his nativi. Again the lord may imprison the body of his nativus ; the king's courts give no redress ; but against maiming and death at the lord's hand they give protection ; the life and limb of every man, be he free or unfree, are in the king's protection ; to slay or to maim him is a felony. Also it is becoming more and more the theory and the fact that the king's courts will protect the nativus, his body, his goods, and his lands against every one except his lord. The status of the nativus is coming to be more and more regarded as a mere relationship between him and his lord, a relationship which in no wise concerns third persons, less and less as a status thrust upon the nativus by public law which stamps him as a person who has but imperfect rights.
But again, we find that a man may well hold land in villeinage and yet be no nativus. He is a free man, he may leave the land if he pleases, he cannot be captured and brought back, his chattels are fully his own, the lord may not seize them. Bracton often puts it thus : ' tenementum non mutat statum* — the tenure of villeinage is different from the status of villeinage — this man holds land in villeinage, but personally he is no villein. However such a tenant in villeinage has as yet no right in the land which the royal courts will protect against the lord. Their doctrine is that the land is the lord's land, that the tenant is merely a tenant at the lord's will, whom the lord can at any time eject. On the other hand, as already said, we find it conceived, even by the lords themselves, that their teneutes in villenagio, even
I Freehold 35
their nativi> held by perfectly definite services — so many day's work per week, ploughings, harrowings, reapings and so forth to be done on the lord's own demesne lands. We find too that these tenentes in villenagio do in fact alienate their lands ; they cannot do this without the lord's license ; they yield up, surrender the land into the lord's hand, who then grants it to the new tenant. We find also that at least in some cases the tenant's rights are considered as inheritable ; thus we find it said in the manorial surveys that the heir of the tenant in villeinage must pay this or that sum to the lord for leave to enter on his ancestor's land. How far such a tenant can be said to have any legal right in his land as against his lord we cannot decide at present ; he certainly seems to be conceived as having what we should call a moral right ; but the first thing to understand is that he has no right in the land as against his lord that is protected by the royal courts. This is so in the days of Edward the First and for a long century afterwards1. It now becomes possible to fix the meaning of a term that we shall have often to use, viz. a freeholder. Ever since the days of Henry the Second the king's own courts have afforded protection to both the possession and the property which any one has in a libertim tencmentum. Gradually a great mass of law has been developed as to the meaning of this term. In the first place it excludes the tenants in villeinage — liberum tenementum is contrasted with villanum tenementum. If a person holds in frankalmoign, by knight's service, by grand or petty serjeanty, or in free socage, he has a freehold, and is a freeholder ; not so he who holds in villeinage. What exactly was the test which originally distinguished free socage from villeinage, it is now very difficult to see. Any uncertainty in the agricultural service seems to have been enough to stamp the tenure as villein a. The tenant in free socage was often bound to do a certain amount of ploughing on the lord's land ; but generally he owed no week work, was not bound to work for the lord so many days in every week as the tenant in villeinage commonly was. When once the line was drawn,
1 For an elaborate discussion on the status of the villein, History of English Laiv, vol. I, pp. 412 — 32.
2 The test of villeinage is discussed by Vinogradoff, Economic Journal, vol. x (1901), p. 308 fif.
3—2
36 Constitutional History PERIOD
\
however, it was of the utmost importance ; once defcided that the tenure was freehold, it was perfectly protected in the king's own court ; once decided that it was villein tenure, then the king's courts treated it as though it were merely a tenancy at the lord's will. Villanum tenementum is thus the first contrast to liberum tenementum.
But the evolution of new forms of landholding provided a new contrast. Since the Norman -C6nquest a practice had grown up of letting land for terms of years, in general short terms. The lessee, 'the termor/ who had such a lease was at first considered as having no right in the land, no real right, as we should say no right in rem. He had merely a personal right good against his lessor — his lessor had con- tracted that he, paying his rent, should enjoy the land for a term of years ; on that contract he had an action against his lessor. If a stranger ejected him, he had no action against that stranger ; the lessor might sue the stranger for entering his (the lessor's) land ; but the lessee had only an action on the contract against his lord. While such was the case the lessee was not conceived to have liberum tenementum^ he had no tenementum at all ; he had but a right in personam ; he was no freeholder. The word freeholder therefore excluded not only the tenant in villeinage, but also the termor, the person who had a right to enjoy land limited to some fixed term of years. Before the reign of Edward the First, the situation had been greatly changed ; the king's court had by degrees given a large, though not as yet a complete, measure of protec- tion to the termor against the world at large: it had in fact turned the jus in personam into a jus in rem. Nevertheless the old nomenclature with its important political consequences was still maintained — the termor was no freeholder, he had no place in the county court, and therefore no vote in the election of knights of the shire — no, not until 1832. A freeholder must hold land at least for the life of himself or of some other person. He may have, as the phrase goes, a greater estate than this, he may have an inheritable estate, one which will descend to his heirs, or to a limited class of heirs, the heirs of his body — but this at least he must have. He who holds for a fixed term of years however long, a thousand years or more> is no freeholder.
I Primogen^t^tre 37
The distinction gets emphasized in another way. What- ever may have been the law or various local customs of inheritance which prevailed here before the Conquest, we may be fairly certain that primogeniture was unknown ; that if a man left several sons, his whole property, land and chattels, were as a general rule divided among them all — though' it is very probable that land, especially land held on servile conditions, often went to the youngest son. Primogeniture creeps in with the Conquest : very gradually a set of rules of inheritance giving the whole land to the eldest male whenever there are males of equal degree was elaborated, and very slowly it was extended from the lands of military tenants to other lands : that the land of the military tenant should not be divisible is very intelligible. Before the end of Edward the First's reign the primogenitary rules had been extended to socage tenure — this had been a slow process, but gradually it had become established that he who contended that the inheritance should be divided among all males of equal degree had to prove his case. Other systems endured merely as local customs : in Kent the inheritance was still heritable among sons, and very commonly a tenement held in villeinage descended to the youngest son1. But the gradual introduction of primogeniture, together with the principle that lands could not be left by will and the activity of the ecclesiastical courts combined to set a deep gulf between what came to be called real and what came to be called personal property. An explanation of these two terms would take us too far afield — but seize this principle, that for freehold and for chattels there came to be two distinct systems of succession. The freehold (with which no ecclesiastical court may meddle) descends to the heir, and only by force of some local custom can it be the subject of a last will. The chattels can be left by will ; of all testamentary matters the ecclesiastical courts have cognizance ; if there is an intestacy the heir does not get the chattels ; they are distributed by the ecclesiastical courts. But further the term of years, the right of a lessee to whom land has been let for a term of years, is for this purpose a chattel ; it is assimi-
1 For the custom of Borough English, as it was called, see ttisiory of English Law> vol. I, p. 647, and vol. II, pp. 279 — 80.
38 Constitutional History PERIOD
lated to movable goods ; it is a new creation, and the ecclesiastical courts have successfully asserted that it can be disposed of by will — the term of years is a chattel and personal property. All this you will of course have to study much more thoroughly hereafter. The distinction between real *and personal property is still an elementary distinction of profound importance at the present day. But it was necessary to say some little about it, for the word freeholder must be constantly in our mouths.
In the Middle Ages land law is the basis of all public law. You will already have observed how the system of tenure provides the king with an army and with a revenue — men owe military service by reason of tenure, they pay aids, reliefs, scutages by reason of tenure, by reason of tenure the king gets profitable wardships, and marriages, and escheats — he is the supreme and ultimate landlord. But the influence of tenure does not stop here ; the judicial system is influenced by tenure, the parliamentary system is influenced by tenure. Every lord claims a right to hold a court of and for his tenants. This is an important principle, but we can hardly speak of its working until we have spoken of the courts older than feudalism — the courts of the shire and the hundred which continue to exist during the feudal period.
Now if we suppose a quite perfect feudal arrangement, then all courts, all judicial and governmental organization, should be determined by tenure. The king as highest landlord should have a court of his tenants in chief; they would sit as judges therein, and they again would be the king's advisers; it would be with their counsel and consent that the king would impose taxes and make laws. Then again each of these tenants in chief would have his court of sub-vassals, who again would have their courts. Further the sole connection between the king and these sub-vassals would be a mediate connection, only through their lord would he control them. C who held of B who held of A who held of the king would not be the king's man or have any place in a court or assembly over which the king presided; he would not even be A's man; he would never meet or sit along with A's tenants on a footing of legal equality ; he would owe no fealty or homage to any one
I French and English Feudalism. 39
but his immediate lord, namely, B. This ideal of a perfectly feudalized society was pretty fully realized in France; no immediate bond bound the vassals of the Duke of Normandy to the king of the French ; they were bound to the Duke, and the Duke to the king. Happily this ideal is but very imperfectly realized in England, this we must constantly notice ; but we ought carefully to keep this ideal in mind, for there have been powerful forces making for its realization and they have had to be met not only by laws, but also by the sword.
C. Divisions of the Realm and Local Government.
(i) England is divided into counties or shires. For the most part these units are already of very ancient date ; though some of the Northern counties, in particular Lancashire, have been formed since the Norman Conquest Already in Edward's day the arrangement is in most respects that which at present exists. Many, perhaps most, of these divisions are in their origin not divisions into which a kingdom of England has been carved, but are units which once were independent states but have coalesced to form the kingdom of England ; Kent, Sussex, Essex, Middlesex, Surrey have had kings of their own ; Norfolk and Suffolk are the settlements of North Folk and South Folk. As these old states by conquest fall together into one great state, some part of their primitive organization is left to them ; to use a modern phrase, they are mediatized ; in some cases the old dynasty of kings became for a while a dynasty of under-kings, sub-reguli. In other cases the shire may have been a division carved out of a larger whole, and organized on the model of one of these mediatized kingdoms. At any rate before the Norman Conquest each shire had its shire moot, which was a court of justice and to some extent also a governmental assembly for the shire. In it the ealdor- man had presided. The ealdorman had been a national officer appointed by the king and the national assembly. The title ealdorman had, however, been giving way to that of eorl, and the office had been tending to become a hereditary office.
4O Constitutional History PERIOD
Every shire had by no means necessarily an ealdorman or eorl to itself; Canute had divided the kingdom into four great earldoms ; but down to the time of the Conquest, this officer had been the chief man of every shire that lay within its territory, the president of its court, the leader of its forces. He received a third part of the profits arising from the shire moot, the third penny of the county, as it was afterwards called. Along with the ealdorman in the shire moot, the bishop had sat ; it was not until after the Norman Conquest that a firm line was drawn between temporal and ecclesiastical causes, the two had been heard together in the ancient courts. But from a very remote period, the shire had had another officer, namely the shire reeve, or as we say, sheriff. He seems from the first to have been a royal officer, appointed by the king, and representing the royal authority. The ealdorman seems to have been considered as a national leader, the sheriff as a royal steward or bailiff, chiefly concerned with the pro- tection of the king's interests. The shire moot had" seemingly been held but twice in the year. There seems little doubt that originally every freeman of the shire had been entitled and bound to attend it, but long before the Norman Conquest this right and duty seems to have been confined to the free land-owners. The process whereby land-owning had taken the place of personal freedom as a political qualification will come before us hereafter, but we had better at once make a remark which is necessary if we are to understand medieval history. The right of attending courts and assemblies was not a coveted right ; we must think of it rather as a burden- some duty, a duty which men will evade if they possibly cap. We see the class of landless freemen getting gradually excluded from all participation in public business ; but where we are apt to see a disfranchising process, a deprivation of political rights, they saw only a relief from public burdens, the burden of attending court or being fined for non- attendance.
Now the Norman Conquest had not destroyed the shire or the shire moot. There was a change of names. The French district which seemed most analogous to the English shire was the comitatus, the county, the district which had been
I Shire and Sheriff 41
subject to the comes or count, and so the English shire be- came a county. And the earl became in Latin documents, the comes. But this title or dignity was but seldom conferred by William or by his sons, and the earl of Norman times has about him but little of the character of a public officer or the ruler of a province. The dignity was hereditary, though the heir did not acquire full possession of it until he was invested by the king, until he was girt with the sword of the county. He like his English predecessor was entitled to the third penny of the county; but for the rest he seems from the Conquest onwards to be rather a great nobleman, who usually holds large lands in the shire, than a public officer. To this the palatine earldoms are exceptions. The earl of Chester becomes almost a sovereign prince, so does the bishop of Durham ; but on the whole the Norman kings seem to have seen the danger of allowing official power and jurisdiction to become hereditary in the houses of the great feudatories : — it was not by means of earls, but by means of sheriffs, that they will govern the counties. After the Conquest, that ancient officer, the sheriff, becomes in Latin documents the vicecomes, the vice-count; that was the continental title which seemed best suited to describe him ; but this must not induce us to think of him as one who derives his power from the earl, or who in any way represents the earl : from first to last the sheriff is distinctively a royal offigial, a representative of kingly power — and as the Norman Conquest greatly increased the kingly power, so it greatly increased the power of the sheriff. Even here the tendency, so marked in the Middle Ages, of every office to become hereditary, to become property, was felt, and just in a very few cases the shrievalty did become hereditary ; but on the whole the kings succeeded well in maintaining their hold over the sheriffs, in treating them simply as their officers and representatives. The sheriffs held their offices at the king's will. In 1170 Henry II dismissed all the sheriffs of England and put others in their stead. The sheriff had in truth become a provincial viceroy ; all the affairs of the shire — fiscal, military, governmental, its justice and police — were under his control, and he was the president of the county court.
42 Constitutional History PERIOD
For the Conquest had not destroyed the shire moot* It became the county court* The Norman kings seem to have seen its value as a counterpoise to feudalism* To a certain extent the feudal principle that all public rights and duties are connected with land holding had, even before the Con- quest, modified the constitution of the ancient assembly, it had become an assembly of free land-owners. After the Conquest the qualification became more definite; the free- holder was entitled and was bound to be present. But a court formed by all the freeholders of a shire is not, you will see, a court formed upon feudal lines. In such an assembly the tenants in chief of the crown have to meet their own vassals on a footing of legal equality ; a tenant may find himself sitting as the peer of his own lord. This retention of the old courts is of vast importance in the history of parliament. In Henry I's day the county court was held, as in the days of the Confessor, twice a year. More frequent assemblies seem to have become necessary. By the charter of 1217, it is ordered that the county court shall not meet more often than once a month ; monthly sessions seem to have been common.
For a long time after the Conquest the county court re- mained what it was before the Conquest, the great ordinary court of litigation for all the men of the shire. The growth of the feudal courts (of which hereafter) had to some extent diverted business from it ; on the other hand, the king used it as a check on the feudal courts. At the petition of a suitor suggesting that he could not get justice from the lord's court, the king would direct the sheriff to intervene and remove the case into the county court Gradually, however, the county court began to lose its importance as a judicial tribunal. This was due, however, not to the rivalry of the feudal courts, but to the ever growing vigour of the king's own court, which began to throw open its doors to all suitors. Of this con- centration of justice something has been said already and more must be said hereafter. But by the end of Edward I's reign, the king's own courts had already practically become courts of first instance for all matters of much importance. The county court had jurisdiction in personal actions (i.e.
I The County Court 43
actions in which land or rights connected with land were not claimed) up to 40 shillings, and jurisdiction in actions for land when default of justice was made in a feudal court, but in one way or another litigants could generally take their cases to the king's courts.
But while the county court was thus losing its high place as a judicial tribunal, it had been becoming the very foundation of the political constitution. When in the middle of the thirteenth century we find elected representatives called to form part of the national assembly, of a common council of the realm, or parliament, they are the representatives of the county courts. They are not the representatives of unorganized collections of men, they are the representatives, we might almost say, of corporations. The whole county is in theory represented by its court. So much is this the case that the language of the time draws no distinction between the two — the same word comitatus serves to describe both the county, the geographical district, and the assembly. The king in his financial necessities has treated with the counties, long before the counties were ordered to send representative knights to parliament. But the corporate nature of the county, the identity of the county and the county court is best brought out by entries on the judicial rolls, entries which enable us to see the county in the days of Richard and of John. The king's itinerant justices from time to time visit the counties ; the whole county (totus comitatus), i.e. the body of freeholders, stands before them ; it declares what the county has been doing since the last visitation ; the county can give judgment ; the county can give testimony; the county can be punished by fines and amercements when the county has done wrong ; if the county has given false judgment, the county can be summoned to Westminster ; four knights must be sent to represent it ; he who has suffered by its false judgment may challenge the county to fight ; and the county fights by the body of the county champion. Even the principle of election has been long growing before the day when the county is called on to elect members of parliament. In 1194, for example, coroners are first instituted ; three knights and one clerk are to be
44 Constitutional History PERIOD
elected to keep the pleas of the crown1. These custodes pla- citorum coronae, or coroners, are intended to act as checks on the sheriff; they are elected by the county court. There has even been a long struggle to make the sheriff an elected officer, and at Edward's death this has for a moment been a successful struggle; in 1300 he conceded the demand for elective sheriffs. This concession, however, was withdrawn very soon after his death. Of the representation of the county court in parliament, we must speak hereafter ; so also of its jurisdiction as a court of justice ;^but we must learn to think of the county as an organized unity which has long had a common life, common rights and common duties.) The idea of a corporation had not yet made its way into English law ; we must wait for the fifteenth century for that ; had it been otherwise, in all probability the county of the thirteenth century would have been recognized as constituting a cor- poration, a corporation governed by the body of freeholders in the county court
(ii) The county or shire is divided into hundreds. The number of hundreds in a shire varies very greatly, and the size of the hundreds also is very different in different parts of England. Thus there are 5 in Leicestershire, 9 in Bedfordshire, 17 in Cambridgeshire and 63 in Kent This division of the land into districts known as hundreds is of very ancient date — in all probability it has existed ever since the settlement of England by the German tribes. Similar divisions known as hundreds are found in various parts of the continent. It seems very probable that the German tribe was for military and judicial purposes subdivided into groups, each of 100 warriors, and that our English hundreds represent the settlements of such groups. In some parts of England, in the north-east, Yorkshire and Lincolnshire, the district is called, not a hundred, but a wapentake — this is the name both of the district and of its court or assembly, and seems
1 The Forma procedendi in placitis coronae regis (Select Charters^ p. 260) is generally regarded as the origin of the coroner's office. Dr Gross (History of the Office of Coroner > 1892, and Select Cases from Coroners' Rolls > 1896) claims to have found earlier references. Maitland was unconvinced. See Eng. Hist. Rev. viil, 758, and History of English Law, I, 519.
I The Hundred Court 45
to point to the time when the assembly was still a body of armed warriors, who marked their approval by clashing their weapons. The hundred court or hundred moot of the Anglo- Saxon time seems to have been the court of ordinary juris- diction for the men of the hundred ; it, like the shire court, had both civil and criminal jurisdiction ; the relation of the one to the other we do not exactly know, but perhaps a suitor was not entitled to go to the shire-moot, until the hundred moot had made default in justice. It was held twelve times] a year.
The Conquest did not destroy the hundred court ; the freeholders of the hundred were bound to attend it and to sit in it as judges. But in the twelfth and thirteenth centuries, it gradually lost business owing to that concentration of justice in the king's courts, of which mention has already been made. Before the end of Edward's reign, its competence in personal actions like that of the county court had been restricted to cases in which less than 40 shillings was at stake. But further, even before the Conquest, many of these courts had fallen into private hands; the notion that all jurisdiction is the king's had been formed, and the kings had freely given and sold the right of holding courts. To a great landowner this right was very profitable, it enabled him to keep his tenants in hand, and we must further remember that throughout thd| Middle Ages jurisdiction is a source of income — the lord of a court has a right to the numerous fines and forfeitures which arise out of the doing of justice. It is probable that in the thirteenth century most of the hundred courts had come into private hands. In 1278 Edward made a vigorous attempt to recover the jurisdictions which had become proprietary; he instituted a searching inquiry quo warranto, by what warrant, under what title, the lords were presuming to exercise a juris- diction which prima facie belonged to the king; and his justices succeeded in recovering a great deal of the jurisdic- tion by insisting that only under written documents or by long prescription could a subject claim any larger jurisdiction than that of the ordinary manorial courts. The ordinary manorial courts, you will understand, had grown up under the influence of feudal ideas' and existed side by side with
46 Constitutional History PERIOD
the more ancient courts of the shire and the hundred. Also we must note that even when a hundred court had fallen into private hands, the king's officer, the sheriff, had at least generally the right to hold it twice a year for criminal cases. Twice a year it was the sheriff's turn to hold these courts, and a court so holden by him came to be known as the sheriff's tourn. When such courts as these were in private hands, they were generally called courts leet. The court baron and the customary court of the manor are the outcome of tenure ; a court leet on the other hand has a certain criminal jurisdiction, jurisdiction in cases of petty offences, and it is not the outcome of tenure — it must have its origin in a royal grant, real or supposed ; this doctrine Edward has succeeded in enforcing by means of his quo warranto inquiry1.
In the general administration of the law, the hundred is an important unit. In particular it is important in the system of trial by jury introduced by Henry II. Each hundred is bound to present its malefactors ; this is done by means of a jury of twelve. It is a responsible unit in the police system ; from an early time, the hundred is bound to pursue criminals. Under the law of the Conqueror, if a man be found slain and the slayer be not produced, the hundred is fined, unless it can prove that the slain man was an Englishman ; in other words, it pays a miirdrum or murder fine unless there is a present- ment of Englishry. So again in Edward's day, the hundreds have lately been put under constables bound to see that the men of the hundred have proper armour for the pursuit of malefactors and the repelling of enemies. In very early times we hear a little of a hundred's ealdor, and it is possible that he was an elected president of the hundred ; but after the Conquest, and probably before the Conquest, he has disap- peared ; the sheriff appoints a Serjeant or bailiff (serviens, ballivus) for each hundred, who presides over the court, unless that court be in private hands, and is bound to look after all the king's business within the hundred, the collection of taxes, fines, forfeitures and the like.
1 For the whole subject of seigniorial jurisdiction, see History of English Law, vol. I, pp. 571— 94.
I The Township 47
(iii) The lowest unit in the governmental system is the township or vill ; the Latin word used to describe the geo- graphical district is villa, while villata describes the people of the villa regarded as a collective whole. The township as such has no court of its own, but_il has many police duties to perform. It has duties in the apprehension of criminals, and can be fined for the neglect of them. When the king's justices visit the county, every township has to come before them. For this purpose, the township is represented by its reeve (praepositus) and four best men (quatuor meliores homines), and its opinion is constantly taken as to the guilt or innocence of accused persons. We constantly read that the township of (let us say) Trumpington (villata de Trumpington) says that A is guilty of the death of B, or the like ; — if it says what is untrue, it is liable to be amerced. The representation of the townships in the local courts we can trace back to the time of Henry I ; but in all probability it is of much higher antiquity1.
Here it becomes necessary to take account of a principle that we largely noticed when speaking of feudal tenure. The jurisdictional constitution of England would have been a much simpler matter to describe had there not grown up by the side of the ancient courts of the shire and the hundred a newer set of courts expressive of a newer principle — feudal courts expressive of the principle that every lord has a right to hold, a court of and for his tenants. The obligation of attending the lord's court, the obligation of doing suit of court, is one of the incidents of feudal tenure. This principle has been slowly growing up : but seems an admitted truth in the twelfth and thirteenth centuries.
We find that very generally these feudal courts are courts of manors ; indeed the legal theory of later times asserts, though as I think without warrant, that only as part of a manor could such a court exist. Of the manor then we are compelled to say a few words. We find (I am speaking of
1 It would appear from a note in the MS that Maitland went on to speak of the Township as a fiscal unit. What he may have said on this point may be gathered from Domesday Book and Beyond^ p. 147; and the History of English Law, I, pp. 560—7.
48 Constittttional History PERIOD
Edward Fs day) that England is full of manors. We cannot indeed say that the whole land is parcelled out into manors ; our law has no such theory as that all land is part of some manor. Still manors there are in plenty. The name manor, manerium, has seemingly meant in the first instance merely an abiding place (manerium a manendo) ; it is closely connected with mansio ; it has been used more or less vaguely to signify a landed estate ; gradually it has gained a legal significance, it has come to imply the existence of a court. Now if we take a typical manerium of the time, we commonly find that there is in the first place a quantity of demesne land — land, that is, which the lord of the manor has in his own hand, which is in every sense his very own. Then there arc lands which are held of him by freehold tenants, who owe him services : some of them perhaps are bound to do the military service due to the king, others pay him rent in money or in kind, and perhaps are bound to aid him in his ploughing : these are free socagers. Then there are the tenants in villein- age, who owe week work and so forth, and by whose services his demesne lands are cultivated. All these lands usually lie together, and very often the manor is coterminous with the township.
For the free tenants of his manor, the lord keeps a court ; generally by the terms of their tenure they are bound to attend this court at stated intervals, e.g. in every third week ; they owe suit to his court, debent sectam ad curiam manerii. This idea seems indeed to -lie at the root of the term socage, it is that of seeking or following; the socagers, sokemanni^ are bound to seek, follow, attend the court of the lord. The general principle seems for some time past to have been ad- mitted into English law — that if a man has freehold tenants, he may hold a court for them ; he may bind them by their tenures to do suit to his court. Such a court then becomes the proper court in which to demand any of the freehold land that is holden of the manor — if I claim against you land which, as we both admit, is holden of A, then I must begin my action in A's court, if A has one. But great inroads have been made upon this system of feudal justice. The hand of Henry II has been felt. The principle just expressed has not
i Court Baron and Court Customary 49
been abrogated, but its importance has been greatly curtailed. In one way and another it has become very possible for liti- gants to evade the manorial jurisdictions, to go straight to the king's court, or having just begun the action in the manor court to get it removed into the king's court by a royal writ. Still these courts exist, and in Edward's day have not yet ceased to do justice. Now such a court is constituted by the lord and his freeholders — they are the judges; he who owes suit of court is bound to go and sit there as a judge — a question relating to freehold land is decided by the peers of the tenure — the freeholder there gets the judgment of his peers, judicium parium stwrum. In later times such a court is known as ' the court baron of the manor/ a phrase which seems at first merely to have meant the lord's court, curia baronis.
But then again the lord had what, at least in later times, was regarded as a distinct court for the tenants in villeinage. This was called the customary court, and the principle was established that in this court, unlike the court baron, the lord's steward was the only judge. I very much doubt whether this principle was established in the thirteenth century. Many important questions depend on this point ; in particular the question how far the tenants in villeinage were protected in their holdings. If really the lord's steward was the only judge, then they were protected only by the lord's sense of justice : it was otherwise if they got the judgment of their pares. However you must know the orthodox theory that the lord's steward was the sole judge. It was in this so-called custom- ary court that all transfers of the lands held in villeinage were effected: — A wishing to put B in his place, surrendered the land into the lord's hand, who admitted B as tenant; A being dead, the lord admitted B his heir. It became the practice to enrol all these proceedings ; we have a few manor rolls from Henry III, a considerable number from Edward I. Copies of the entries relating to their lands were given to the tenants. Gradually, but this is not until a later day, the term tenant in villeinage gives way to tenant by copy of court roll, or copyholder ; the copies of the court roll are the evidences of title that the tenant has. To look forward for a moment
M. 4
50 Constitutional History PERIOD
in order to finish this matter: — about the middle of the fif- teenth century the king's courts begin to protect the copy- holder even against his lord ; the services again become commuted for money payments ; after the discovery of Mexico the value of money falls very rapidly, these payments become trifling ; at last the copyholder is almost as complete an owner of land as is the freeholder : — but it is long indeed before the distinction ceases to be of political importance — not until 1832 does the copyholder vote for knights of the shire. The tenure still exists, a horrible nuisance as you will learn at large some day.
It should be noted that according to the orthodox legal theory of the sixteenth century and of to-day, there can be no manor without two freehold tenants, sufficient tenants, that is, to constitute a court baron. Whether this theory be of ancient date, I very much doubt ; as a matter of fact, in the thirteenth century there are many maneria, so-called in legal documents, in which there are no tenants but tenants in villeinage.
Our kings have succeeded in asserting and maintaining the principle that the feudal jurisdiction is a purely civil jurisdic- tion, that the fact of tenure does not give to the lord any criminal or correctional jurisdiction over his tenants, or at least over such of them as are free men. But as a matter of fact, either by means of royal grants purchased from kings in want of money, or by means of usurpations so ancient that they can no longer be called in question, very many of the lords exercise some of that criminal and police jurisdiction which as a rule belongs to the hundred and county courts. In the language of later law books, and to use a term the origin of which is singularly obscure, they have established courts leet — courts which take cognizance of petty misdemeanours. Such courts, however, according to the legal theory of Edward's time, are no natural outcome of tenure, like courts baron and customary courts, but must be claimed by grant or prescription1.
As a matter of fact, there is usually a close connection between the manor and the township. Very usually the same geographical district which from one point of view is a town-
1 'The lord might also hold a court for his honour, for all his immediate tenants-... The Abbot of Ramsey may bring to his court at Broughton his freehold tenants from seven counties.' Pollock and Maitland, History of English Laiv, vol. I, pp. 585—6.
%I Township and Vill 51
ship, is from another point of view a manor. Recent historians see in the township a community which is far more ancient than the manor ; a community which, so far as English history is concerned, we may call primitive ; a group of men or of families bound together, very possibly by kinship, which cultivates land by a system of collective agriculture, which is or has been the owner of the land, which to a large extent regulates its own affairs, decides how the land shall be tilled, decides whether new members shall be admitted, has a town- ship-moot in which such affairs are settled, though it has not what we should call a court of justice. In course of time, we are told, this primitive community has in general fallen under the dominion of a lord, has become a community of tenants, and usually of tenants who hold in villeinage, has become a manor. But still for the purposes of public law, in particular for what we may call police purposes, it is as a township, and not as a manor, that the state takes account of it, and .when, as sometimes happens, the vill is not coincident with the manor, it is the township and not the manor that must answer to the state for the apprehension of criminals and so forth. The two organisms exist side by side ; the older is not thoroughly absorbed in the newer.
All theories, however, as to the early history of manors and townships are beset by very great difficulties which at the present moment cannot be explained. What at present con- cerns us is that the state has fixed on the township, not the manor, as the unit responsible for good order. It is, I think, the theory of the thirteenth century and of later times that all England is divided into townships, that every bit of land lies in some vill, while it is not the theory that every acre of land must belong to some manor. Again, and this may help to explain the co-existence of township and manor, until lately, until 1290 it has been quite possible for landowners to create new manors ; they could not be allowed to alter the police system of the country by the creation of new townships. On the other hand, as a matter of fact, it is difficult to find a town- ship which is outside the manorial system ; the township is represented, we have said, by its reeve and four best men, but the reeve is at least generally a manorial officer, a villein
4—2
52 Constitutional History PERIOD
elected by his fellow villeins, who is answerable to the lord for looking after the manor, and seeing that his fellow villeins do their due services; to have served as reeve is indeed regarded as a presumptive proof of personal villeinage1.
(iv) Under the name of boroughs a certain number of communities have attained to a higher stage of organization than that of the generality of townships. But this is a matter of degree; at no time before the year 1835 can we say that the constitution of the various boroughs is the same through- out England, or even that it conforms to any one type. There hardly can be a history of the English borough, for each borough has its own history. That history largely depends on the charters that it has been able to obtain from the king or from other lords, and the liberality of the charter has depended on the price that the burghers were ready to pay for it ; municipal privileges were only to be obtained for valuable consideration. At the end of the thirteenth century, however, the time of which we are speaking, the privileges of the boroughs, the institutions which make it something different from a mere township, may be summed up under the following heads.
(a) Immunity from the jurisdiction of the ordinary local courts. The borough has aspired to be a hundred all by itself— to be exempt therefore out of the jurisdiction of any hundred court When the king's justices visit the county, the borough is represented before it not by the reeve and four men, but by a jury of twelve, just as every hundred in the county is represented by a jury of twelve. Occasionally more extensive immunities have been conferred, the borough is exempted out of the jurisdiction of the county court. Some of the richer and larger boroughs have gone even further than this — it has been granted to them that their burgesses may sue and be sued only in their own courts, and thus one cannot sue a burgess even in the king's court
(b) Coupled with this immunity is the privilege of having courts of its own, usually with the jurisdiction of a hundred court ; but the constitution of these courts varies greatly. In
1 These views are substantially unchanged in the History of English Law, vol. I, pp. 594—634.
I Burghal Privilege 53
some cases the borough has already got itself free of the manorial system, and its courts are presided over by elected officers; in other cases the borough is still a manor and its court is the lord's court held under the presidency of his steward.
(c) Very frequently indeed the borough has by this time purchased the right of having its own elective officers — ballivi, praepositi) bailiffs or reeves, who stand on somewhat the same level as the bailiffs of the hundreds whom the sheriff appoints. Often again the burgesses have their own coroners, and in this respect are free from the organization of the county.v In some cases the burgesses have already an elected mayor with ampler rights and powers than those of a bailiff or reeve.
(d) Very generally the burgesses have acquired the right to collect the taxes within the borough, and for this purpose to exclude the sheriff. For the ancient taxes they compound with a lump sum at the Exchequer — they are thus said to hold the borough in farm.
(e) Very generally also the borough constitution is inter- woven with that of a merchant guild, an association of merchants which has by charter obtained the power of regu- lating trade. In some of the greater boroughs besides the merchant-guild, there are trade-guilds, or craft-guilds, the weavers' guild, the tailors' guild and so forth. A constitution in which the merchant-guild is the ruling body of the town, is gradually, and in very various stages, supplanting a more ancient constitution which was simply that of a privileged township or privileged manor.
The city of London resembles rather a shire than a town- ship— already in rfenry I's day it has got so far as to have sheriffs of its own, nay more, it holds the county of Middlesex in farm; its elective sheriffs act as sheriff of Middlesex1. To be utterly and totally exempt out of the shire organization, to be counties of themselves, to have sheriffs of their own, is one of the ends for which the more ambitious boroughs are striving, though in Edward I's day none save London has attained it.
1 The Charter of Henry i to London ib panted by Stubbs, Select Charters^ p. 108.
54 Constitutional History PERIOD
Boroughs which are also bishop's sees are distinguished as cities (civitates), and their burgesses are citizens. The term city tells us no more than this, it does not point to any higher degree of municipal organization or independence than does the term borough (burgus).
In later times, in the fifteenth century and onwards, we can arrive at a legal definition of a borough; the notion of a corporation has then been formed, a fictitious person, a juristic person, which has rights and duties which are quite distinct from the rights and duties of its members. But this notion, though developed in the Canon Law, only made its way into English law by slow degrees1. The greater boroughs, however, of Edward's reign have already in substance attained to all or almost all of those distinctive characteristics which the later lawyers regarded as essential to corporate unity. These characteristics are five— the right of perpetual succession, the power to sue and be sued as a whole and by the corporate name, the power to hold lands, the right to use a common seal, and the power of making by-laws. Substantially these characteristics exist, but as yet they have not been worked into a theory by the conception of a fictitious person, who is immortal, who sues and is sued, who holds lands, has a seal of his own, who makes regulations for those natural persons of whom he is composed. The question what is the constitution of this fictitious person, how he is made up out of natural persons, has not yet arisen. The borough is as yet no more a corporation, no less, than is the township, the hundred, or the county; and if the borough may be spoken of as having rights and duties, as breaking the law and being punished, this is true also of the county, the hundred, and the township.
D. Central Government.
We turn to the central government, the king and his councils. This we are wont to regard as the main theme of constitutional law. We have here, however, postponed it,
1 The idea is worked out in Maitiand's Township and Borough, Cambridge, 1897.
I Central Government 55
for it can hardly be understood without some preliminary knowledge of the land law and of the local institutions. Now at the end of Edward's reign we find several different central institutions. In the first place there is the kingship ; this is the centre of the centre. Then there is that assembly of the three estates of the realm, clergy, lords and commons, to which / the name parliamentum is coming to be specifically appro- priated. Then again the king has a council (concilium} which is distinct from parliament, and he has high officers of state, a chancellor, treasurer, constable, marshal and so forth. Then again he has courts, courts which in a peculiar sense are his courts: there is the King's Bench, the Common Bench, the Exchequer. All these now are distinct and have their different functions; but looking back a little way we see that they have not always been distinct, that a difference, for instance, between the king's council (concilium Regis) and the king's court (curia Regis) has but slowly been established. We will take therefore a brief retrospect of the history of our central institutions as a whole.
(i) Before 1066.
Among the German tribes described by Tacitus a kingship was by no means universal. In some cases the highest officers axe principes elected by the tribe in its popular assembly ; in other cases the tribe has already a rex ; he also is elected, chosen it would seem because of his noble descent, but his power seems to be very limited. Our own forefathers when they first attacked the province of Britain seem to have had no kings ; their leaders were ealdormen, in whom we may recog- nize the principes of Tacitus. But the kingship appears veiy soon ; the process of conquering a new country would be very favourable to its development. The small states which were afterwards to coalesce into the kingdom of England, seem in other respects to have resembled the states described by Tacitus. Each had its popular assembly, the assembly of all free men, its principes or ealdormen elected in that assembly, and its king. The eaidorman presides over zpagus or district; the ealdormen, under the king's presidency, meet to determine the minor affairs of the state, but the weightier matters are
56 Constitutional History PERIOD
discussed in the folk-moot: — de minoribus rebus principes consultant, de majoribus omnes.
Gradually by conquest greater kingdoms are formed, at last the English kingdom. The way for this was prepared by the acceptance of the Christian faith and the organization of an English church. The old state which has thus been absorbed in a larger state does not lose its unity, it now exists as a shire of the new kingdom; sometimes the members of its once royal house continue to be its ealdormen ; its folk-moot still exists, but now as a shire-moot, the county court of later days. The national assembly is not a folk-moot, not an assembly of the whole people, but a witenagemot, an assembly of the wise, the sapientes. This assembly when we look back at it seems a very unstable and indefinite body. It comprises the bishops, and towards the end of the period we often find a number of abbots present It comprises also the ealdormen of the shires; their number varies according as the shires are administered singly or in groups. Besides these there are a number of persons who generally describe themselves as ministri Regis, or king's thanes, and this number increases as time goes on. It can never have been a very large assembly. ' In a witenagemot held at Luton in November, 931, were the 2 archbishops, 2 Welsh princes, 17 bishops, 15 ealdormen, 5 abbots and 59 ministri. In another, that of Winchester, in 934, were present the 2 archbishops, 4 Welsh kings, 17 bishops, 4 abbots, 12 ealdormen and 52 ministri. These are perhaps |the fullest extant lists1/ The question arises, who were these \nmistri or king's thanes ?
The princeps of Tacitus has around him a train of warlike companions (comites). It is the duty of all men to fight ; the host, as is often said, is the nation in arms ; but these comites are more especially bound to fight and to fight for their leader; this is their glory ; it gives them a high place in the estima- tion of the community. We can recognize them in t\\sgesith, the companion, of our own kings, a name which gradually gives place to that of thane, or servant, in Latin minister. A nobility by service is thus formed, and the thegnhood begins
1 Stubbs, Constitutional History, vol. I, § 53.
I Growth of Feudalism 57
to be connected with the holding of land and to be hereditary. The unappropriated land, the land of the nation, the folk-land, forms a great fund whereout the king, with the consent of the wise, can reward his faithful followers1. The thane begins to look somewhat like the tenant by knight service of later times, and the king's thane (for an ealdorman may have thanes) begins to look like a tenant in chief. The definite idea of a military tenure, A tenet de Rege per servicium unius militis> is not formed before the Conquest; but to an extent, and in a manner that is now very dark to us, the military service due comes to be connected with and measured by landholding2. It is well to see that there were powerful economic causes in which this incipient feudalism had its roots. As agriculture becomes higher, as the distribution of property grows more unequal, as the art of war is developed, it becomes more and more convenient that some should fight while others till the soil : there is a division of labour, a specialization of employ- ments. The work of feudalism goes on in the lowest strata of society as well as in the highest While the king is gathering round him a body of armed vassals who are great landowners because they are vassals, the smaller men are putting them- selves under the protection of lords, are content that their lords should do the necessary fighting while they till the lord's land. Dark as is the early history of the manor, we can see that before the Conquest England is covered by what in all substantial points are manors, though the term manor is brought hither by the Normans. Furthermore, in the interests of peace and justice, the state insists that every landless man shall have a lord, who will produce him in court in case he be accused. Slowly the relation of man and lord extends itself, and everywhere it is connected with land. The king's thanes then are coming to be the king's military tenants in chief.
1 The term folk-land is now regarded not as denoting public land, but as *land held without written title under customary law.' History of English Law^ vol. I, p. 62. The point was proved by Mr Paul VinogradofHwn 1893. Eng. Hist. Rev. vill, 1—17. This does not imply that there was no unappropriated land, only that it was not ca\\e& folk-land.
2 Maitland throws some light upon this dark question in Domesday Book and Beyond^ pp. 307—9.
58 Constitutional History PERIOD
We cannot then arrive at any strict theory as to the con- stitution of the witenagemot It is an assembly of the great folk ; when there is a strong king on the throne it is pretty much in his power to say how it shall be constituted, to summon whom he will ; when the king is weak, it is apt to become anarchical. It has even been contended by Mr Freeman that every free man had in theory a right to attend it1; but it is difficult to believe that a theory was maintained which was so flagrantly inconsistent with the actual facts. At all events it is clear that really this assembly was a small aristocratic body, tending always to become more aristocratic. The bishops constitute its most permanent and at times its most powerful element
Such then is the national assembly, and at least on paper its powers seem vast ; it can elect kings and depose them ; the king and witan legislate ; it is with the counsel and consent of the witan that the king publishes laws ; the king and witan nominate the ealdormen and the bishops, make grants of the public lands, impose taxes, decide on peace and war, and form a tribunal of last resort for causes criminal and civil. It is a supreme legislative, governmental, and judicial assembly.
Such terms as these, however, may easily raise a false notion in modern minds. The whole business of a central government is as yet but small. Legislation is no common event ; as already said, all the extant dooms of kings and witan would make but a small book. Taxation is still more uncommon, of anything that can be called by that name we hear nothing until late in the day. The rents and profits of the public lands, the profits of the courts, afford a sufficient revenue for such central government as there is. The Dane- geld of Ethelred's reign is perhaps the first tax; in 991, 994, 1002, 1007, 1011, a tribute was raised to buy off the Danish invaders. Lastly, though we have clear proof that the witen- agemot acted as a court of justice, it was no ordinary court for ordinary men ; recourse to it was not encouraged ; the normal courts were the local courts, and suitors were forbidden to seek the royal audience until justice had failed them in the hundred and the shire.
1 £ss<ys, 4th series, pp. 444—7.
I The Kingship 59
Meanwhile the king's splendour grew as the extent of his territory grew. From being merely the nation's leader, he became the lord of all men, and we may almost say the lord of all land and lord of all justice. While as yet almost all offences can be atoned for by money payments, treason becomes an utterly inexpiable offence. The national land becomes always more and more the king's land, and the king's favour is thus the source of honour and of wealth. What is more, justice is regarded as being the king's, he can grant jurisdiction to whom he pleases, indeed a grant of land now usually involves a grant of jurisdiction ; the hundred courts come into private hands and manorial courts arise. This, the most dangerous element of feudalism, is rapidly developed towards the end of our period ; in particular Edward the Confessor seems to have been lavish in his grants of juris- diction1.
We have said, however, that the king's splendour grows, rather than that his power grows. Whether he will be powerful or no depends now very much on his own personal character. That lordship of land and of justice of which we have just spoken, may be as easily a cause of weakness as of strength. Every grant that he makes of land or of jurisdiction raises up a new vassal, and unless the king's hand be heavy upon his vassals they may become too strong for him ; he may end by being like the king of the French, primus inter pares, the nominal head of a turbulent baronage. The growth of large estates and private jurisdictions surrounds the great thanes with tenants and retainers bound to them by a close bond of fealty. Every man, it is true, can be called upon to swear allegiance to the king ; but the king is distant and the lord is near.
Even the fact that to the very end of the period the king- ship is not strictly hereditary, but elective — that on the Con- fessor's death the witan can elect Harold — that a power also of deposing a king has been exercised as late as the days of Ethelred the Unready, is really rather a mark of constitutional weakness, of a dangerous feudalism, than of popular liberty; —
1 Domesday Book and Beyond, p. 87 ff.
60 Constitutional History PERIOD
the crown itself may become the prize of the rebellious vassal. The really healthy element in the constitution as it stood on the eve of the Conquest lies here — that as yet no English king has taken on himself to legislate or to tax without the counsel and consent of a national assembly, an assembly of the wise, that is of the great. This is a valuable barrier against mere despotism, though what the national assembly shall be a strong king can decide for himself.
(ii) 1066-1154.
William of Normandy claimed the throne as the heir nominated by the Confessor. That title the English did not admit; it had not been law among them that a king might appoint his successor. Harold was chosen king. The battle of Hastings was fought. William proceeded to seek the recognition of the divided and dismayed witan. He was chosen and was crowned, swearing that he would hold fast right law, and utterly forbid rapine and unrighteous judgment. It is needful to remember that neither of his sons came to the throne by what we should think or even by what would then have been thought a good hereditary title, needful, for to this we probably owe the preservation of a certain form and semblance of free government. Rufus excluded Robert and was willing to make, though also to break, the most lavish promises. Henry again excluded Robert ; he was hastily elected by a small knot of barons, took the oaths which Ethelred had taken, and purchased support by a charter of great importance, for it was the model on which the charter of 1215 was framed. 'Know ye/ it begins, 'that by the mercy of God and the common counsel of the barons of the whole realm of England I have been crowned king of the same realm.' Henry dead, the crown was seized by Stephen of Blois, to the exclusion, as we should say, of the Empress Matilda. He was obliged to make large promises at his coronation, and in 1 136 to issue an important charter, important rather as a precedent than as anything else, for a strong party favoured the Empress and the feudal anarchy broke loose. In fact we may regard our Norman kings as despotic ; when there is not despotism there is anarchy; still a certain semblance of another form of govern-
i The Tenants in Chief 61
ment is maintained, government by a king who rules with the counsel and consent of his barons.
Now the typical feudal king, if we may make such an abstraction, should have a court consisting of his immediate vassals, his tenants in chief. How much or how little he will be influenced by them, whether they will be utterly powerless or whether he will be but the first among equals is a different question — but such control over him as there is will be the control of a court thus formed. It would seem then according to this idea that the court of the English king should have consisted of his tenants in chief. But the tenants in chief were in England very numerous : this was the result of the Conquest and the subsequent grants of lands deemed forfeited — they were not just a few rulers and owners of vast provinces ; there were a large number who held single knight's fees and single manors holden directly of the king. This should be remembered, for it affects the constitution both of the House of Lords and of the House of Commons in later days. The body of military tenants in chief was from the beginning a very heterogeneous body. If it included great feudatories with vast possessions and numerous vassals, who might aspire to play the part of sovereign princes, it included also a large number of men who were by no means very rich or very powerful. This must have rendered it practically impossible that the king's court should have become a powerful definite body formed strictly on feudal lines. The Conqueror we find holds an ordinary court three times a year at the three great festivals. ' Thrice a year/ says the Saxon Chronicle, ' King William wore his crown every year he was in England ; at Easter he wore it at Winchester, at Pentecost at Westminster, and at Christmas at Gloucester; and at these times all the men of England were with him — archbishops, bishops and abbots, earls, thegns and knights.' A similar usage was main- tained by his sons though the rotation thus described was not strictly observed. When however we ask who actually attended ? still more if we ask who had a right to attend ? we get a very uncertain answer. The passage in the Chronicle to which I have just referred is a specimen of the vague state- ments which are all that we get — all the men of England were
62 Constitittional History PERIOD
with him — archbishops, bishops and abbots, earls, thanes or knights ; often we are put off with some such word as proceres^ which has a very uncertain sound. The archbishops, bishops and abbots attend by virtue of their official wisdom, but the theory seems always to gain ground that they are there because they hold baronies of the king — at any rate they become tenants in chief and so for them there is certainly a place. As to the other persons who come, so far as there is any legal theory, it must be that they are the tenants in chief. Probably it is fully acknowledged that the king may lawfully insist on the presence of every tenant in chief — probably it is the general opinion that every military tenant in chief has a right to be there. But we ought to remember that attendance at court is no coveted privilege. We must be careful not to introduce the notions of modern times in which a seat in parliament is eagerly desired. This would render a good deal of history unintelligible. For the smaller men attendance at court is a burden of which they are very ready to relieve themselves or be relieved, and this is true, be the court in question the hundred court, or the county court, or the king's court.
What seems to us from the modern point of view a valuable political right, seemed to those who had it an onerous obliga- tion. The great baron again had no particular desire to be about his lord's court ; if, as was too often the case, he was not very faithful to his lord, his lord's court was the very last place in which he would wish to be. In point of fact we do not hear from the Norman reigns any assertion of an individual's right to attend the court. The king insists on bringing around him the most powerful of his tenants in chief, and such meetings are to him a source of strength. As Mr Dicey has pointed out in his Essay on the Privy Council it is the strong king who habitually brings his magnates round him. He thus keeps his eye upon them, and it strengthens his hands in dealing with the refractory that his measures are taken with the counsel and consent of their peers.
Under the Norman kings counsel and consent may have been little more than formality, and the king may have exercised the power of summoning only such of his tenants
I The Curia Regis 63
in chief as he pleased — still such few legislative acts as we have from this period are done with the counsel and consent of the great. Thus the ordinance which removed the bishops from the secular courts and recognized their spiritual juris- diction was made with the counsel of the archbishops, bishops, abbots, and all the princes of the kingdom. But anything that could be called legislation was seemingly very rare. The right of the council to join in taxation was perhaps admitted in theory. Henry the First speaks of an aid which had been granted to him by his barons : but there is nothing to show that any such consent was asked when the Danegeld was levied as repeatedly it was, and the king exercised the power of tallaging his demesne lands of his own free will. A court of this nature was again the highest court of judicature, for the great cases and the great men. It was in such courts that the king nominated bishops until the right of canonical election was conceded by Henry I, and even then the election took place in the royal court. The ceremony of conferring earldoms and knighthood and receiving homage were performed there; questions of general policy, of peace and war,of royal marriages and so forth seem to have been debated.
But a smaller body collects round the king, a body of administrators selected from the ranks of the baronage and of the clergy. At its head stands the chief-justiciar, the king's right-hand man, his viceroy when the king is, as often he is, in his foreign dominions. There is also the king's chancellor, the head of a body of clerks who, do all the secretarial work ; there are the great officers of the royal household and others whom the king has chosen. Under Henry I this body becomes organic ; the orderly routine of administration begins even to be a check on the king's power ; Stephen discovers this when he quarrels with the ministerial body. This body when it sits for financial purposes constitutes the Exchequer (Scaccarium), so called from the chequered cloth which lies on the table, convenient for the counting of money. Also it forms a council and court of law for the king, it is curia Regis, the king's court, and its members &rejustitiarii> justiciars or justices of this court. Under Henry I they are sent into the counties to collect taxes and to hold pleas ; they are then justitiarii
64 Constitutional History PERIOD
errantes, justitiarii itinerantes. During the whole period the term curia Regis seems loosely used to cover both the sessions of this permanent body and the assembly of the tenants in chief; the former may perhaps be regarded as a standing committee of the latter.
(iii) 1154-1216.
The reigns of the first three kings of the Angevin house form another and a fairly definite period in the history of the national assembly — which ends with the Great Charter of 1215. In its fourteenth clause we obtain for the first time some- thing that may be called a distinct definition of that body. The twelfth clause declares that no scutage or aid shall be imposed in our realm save by the common counsel of our realm, nisi per commune consilium rcgni nostri — except the three ordinary feudal aids for redeeming the king's body from captivity, for knighting his eldest son, and for marry- ing his eldest daughter. There follows this — 'And for the purpose of having the common counsel of the realm for assessing an aid except in the three cases aforesaid we will cause to be summoned the archbishops, bishops, abbots, earls and greater barons (majores barones) singly (sigitlatim) by our letters ; and besides we will cause to be summoned by our sheriffs and bailiffs all those who hold of us in chief; for a certain day, that is to say, at a term of forty days at least ; and to a certain place ; and in all the letters of such summons we will express the cause of the summons.' Leaving out of sight, for a time, the clerical members of this body, we see that the national assembly is an assembly of the king's tenants in chief. But we see an important distinction ; while the archbishops, bishops, abbots, earls and greater barons are to be summoned severally by letters addressed to them directly, the other tenants in chief are to be summoned not by name but by general writs addressed to the sheriffs. Now this distinction has been the subject of much disputation. It is mentioned in the Charter as an already well understood distinction, as one already recognized in practice; the difficulty has been to find its foundation — what makes a man a baro major ? The principle cannot be found in feudal theory,
I Greater and Smaller Barons 65
feudally all these persons stand on the same level, they are tenants in chief whether they hold whole counties or single knight's fees. One small class may be definitely marked off, namely the earls. The earl of the Norman reigns is definitely the successor of the earl of the days before the Conquest, who again is the successor of the older ealdorman. To a certain extent under William and his sons the earldom was still an office implying a considerable though somewhat vague power in the county which gave to the earl his title : but it had become less and less of an office, more and more of a mere dignity. The royal policy had been to prevent great jurisdiction falling into the hands of powerful nobles, and to rule the shires by sheriffs strictly accountable to the king and removable at a moment's notice. The earls, however, are a quite distinct class and a small class, for the title had not been lavishly given. As to the title of baron (bard) the clause before us is quite evidence enough, were there no other, that it was not confined to those who were entitled to the special summons, for this distinguishes not the barones but the barones majores. It would seem that at this time the title baron covered all the military tenants in chief of the crown. This is in accordance with the original meaning of the word — baro is simply man ; this meaning it long kept in our law French : husband and wife arc baron and feme; but man is the term opposed to lord] the man does homage to his lord, hominiuin or homagium^ from homo a man ; and it seems somewhat of an accident that while we speak of the homage of a manorial court, meaning thereby the body of tenants owing suit and service, we speak of the baronage of the king's court; the king's tenants in chief are his Jwmines and his barones also. A line has then been drawn which divides these persons into two classes : — this probably is a result gradually attained by the practice of a century. The greater men had paid their feudal dues directly to the king's exchequer, the smaller had paid through the sheriff; the greater when serving in the army brought up their retainers under their own banners, the smaller served under the sheriff; the greater were summoned to the king's court directly, the smaller through the sheriff. But when we ask what greater and smaller mean, we can give no precise answef. In particular u. 5
66 Constitutional History PERIOD
we cannot say that a certain definite extent or value of land was either necessary or sufficient to make a man entitled to the special summons. Then again in this same Magna Carta we find a distinction as to reliefs, the heir of the baron is to pay for an entire barony (baronia) a hundred pounds, or according to some copies a hundred marks, the heir of the knight holding in chief of the king is to pay a hundred shillings for the knight's fee. It seems that the baro who has a baronia in the one clause is the baro major who is to have a special summons in the other clause. The process of narrowing the import of the word baron to those who are entitled to the special summons goes on during the following century. Tenancy in chief is not sufficient now to give a man this title of baro ; he may hold in chief and yet be merely miles. The estate of the baron is a barony, but though there may be a theory floating about that the barony is or should be related to the knight's fee as the mark is related to the shilling, that is to say, that the barony should consist of thirteen knight's fees and a third — still it seems certain that an estate of this value was neither necessary, nor in itself sufficient, to entitle the holder to the special summons. Certain particular estates had come to be regarded as baronies and to pay the heavier relief, we can say very little more.
During the period which ends with the charter we have little evidence as to the constitution of the national assembly. The earliest writ of summons that we have is one addressed to the Bishop of Salisbury in 1205 ; of general summonses sent out through the sheriffs we have none preserved ; but very possibly throughout the reign of Henry the Second the assembly had been constituted after the fashion prescribed by the charter. During that reign councils had been frequent; Henry was a strong king, not afraid of meeting his vassals, with a policy of his own and a policy which required their support. Some great laws, I may remind you, were made in his reign, though the text of them has too often perished — the Constitutions of Clarendon, the Grand Assize, the Assizes of Clarendon and Northampton. He professedly legislates by the counsel and consent of the archbishops, bishops, barons, earls and nobles of England — by the petition and advice of
I Taxation and Consent 67
his bishops and all his barons and so forth. The counsel and consent may still have been little more than a ceremony — the enacting power was with the king — and he could put in respite or dispense with the ordinances that were issued. The tyranny of John after the discipline of Henry was what was needed to turn this right of joining in legislation into a reality. In form the Charter is a Charter, a free grant by the king, in reality a code of reforming laws passed by the whole body of bishops and barons and thrust upon a reluctant king.
It is not very clear that in theory the consent of the national council had been necessary for taxation or that it had been in fact granted. Henry the Second takes a scutage or an aid or a carucage ; the chroniclers do not say that the consent of his council or his court has been given or asked. The feudal theory that the man makes a free-will offering to relieve the wants of his lord seems to have subsisted ; the consent which theory requires is rather a consent of the individual taxpayer than that of the national assembly. The notion that the majority of an assembly could bind a recal- citrant minority or could bind those who were not present had hardly been formed and would have been as unpopular as the notion that the king himself can extort just what he wants. We begin to hear of opposition to taxation: in 1163 Becket protests, in 1198 Bishop Hugh of Lincoln. But these protests of S. Thomas and S. Hugh are rather the protests of individuals who will not pay a tax to which they have not consented, than assertions that the power to tax is vested in the national assembly. The necessity however of extending taxation from land to movables occasions a new organization and a new order of ideas. The Saladin tithe of 1188 is perhaps the first attempt to tax personal property1. Henry obtained from a great national council a promise of a tithe for the crusade ; the assessment in such a case could not be left to a transaction between the individual taxpayer and the royal officers, so Henry's favourite machinery, a jury of neighbours, was employed; in 1 198 this plan was applied to the assessment of the carucage, the land tax levied on the carucate or plough-
1 Select Charters^ p. 160.
68 Constitutional History PERIOD
land which had superseded the Danegcld1. Thus taxation and representation are brought into connection — the individual is assessed by his neighbours, by a jury representing his parish, and so in some sort representing him. The idea that repre- sentation should accompany taxation gains ground as personal property is brought under contribution. In 1207 John attempted to exact a thirteenth of movable property. The bishops refused this on behalf of the clergy ; John had to give up this plan of taxing them. The great crisis followed and the charter was won. No scutage or aid, save the three regular aids, was to be levied without the common consent of the realm. Other forms of taxation, taxes for example on movables, were not mentioned, nor could the national assembly, as defined in the fourteenth article, be considered as adequately representing all classes: it was an assembly of prelates and tenants in chief. This however was but a stage, and the principle that repre- sentation should accompany taxation was already outgrowing the terms in which for the moment it was defined. Already in 1213, two years before the charter, an assembly for the discussion of grievances had been held at S. Albans, to which were summoned not only the barons and bishops but also a body of representatives — four men and the reeve from each township on the royal demesne; already a few months later, on 7 Nov. 1213, John had summoned to a council at Oxford, four lawful men of every shire, ad loquendum nobiscum de negotiis regni nostri. These are the first recorded examples of the appearance of local representatives in the national assembly. Eighty years were yet to pass however before a representation of the commons or the communities of the realm would become for good and all a constituent element of that great council of the realm which had meanwhile gotten the name of a Parliamentum.
Meanwhile the administrative and judicial body, the curia Regis in its narrower sense, has been growing more definite and has been splitting up into various bodies with distinct functions, all under the control of the justiciar and the king. There is the Exchequer, a fiscal bureau, and court of law for all matters affecting the revenue — the judges in it
1 Select Charters i pp. 256, 7.
I The Judicial Sy stern 69
still keep the title barones Scaccarii, although they are by no means always chosen from the ranks of the baronage. There is the Chancellor who keeps the king's great seal and who stands at the head of a clerical establishment, the royal chancery. There is now a small compact body of judges, justices of the king's court, professionally learned in the law. The judicial work has enormously increased owing to the law reforms of Henry II. This judicial body again is splitting into sections. One party of justices attends the king in his progresses, and here we see the beginning of the court of King's Bench, another sits term after term at Westminster and is going to be the Court of Common Pleas — for the Great Charter concedes that common pleas, i.e. suits between subject and subject, are not to follow the king's person, but are to be heard in some certain place. But a reserve of justice remains in the king to be exercised by him in the great council of the nation, or in some smaller council. Judicial visitations of the counties, eyres, itinera^ have become very frequent — the royal courts are becoming the courts of first resort for